FS weekly highlights—8 October 2020

FS weekly highlights—8 October 2020

In this issue

 

 

Coronavirus (COVID-19)
Brexit news
UK, EU and international regulators and bodies
Prudential requirements
Financial stability, recovery and resolution
Risk management and controls
Financial crime
Consumer protection
Complaints, compensation and claims management
Investigations, enforcement and discipline
Dispute resolution for financial services lawyers
Competition in financial services
Markets and trading
Regulation of benchmarks and IBOR reform
Regulation of capital markets
Regulation of derivatives
Investment funds and asset management
Securities financing transactions
Crowdfunding
Banks and mutuals
Consumer credit, mortgage and home finance
Regulation of insurance
Regulation of personal pension and stakeholder products
Payment services and systems
Fintech and cryptoassets
Sustainable finance
Islamic finance
Dates for your diary

 

Coronavirus (COVID-19)

For further information on the effects of COVID-19 on financial services, see: Coronavirus (COVID-19)—key developments for financial services lawyers and   Coronavirus (COVID-19)—key financial services issues.

Coronavirus (COVID-19)—ECON publishes draft reports on proposed changes to securitisation rules

The European Parliament’s Committee on Economic and Monetary Affairs (ECON) published two draft reports on proposed amendments to the rules on securitisation set out in the Securitisation Regulation (EU) 2017/2402 and the Capital Requirements Regulation (EU) 575/2013 (CRR). The proposals were adopted by the European Commission in July 2020 as part of its capital markets recovery package, in response to the coronavirus (COVID-19) pandemic.

Source: ECON: Draft Report on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) No 575/2013 as regards adjustments to the securitisation framework to support the economic recovery in response to the COVID-19 pandemic (COM(2020)0283—C9-0208(2020)—2020/0156(COD)).

For further information, see: Coronavirus (COVID-19)—EU capital markets recovery package.

PRA publishes letter sent to PRA-regulated credit unions on coronavirus (COVID-19)

The Prudential Regulation Authority (PRA) published a letter from the PRA’s Credit Union Supervision Team (CUST) to directors of PRA-regulated credit unions (CUs) in light of the coronavirus COVID19 pandemic. In the letter, the CUST recognises and is sympathetic to the challenges that CUs across the UK are facing in the current environment. The CUST’s close engagement with the sector over the past months has been valuable in informing us of issues as they arise. Against this backdrop, CUST continue to emphasise the need for good governance and financial management at this time.

Source: Letter from Credit Union Supervision Team to Directors of PRA-regulated credit unions.

FCA issues finalised guidance on cancellations and refunds

The Financial Conduct Authority (FCA) published Finalised guidance: Cancellations and refunds: helping consumers with rights and routes to refunds. This guidance is aimed at credit and debit card providers and insurance providers. It is designed to ensure that these firms handle enquiries and claims from consumers in a way that minimises inconvenience to the consumer. The guidance will also be of interest to consumer organisations. It will be effective from 2 October 2020 to 2 April 2021.

Source: Cancellations and refunds: helping consumers with rights and routes to refunds.

Coronavirus (COVID-19)—FCA opens new regulatory and digital sandbox initiatives

The FCA opened the application windows for two sandbox services to support firms tackling challenges caused by the coronavirus (COVID-19) pandemic. The FCA has identified three key areas—preventing fraud and scams, supporting the financial resilience of vulnerable consumers, and improving access to finance for small and medium sized enterprises—as particular areas of importance.

Source: FCA assists innovative companies in tackling coronavirus challenges.

ESRB meets to consider impact of coronavirus (COVID-19) on EU financial system

The General Board of the European Systemic Risk Board (ESRB) held its 39th regular meeting on 24 September 2020, with discussion focusing on the consequences of the coronavirus (COVID-19) pandemic for the EU economy and the financial system. The ESRB considered that the main source of systemic risk in the EU originates from the negative impact of the pandemic on economic activity and the risk of widespread defaults in the private sector and their feedback effects on the EU financial system. At the same time, it acknowledged that the comprehensive policy measures that have been taken to protect the real economy have so far prevented the economic crisis also becoming a financial crisis.

Source: The General Board of the European Systemic Risk Board held its 39th regular meeting on 24 September 2020.

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Brexit news

Brexit Bulletin—UK and EU leaders agree on ‘importance of finding an agreement’ on future UK-EU relationship

UK Prime Minister, Boris Johnson, and President of the European Commission, Ursula von der Leyen, ‘agreed on the importance of finding an agreement, if at all possible, as a strong basis for a strategic EU-UK relationship in future’, as the final scheduled round of talks struggled to break the deadlock. In a joint statement following a video conference on 3 October 2020, they recognised that progress has been made in recent weeks, while acknowledging ‘significant gaps’ in the areas of level playing field, governance and fisheries. Both sides have instructed their chief negotiators to ‘work intensively’ towards bridging those gaps. Meanwhile, following a Special European Council meeting on 1–2 October 2020, President of the European Council, Charles Michel, framed the Council’s position on the future UK-EU relationship negotiations in anticipation of a ‘more substantial exchange of views’ at the European Council summit on 15–16 October 2020. With little time remaining in the transition schedule, ‘regular’ political engagement and intensive negotiating work is hoped to be key to resolving the deadlock.

Sources: GOV.UK—Press release: Joint Statement by the Prime Minister and the President of the European Commission: 3 October 2020European Commission—Statement: Joint Statement by the President of the European Commission Ursula von der Leyen and the Prime Minister of the United Kingdom, Boris JohnsonEuropean Council—Special European Council, 1-2 October 2020European Council—Statements and remarks: Remarks by President Charles Michel after the Special European Council meeting on 2 October 2020European Commission—News: Focus on EU's external action and building our stronger inner core: von der Leyen at the Special European CouncilEuropean Commission—Statement: Opening remarks by President von der Leyen at the joint press conference with President Michel following the Special European Council meeting of 2 October 2020 and  European Council—European Council, 15-16 October 2020.

