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Welcome to the weekly Financial Services highlights from the Lexis®PSL Financial Services team for the week ending 1 December 2016.
Banks of all sizes, insurers, as well as construction-supply companies and travel agents, are among the 13,500 companies at risk of losing cross-border ‘passporting’ rights following Brexit, according to a list released by the Financial Conduct Authority (FCA).
On 24 November 2016, the Chartered Institute for Securities & Investment (CISI) released its latest statistics which record a big fall in the financial services industry’s confidence in the UK’s economic prospects. Brexit generally was the chief area of concern, as well as more specific issues, such as the drop in the value of sterling, passporting implications, quantitative easing and Article 50.
On 28 November 216, UK think tank British Influence (BI) published an article which states they believe the UK should be able to stay in the single market, while honouring the EU referendum vote. BI believes the UK’s membership to the European Economic Area (EEA) is separate to its membership to the EU and can be maintained following Brexit. Constitutional experts tell LexisNexis BI’s assumptions are sound, and could see the UK continue to benefit from the single market without having to honour the rules around free movement of people. BI has said it will write to Brexit Minister David Davis asking him to clarify the government’s position and may seek a judicial review of that position to assess its legal validity.
On 30 November 2016, the Bank of England (BoE) released the 2017 schedule of meeting dates for the Financial Policy Committee.
On 30 November 2016, the Financial Ombudsman Services (FOS) issued the Small and Medium Sized Business (Finance Platforms) (Fees) Instrument 2016, which amended the scheme rules relating to the payment of fees under the Compulsory Jurisdiction, and fixes and varies the standard terms for Voluntary Jurisdiction (VJ) participants relating to the payment of fees under the VJ. The Instrument came into force 1 October 2016.
On 24 November 2016, the European Commission published a communication on its call for evidence on the EU regulatory framework for financial services as part of the Commission’s Better Regulation agenda and the Regulatory Fitness and Performance (REFIT) programme. The Commission has concluded that overall the financial services framework in the EU is working well. However, targeted follow-up action is required in certain areas.
On 24 November 2016, the European Banking Authority (EBA) announced the timing for publication of its 2016 EU-wide transparency exercise data. The results will be released at 22:00 (Central European Summer Time) on 2 December 2016.
On 25 November 2016, the House of Commons European Scrutiny Committee published a report on two EU directives intended to help deliver the Digital Single Market and boost e-commerce. The proposed directives harmonise the contractual rights and remedies of consumers in relation to online trade in digital content and physical or ‘tangible’ goods, respectively.
On 28 November 2016, Julie Dickson, a member of the Supervisory Board of the ECB, made a speech at the 17th Handelsblatt Annual Conference on European Banking Regulation in Frankfurt. The speech focuses on the diverse nature of the European banking sector and developments in harmonised banking supervision since the outbreak of the financial crisis eight years ago.
On 29 November 2016, the European Systemic Risk Board (ESRB) published a report on macroprudential policy issues arising from the current low-interest-rate environment and ongoing structural changes in the financial system of the EU.
On 29 November 2016, the ESRB published a report from an investigation into whether there are vulnerabilities relating to the residential real estate (RRE) sector in EU countries that may be a direct or indirect source of systemic risk to financial stability, and may also have the potential for serious negative consequences for the real economy. It issued warnings to eight countries, including the UK.
On 29 November 2016, the UK government published a letter dated 18 November 2016 responding to a warning by the ESRB on medium-term vulnerabilities in the UK residential real estate sector, saying the FPC has been granted a range of powers to ensure RRE stability.
On 25 November 2016, the Insolvency Service published an investigation which has seen ‘recovery services’ company LCG-London Capital Group Limited (LCG) wound up in the High Court. LCG approached distressed companies on the premise that it was able to find a purchaser for the company by way of a share sale agreement. However, the representations made in the sales process were not genuine, and designed purely to extract fees based on misleading claims.
On 28 November 2016, the European Commission adopted a proposal for a framework for the recovery and resolution of central counterparties which amends the European Securities and Markets Authority (ESMA) Regulation, EMIR and the Securities Financing Transactions Regulation (SFTR). The proposal discusses its objectives, including the scale and importance of central counterparties (CCPs) in Europe and beyond, which is set to increase via EMIR in its implementation of the G20 commitment to clear, standardised derivatives transacted over the counter (OTC) through CCPs. EMIR also sets out comprehensive prudential requirements for CCPs, as well as requirements regarding their operations and oversight. One of the reasons for bringing about the proposal is that there is currently a lack of harmonised EU rules to deal with CCPs facing severe stress or outright failure beyond the instances envisaged by EMIR. Past crises illustrated that the failure of an important financial institution that is highly interconnected with others in the financial markets can cause critical problems for the rest of the financial system.
