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Welcome to the weekly Financial Services highlights from the Financial Services team for the week ending 4 October 2018.
SI 2018/1039: This enactment is made in exercise of legislative powers under the European Union (Withdrawal) Act 2018 in preparation for Brexit. This enactment is being made in order to address deficiencies in the Friendly Societies Act 1992, and related subordinate legislation arising from the withdrawal of the UK from the EU, ensuring the legislation continues to operate effectively at the point at which the UK leaves the EU. These Regulations will come into force on exit day.
SI 2018/1038: This enactment is made in exercise of legislative powers under the European Union (Withdrawal) Act 2018 in preparation for Brexit. This enactment amends pieces of UK legislation in relation to consumer credit arising from the withdrawal of the UK from the EU, ensuring the pieces of legislation continue to operate effectively at the point at which the UK leaves the EU. These Regulations come into force on exit day.
The Lloyd's Market Association (LMA) published a bulletin relating to Brexit and the placing of European Economic Area (EEA) /non-EEA risks post-1 January 2019, with links to model clauses relating to interlocking language for split/sectionalised Market Reform Contracts (MRC), Brexit affected policies and syndicates’ outwards reinsurance treaty exclusions.
The European Securities and Markets Authority (ESMA) published a letter to the European Commission discussing concerns relating to the Markets in Financial Instruments Regulation (MiFIR) regime for third-country firms providing investment services and performing investment activities to eligible counterparties and per se professional clients, the Markets in Financial Instruments Directive (Directive 2014/65/EU) (MiFID II) regime for third-country firms providing investment services and performing investment activities to retail and professional clients on request, the MiFID II provisions on third-country firms providing investment services and performing investment activities at the exclusive initiative of clients (reverse solicitation), and the requirements for the outsourcing to third-country providers of critical or important functions other than those related to portfolio management. These issues were initially identified in the context of the discussion on the risks arising from the UK withdrawal from the EU but also apply beyond the Brexit debate.
The Association for Financial Markets in Europe (AFME) published details of a speech given by Robert Ophèle, chair of the Autorité des Marchés Financiers (AMF) at the AFME Annual European Compliance and Legal Conference, which covered the practical implementation nine months on from MiFID II and MiFIR (the MiFID II Framework), and post‐Brexit implications for the EU's future relationship with the UK.
The Financial Conduct Authority (FCA) published Handbook Notice No. 58, which includes changes to the FCA Handbook made by the FCA board on 26 July and 27 September 2018, together with feedback on consultation papers (CPs) that will not have a separate policy statement (PS). The instruments include final rules on the assessment of creditworthiness in consumer credit and the extension of the senior managers and certification regime (SM&CR) to insurers.
The FCA published a speech by its executive director of strategy and competition, Christopher Woolard, on the FCA’s use of interventions and its understanding of consumer behaviour. In addition to more formal consultation, Mr Woolard said testing reduces uncertainty about what will work and gives regulators insight about how markets might respond.
ESMA published its work programme for 2019. Major work streams for 2019 include supervisory convergence work in the area of prospectuses, following the Level 2 work planned for 2018, as well as input to the Joint Committee sub-committee and supervisory convergence work on the Securitisation Regulation. The continued implementation of MiFID II and MiFIR will be a point of focus, in particular to meet the increasing demand for effective supervisory convergence, to analyse and manage the related data requirements, and to provide advice to the Commission on the retention or the review of the new requirements.
The chair of the FCA, Charles Randell, gave a speech on the cycle of deregulation, crisis and regulation, in which he said the most important way to avoid a damaging cycle is to keep an open mind about the shortcomings of existing rules. Mr Randall also said the FCA does not see Brexit as an opportunity to join a race to the bottom in regulatory standards, but ‘quite the contrary’. Mr Randall said strong global standards in fact ‘reinforce the competitiveness of the UK financial services sector’.
The ECB published its response to the decision of the European Ombudsman on the involvement of the president of the ECB and members of its decision-making bodies in the ‘Group of Thirty’ (G30) (Case 1697/2016/ANA). The Ombudsman’s decision is based on concerns that G30 membership could create a possible perception of a close relationship between supervisor and supervisee and undermine public confidence in the independence of the ECB.
ESMA updated its Q&As on MiFID II and MiFIR commodity derivatives topics, which clarify issues including position limits, position reporting and ancillary activity.