Brexit Bulletin—‘outlines of an agreement’ in sight, but ‘persistent serious divergences’ remain in future UK-EU relationship negotiations

In remarks following the final scheduled round of talks on the future UK-EU relationship, the UK and EU reported continued deadlock on core issues. Once again, both sides reported constructive discussions and positive progress in some technical areas, but they also highlighted considerable differences on their respective red lines. EU chief negotiator, Michel Barnier, said there remain ‘persistent serious divergences’ in level playing field, governance and fisheries. UK chief negotiator, Lord Frost, while admitting ‘differences remain’, considered ‘the outlines of an agreement are visible’. Talks are expected to continue, with a video conference call between European Commission President, Ursula von der Leyen, and Prime Minister, Boris Johnson, scheduled for 3 September 2020 to take stock and agree next steps.

Sources: No 10 media blog—Lord Frost statement after Round 9 of the negotiations, European Commission—Statement by Michel Barnier following Round 9 of negotiations for a new and  partnership between the European Union and the United Kingdom.

ESMA updates statements on impact of Brexit on MiFID II/MiFIR and BMR, FCA responds

The European Securities and Markets Authority (ESMA) updated two statements on its approach to the application of key provisions of Directive 2014/65/EU (MiFID II) and Regulation (EU) 600/2014 (MiFIR) and of the Benchmarks Regulation (EU) 2016/1011 (BMR). The FCA has issued a statement on the MiFID trade reporting and position limit obligations in response to ESMA’s MiFID II/MiFIR statement.

Sources: ESMA updates statements on the impact of Brexit on MiFID II/MiFIR and the Benchmarks Regulation and  Statement on MiFID trade reporting and position limit obligations.

For further information, see: Impact of Brexit: Benchmarks Regulation—quick guide and  The impact of Brexit on the MiFID II regime.

FCA publishes Handbook Notice No. 80

The FCA published Handbook Notice No. 80, which describes the changes made to the Handbook, and to binding technical standards (BTS) for which the FCA is responsible, to ensure that a functioning regulatory and legal framework for financial services will be in place after the Brexit implementation period has ended.

Source: FCA Handbook Notice No. 80.

FCA publishes amended Handbook showing post-transition-period rules and sets out how it will use TTP

The FCA published an updated version of the FCA Handbook to show the rules that will apply at the end of the Brexit transition period. It has also provided details on how it intends to use the temporary transitional power (TTP) and has published revised drafts of its transitional directions, along with revised annexes and a draft explanatory note highlighting the changes made since the previous versions.

Sources: FCA publishes rules that will apply at the end of the transition periodOnshoring and the Temporary Transitional Power and Transitional directions.

BoE/PRA webpage on TTP

The Bank of England (BoE) and the PRA published a webpage on the temporary transitional power (TTP), bringing together information on what the TTP can apply to, the BoE and the PRA’s general approach, what happens when the TTP applies, exceptions, the interaction between the TTP and equivalence decisions and equivalence direction, and the duration of transitional relief.

Source: Temporary transitional power.

FCA reminds firms of client asset obligations as end of Brexit transition period approaches

The FCA updated its webpage on considerations for UK firms in the context of Brexit as the end of the transition period approaches, to add a new section on client money and custody assets. The FCA reminds firms that they are required to carry out periodic due diligence reviews on third parties holding client money and/or custody assets, and outlines the actions firms should be taking to prepare for the end of the transition period.

Source: FCA Brexit webpage update: Considerations for UK firms.

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UK, EU and international regulators and bodies

ESMA sets out work priorities and challenges for 2021

ESMA published its 2021 Annual Work Programme, setting out its priorities and areas of focus for the next 12 months. ESMA has taken on more supervisory responsibilities—following the European Supervisory Authorities’ Review—for certain central counterparties (CCPs), benchmarks and securitisation repositories, in addition to its existing supervision of credit rating agencies and trade repositories. Much of its single rulebook and supervisory convergence work will focus on supporting the development of the capital markets union (CMU) and addressing the impact of the coronavirus (COVID-19) and Brexit on EU’s markets and investors.

Sources: 2021 Annual Work Programme and  ESMA faces new set of challenges in 2021.

EIOPA sets out its key priorities and work plan for 2021-2023

The European Insurance and Occupational Pensions Authority (EIOPA) published its Single Programming Document, which sets out its priorities for 2021-2023. The priorities reflect the current market situation caused by the coronavirus (COVID-19) pandemic, as well as the political priorities defined by the European Commission. COVID-19 crisis management, risk mitigation and active support for the recovery of the European economy are identified as main areas of focus, with consumer protection remaining a key strategic priority given the increasing risks emerging from the crisis.

Sources: Single Programming Document 2021-2023, including Annual Work Programme 2021Peer review work plan 2020-2022 and  EIOPA sets up its key priorities in the light of the pandemic.

FCA publishes policy development update for October 2020

The FCA published the latest version of its policy development update, which provides information on its recent and upcoming publications. Future publications include a consultation paper (CP) on the new funeral plans regulatory regime, which is expected in Q4 2020.

Source: Policy development update.

Eurogroup work programme to focus on CMU, banking union and developing the euro

The Council of the EU set out the Eurogroup’s work programme until June 2021, with an emphasis on developing economic and fiscal policies to support recovery and long-term growth, strengthening the banking and capital markets unions, and examining the potential for the euro to develop both internationally and as a digital currency.

Source: Eurogroup Work programme until June 2021.

FCA responds to questions raised but unanswered at 2020 annual public meeting

The FCA published answers to questions that were submitted prior to the annual public meeting on 24 September 2020 but not answered at the meeting. Issues discussed include the impact of coronavirus (COVID-19) on risk controls and FCA funding, the impact of negative interest rates, changes to the regulatory regime for payment services post-Brexit, and the funding structure of the Financial Services Compensation Scheme (FSCS).

Source: Annual public meeting 2020: responses to pre-submitted unanswered questions.