On 29 November 2016, the Financial Stability Board (FSB) published the public responses to its 16 August 2016 discussion note on Essential Aspects of Central Counterparties (CCP) Resolution Planning. Over 30 banks and financial institutions responded.
On 23 November 2016, the European Parliament published a resolution on the finalisation of Basel III. The resolution stresses firstly that the ongoing work of the BCBS to finalise the Basel III framework should respect the principle stated by the Group of Governors and Heads of Supervision (GHOS) of not significantly increasing overall capital requirements, while at the same time strengthening the overall financial position of European banks. Secondly, the revision should promote a level playing field at the global level by mitigating—rather than exacerbating—the differences between jurisdictions and banking models, and by not unduly penalising the EU banking model.
On 24 November 2016, the EBA launched a second impact assessment of International Financial Reporting Standard (IFRS 9), building on the results of the first, published on 10 November 2016. The EBA expects that institutions will be able to provide more detailed and accurate insights into their implementation of IFRS 9, as the information provided by the respondents in the first exercise reflected the early stage of implementation.
On 25 November 2016, the chair of the Supervisory Board of the European Central Bank (ECB), Danièle Nouy, published a letter to a member of the European Parliament, Miguel Viegas, explaining why the ECB did not publish the results of the ECB internal stress test that was conducted in parallel to the EBA EU-wide exercise, while giving banks the option of publishing their individual results.
On 25 November 2016, the EBA translated its guidelines on implicit support for securitisation transactions into the official languages of the European Union triggering the implementation dates and published the final guidelines on its website. The guidelines clarify what constitutes arm’s length conditions and specify when a transaction is not structured to provide support for securitisations for purposes of the Capital Requirements Regulation (CRR).
On 28 November 2016, in the interests of transparency and accountability, the ECB announced that it will publish additional banking supervision statistics, on a quarterly basis. These statistics offer additional and more detailed data on the financial health of the institutions supervised directly by the ECB.
On 28 November 2016, the British Bankers’ Association (BBA) published the European Banking Federation’s (EBF) response to the ECB consultation on guidelines on non-performing loans (NPLs). Following consultation with its members, the BBA confirmed that it had provided input into and supports the EBF’s response.
On 29 November 2016, Commission Regulation (EU) 2016/2067 of 22 November 2016 amending Regulation (EC) 1126/2008 adopting certain international accounting standards (IAS) in accordance with Regulation (EC) 1606/2002 (IAS Regulation), as regards to IFRS 9 Financial Instruments, was published in the Official Journal of the EU.
On 29 November 2016, the EBA published responses to its consultation on guidelines on credit risk management practices and accounting for expected credit losses (EBA-CP-2016-10). The guidelines will be issued as per Regulation (EU) 1093/2010, Article 16(1) (EBA Regulation).
On 30 November 2016, the EBA, mandated under Regulation (EU) 575/2013 (the CRR), published its amended final draft implementing technical standards amending Commission Implementing Regulation (EU) 680/2014 on supervisory reporting of institutions with regard to financial reporting (FINREP) following the changes in IFRS 9. The changes are limited to those needed for supervisory purposes and to obtain a comprehensive view of the risk profile of institutions’ activities and the risks they pose to the financial sector or the real economy as per Article 99(4) of the CRR.
On 30 November 2016, the BoE published a new report which sets out the Financial Policy Committee’s (FPC) view of financial stability, including its assessment of the stability of the UK financial system and the current risks to stability. The report is set against a backdrop of the Brexit vote and its potential uncertainties, and the wider EU banking sector affected by instability in the euro and the vulnerable sovereign debt positions in the euro-area economies. However, the UK banking system was sufficiently capitalised. Since the global financial crisis, UK banks have built up capital resources. The aggregate common equity tier 1 capital of major banks was 13.5% of risk-weighted assets in September 2016.
