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Welcome to the weekly Financial Services highlights from the Lexis®PSL Financial Services team for the week ending 27 April 2017.
On 20 April 2017, International Monetary Fund (IMF) assistant director, Matthew Jones, told a press conference that Brexit is going to present challenges to financial stability. On the release of the IMF’s 2017 Global Financial Stability Report, Jones said there is a lot of uncertainty about the outcome of the negotiations and how that will affect the global financial system. One challenge will be the complexity of financial entities which may arise if some institutions choose to reallocate activities outside of London.
On 20 April 2017, the British Bankers Association (BBA) released the latest edition of its round-up on banking policy news, highlighting an internal memo sent by senior European Commission officials to all EU staff highlights a growing ‘administrative chill’ ahead of Brexit proceedings.
On 24 April 2017, the government published a White Paper calling for views on the legal powers it will need following Brexit so that it can continue to impose and implement sanctions. New legal powers are needed to replace many of the current powers, which are derived from the European Communities Act 1972. The consultation will close on 23 June 2017.
On 20 April 2017, the Financial Conduct Authority (FCA) published a transcript of a press conference held on 18 April 2017 accompanying the publication of its mission statement, business plan, sector views and budget. Andrew Bailey, chief executive of the FCA, provided an overview of the documents, emphasising the importance of transparency, after which Mr Bailey and other FCA representatives answered questions from the press. The Q&A provides some further insights into some of the issues raised in the documents published. As regards Brexit, the FCA's role in regulatory equivalence and its commitment to maintaining open markets through regulatory co-operation was emphasised.
On 25 April 2017, the FCA announced that an additional two members had been appointed to its regulatory decisions committee (RDC). The newest members appointed to the RDC are Karen Johnston and Nick Lord. They join Stuart McIntosh, Philip Marsden, Robin Mason and Malcolm Nicholson who were appointed in 2016.
On 20 April 2017, the IMF published a report by the managing director of the IMF, Christine Lagarde. Ms Lagarde said that while the global economy is gaining momentum, further progress hinges on policies to support the recovery, lift productivity growth, and enhance resilience.
On 20 April 2017, the vice-president of the European Commission, Valdis Dombrovskis, gave a speech in Washington DC on ‘Transatlantic co-operation—key for jobs and economic growth’, in which he called for continuing co-operation on financial matters between the US and the EU. He said the global financial crisis shook the two economies to the core, the two financial systems are inherently linked and that financial stability requires a joint effort. Co-operation on financial services is vital, said Mr Dombrovskis, citing the derivatives market as an example, as no one country could provide a regulatory framework for what is a global market.
On 20 April 2017, the eighth Irving Fisher Committee on Central Bank Statistics conference on the ‘Statistical implications of the new financial landscape’, examined central bank statisticians’ ongoing efforts to improve international financial statistics in response to the financial crisis of 2007–09. Such efforts are aimed at developing better quality, more comprehensive and more flexible data sets.
On 20 April 2017, the European Parliament released the minutes of the Committee on Economic and Monetary Affairs (ECON) meeting held in Brussels on 22-23 March 2017. The minutes record a vote adopting the text establishing a Union programme to support specific activities enhancing the involvement of consumers and other financial services end-users in Union policymaking in the field of financial services for the period of 2017-2020. Subsequently, on 20 April 2017, ECON published its amendments to the European Commission’s proposed Regulation.
On 20 April 2017, the governor of the Bank of England (BoE) and chair of the Financial Stability Board (FSB), Mark Carney, published an article in the Financial Stability Review: Ten years on: fixing the fault lines of the global financial crisis. Mr Carney stressed that, since the inception of the FSB by the G20 leaders following the financial crisis in 2007, ‘the global financial system has been reregulated—leaving a safer, simpler, and fairer financial system that can support open markets and inclusive growth’.
On 24 April 2017, the European Securities and Markets Authority (ESMA) updated its compliance table on the enforcement of financial information, setting out which competent authorities have informed ESMA that they comply, do not comply or intend to comply with ESMA’s guidelines on the enforcement of financial information.
On 24 April 2017, ESMA updated its compliance table on its guidelines on alternative performance measures (ESMA/2015/1415), setting out which competent authorities have informed ESMA that they comply, do not comply or intend to comply with ESMA’s guidelines on alternative performance measures.
On 25 April 2017, the chair of the Treasury Select Committee, the Rt Hon Andrew Tyrie MP, announced he is to stand down from Parliament at the forthcoming general election and will therefore no longer chair the Treasury Select Committee.