Financial services commissioner-designate Mairead McGuinness questioned at ECON hearing

On 2 October 2020 the European Parliament’s Economic and Monetary Affairs Committee (ECON) questioned Mairead McGuinness, the Irish candidate for the European Commission’s financial services portfolio. During the hearing McGuinness discussed a number of issues including capital markets union (CMU), banking union, and anti-money laundering, as well as Brexit and implementation of the latest Basel standards.

Sources: Hearing of Commissioner-designate Mairead McGuinness and  Coming up in plenary: Commission changes, rule of law, climate targets.

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Prudential requirements

EBA finalises guidelines on appropriate subsets of sectoral exposures in the application of a systemic risk buffer

The European Banking Authority (EBA) published final guidelines on the appropriate subsets of sectoral exposures to which a competent or designated authority may apply a systemic risk buffer. The guidelines suggest a common framework of dimensions and sub-dimensions from which the relevant authority can define a subset of exposures and include detailed definitions of elements used in each dimension and sub-dimension, along with examples of application.

Sources: EBA publishes final guidelines on the appropriate subsets of sectoral exposures in the application of a systemic risk buffer and  Final guidelines on the appropriate subsets of sectoral exposures to which competent or designated authorities may apply a systemic risk buffer in accordance with Article 133(5)(f) of Directive 2013/36/EU.

PRA consults on calculation of risks not in value at risk, and stressed value at risk

The PRA published consultation paper CP15/20, setting out its proposals to update its expectations regarding the measurement of risks not in value at risk (RNIV), and the meaning of ‘period of significant financial stress relevant to the institution’s portfolio’ for stressed value at risk (sVaR) calculation. The proposals would make amendments to supervisory statement SS13/13 ‘Market risk’ (appendix). Responses are sought by 6 November 2020.

Source: PRA CP15/20 on Market risk: Calculation of risks not in value at risk, and stressed value at risk.

PRA writes to deposit takers with ECL feedback on written auditor reports

The executive director of prudential policy at the PRA, Victoria Saporta, has written to the chief financial officers of selected deposit takers providing thematic feedback from the PRA’s review of written auditor reports received in 2020, and subsequent discussions with firms.

Source: Letter from Victoria Saporta: ‘Thematic feedback from the 2019/2020 round of written auditor reporting’.

 

Financial stability 

FSB publishes fifth progress report covering implementation of DGI-2 amid coronavirus (COVID-19)

The Financial Stability Board (FSB) published its fifth progress report, which provides an overview of the progress on the implementation of the second phase of the G20 Data Gaps Initiative (DGI-2) amid the coronavirus (COVID-19) pandemic.

Source: Fifth Progress Report – Countdown to 2021 in light of COVID-19.

FSB publishes responses to its consultation on the too-big-to-fail reforms

The FSB published the public responses it received to the consultation on its evaluation of the effects of the too-big-to-fail (TBTF) reforms. The FSB received 24 responses, and aims to publish the final evaluation in early 2021.

Source: Public responses to the Evaluation of the effects of too-big-to-fail reforms: consultation report.

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Risk management and controls

Industry associations call for legal certainty after CJEU ruling on personal data transfers

A group of financial sector associations wrote to the European Commission and the European Data Protection Board (EDPB) to raise concerns about the impact of a 16 July 2020 ruling by the Court of Justice of the EU (CJEU). The letter calls on the Commission to provide legal certainty as soon as possible, to enable European companies to carry out their business activities that include the transfer of personal data from the EU to the US and other third countries.

Source: Financial sector concerned about ability of EU companies to transfer personal data to US following EU Court of Justice ruling.

BoE speech outlines early results of operational resilience consultation

The BoE published a speech by its senior technical advisor for operational risk and resilience, Nick Strange, on the topic of ‘Resilience in a time of uncertainty’. The speech looks at the policies used by the BoE to support the operational resilience of financial firms and financial market infrastructures in the UK, the early results of consultation paper CP29/19, the lessons learned from the coronavirus (COVID-19) outbreak, and the international regulatory harmonisation on operational resilience and its relationship with other domestic policies.

Source: Resilience in a time of uncertainty—speech by Nick Strange.

EACH responds to IOSCO consultation on outsourcing

The European Association of CCP Clearing Houses (EACH) published its response to the International Organization of Securities Commissions (IOSCO)’s May 2020 consultation on outsourcing principles to ensure operational resilience.

Sources: EACH response to the IOSCO consultation report ‘Principles on outsourcing’, October 2020 and  Principles on outsourcing consultation report.

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Financial crime

Financial Action Task Force releases annual report for 2019–20 amid coronavirus (COVID-19)

The Financial Action Task Force (FATF) published its annual report for 2019–20. According to the FATF, during the 2019–20 period, the coronavirus (COVID-19) pandemic has ‘led to unprecedented and devastating challenges, claiming lives and causing catastrophic economic disruptions.'

Source: FATF Annual Report 2019-2020.

Proceeds of Crime Act 2002 (References to Financial Investigators) (Amendment) (England and Wales) Order 2020

SI 2020/1078: Amendments are made to the Proceeds of Crime Act 2002 (References to Financial Investigators) (England and Wales) Order 2015, which makes provision about which financial investigators can exercise specific powers under the Proceeds of Crime Act 2002 (PCA 2002), to provide that an accredited financial investigator (AFI) for the purposes of PCA 2002, Pt 5, Ch 3 includes a member of staff of the Ministry of Justice. This Order comes into force on 26 October 2020.

Read the official version of this legislation and the  explanatory memorandum.

Money launderer to pay £1.6m or face eight years imprisonment

The FCA secured a confiscation order against money launderer, Richard Baldwin. HHJ Hehir of Southwark Crown Court ordered Baldwin to pay £1,633,766 within three months or else face eight years' imprisonment. The order is reflective of the proceeds from a conspiracy to insider deal between October 2007 and November 2008, where Baldwin used off-shore companies, bank accounts and false invoices. A warrant for Baldwin’s arrest has also been issued following his abscondment from justice during his trial and conviction for money laundering in 2017.

Source: FCA secures £1.6m confiscation order against Richard Baldwin.