On 30 November 2016, the chair of the Basel Committee on Banking Supervision (BCBS), Mr Stefan Ingves, gave his final keynote address at the 19th International Conference of Banking Supervisors in Santiago. Mr Ingves shared his insights, reflecting on the Committee’s operations. After almost six years at the helm, Mr Ingves stated that, overall, the challenges the Committee faced today were no different and no more difficult than those experienced when Basel I was agreed in 1988.
In its newsletter (No 19) published on 30 November 2016, the BCBS agreed that supervisors may allow banks to apply a 0% risk weight to claims on the International Development Association (IDA) in accordance with paragraph 59 of the document International Convergence of Capital Measurement and Capital Standards: A Revised Framework, June 2004 (Basel II Framework). The IDA is the part of the World Bank and helps the world’s poorest countries aiming to reduce poverty by providing loans.
On 29 November 2016, the FCA published a letter, dated 14 September 2016, to all firms in proportionality level 1 (UK banks, building societies and investment firms with relevant total assets exceeding £50bn) setting out the FCA’s approach to the 2016/17 remuneration round. The FCA is looking to build on the progress made in 2015/16 and will continue to focus on the potential risk that firms may be incentivising behaviours that are not in the interests of consumers, market integrity or fair competition.
On 24 November 2016, the European Commission adopted a Commission Delegated Regulation amending Commission Delegated Regulation (EU) 2016/1675 supplementing MLD4 (Directive 2015/849) by identifying high-risk third countries with strategic deficiencies. Commission Delegated Regulation (EU) 2016/1675 was adopted by the European Commission on 14 July 2016 and identified for the first time high-risk third countries.
On 23 November 2016, the European Commission published a general report as required under Article 85(1) of the European Markets Infrastructure Regulation (Regulation (EU) 648/2012 (EMIR). This report provides a summary of the areas where consultation responses and specific input received from various authorities have shown that action is necessary to ensure fulfilment of the objectives of EMIR in a more proportionate, efficient and effective manner.
On 25 November 2016, the Prudential Regulation Authority (PRA) published its second consultation paper (CP43/16) on the implementation of Markets in Financial Instruments Directive (MiFID II). The consultation paper proposes changes to the PRA Rulebook and supervisory statements relating to new management body and organisational requirements. There are also proposed changes to granting authorisations in respect of operating an organised trading facility (OTF), emission allowances and structured deposits. The deadline for comments is 27 February 2017.
On 28 November 2016, the International Swaps and Derivatives Association, Inc (ISDA) and IHS Markit have announced the launch of the ISDA 2016 Variation Margin Protocol on ISDA Amend, which automates the process for amending existing collateral documents or setting up new agreements in order to comply with new variation margin requirements going into effect on 1 March 2017.
On 29 November 2016, ISDA published information for how firms can prepare for the introduction of the Variation Margin Requirements on 1 March 2017.
On 28 November 2016, the FCA released consultation CP16/38 setting out proposed amendments to the Disclosure Guidance and Transparency Rules (DTRs) in the FCA Handbook. The FCA believes that the changes are required to ensure compliance with the guidelines issued by ESMA on delay in the disclosure of inside information under the Market Abuse Regulation (Regulation (EU) No 596/2014)(MAR). The consultation is open until 6 January 2017.
On 30 November 2016, Edwin Schooling Latter, head of markets policy at the FCA, addressed FX Week Europe in London, in which he discussed the development of regulation in the FX market and the expectations of end users and the FCA. In particular, Mr Latter highlighted the supervisory work done in July 2016 with 30 major firms to improve conduct in wholesale FX markets, expecting all firms active in that market to consider and address conduct risks identified. He also highlighted the importance of the Bank for International Settlements’ development of an FX Global Code. The code is an opportunity to set higher minimum standards in areas where conduct risk persists and will be a key component of market conduct standards that staff in authorised firms will have to observe under the Senior Managers Regime (SMR).
On 22 November 2016, the FCA updated its Packaged Retail and Insurance-based Investment Products (PRIIPs) disclosure: Key Information Documents webpage by confirming that it will publish its policy statement on changes to its disclosure rules in the first half of 2017. The FCA consulted on amending the FCA Handbook disclosure requirements to reflect the introduction of the PRIIPs Regulation in consultation paper CP16/18 on 18 July 2016.