On 25 April 2017, the Basel Committee updated its 2017/18 work programme, outlining its strategic priorities and activities. These include targeted policy development, post-crisis reforms and strong supervision.
On 20 April 2017, the Banque de France published its latest Financial Stability Review which included an article by ESMA's Steven Maijoor and Clément Boidard: 'A stability perspective of market-based finance: designing new prudential tools'. The authors analyse how European legislation on securities markets already includes a number of microprudential tools available to supervisors, which need to be taken into account when designing macroprudential tools for ensuring the stability of market-based finance.
On 19 April 2017, the European Banking Authority (EBA) issued an updated confirmation of compliance table on its guidelines on the application of simplified obligations under Article 4(5) of Directive 2014/59/EU, the Bank Recovery and Resolution Directive (BRRD). With the exception of Bulgaria, all competent authorities comply or intend to comply with the guidelines.
On 20 April 2017, the European Commission published a corrigendum to its delegated regulation of 17 December 2015 supplementing Regulation (EU) 806/2014 with regard to the criteria relating to the calculation of ex-ante contributions, and on the circumstances and conditions under which the payment of extraordinary ex-post contributions may be partially or entirely deferred.
On 21 April 2017, the International Accounting Standards Board (IASB) proposed minor amendments to the financial instruments standard IFRS 9, to enable companies to measure at amortised cost certain pre-payable financial assets with so-called negative compensation. The amendments respond to comments received by the IFRS Interpretations Committee and are intended to improve the usefulness of information about these financial assets that the new standard requires.
On 21 April 2017, HM Treasury announced that the £20.3bn injected into Lloyds Banking Group in 2013 has now been returned to taxpayers in full. The Chancellor of the Exchequer Philip Hammond confirmed the government has received £20.4bn since it began selling its stake in Lloyds in 2013.
On 21 April 2017, the Prudential Regulation Authority (PRA) published the 2017 stress test scenario for firms not participating in the BoE’s 2017 concurrent stress test concerning the Internal Capital Adequacy Assessment Process (ICAAP) rules under CRD IV. The scenario is part of the PRA’s efforts to strengthen firms Pillar 2 stress testing. A scenario is published every six months and its purpose is to serve as a guide and, where relevant, as a severity benchmark, for firms designing their own scenarios for Pillar 2 capital planning stress tests. The scenario is for stress testing purposes only and is not designed to act as a forecast, but to assess the resilience of UK banks to adverse shocks, which can occur even when risks are not elevated.
On 21 April 2017, HM Treasury published its memorandum of understanding (MoU) with the Bank of England (BoE), which sets out the framework for co-ordination of financial crisis management between the two bodies. As the BoE and the Treasury have clear and separate responsibilities, the MoU says the key principle of financial crisis management is to make clear who is in charge of what, and when.
On 25 April 2017, the Basel Committee on Banking Supervision (BCBS) published its 12th progress report on the adoption of the Basel III standards by each BCBS member jurisdiction as at end-March 2017. The report includes the status of adoption of the Basel III risk-based capital standards, the leverage ratio, the liquidity coverage ratio (LCR), the net stable funding ratio (NSFR), the standards for global and domestic systemically important banks, Pillar 3 disclosure requirements, the large exposure framework and interest rate risk in the banking book.
On 25 April 2017, in an introductory statement at a meeting of ECON, the chair of the EBA, Andrea Enria, said the EBA welcomed the plan to align the EU regulatory framework with international standards, with a few minor adjustments. Mr Enria said the European Commission’s proposed amendments to the Capital Requirements Regulation, the Capital Requirements Directive (CRD IV), the BRRD and the Single Resolution Mechanism Regulation were broadly in line with the EBA’s recommendations. The chair of the supervisory board of the European Central Bank (ECB), Danièle Nouy, also welcomed the Commission’s initiative, saying the proposals contained many positive elements that could further enhance financial sector resilience and promote financial integration within the EU.
On 20 April 2017, the Joint Committee of the European Supervisory Authorities—the EBA, the European Insurance and Occupational Pension Authority (EIOPA) and ESMA (ESAs)—published its Spring 2017 report on risks and vulnerabilities in the European Union’s financial system. The report highlights the risks to the stability of the European financial sector in an environment subject to political and economic uncertainties.
On 25 April 2017, ESMA published the high level response of its Securities and Markets Stakeholder Group (SMSG) to the discussion paper on the use of big data by financial institutions issued by the Joint Committee of the European Supervisory Authorities in December 2016. The SMSG’s overall view of the big data phenomenon is consistent with the analysis of its potential benefits and risks identified in the discussion paper.