Valdis Dombrovskis sets out possible role of an EU dedicated AML authority

The European Commission published a speech by executive vice-president Valdis Dombrovskis at the high-level conference on anti-money laundering and counter-terrorist financing (AML/CTF), in which he noted that around 1% of the EU’s annual GDP is thought to relate to criminal activity. Dombrovkis said the EU’s AML rules are now among the toughest in the world, but still not enforced equally across the board, and the EU intends to present a package of legal proposals in the first quarter of 2021, based on the EU’s AML action plan and consultation input.

Source: Speech by executive vice-president Valdis Dombrovskis at the high-level conference on anti-money laundering and counter-terrorist financing.

Édouard Fernandez-Bollo sets out ECB’s prudential and AML/CTF frameworks

The European Central Bank (ECB) published the slides from a speech by Édouard Fernandez-Bollo, a representative of its supervisory board, setting out ECB Banking Supervision’s role in AML/CTF. Fernandez-Bollo set out the current structure of prudential supervision and the separate AML/CTF framework, and highlighted the ECB’s horizontal AML co-ordination function and updated supervisory methodologies.

Source: ECB Banking Supervision’s role in anti-money laundering/combating the financing of terrorism (AML/CFT).

 

Consumer protection

UK Finance comments on FCA’s draft guidance on fair treatment of vulnerable customers

UK Finance published a blog post on the fair treatment of vulnerable customers in which it comments on the FCA draft guidance on the subject, set out in its guidance consultation GC20/3 in July 2020. UK Finance says there is ‘much to welcome’ in the FCA’s guidance, but also sets out suggestions for ensuring that the finalised guidance enables firms to operationalise those new expectations.

Source: UK Finance: Fair treatment of vulnerable customers.

For further information, see: FCA: Treating Customers Fairly—essentials.

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Complaints, compensation and claims management

CC publishes a number of complaints reports

The Complaints Commissioner (CC) published a number of reports of complaints made against the FCA which were issued in September. The CC rejected all of the complaints bar one, which was partially upheld. The FCA was also requested to ensure that reliable timescales and progress reports are supplied to its client promptly and effectively in another case.

Sources:

PIMFA calls on HM Treasury and FCA to help lower FSCS levy costs and raise industry trust levels

The Personal Investment Management and Financial Advice Association (PIMFA) is urging the FCA and HM Treasury to work with firms to rebuild trust in the Financial Services Compensation Scheme (FSCS). PIMFA says a member survey of 84 financial advice business owners and wealth management CEOs found that 64% do not trust FSCS to deliver fair outcomes for consumers or their firms, while rising levies were putting firms under pressure.

Source: PIMFA urges regulator to work more closely with industry to rebuild levels of trust in fair FSCS outcomes.

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Investigations, enforcement and discipline

Forex agents receive 12-year disqualification for misappropriation of funds

The Insolvency Service announced that two foreign exchange agents have been banned for a total of 24 years after securing more than £9m from clients only to use the funds to pay back previous clients. Peter John Roebuck (65), from Berkhamsted, Buckinghamshire, and Preston-based Francis Edward Tarling (75) both received 12-year disqualifications and their bans are effective from 1 October 2020.

Source: Forex agents banned after misappropriating £9 million.

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Dispute resolution for financial services lawyers

Coronavirus (COVID-19)—HMCTS publishes updated operational summary for week commencing 5 October

HM Courts & Tribunals Service (HMCTS) updated its operational summary on courts and tribunals operations during the coronavirus (COVID-19) pandemic. The summary for the week commencing (w/c) 5 October 2020 includes details on the second phase of consultation for the Salisbury Square Development, how to pay court fees by phone or email and the continued installation of plexiglass in courtrooms.

Source: HMCTS weekly operational summary on courts and tribunals during coronavirus (COVID-19) outbreak .

Court of Justice upholds judgment of General Court in Bank Refah Kargaran v Council

The Court of Justice upheld the judgment of the EU's General Court in Case C-134/19 P, Bank Refah Kargaran v Council. Bank Refah Kargaran appealed a December 2018 decision by the General Court which dismissed the Bank's claim seeking compensation from the EU over losses suffered from sanctions that were annulled by the General Court in 2013. The Advocate General advised in his opinion in this case that the Court of Justice has 'jurisdiction to review decisions taken by the European Council on EU Common Foreign and Security Policy matters'. The Court of Justice considered the damages claims against the European Union over its enforcement of nuclear sanctions against Iran and held that 'having found that the error of law vitiating the General Court’s assessment of the scope of its jurisdiction did not warrant the annulment of the judgment under appeal, in so far as its operative part was well founded, the Court of Justice dismisses the appeal in its entirety.'

Source: The Court of Justice upholds the judgment of the General Court dismissing Bank Refah Kargaran’s action for damages for the harm suffered as a result of the restrictive measures adopted concerning it .

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Competition in financial services

CMA writes to AIB NI regarding breach of bundling directions

The Competition and Markets Authority (CMA) wrote a letter to AIB NI regarding non-compliance with directions given to it under the Small and Medium-sized Enterprises (SME) Banking Undertakings 2002 regarding the bundling of business accounts.

Source: CMA letter to AIB NI on a breach of Directions given under the SME Banking Undertakings.

Competition (Amendment etc) (EU Exit) Regulations 2020

SI 2020/Draft: This draft enactment is laid in exercise of legislative powers under the European Union (Withdrawal) Act 2018 and the European Union (Withdrawal Agreement) Act 2020 in preparation for IP completion day. This draft enactment is proposed to amend one piece of UK secondary legislation in relation to competition in order to address deficiencies arising from the withdrawal of the UK from the EU. It comes into force immediately before IP completion day.

The full draft legislation can be found here. The draft explanatory memorandum can be found here.

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Markets and trading

Commission Implementing Regulation (EU) 2020/1406 setting out ITS on information exchange and co-operation under MAR published in Official Journal

Commission Implementing Regulation (EU) 2020/1406 of 2 October 2020 laying down implementing technical standards (ITS) with regard to procedures and forms for exchange of information and co-operation between competent authorities, European Securities and Market Authority (ESMA), the Commission and other entities under Articles 24(2) and 25 of the Market Abuse Regulation (EU) 596/2014 has been published in the Official Journal.