ESMA updated its Q&As on investor protection and intermediaries under MiFID II and MiFIR. The Q&As contain new answers on: best execution—reporting for firms using a venue’s request for quote system to agree a trade; and investment advice on an independent basis—use of a ‘look-through’ approach.
ESMA announced that it will renew its restrictions on the marketing, distribution or sale of contracts for differences (CFDs) to retail clients, in effect since 1 August 2018, from 1 November 2018 for a further three-month period. It also updated its Q&A on temporary product intervention measures to clarify the treatment of rolling spot forex.
ESMA Decision (EU) 2018/1466 of 21 September 2018 renewing and amending the temporary prohibition in Decision (EU) 2018/795 on the marketing, distribution or sale of binary options to retail clients is published in the Official Journal of the EU. ESMA also published formal notice of this decision on its website.
ESMA updated its opinion on ancillary activity calculations, providing an estimation of the market size of commodity derivatives and emission allowances for the year 2017. ESMA prepared those estimations based on data collected from trading venues as well as data reported to trade repositories under EMIR.
ESMA announced details of two new data completeness indicators for trading venues on the delivery of double volume cap (DVC) and bond liquidity data under MiFID II. The two indicators—the completeness ratio and the completeness shortfall—will provide performance information on the timeliness and completeness of data provision by trading venues. The indicators will be published for the first time on 8 October 2018 for DVC data and by 1 November 2018 for bond liquidity.
ESMA withdrew the MiFID guidelines on systems and controls in an automated trading environment for trading platforms, investments firms and competent authorities, because they have been ‘successfully and fully’ incorporated into MiFID II and its implementing measures.
This analysis considers the FCA’s consultation paper ‘Claims management companies: how we propose to apply the senior managers and certification regime’ (CP18/26). CP18/26 sets out the draft rules and guidance for claims management companies (CMCs) relating to the SM&CR. The proposed rules would apply to CMCs serving customers in, or constituted under the laws of, England and Wales or Scotland. Comments are requested by 6 December 2018.
The Prudential Regulation Authority (PRA) published consultation paper (CP) 21/18 on Regulatory transactions: Changes to notification and application forms. It sets out proposals for changes to various PRA forms relating to applications or notifications for regulatory transactions. The CP is relevant to all PRA-authorised firms as well as firms that have a qualifying holding, or which intend to acquire a qualifying holding in a PRA-authorised firm. Feedback is sought by 1 November 2018.
The ESRB published a report by its advisory scientific committee (ASC) discussing the conceptual foundations for a macroprudential approach to non-performing loans (NPLs). The report is a contribution to the ESRB's response to the mandate it was given by the Council of the EU in July 2017 as part of the action plan to tackle NPLs in Europe. The ESRB was requested to develop macro-prudential approaches to prevent the emergence of system-wide NPL problems, while taking due consideration of procyclical effects of measures addressing NPLs' stocks and potential effects on financial stability. The ESRB plans to publish a policy report by the end of 2018.
The European Parliament's Committee on Economic and Monetary Affairs (ECON) published its reports on the European Commission's proposals for a directive and regulation on the prudential requirements and supervision of investment firms. The reports, which were adopted by ECON on 24 September 2018, set out amendments to the proposals and include draft resolutions for the Parliament to adopt its position at first reading.
The PRA published its regulatory digest for September 2018. The issue discusses ‘Transition in thinking: The impact of climate change on the UK banking sector’, consultation paper 20/18 ‘Strengthening accountability: implementing the extension of the SM&CR to insurers (Part 2)’ including a note on ‘Redesignation of senior insurance management functions to senior management functions, and the change-over to ‘Statements of responsibilities’ by insurers.
Peter Praet, a member of the executive board of the European Central Bank (ECB), warned that keeping interest rates low for long periods may raise challenges for financial stability in the future. Speaking at the Money, Macro and Finance Research Group conference on the resilience of the global financial architecture in London, he said that macroprudential instruments are essential to ensure resilience, contain procyclical behaviours and prevent the emergence of financial imbalances.
The president of the ECB and chair of the European Systemic Risk Board (ESRB), Mario Draghi, said that policymakers need to bolster their macroprudential toolkit in order to keep pace with new developments. In particular, the growth in importance of the non-bank financial sector requires commensurate additions to the policy toolkit. Policymakers also need access to—and the ability to process and understand—high-quality data to underpin their decisions.