On 25 November 2016, the FCA published a speech by the director of strategy and competition, Christopher Woolard, at the Tax Incentivised Savings Association (TISA) Annual Conference in London on 24 November 2016, looking at challenges in the long-term savings market and at the role the regulator should play. He also highlighted the asset management market study as an example of how the FCA has used its competition powers.
On 25 November 2016, the Committee on Economic and Monetary Affairs (ECON) of the European Parliament published a draft agenda for its next meeting on 28 and 29 November 2016. Among other issues, on 28 November 2016 ECON will consider a draft report on the European Commission’s proposal to delay the application of the PRIIPs Regulation. The proposal has already been approved by the Council of the European Union.
On 28 November 2016, Invest Europe called on policymakers to remove barriers to investment faced by infrastructure funds. The briefing seeks greater stability and transparency around fees and tariffs, lower risk-weightings for investments into infrastructure corporates under the Solvency II framework, and investment-friendly sector rules.
On 28 November 2016, the Council of the EU published a further compromise proposal on the European Commission’s proposal for a Regulation to amend Regulation (EU) 345/2013 on European venture capital funds and Regulation (EU) 346/2013 on European social entrepreneurship funds.
In December 2012, the Financial Services Authority (FSA) issued a ‘Dear CEO Letter’ to asset managers following a thematic review of outsourcing arrangements within UK asset managers. The FSA Review concluded that many asset managers were not fully in compliance with existing regulations and made it clear it would like to see improvements in oversight and resilience. The industry formed its own Outsourcing Working Group (OWG) to address these issues. In 2013 the OWG issued its report, ‘An industry response to the FSA’s Dear CEO Letter on Outsourcing’. The OWG reformed in 2016 and has added an addendum to the original report.
On 29 November 2016, the European Parliament published a draft resolution on the proposal for key information document (KID) in packaged retail and insurance-based investment products (PRIIPs). The draft resolution relates to key information documents for packaged retail and insurance-based investment products as regards the date of its application. It sets out that the regulation shall apply from 1 January 2018.
On 24 November 2016, it was announced that following the publication of the final report of the Competition and Markets Authority (CMA) into its investigation of the retail banking market in August 2016, the Remedies Implementation Programme Board (RIPB) has been established to oversee how all of the banking remedies are implemented over time.
On 25 November 2016, it was announced that the House of Lords Select Committee on Financial Exclusion had scheduled two oral evidence sessions for 29 November 2016. The first session was attended by representatives of the CMA considered how promoting competition between financial service providers might impact the affordability of financial services. The second evidence session focused on how education can improve personal financial capability.
On 29 November 2016, the FCA published a call for input and feedback to inform its work on high-cost credit, including a review of the payday loan price cap. The call for input covers high cost products, overdrafts, the high-cost short-term credit (HCSTC or payday loan) price cap, and repeat and multiple HCSTC borrowing. The deadline for responses to the call for input is 15 February 2017.
On 29 November 2016, the Money and Mental Health Policy Institute published a report which shows half of mental health carers know someone else’s PIN number. This, the research finds, is due to a lack of support by the banks which leaves carers using risky workarounds to help those for whom they care. The report from the Institute sets out the scale of the problem, the financial harm being caused by banks’ failure to act, and proposals for change—which include developing a strategic approach to carer and family access to information and improving the Power of Attorney system.
On 30 November 2016, the PRA opened a consultation paper—Amendments to the PRA Rules on Loan to Income Ratios in Mortgage Lending (CP44/16). Responses are required by 10 January 2017.
On 23 November 2016, the International Association of Insurance Supervisors (IAIS) published its November 2016 newsletter. Its feature article concerns implementation of the Insurance Core Principles.
On 23 November 2016, Insurance Europe published a response to the publication of the European Commission communication on the call for evidence on the EU regulatory framework for financial services. The director general of Insurance Europe, Michaela Koller, said that addressing the prudential treatment of infrastructure, private equity and private debt in Solvency II was a welcome step in the right direction, but that there was no clarity on timing.
On 23 November 2016, the Association of British Insurers (ABI) published a response to the Autumn Statement. ABI gave a mixed response to the measures set out in the Autumn Statement that impact on the insurance sector.
On 25 November 2016, the FCA proposed amendments to its rules on pension annuities that will require firms to inform consumers how much they could gain from shopping around and switching provider before a potential annuity purchase. The FCA also proposed new requirements for providers of retirement income products to provide data to the FCA about the types and volumes of products they are selling.