Source: Commission Implementing Regulation (EU) 2020/1406 of 2 October 2020 laying down implementing technical standards with regard to procedures and forms for exchange of information and co-operation between competent authorities, ESMA, the Commission and other entities under Articles 24(2) and 25 of Regulation (EU) No 596/2014 of the European Parliament and of the Council on market abuse (Text with EEA relevance).

For further information, see: Market Abuse Regulation (MAR)—essentials.

Draft Commission Implementing Regulation sets out ITS on information exchange and co-operation under MAR

The European Commission adopted a draft Commission Implementing Regulation laying down implementing technical standards (ITS) on procedures and forms for the exchange of information and co-operation between competent authorities, ESMA, the Commission and other entities under Articles 24(2) and 25 of the Market Abuse Regulation (EU) 596/2014.

Sources: Commission Implementing Regulation (EU) …/... of XXX laying down implementing technical standards with regard to procedures and forms for exchange of information and cooperation between competent authorities, ESMA, the Commission and other entities under Articles 24(2) and 25 of Regulation (EU) No 596/2014 of the European Parliament and of the Council on market abuseAnnexes and  European Commission: Implementing and delegated acts for Regulation (EU) No 596/2014 on market abuse.

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Regulation of benchmarks and IBOR reform

Council of the European Union sets out position on LIBOR cessation amendments

The Council of the EU announced that Member states' EU ambassadors agreed with its mandate for negotiations with the European Parliament on ‘proposed amendments to the regulation on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds’ (the Benchmarks Regulation).

Source: Benchmark Regulation: Council adopts position on amendments addressing LIBOR cessation.

For further information, see: Benchmarks Regulation—essentials.

ECB publishes summary of feedback for consultation on compounded €STR rates

The ECB published a summary of the feedback that it received from its public consultation on compounded €STR rates. The consultation received 44 responses, which, according to the ECB, were generally ‘supportive of the main parameters and elements of the envisaged methodology, and contained some suggestions, which the ECB will consider when finalising the methodology’.

Source: ECB publishes summary of feedback on public consultation on compounded €STR rates.

FMLC responds to European Commission proposal to amend the BMR

The Financial Markets Law Committee (FMLC) published its response to a European Commission proposal to amend the Benchmarks Regulation.

Source: Response to Consultation: Proposal to Amend the Benchmarks Regulation: 6 October 2020.

IBA launches Beta version of GBP ICE Swap Rate for SONIA swaps

The Intercontinental Exchange (ICE) announced that ICE Benchmark Administration Limited (IBA) launched an initial (Beta) version of its GBP ICE Swap Rate® for SONIA swaps. IBA is now publishing daily indicative GBP SONIA ICE Swap Rate® Beta settings with tenors which range from one to 30 years. Publication of the Beta version of the ICE Swap Rate® for SONIA swaps follows positive engagement from stakeholders. The GBP SONIA ICE Swap Rate® Beta settings are published solely for information and illustration purposes, so that stakeholders can evaluate the rates and provide feedback.

Source: ICE Benchmark Administration Launches Beta Version of GBP SONIA ICE Swap Rate® .

ISDA updates IBOR Fallback Rate Adjustments FAQs

The International Swaps and Derivatives Association (ISDA) updated its FAQs on IBOR Fallback Rate Adjustments, as of 29 September 2020.

Source: IBOR Fallback Rate Adjustments FAQs—Updated September 29, 2020.

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Regulation of capital markets

Council of the EU set out details of informal video conference of the members of the working party on financial services

The Council of the EU issued a release announcing that the Working Party on Financial Services—CMRP (Attachés only) will meet on Wednesday, 14 October 2020 at 9:30 by videoconference to continue the examination of the Capital Markets Recovery Package (CMRP).

Source: COMMUNICATION—NOTICE OF MEETING AND PROVISIONAL AGENDA.

ESMA publishes guidelines and Q&As on securitisation topics

ESMA published its final report on the ‘Guidelines on portability of information between securitisation repositories under the Securitisation Regulation’, setting out common provisions that a securitisation repository (SR) should follow when transferring securitisation information to another SR. ESMA has also updated its Q&As on securitisation topics, which include guidance on how to report certain underlying exposures which benefit from a coronavirus-related debt moratorium or payment holiday.

Source: ESMA publishes updated Q&As on securitisation topics and Guidelines on Portability of Information between Securitisation Repositories.

For further information, see: Securitisation Regulation—essentials.

ICMA amends its Primary Market Handbook

The International Capital Market Association (ICMA) announced that it has published amendments to the ICMA Primary Market Handbook.

Source: Amendments to the ICMA Primary Market Handbook published.

ICMA publishes ‘preliminary thoughts’ on new CMU action plan

The ICMA published a document setting out its preliminary thoughts on the new capital markets union (CMU) action plan, published by the European Commission on 24 September 2020. ICMA says it supports the overall ambition and three key objectives of the new CMU action plan and agrees that capital markets can help the EU deliver on its key economic policy objectives, but it also suggests some key points that should be considered further.

Source: ICMA: Preliminary thoughts on the new capital markets union action plan.

For further information, see: The Capital Markets Union.

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Regulation of derivatives

ISDA and FIA respond to BoE consultation on operational resilience of CCPs

ISDA and the Futures Industry Association (FIA) published their response to the BoE’s consultation paper ‘Operational resilience: Central counterparties’.

Source: Response to the Bank of England consultation paper ‘Operational resilience: Central counterparties’.

ISDA issues updated OTC derivatives compliance calendar

ISDA published its updated over-the-counter (OTC) derivatives compliance calendar. The calendar sets out compliance deadlines and regulatory dates that the ISDA believes important in the OTC derivatives space.

Source: Updated OTC Derivatives Compliance Calendar.

