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Welcome to the weekly Financial Services highlights from the Lexis®PSL Financial Services team for the week ending 15 December 2016.
On 12 December 2016, the European Parliament published a briefing, dated 9 December 2016, setting out the prominent role of the UK in the single market for financial services, and highlights which activities currently rely on passporting for the UK’s daily business with the other 27 EU Member States. The briefing relies on publicly available information, including secondary sources such as analytical papers by research institutes and private sector companies such as Global Financial Centres Index, the Centre for European Reform and the Boston Consulting Group. The European Parliament indicates that the briefing may be updated pending new information.
On 12 December 2016, the Treasury Committee issued a call for written submissions on transitional arrangements, as part of its inquiry into the UK’s future economic relationship with the EU. Among the issues considered is the period of notice that would be required of the UK's final, settled relationship with the EU to enable the private sector to make necessary preparations. The deadline for written submissions is 31 January 2017.
On 13 December 2016, a report published by the House of Lords EU Sub-Committee found that the UK government will need to agree a transitional trade arrangement between the UK leaving the EU and full implementation of new trade terms. An important element of this could be a temporary extension of participation in the customs union. The report evaluates four main models for future UK–EU trade, and concludes there is always an inherent trade-off between liberalising trade and the exercise of sovereignty.
On 14 December 2016, the House of Lords EU financial affairs sub-committee published details of written and oral evidence on the possible effects of Brexit. It heard from a range of banks and financial bodies including the Financial Conduct Authority (FCA), HM Treasury and the Association of Foreign Banks.
On 9 December 2016, the FCA published Handbook Notice 39. It introduces changes made to the Handbook and other material made by the FCA Board under its legislative powers on 10 November and 8 December 2016, and rules and standard terms also made by the Financial Ombudsman Service (FOS) on 23 November 2016.
On 14 December 2016, the FOS launched a consultation on its proposed plans and budget for 2017/2018. It aims to freeze case fees while dealing with a record number of PPI complaints. The closing date for comments is Tuesday 31 January 2017.
On 8 December 2016, the European Commission published a document setting out an overview of level 2 measures either adopted or being prepared by the European Commission in the area of financial services as at December 2016.
On 12 December 2016, the European Banking Authority (EBA) published minutes of its Banking Stakeholder Group (BSG) meeting, which took place in London on 24 October 2016.
On 12 December 2016, the European Parliament published a briefing, dated 9 December 2016, focusing on the concept of equivalence in EU banking legislation and the difference between ‘passporting’ rights and ‘third-country equivalence’ rights. The briefing paper contains an overview of existing equivalence clauses in key EU financial services measures such as CRD IV/CRR, MiFID/MiFIR, AIFMD, UCITS, Solvency II and EMIR, and contains a table setting out the equivalence decisions adopted by the European Commission to 9 December 2016.
On 12 December 2016, the European Parliament published a briefing setting out the state of play as at 9 December 2016 of the Single Resolution Board (SRB) in relation to accountability arrangements and the legal base for hearings in the European Parliament on the Single Resolution Mechanism (SRM). The SRM applies to banks covered by the Single Supervisory Mechanism (SSM). The SSM places the European Central Bank (ECB) as the central prudential supervisor of financial institutions in the euro area and in those non-euro EU countries that elect to join the SSM. In cases where a bank fails despite stronger supervision, the SRM will allow bank resolution to be managed effectively through the SRB and a Single Resolution Fund financed by the banking sector. The SRB’s purpose is to ensure an orderly resolution of failing banks with minimum costs for taxpayers and the economy.
On 13 December 2016. the European Parliament announced that a wide-ranging overhaul of the European Parliament’s Rules of Procedure has been approved by 548 votes to 145, with 13 abstentions. The changes are designed to improve transparency and efficiency, while penalties for the use of racist and defamatory language have been strengthened. The new rules come into force on 16 January 2017.