The executive director for financial stability strategy and risk at the Bank of England (BoE), Alex Brazier, opened the BoE's conference on non-bank financial institutions and financial stability with his reflections on the role that shadow banks (largely unregulated financial intermediaries) played in contributing to the financial crash of 2008, how they helped spread problems in the financial system, and how future problems might be avoided.
The FCA published the findings of its thematic review into money laundering and terrorist financing risks in the e-money sector (TR18/3). Firms operating in the e-money sector, in addition to interested payment services firms, should review TR18/3, including the FCA's examples of good and poor practice, and consider whether their AML and CTF systems and controls could be improved. Any future FCA supervisory work in the EMI sector will take the findings set out in TR18/3 into account.
The head of banking markets, innovation and products at the EBA, Slavka Eley, said that although operational resilience, in the context of cyber, is on the regulatory agenda in the EU and globally, regulation alone is not enough. A combined effort by institutions and supervisors, including cyber threat testing and information sharing, can contribute to the mitigation of resilience risks.
The FCA published a Decision Notice concerning brokerage firm Linear Investments Limited (Linear). The FCA found that Linear breached Principle 3 of the FCA's Principles for Businesses by failing to take reasonable care to organise and control its affairs responsibly and effectively to ensure potential instances of market abuse could be detected and reported. The FCA views the failings as serious and fined Linear £409,300. Linear entered into a focused resolution agreement (FRA) with the FCA agreeing facts and liability, but referred the issue of penalty to the Upper Tribunal. This is the first case to be completed under the FCA's process introduced for partly contested cases in March 2017.
The FCA fined Tesco Personal Finance plc (Tesco Bank) £16.4m for failing to exercise due skill, care and diligence in protecting its personal current account holders against a November 2016 cyber attack. The FCA found that cyber attackers had exploited deficiencies in Tesco Bank’s design of its debit card, its financial crime controls and its Financial Crime Operations Team. The FCA said Tesco Bank had failed to take appropriate action to prevent the foreseeable risk of fraud and had failed to respond to the attack with sufficient rigour, skill and urgency.
ESMA published its 'Final report on the clearing obligation under EMIR (no 6)'. The report presents a new set of draft regulatory technical standards (RTS) on the clearing obligation. The draft RTS relate to the deferred date of application for the treatment of certain intragroup transactions concluded with a third-country group entity.
ESMA launched a consultation on how European money market funds (MMFs) should conduct their internal stress testing. ESMA will update its existing guidelines on stress tests for MMFs following the consultation so that managers of MMFs have the information needed to fill in the required fields in the reporting template. The deadline for responses is 1 December 2018.
ESMA updated its Q&As on the Benchmarks Regulation (EU 2016/1911).The updated Q&As provide new clarifications regarding the following topics:
the language of benchmark statements
ESMA updated its Q&As on the Central Securities Depository Regulation (EU) No 909/2014 (CSDR) to provide answers to questions regarding practical issues on the implementation of the new CSDR regime. The updated CSDR Q&As provide new clarifications regarding book-entry form requirements, organisational requirements and settlement discipline.
ESMA updated its Market Abuse Regulation (EU) 596/2014 (MAR) Q&A document with the addition of three new Q&As on the conditions for delaying disclosure of inside information under Article 17(5) of MAR. The new Q&As cover:
denial of consent by the national competent authority
The FCA issued a statement which notifies that it temporarily prohibits short selling in the Astaldi spa shares (ISIN: IT0003261069) under Articles 23(1) and 26(4) of Regulation (EU) No 236/2012 (Short Selling Regulation) of the European Parliament and of the Council of 14 March 2012. This follows a decision made by another EU Competent Authority, namely the Italian Companies and Exchange Commission (CONSOB).
The International Capital Markets Association (ICMA) responded to ESMA’s consultation on proposed guidelines on risk factors under the Prospectus Regulation. ICMA says many of the draft guidelines appear to be flexible and proportionate, and the position set out in the consultation paper is a helpful starting point. But ICMA said it did have two key areas of concern, namely the need for national competent authorities (NCAs) to tailor their review of risk factors depending on whether the prospectus is aimed at retail or wholesale investors; and the disclosure of quantitative information to illustrate the potential negative impact of a risk factor (ICMA believe it is very difficult to do this in a way that is not misleading for investors and propose greater use of qualitative information).