ISDA suggests ways to harmonise derivatives and securities financing transactions markets

The ISDA published a white paper identifying opportunities for greater collaboration between derivatives and securities financing transaction (SFT) markets and setting out a proposal for how this could be achieved. In particular, ISDA says institutions operating in both derivatives and SFT markets could benefit from greater harmonisation in documentation, as well as improvements in post-trade processing and automation.

Source: ISDA publishes proposal for greater collaboration between derivatives and SFT markets.

ACER calls for experts to join new consultative group on wholesale energy market trading

The European Union Agency for the Cooperation of Energy Regulators (ACER) launched a call for experts to form a new consultative expert group on wholesale energy market trading. The group will advise ACER on topics related to Regulation (EU) 1227/2011 on wholesale energy market integrity and transparency (REMIT), and will replace the Ad hoc REMIT Expert Group which ended on 22 July 2020. Applications are invited by 28 October 2020.

Source: Call for experts: ACER expert group on wholesale energy market trading.

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Investment funds and asset management

ESMA makes technical update to Money Market Funds Regulation reporting

ESMA updated the validations of the technical instructions for reporting under the Money Market Funds Regulation (EU) 2017/1131.

Source: ESMA announces update to reporting under the Money Market Funds Regulation.

For further information, see: Money Market Funds Regulation—essentials.

IOSCO launches fourth annual World Investor Week

IOSCO launched its fourth annual World Investor Week (WIW). During the event securities regulators, stock exchanges, international organisations, investor associations and other stakeholders from some 100 countries will offer a variety of activities to raise awareness about the importance of investor education and protection in their own jurisdictions, particularly during the coronavirus (COVID 19) pandemic.

Sources: IOSCO launches its fourth World Investor Week to enhance investor education and protection and  Exchanges round the world Ring the Bell all Week for Financial Literacy in 2020: The World Federation of Exchanges initiative draws record support.

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Securities financing transactions

ISDA suggests ways to harmonise derivatives and securities financing transactions markets

The ISDA published a white paper identifying opportunities for greater collaboration between derivatives and securities financing transaction (SFT) markets and setting out a proposal for how this could be achieved. In particular, ISDA says institutions operating in both derivatives and SFT markets could benefit from greater harmonisation in documentation, as well as improvements in post-trade processing and automation.

Source: ISDA publishes proposal for greater collaboration between derivatives and SFT markets.

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Crowdfunding

European Parliament adopts EU crowdfunding regulation and directive

The European Parliament voted at plenary to adopt a regulation on European crowdfunding service providers for business and a directive amending the Markets in Financial Instruments Directive 2014/65/EU (MiFID II). The new rules, which were adopted by the Council of the EU on 20 July 2020, are intended to help crowdfunding services to function smoothly in the internal market and to foster cross-border business funding in the EU, by providing for a single set of rules on crowdfunding services.

Sources: Final vote on EU rules for crowdfunding platformsEuropean Parliament legislative resolution of 5 October 2020 on the Council position at first reading with a view to the adoption of a regulation of the European Parliament and of the Council on European crowdfunding service providers for business, and amending Regulation (EU) 2017/1129 and Directive (EU) 2019/1937 (06800/1/2020—C9-0292/2020—2018/0048(COD)) and  European Parliament legislative resolution of 5 October 2020 on the Council position at first reading with a view to the adoption of a directive of the European Parliament and of the Council amending Directive 2014/65/EU on markets in financial instruments (06799/1/2020—C9-0291/2020—2018/0047(COD)).

For further information, see: The regulation of crowdfunding platforms.

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Banks and mutuals

EBA Risk Dashboard for Q2 2020 suggests coronavirus (COVID-19) is starting to impact asset quality

The EBA published its quarterly Risk Dashboard covering Q2 2020 data and summarising the main risks and vulnerabilities in the EU banking sector. The EBA notes that while capital ratios held up well, there are indications that the coronavirus (COVID-19) crisis is starting to have an impact on asset quality. With increasing cost of risk, profitability continued its declining trend.

Sources: EBA Risk Dashboard Q2 2020 and  EBA saw that NPL ratios remained stable in Q2-2020 although early signals of asset quality deterioration in banks’ balance sheets start to appear .

ECB opinion piece calls for greater harmonisation to improve governance in EU banks

The ECB published an opinion piece by a member of its executive board and vice chair of its supervisory board, Yves Mersch, entitled ‘ECB raises the bar on bank governance’. Mersch discusses the fit and proper assessment carried out by the ECB, which he says is one of its most challenging supervisory tasks, and explains how these assessments are being made stricter and more intrusive.

Source: ECB raises the bar on bank governance.

Atom Bank registers with LSB’s Standards of Lending Practice for customers

The Lending Standards Board (LSB) announced that Atom Bank has become the latest interim registered firm with the LSB’s Standards of Lending Practice for business customers. The LSB has stated that Atom Bank, the UK’s first app-based bank, will now undergo an assessment process to ensure that the bank reaches the requirements of the standards in order for them to achieve full registration. The protections provided by the Standards of Lending Practice for business customers apply to businesses and organisations, which ‘at the point of lending, have consolidated a turnover of £25m’.

Source: Atom bank becomes an interim registered firm with the LSB’s Standards of Lending Practice for business customers.

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Consumer credit, mortgage and home finance

Government to publish new rules for debt letters to make less threatening

HM Treasury announced that it intends to publish new rules for debt letters in an effort to better help people better understand and manage their debts, reduce stress and support mental health. These letters, also known as Default Notices, are designed to ‘give people who are falling behind on their debts fair warning before lenders take further action’. Much of the formatting and content contained within these letters has not been updated for 40 years.

Source: New debt letters rules will support people in problem debt.

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Regulation of insurance

EIOPA consults on use of climate change risk scenarios in ORSAs

EIOPA published a consultation on the use of climate change risk scenarios in the Own Risk and Solvency Assessment (ORSA) in the form of a draft supervisory opinion. The deadline for comments is 5 January 2021.

Source: EIOPA consults on the supervision of the use of climate change scenarios in ORSA.