On 8 December 2016, in support of the Capital Markets Union (CMU) and in order to reduce further risks in the banking sector and to enhance the ability of institutions to channel adequate funding to the economy, the Council of the EU published a series of impact assessments. The impact assessments and executive summaries are set out as follows:
For further information see LNB News 08/12/2016 83.
On 14 December 2016, the EBA published its final report (EBA-Op-2016-21) on the implementation and design of the minimum requirement for own funds and eligible liabilities (MREL), together with FAQs on the report. The final report provides further recommendations on areas not addressed in the interim report and updates the quantitative analysis from the interim report and adds to it by introducing a cost-benefit analysis of the introduction of MREL.
On 8 December 2016, the FCA's director of supervision—retail and authorisations, Jonathan Davidson, wrote to CEOs of all firms that administer debt management plans (DMPs), setting out the FCA’s regulatory expectations. The letter was prompted by FCA findings that some firms were not carrying out appropriate annual reviews, along with other failings. Firms were warned that they must be able to demonstrate adequate staffing, expertise, systems and controls.
On 8 December 2016, the European Commission published a report on the benchmarking of diversity practices under the Capital Requirements Directive (Directive 2013/36/EU (CRD IV). In carrying out its review it drew on the findings of the first diversity report issued by the EBA. The report concludes there is still considerable room for improvement with regard to banks having diversity policies in place and achieving greater diversity within management bodies.
On 8 December 2016, the Council of the EU published a corrigendum to the text of CRD IV. The corrigendum corrects errors in 23 different language versions of CRD IV published in the Official Journal of the EU in June 2013. The English language part of the corrigendum starts on page 27 and amends a number of typographical errors in various articles of CRD IV and cross references to articles within CRD IV or other pieces of legislation.
On 9 December 2016, the EBA issued a revised list of validation rules in its Implementing Technical Standards (ITS) on supervisory reporting, highlighting those which have been deactivated either for incorrectness or for triggering IT problems.
On 12 December 2016,Commission Implementing Regulation (EU) 2016/2227 on the extension of the transitional periods relating to own funds requirements for exposures to central counterparties set out in the Capital Requirements Regulation (CRR) (Regulation (EU) No 575/2013) and EMIR (Regulation (EU) No 648/2012) was published in the Official Journal of the EU.
On 13 December 2016, the EBA published a presentation given at the public hearing held on 12 December 2016 on its consultation paper (EBA/CP/2016/19) on draft Regulatory Technical Standards (RTS) and ITS on the authorisation of credit institutions.
On 14 December 2016, the EBA published a presentation given at the public hearing on a consultation paper to amend an ITS on additional monitoring metrics for liquidity (AMM) (Commission Delegated Regulation (EU) 2016/313). The proposed consultation follows a request by the Commission to update the maturity ladder based on reporting fully aligned with Delegated Regulation (EU) 2015/61 (LCR Delegated Act) and to resubmit it to the Commission for adoption.
On 12 December 2016, the Prudential Regulation Authority (PRA) issued six publications on regulatory reporting for the banking sector. The updates cover:
On 12 December 2016, the Financial Markets Law Committee (FMLC) published a paper on the International Organisation for Securities Commission (IOSCO) multinational memorandum of understanding (MMoU) on consultation, co-operation and the exchange of information and personal data internationally between regulatory authorities. Among other things, the paper makes suggestions for a side letter or appendix to the MMoU that might help to clarify the relationship and address the concerns of the Article 29 Working Party (WP29), with a view to preserving certainty in the legal framework of the wholesale financial markets.
On 14 December 2016, the OECD and the International Bar Association (IBA) agreed to form a task force to avoid future events like the ‘Panama Papers scam’, by developing appropriate practical guidance for lawyers involved in advising on and establishing international commercial structures. The task force aims to develop a guidance in which the confidentiality obligation of the lawyers is also maintained.
On 9 December 2016, the Organisation for Economic Co-operation and Development (OECD) produced a stocktaking report to analyse the legal infrastructure surrounding the liability of legal persons (LP liability) for foreign bribery. This report presents a timeline and a ‘mapping’ of the features of the different systems for LP liability found in the 41 parties to the OECD Anti-Bribery Convention.