On 25 November 2016, the ABI published analysis which stated that the UK now has the sixth highest standard rate of Insurance Premium Tax (IPT). Contrary to the Chancellor’s claim in Autumn Statement 2016 that ‘insurance premium tax in this country is lower than in many other European countries’, the latest European insurance industry data show the IPT standard rate in the UK is behind only Germany, Greece, Italy, the Netherlands and Finland.
On 25 November 2016, the PRA published a policy statement (PS33/16) and final supervisory statements on the consolidation of Directors’ letters issued with respect to the Solvency II Directive. The policy statement includes feedback on the responses to the PRA’s consultation paper (CP) 20/16, which was published in May 2016.
On 24 November 2016, ESMA published details of a speech by Patrick Armstrong, Senior Risk Analysis Officer in ESMA’s Innovation and Products Team. Armstrong explained that the issue of distributed ledger technology and the regulatory response is a critical topic for both regulators and market participants.
On 24 November 2016, the FCA and the Payment Systems Regulator (PSR) issued a joint consultation (CP16/35) on their proposed approach to the allocation, calculation and collection of PSR regulatory fees for 2017/2018. Responses are sought by 5pm on 16 January 2017.
On 24 November 2016, the PSR released the minutes of its 14 September 2016 meeting in London, which included discussion of retained amounts under the Financial Penalty Scheme (FPS).
On 24 November 2016, the European Payments Council (EPC) released new versions of the SEPA Credit Transfer (SCT), SEPA Direct Debit Core (SDD Core), and SDD Business to Business (SDD B2B) scheme rulebooks. They take effect in November 2017. As previously, scheme participants have one year to adapt their systems.
39 European and national organisations representing e-commerce, small merchants, start-ups, ICT and digital technology, payments and FinTech, cards, telecoms, foreign trade, and leisure and travel industries have signed a joint letter to the European Commission asking for changes to the EBA's proposed Regulatory Technical Standards (RTS) on strong customer authentication under Directive 2015/2366/EC (PSD2).
On 29 November 2016, the PSR announced it welcomed the first industry-wide strategy to overhaul UK payment systems. It includes consolidating three retail payment system operators and creating a new payments infrastructure. The plans are outlined in a report by the Payments Strategy Forum (PSF), a body set up by the PSR and comprising consumer groups, fintechs and UK banks and building societies.
On 29 November 2016, the managing director of the PSR, Hannah Nixon, gave a speech at the launch of the Final Strategy of thePSF on 29 November 2016 in London. The speech praised the PSF’s collaborative approach to regulation, with stakeholders from across the relevant sector getting involved, creating an opportunity for payment service providers to create synergies between different initiatives.
On 30 November 2016, the EPC launched the Single Euro Payments Area (SEPA) Instant Credit Transfer (ICT) scheme. The ICT scheme will enable individuals, businesses, corporates and administrations to make instant euro credit transfers between accounts across an international area that will progressively span over 34 European countries.
Facing the ECON committee in Brussels on 29 November 2016, the chair of the EBA, Andrea Enria, provided an update on the EBA’s work on PSD2, and in particular the RTS on strong customer authentication (SCA) and common and secure communication. Mr Enria said the EBA anticipated remaining on track to submit the RTS at the beginning of 2017 but it would likely be a month later than stipulated by PSD2.
On 30 November 2016, the European Commission published a report of the 15th round of the negotiations for the Transatlantic Trade and Investment Partnership (TTIP). The negotiations took place from 3 to 7 October 2016 in New York. The purpose of the TTIP is to negotiate and conclude a trade and investment deal between the US and the EU. Three days of the negotiations were dedicated to financial services, in which discussions focused on consolidating the text of general provisions and product-specific rules.
A £14bn MasterCard damages case is to proceed to a Tribunal hearing on 18 January 2017, at which it will be decided whether the case can proceed as a collective action. The case centres on the allegation that MasterCard, between 1992 and 2008, charged excessive ‘interchange’ fees—the fees a retailer pays to the credit card company when consumers use a card to purchase goods.
On 28 November 2016, the FCA published a final notice relating to Tariq Carrimjee (dated 22 November 2016). He was fined £89,004 and prohibited from performing the compliance oversight (CF10) and money laundering reporting (CF11) significant influence functions (SIFs).
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