EIOPA launches European-wide comparative study on diversification in internal models

EIOPA launched a European-wide comparative study on diversification in internal models. The study aims to gain an overview of the current approaches in the market and compare the levels of diversification; facilitate a better understanding of modelling dependencies, aggregation and resulting diversification benefits; and enhance quality and convergence of supervision on diversification in internal models.

Source: Start of a European-wide comparative study on diversification in internal models.

FCA BI test case—draft transcript of consequentials hearing published

The FCA published the draft transcript of the consequentials hearing, concerning its business interruption (BI) insurance test case, which was held on 2 October 2020.

Source: BUSINESS INTERRUPTION INSURANCE TEST CASE DRAFT TRANSCRIPT OF CONSEQUENTIALS HEARING ON 2 OCTOBER 2020.

For further information ,see: Coronavirus (COVID-19)—business interruption insurance.

FCA BI test case—outcome of consequentials hearing published

​The FCA published an update on its dedicated BI website, concerning the test case consequentials hearing, that took place on 2 October 2020. The FCA stated that a further update will follow, once the Order is handed down, to confirm the various declarations that were made.

Source: Outcome of consequentials hearing.

FCA BI test case skeleton arguments and consequentials hearing details published

The FCA published a press release containing a further update in relation to the BI insurance test case. It has also published the parties' skeleton arguments ahead of the consequentials hearing scheduled on 2 October 2020, which will hear parties' submissions on the declarations to be made by the court with regard to the judgment, and the hearing's livestream details.

Source: Business interruption insurance.

IE says scope of Network and Information Security Directive should not extend to insurers

Insurance Europe (IE) published its response to a consultation by the European Commission on its review of the Network and Information Security (NIS) Directive. IE says the insurance industry welcomes the aim of increasing the cyber security of sectors critical to the economy, but argues that the Directive’s scope should not be extended to include the insurance industry, as it would duplicate existing requirements.

Source: Network and Information Security Directive should not be extended to include insurance industry.

Insurance Europe publish insight on the Insurance Distribution Directive

Insurance Europe (IE) has published an insight on the Insurance Distribution Directive (IDD) (Directive (EU) 2016/97), two years after it came into force on 1 October 2018, highlighting the effectiveness of well drafted, sector specific rules.

Source: EU Insurance Distribution Directive shows effectiveness of well drafted, sector-specific rules.

For further information, see: Insurance Distribution Directive (IDD)—essentials.

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Regulation of personal pension and stakeholder products

Fourth annual Pension Wise service evaluation released by MaPS

Money and Pensions Service (MaPS) published the evaluation of its Pension Wise service for 2019–20. The report highlights that a total of 205,000 interactions were booked with people which represents an increase of 23% compareed to 2018–19. Face-to-face and phone appointments are offered for free in order to help people ‘understand their options when accessing their pension pot(s)’. A high percentage of customers have also shared their satisfaction as 97% of them have ‘already recommended the service to others or say they would do so’.

Source: Pension Wise appointments see 23% increase in 19/20.

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Payment services and systems

PSR seeks views on choice in payment methods as part of strategic review

The Payment Systems Regulator (PSR) published a blog and a background video on choice in payment methods, as part of a series of related content pieces to stimulate its strategic thinking and debate. Industry feedback is sought by 30 October, with the PSR ‘not necessarily looking for fully fledged submissions’. It will consult on its full draft strategy early in 2021.

Source: PSR strategy—Choice and availability of payment methods.

European Payments Council seeks candidates for its Scheme Management Board

The European Payments Council (EPC) is seeking independent candidates for a replacement member on its Scheme Management Board—the body responsible for the administration and evolution of the Single Euro Payments Area (SEPA) schemes. Applications are invited by 30 October 2020.

Source: EPC: Call for an independent member for the Scheme Management Board.

LSB consultation period for review of CRM Code closes

The LSB consultation period for its formal review of the Contingent Reimbursement Model Code for authorised push payment scams (the CRM Code) has closed. Findings of the consultation will be published on the LSB website by the end of 2020.

Source: LSB completes CRM Code consultation period (30 September).

PSR hosting webinars to discuss future strategy issues

The PSR is holding Future Strategy webinars on 14 October and 21 October 2020 to discuss key payments issues and to hear from industry participants as to what the PSR should focus on over the next five to ten years.

Source: Future strategy event.

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Fintech and cryptoassets

FCA bans sale of crypto-derivatives to retail consumers from 6 January 2021

The FCA published a policy statement (PS20/10) which sets out final rules banning the sale of derivatives and exchange traded notes (ETNs) that reference certain types of cryptoassets to retail consumers. The ban will come into effect on 6 January 2021. The FCA is also warning UK consumers to continue to be alert for crypto-derivative investment scams.

Sources: FCA bans the sale of crypto-derivatives to retail consumers and  PS20/10: Prohibiting the sale to retail clients of investment products that reference cryptoassets.

ECB report examines potential issuance of central bank digital euro

The ECB published a report on examining the issuance of a central bank digital currency (CBDC)—the digital euro—from the perspective of the Eurosystem. The ECB says a digital euro could support the Eurosystem’s objectives by providing citizens with access to a safe form of money ‘in the fast-changing digital world’, but the report notes a number of important legal considerations, including the legal basis for issuance, the legal implications of different design features and the applicability of EU legislation to the Eurosystem as the issuer.

Source: Report on a digital euro.

Winners of G20 TechSprint challenge announced

The Bank for International Settlements (BIS) and the Saudi G20 Presidency have announced the winners of the G20 TechSprint challenge, a hackathon-style competition to highlight the potential of technology to resolve regulatory compliance (regtech) and supervisory (suptech) challenges. The three winning firms, FNA, Tookitaki and ISDA-REGnosys, each addressed one or more of the competition’s three problem topics: dynamic information-sharing, monitoring and surveillance, and regulatory reporting.

Sources: BIS Innovation Hub and Saudi G20 Presidency announce TechSprint winners and  ISDA and REGnosys Win G-20 TechSprint For Regulatory Reporting.

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Sustainable finance

EIOPA consults on use of climate change risk scenarios in ORSAs

EIOPA published a consultation on the use of climate change risk scenarios in the Own Risk and Solvency Assessment (ORSA) in the form of a draft supervisory opinion. The deadline for comments is 5 January 2021.