On 12 December 2016, HM Revenue & Customs (HMRC) announced that it will introduce an online platform in 2017 for businesses to register and renew their anti-money laundering supervision. The online system was developed with assistance from a select group of customers. To use the new system, businesses will need an online ID.
On 13 December 2016, the Council of the EU published its fourth Presidency compromise proposal on the proposed Fifth Money Laundering Directive (MLD5), which amends the Fourth Money Laundering Directive 2015/849/EU (MLD4).
On 9 December 2016, the FCA published a statement on its consultation on Payment Protection Insurance (PPI) complaints. In Consultation Paper 16/20 (August 2016) the FCA published proposals for rules and guidance on PPI complaints. It also included a timetable about whether to proceed with making rules and guidance by the end of December 2016, but due to the large amount of feedback, and given the importance of the matter, the FCA is giving further consideration to the issues raised and will make a further announcement in Q1 2017.
On 9 December 2016, the Competition and Markets Authority (CMA) wrote to Santander setting out its response to the handling of the bank’s breach of the PPI Market Investigation Order 2011.
On 13 December 2016, a letter was published by the Complaints Commissioner (CC), showing it has upheld a complaint against the FCA that it failed to fully answer a question about high portfolio turnover rates in UK investment funds. The FCA had said it felt the subject was a commercial matter over which it had no control, and that it was limited in its ability to reply to the complainant by the Financial Services and Markets Act, s348. The CC ruled that the complainant had raised a general rather than commercial question that the FCA could and should have responded to.
On 14 December 2016, the FOS published feedback on its October 2016 consultation. The consultation paper sets out its conclusions from its review into how it publishes complaints data. The FOS will continue to publish complaints data naming individual firms every six months.
On 14 December 2016, the FCA issued a consultation (CP16/42) seeking views on the future funding of the Financial Services Compensation Scheme (FSCS)—the UK’s statutory compensation scheme of last resort. One possibility floated by the FCA is changing FSCS levies to better reflect the risks posed by particular practices. The FCA is also consulting on a number of specific changes to its scheme rules, including asking firms to pay a proportion of the levy on account. Responses are sought by 31 March 2017.
On 8 December 2016, the FICC Markets Standards Board (FMSB) issued guidelines on surveillance and training in wholesale markets. Using automated voice surveillance systems and surveillance techniques involving Natural Language Processing are among the emerging practices being used to combat the risk of insider dealing and market manipulation. The need for better surveillance to address market manipulation was identified by the Fair and Effective Markets Review which said in June 2015 that ‘substantial further development of firms’ misconduct surveillance is required to deliver fully effective oversight of FICC markets'.
On 8 December 2016, the European Securities and Markets Authority (ESMA) published the responses received to its consultation on draft Regulatory Technical Standards (RTS) specifying the scope of the consolidated tape for non-equity financial instruments (ESMA/2016/1422).
On 8 December 2016, ESMA published the responses it has received to its original consultation on draft RTS and draft Implementing Technical Standards (ITS) (ESMA/2016/1409) implementing the Regulation on reporting and transparency of securities financing transactions ((EU) 2015/2365) (SFT Regulation).
On 9 December 2016, following the vote on the Simple Transparent and Standardised (STS) Securitisation package, announced in the European Parliament, the Association for Financial Markets in Europe (AFME) expressed serious concerns that the proposals run counter to the objective of reviving securitisation in Europe and, if adopted as currently proposed, will discourage the use of securitisation as a funding and risk transfer technique. AFME has said that unless these concerns are addressed in the trilogue discussions, the package will not succeed.
On 11 December 2016, the Bank for International Settlements published its December 2016 issue of the BIS Quarterly Review, which contains analysis of its comprehensive survey of the size and structure of the foreign exchange and over-the-counter (OTC) derivatives markets. The study examines the data collected earlier in 2016 from close to 1,300 banks and other dealers in 52 jurisdictions as part of the Triennial Central Bank Survey of the sector. The article explores changes in the role and composition of market participants, the evolving role of emerging market economy (EME) currencies and monetary policy as a driver of market developments.