The chair of the International Swaps and Derivatives Association (ISDA), Eric Litvack, made opening remarks at the ISDA Europe regional conference in London. Mr Litvack reflected on the anniversary of the financial crisis and the changes to the financial system since 2008. He emphasised that presently there is an opportunity to look at the regulatory framework and, with the benefit of time, experience and evidence, consider whether the rules have made the financial system more robust, more resilient and more transparent and whether they are doing so in the best possible way.
The Federation of European Securities Exchanges (FESE) elected Petr Koblic as its president for a term of three years. The election was unanimously approved by the FESE general assembly. At the same time, Anthony Attia was elected vice president, also for a three-year term.
The European Securities and Markets Authority, the European Banking Authority and the European Insurance and Occupational Pensions Authority (the European Supervisory Authorities or ESAs) published a letter to the European Commission confirming their view that an approach whereby retail investors will receive both Packaged Retail and Insurance-based Investment Products (PRIIPs) Regulation key information documents and Undertakings for Collective Investments in Transferable Securities (UCITS) key investor information documents as of 1 January 2020 is not satisfactory and risks undermining the aims of the PRIIPs Regulation. Other solutions are therefore needed, including legislative changes.
The ICMA published a response to the Financial Conduct Authority’s call for input on PRIIPs and the ICMA welcomed the opportunity. The ICMA stated that it has been engaging in the PRIIPs Regulation debate for over a decade and provides clarity on PRIIPs product scope, key information documents (KID) content, KID concept and provides a suggestion that one should not disrupt EEA wholesale funding markets, since they are vital to the economy.
In its response to the FCA’s call for input, the Investment Association (IA) called for urgent action to address failings in the design of PRIIPs, which it says also impact the retail funds market and the UK defined contribution (DC) pensions market. IA highlights in particular what it says is a flawed methodology for calculating transaction costs, and outlines a number of potential solutions.
The AFME and EY published a report considering the role of the compliance function within wholesale investment banks and the potential challenges and changes it faces in its structure and approach.
The ECB published guidance notes and detailed information on the amended data reporting requirements under Regulation (EU) 1011/2012 concerning statistics on holdings of securities (SHS). The document focuses on the reporting concerning the statistics on holdings of securities by reporting banking groups.
As part of its Working Paper Series, the ECB published Working Paper (WP) No. 2181, 'A structural model to assess the impact of bank capitalization changes conditional on a bail-in versus bail-out regime'. The WP sets out a structural model for valuing bank balance sheet components, the bailout value incurred by the government following the abandonment of private shareholders, the bank spread and the bank probability of default.
The ECB published a speech by Pentti Hakkarainen, a member of its supervisory board, analysing the effects of regulatory reform and what changes could potentially be made. Mr Hakkarainen said banks now had improved resilience and ability to withstand liquidity shocks, and said costs that were initially shouldered by the taxpayer post-crisis were being shifted back on to banks.
HM Treasury announced that the sale of an £860m equity release mortgage portfolio, owned by Bradford & Bingley (B&B) and NRAM Limited (formerly part of Northern Rock), was authorised by the chancellor of the exchequer, Philip Hammond MP. Following an auction, the mortgages will be sold to Rothesay Life, a firm regulated by the Financial Conduct Authority and Prudential Regulation Authority.
The FCA published its thematic review on the impact of credit broking remuneration models at the point of sale (TR18/2). TR18/2 considers whether inter-firm commission affects how consumers are sold credit and whether commission arrangements are resulting in consumer harm. Overall, the FCA did not find evidence that inter-firm commissions are generally resulting in significant harm to consumers.
Following consultation, the Competition and Markets Authority (CMA) reached a provisional decision in its limited review of the Payment Protection Insurance Market Investigation Order 2011 (PPI Order), conducted in light of the introduction of the Insurance Distribution Directive (IDD). It issued a notice of intention to vary the PPI Order by requiring PPI providers to produce an Insurance Product Information Document (IPID) for customers. It is now conducting a further consultation on its provisional decision and its intention to vary the PPI Order. Responses should be sent to the CMA by 29 October 2018.