Source: EIOPA consults on the supervision of the use of climate change scenarios in ORSA.

European Commission publishes FAQs on the Platform on Sustainable Finance

The European Commission published a set of FAQs on the setting-up and work of the Platform on Sustainable Finance. The Commission notes that the establishment of the Platform is an important component to fully develop the EU Taxonomy for environmentally sustainable economic activities and potentially extend it to other dimensions of sustainability. It will therefore contribute significantly to the implementation of the renewed Sustainable Finance strategy currently being developed by the European Commission.

Source: Frequently asked questions: Commission Platform on Sustainable Finance.

ESMA responds to Commission’s EU green bond standard consultation

ESMA responded to the European Commission’s targeted consultation on the establishment of the EU green bond standard (GBS).

Source: ESMA responds to EU green bond standard consultation.

Government publishes the FCA's plans for climate-related financial disclosures

The government published correspondence between the Interim Chief Executive of the FCA, Christopher Woolard, and the Minister for Pensions and Financial Inclusion, Guy Opperman MP. Woolard, sets out the FCA’s arrangements for 'asset managers and personal pension schemes' to report on climate change risks. He adds that the FCA intends to discuss 'implementing client-focused task Force on Climate-related Financial Disclosures (TCFD)-aligned disclosures for asset managers and contract-based pension schemes' in early 2021. In response to Woolard's letter, the Minister for Pensions embraces the FCA's proposition and thanks the FCA for all its doing on the issue of climate change.

Source: Financial Conduct Authority's plans for climate-related financial disclosures.

ICMA responds to FCA consultation on climate-related disclosures by listed issuers

The ICMA published its response to the FCA’s March 2020 consultation paper CP20/3 on proposals to enhance climate-related disclosures by listed issuers and clarification of existing disclosure obligations.

Source: ICMA response to FCA consultation paper CP20/3 on proposals to enhance climate-related disclosures by listed issuers and clarification of existing disclosure obligations.

ISDA blogs sets out role of derivatives in development of ESG finance

ISDA published a blog by its CEO Scott O’Malia in which he argues that environmental, social and governance (ESG) finance will play a major part in the EU’s economic recovery from the coronavirus (COVID-19) pandemic, and that the derivatives industry can be a powerful force in mitigating the associated risks and developing standards. O’Malia says that ISDA will ‘continue to work closely with policy-makers and market participants to support risk mitigation, product innovation and the development of robust product standards, with an eye towards aligning the work to suit a global derivatives market’.

Source: The role of derivatives in ESG.

Insurance Europe publishes response on EU Green Bond Standard

IE published its response to the European Commission's consultation on its EU Green Bond Standard (GBS).

Source: EU Green Bond Standard can help boost investment in transition to a more sustainable economy.

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Islamic finance

IFSB publishes data on soundness and growth of the takāful sector

The Islamic Financial Services Board (IFSB) published inaugural country-level data from its member jurisdictions on the financial soundness and growth of the takāful sector. It covers quarterly data for takāful indicators from Q1 to Q4 of 2019. The participating jurisdictions are Brunei, Malaysia, Nigeria, Saudi Arabia, Turkey and the United Arab Emirates. The IFSB plans to extend the coverage of the database to include more member jurisdictions.

Source: The IFSB prudential and structural Islamic financial indicators (PSIFIs) database achieves a new milestone with the dissemination of data on the takāful sector.

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Dates for your diary

 

DateSubjectEvent

 

10 October 2020

 

 

Investment funds and asset management

 

 

Deadline for responses to the Investment Association’s  consultation on the future of its global bonds sector; one of its 37 open-ended fund sectors.

 

11 October 2020

 

Securities financing transactions

 

Reporting obligation for all other financial counterparties (including UCITS and AIFs) and third-country entities under the SFTR commences.

 

12 October 2020

 

Complaints, compensation and claims management

 

Deadline for responses to the FCA’s, PRA’s and the BoE’s joint  consultation paper (FCA—CP20/11 and PRA—CP8/20) on Complaints against the Regulators under the Financial Regulators’ Complaints Scheme (the Scheme).

 

13 October 2020

 

SM&CR

 

Deadline for responses to the PRA’s consultation paper ‘ CP7/20: Strengthening accountability: SM&CR forms update’, which sets out the PRA’s proposals to make minor amendments to the PRA Rulebook, Notifications Form and Senior Manager & Certification Regime (SM&CR) Form L.

 

14 October 2020

 

Investment funds and asset management

 

Deadline for responses to the European Commissions  request for feedback for its upcoming review of European long-term investment funds (ELTIFs), which will analyse how well ELTIFs are working, and in particular how they are contributing to the integration of capital markets in Europe (CMU) and the EU’s goal of smart, sustainable and inclusive growth.

14 October 2020

 

Financial crime

 

Deadline for responses to HM Treasury  consultation on the subject of the economic crime levy, which the government intends to introduce to fund new government action to combat money laundering, and help deliver the reforms committed to in the 2019 Economic Crime Plan.

 

14 October 2020

 

Prudential requirements



Banks and mutuals

 

Deadline for responses to the PRA’s  consultation paper CP9/20, in which it sets out its proposed approach to supervising new and growing non-systemic UK banks. All the proposals are clarifications of the PRA’s current supervisory approach with the exception of proposed changes to the calculation of the PRA buffer for new banks and setting expectations in relation to solvent wind down plans.

 

16 October 2020

 

Sustainable finance

 

Deadline for responses to the ESA’s  survey seeking public feedback on presentational aspects of product templates, pursuant to Articles 8(3), 9(5) and 11(4) of the Regulation on sustainability‐related disclosures in the financial services (SFDR).

 

 

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About the author:
Prior to joining LexisNexis in 2016 as a paralegal, Lauren was an adjudicator at the Financial Ombudsman Service. There she resolved consumers’ complaints, and gained knowledge about a wide variety of financial products. Before this she studied Law at Nottingham Trent University.