On 13 December 2016, the Bank of England (BoE) published the minutes of a meeting of the working group on sterling risk-free reference rates (RFRs) held on 22 November 2016. The working group was initiated to assist the Bank in meeting its objective of developing sterling RFRs. It is a private sector group comprised of senior experts from major sterling swap dealers.
On 14 December 2016, ESMA added ICE Clear US Inc to its list of recognised third-country central counterparties (CCPs) under the European Markets Infrastructure Regulation (EMIR).
On 8 December 2016, the FCA launched an annual survey, ‘Financial Lives’, to collect information about the financial products people hold and their experience of dealing with financial products and firms.
On 13 December 2016, the FCA published its 'Thematic Review: Early arrears management in unsecured lending: TR16/10' on firms’ policies and procedures for handling customers in arrears, and tested outcomes by reviewing customer case files. The report was broadly positive, noting improvement in many firms’ approach. However, some firms were viewed as ‘less customer-centric’.
On 8 December 2016, the Council of the EU has announced that it is to postpone the application date of the Regulation on key information documents for packaged retail and insurance-based investment products (PRIIPs) Regulation 1286/2014, known as the PRIIPs Regulation) by 12 months.
On 9 December 2016, the FCA published its interim feedback (FS16/13) following its call for input in July 2016 to its post-implementation review of the rules for crowdfunding. The FCA’s initial findings raise its concerns about loan and investment-based crowdfunding businesses. The FCA said that it was difficult for investors to understand the risks and returns of crowdfunding, marketing material was sometimes unclear and misleading, and some firms did not manage risks and conflicts of interest properly. In the interim findings, the FCA said that it plans to consult on additional rules in Q1 2017 to include more prescriptive requirements on the content and timing of disclosures by both loan-based and investment-based crowdfunding platforms.
On 8 December 2016, HSBC published a survey which has found two thirds of institutional investors want to put more capital into low carbon and climate-related investments, but a lack of information on firms’ climate credentials is hampering their ability to do so. The survey indicates less than a quarter of companies disclose their environmental impact and only 13% have green or sustainable financing strategies in place.
On 12 December 2016, the London Stock Exchange (LSE) released guidance to provide assistance to the AIM community on the interaction of social media with disclosure obligations. Chiefly, it highlights that disclosure by social media is not a substitution for the disclosure requirements under AIM Rules 10 and 11.
On 8 December 2016, the Private Equity Reporting Group published its ninth annual report on the private equity industry’s conformity with the Walker Guidelines on disclosure and transparency in private equity. The Walker Guidelines also require reporting obligations on the disclosure of the portfolio company’s business model, detail on gender diversity and its response to human rights issues. Compliance by portfolio companies covered by the Walker Guidelines reduced slightly to 88% (from 95% in 2015).
On 12 December 2016, the FCA launched a market study to consider whether competition in the mortgage sector can be improved. The FCA wants to understand whether consumers are choosing mortgage products and services on an informed basis and are able to identify value for money. It aims to publish an interim report in summer 2017, setting out its analysis and preliminary conclusions. This will provide stakeholders with an opportunity to comment before it publishes a final report in early 2018.
On 14 December 2016, the FCA released a policy statement (PS16/25) on the responses to its June 2016 consultation on how firms deal with customers with payment shortfalls on their mortgages or home purchase plans. The FCA notes that most responses were positive, but an issue was raised that certain aspects would have required firms to change their systems or processes even where they were consistent with the FCA’s overall policy intent. To avoid this, the FCA has amended the draft provisions in CP16/16. The final rules and guidance came into effect on 15 December 2016.
SI 2016/1194—the Companies Act 2006 (Distributions of Insurance Companies) Regulations 2016 were made on 7 December 2016. They amend Part 23 of the Companies Act 2006, and come into force on 30 December 2016.