The Solicitors Regulation Authority (SRA) published guidance and new rules for the new European Insurance Distribution Directive, which replaces the Insurance Mediation Directive. Paul Philip, SRA chief executive, said it is important that firms are up to date with the new requirements, so they can ‘provide a proper service to their clients’.
The SRA rules for the new IDD, which replaces the Insurance Mediation Directive, have been approved by the FCA and the Legal Services Board. The new directive aims to strengthen protections in place for clients, such as improving the information they receive, and the SRA handbook was updated on 1 October 2018 to reflect the new financial services rules. The SRA adds that firms should therefore assess their own individual practices to ensure they comply with the revised rules.
A super-complaint from Citizens Advice prompted the CMA to investigate concerns that consumers, typically those who stay with their provider on default or roll over contracts, are paying more than new customers, which Citizens Advice refers to as a ‘loyalty penalty’. The super-complaint states that Citizens Advice is concerned about five ‘essential markets’, which are the savings accounts, mortgages, household insurance, mobile and broadband markets. The CMA will publish a response within 90 days.
The BoE’s executive director of insurance, David Rule, delivered a speech on current issues in insurance supervision, in which he said it is vital that insurers maintain discipline in underwriting, reserving and capital management, notwithstanding tough trading conditions in some parts of global insurance markets. Mr Rule said insurers could improve the quality and consistency of disclosures of market risk sensitivities and Solvency II, and raised concerns that supervisors still see evidence of analysts and investors not fully understanding insurers’ Solvency II balance sheets.
The European Insurance and Occupational Pensions Authority (EIOPA) added a new page to its website to help consumers determine whether an intermediary is registered under the IDD, which comes into effect on 1 October 2018. The page contains hyperlinks to national registers or single information points.
The Committee on Payments and Market Infrastructures (CPMI) published new data on payments and financial market infrastructures (FMIs) through to end-2017. Known as the Red Book statistics, the data covers the CPMI's 27 member jurisdictions. This edition is preliminary, comprising country tables only. A final version with additional end-2017 data and comparative tables will be published in December 2018. Historical time series (those before 2012) will appear subsequently.
The Authorised Push Payments (APP) Scams Steering Group, which was established by the Payment Systems Regulator (PSR) in March 2018 to lead the development of a voluntary industry code for the reimbursement of victims of APP scams, published a draft version for consultation. Feedback is sought by 15 November 2018, with the final code expected to be ready for implementation in early 2019.
The PSR released the minutes of its 27 June 2018 and 12 July 2018 board meetings. The June meeting discussed the PSR's annual report and accounts 2017/18, the annual review of cross authorities' memorandum of understanding (MoU), and membership of the Enforcement Decisions Committee (EDC) and Competition Decisions Committee (CDC). The July meeting discussed the report of the managing director, stakeholder survey results, employee survey results, and the contingent reimbursement model.
The ECB published the keynote speech by a member of its executive board, Yves Mersch, on the future of payments, in which he said European players are lagging behind non-European firms, not least because of the lack of a pan-European card scheme or even interoperable card networks. Mr Mersch said the EU should strive for a truly pan-European instant solution.
The executive director for banking, payments and financial resilience at the BoE, Victoria Cleland, gave a speech on real-time gross settlement (RTGS) renewal: enabling the next generation of payments. Ms Cleland explained that while the RTGS, launched in 1996, has had various upgrades along the way, changes in technology, in the payments landscape, and in user demand mean it is now time for ‘a more fundamental renewal’. She said the BoE is committed to introducing the new service in a safe and sustainable way which ensures the integrity of the high-value payments system and provides for close levels of co-ordination with participants.
ECON published a draft report (PE628.440v01-00) on the Commission's proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 2016/1011 (the Benchmarks Regulation or BMR) on low carbon benchmarks and positive carbon impact benchmarks. The proposed amendments aim to ensure such benchmarks are clear and transparent and aligned to Paris Climate Agreement commitments.
The Securities and Markets Stakeholder Group (SMSG) published advice to ESMA on sustainable finance. SMSG's advice focuses on ESMA's deliverables for 2018 and 2019 as listed in the European Commission's Action Plan on Green and Sustainable Finance (Action Plan). It focuses particularly on general advice principles and taxonomy, as well as on suitability requirements and investors duties.
Deadline for responses to ESMA consultations:
Consultation Paper: Guidelines on risk factors under the Prospectus Regulation (ESMA31-62-996)
0330 161 1234