On 8 December 2016, the European Insurance and Occupational Pensions Authority (EIOPA) announced it is to start the Solvency II review process by consulting on the Solvency Capital Requirement (SCR) standard formula, via its discussion paper on the review of specific items in the Solvency II Delegated Regulation (the Discussion Paper).
On 8 December 2016, EIOPA published its December 2016 Financial Stability Report on the (re)insurance and occupational pensions sectors of the European Economic Area. The report says the European macroeconomic environment remains fragile, while insurers and pension funds are challenged by prolonged low interest rates and geopolitical risks.
On 9 December 2016, the FCA published finalised guidance (FG 16/8) for firms in relation to closed-book customers, who have life insurance products that are closed to new business. The products covered by the guidance are personal pensions (including SIPPs and Retirement Annuity Contracts), endowments, investment bonds and whole-of-life policies, but the FCA has indicated that it expects firms to consider the guidance in informing their practices in respect of all products in which long-standing customers are invested.
On 12 December 2016, EIOPA published guidelines on facilitating an effective dialogue between insurance supervisors and statutory auditors. They follow a public consultation launched by EIOPA on 1 February 2016 on draft guidelines on facilitating an effective dialogue between competent authorities supervising insurance undertakings, statutory auditors and the audit firms carrying out the statutory audit of those undertakings that were adopted by the Board of Supervisors. The scope of the guidelines is explicitly determined by the Audit Regulation (Regulation 537/2014).
On 13 December 2016, HMRC announced that significant progress has been made in remedying poor value workplace pension schemes, but there is still work to be done, according to a report published by the Department for Work and Pensions (DWP) and the FCA. The report outlines the next steps that will be taken by DWP and FCA, and the main actions that should be taken by pension providers, independent governance committees, and trustees.
On 7 December 2016, the EBA launched a consultation on draft guidelines on major incidents reporting under PSD2 (EBA/CP/2016/23). The guidelines set out the criteria, thresholds and methodology to be used by payment service providers in order to determine whether an operational or security incident should be considered as major and, therefore, be notified to the Competent Authority (CA). In addition, the guidelines define a set of criteria that CAs are required to use as primary indicators when assessing the relevance of a major operational or security incident to other domestic authorities. In particular, they detail the information that, as a minimum, CAs should share with other domestic authorities when an incident is considered of relevance for the latter. The consultation runs until 7 March 2017.
On 8 December 2016, the Economic Secretary to the Treasury announced that CEO of Nucleus, David Ferguson, and Head of Design in Personal and Business Banking at the Royal Bank of Scotland, Louise Smith, was appointed the government’s new financial technology (FinTech) envoys for Scotland. The aim to is support the overall growth of the sector in Scotland, which contributes around seven percent of the country’s GDP and employs 85,000 people.
On 8 December 2016, Payments UK’s director of industry policy, James Whittle, welcomed the Payment Systems Regulator (PSR) consultation on proposed remedies on competitive procurement and messaging standards for UK payment. Payments UK supports the adoption of a common, international messaging standard, saying it will simplify and open up the market—to the benefit of customers.
On 12 December 2016, the EBA published the slides of its public hearing on the draft EBA Guidelines on Authorisation and Registration under the Payment Services Directive (PSD) 2, held in London on 12 December 2016. The slides accompanied a talk by Dirk Haubrich and Laura Diez Pérez from the consumer protection, financial innovation and payments section of the EBA.
On 14 December 2016, the EBA published final draft (EBA/RTS/2016/08) regulatory technical standards (RTS) on the framework for cooperation and exchange of information between competent authorities for passport notifications under the revised Payment Services Directive (Directive 2015/2366/EU) (PSD2). PSD2 entered into force on 12 January 2016 and will apply from 13 January 2018.
under the Market Abuse Regulation (EU) No 596/2014 apply from this date.
draft ITS on the standardised presentation format of the statement of fees and its common symbol, under Article 5(4)
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