On 25 April 2017, the PRA issued policy statement PS8/17, which provides feedback to responses for consultation paper CP35/16 ‘Whistleblowing in UK branches’ and sets out the final rules.
On 21 April 2017, the House of Lords announced it would continue its examination of the Criminal Finances Bill with the report stage and third reading on 25 April 2017. The report stage is a further chance to examine the Bill, while the third reading is an opportunity to ‘tidy up’ the Bill and make changes. The two stages are scheduled to take place on the same day, which is unusual in the House of Lords.
On 24 April 2017, the FCA published a speech by executive director Nausicaa Delfas, given to the Financial Information Security Network, in which she said 85% of security breaches could be prevented by ‘getting the basics right’, as the vast majority of vulnerabilities exploited in recent attacks were well known and had fixes available at the time of attack. Ms Delfas said the financial services sector must collaborate, modernise and share information to fight the rising threat of cybercrime.
On 25 April 2017, the Council of the EU adopted a directive on the protection of the financial interests of the EU (PIF Directive) providing common definitions of a number of offences against the EU budget, including fraud, active and passive corruption, misappropriation of funds and money laundering. Serious cases of cross border VAT fraud will also be included in the scope of the directive when above a threshold of €10m.
On 20 April 2017, the Insolvency Service announced that two directors of internet loan brokerage More Financial Ltd had been disqualified following an Insolvency Service investigation into the affairs of the company. Jos Timmer (also known as James Thompson) and Elizabeth Rowe were disqualified as directors for engaged in misleading sales practices, failing to provide the service in accordance with representations it made, obtaining unauthorised payments from customers and traded in a wrongful manner.
On 20 April 2017, the Insolvency Service announced a man who ran a failed spread betting scheme without FCA authorisation had been given a 12-year bankruptcy restriction. Stuart Mudge took more than £8.5m from investors for his failed scheme—the Churchgate Trading Syndicate—between 2009 and 2012. An investigation by a specialist team at the Insolvency Service found investors were promised ‘guaranteed’ returns of 15% every quarter.
On 20 April 2017, the Insolvency Service announced that three directors of a former credit union which went into administration owing more than £7m have received bans ranging from six to nine years. Richard Nichols, Phillip Neale and Gillian Birkett were directors of Enterprise The Business Credit Union Ltd t/a DotcomUnity Credit Union (EBCU), based in Bournemouth, which went into administration on 14 May 2015 with estimated total creditor claims totalling £7,277,425.
On 20 April 2017, the Financial Services Compensation Scheme (FSCS) announced it is to protect 1,200 members of Yoker Credit Union Ltd, which has stopped trading and is in default. Members of the scheme will be automatically compensated and do not need to apply. The FSCS intends to send payments to ‘the vast majority’ of members within one week.
On 25 April 2017, the Office of the Complaints Commissioner (OCC) published a final report on a complaint relating to the treatment of a complainant by the Financial Ombudsman Service (FOS) and the statutory duties of the FCA in relation to the FOS. The OCC does not uphold the complaint, but provides a summary of the FCA's statutory duties and recommends that the FCA reviews the information it publishes about both its relationship with the FOS and the way in which it monitors the performance of the FOS, and satisfies itself (if it has not already done so) that the questions of procedural fairness made by the complainant have been adequately addressed by the FOS. In its response, the FCA says it has accepted the OCC's recommendations and is currently considering the appropriate next steps.
On 26 April 2017, the FCA published data on the number of complaints reported by firms under new rules which came into force on 30 June 2016, requiring all complaints to be captured in the data. Under the new rules, firms now have three days to address a complaint to a consumer’s satisfaction, up from the previous next business day time limit.
On 26 April 2017, the Malta Depositor Compensation Scheme initiated the payout procedure following the determination against Nemea Bank plc. The Scheme has until 2 May 2017 to pay all the depositors.
On 20 April 2017, the Banque de France published its latest Financial Stability Review which included an article on Central clearing: reaping the benefits, controlling the risks by Benoît Cœuré, a member of the executive board of the ECB and chair of the committee on payments and market infrastructures at the Bank for International Settlements. The article looks at the significant expansion in central clearing in recent years as a result of changes to financial markets and the introduction of mandatory central clearing obligations for standardised over-the-counter (OTC) derivatives.
On 20 April 2017, the BBA's transaction reporting working group published new guidance on the MiFIR transaction reporting short selling indicator.
On 21 April 2017, the FCA published a video on its website in which former chief economist Peter Andrews explores the economics behind price discrimination. According to Mr Andrews, price discrimination is not always good or bad. The FCA’s role is to monitor what is happening in the markets and intervene where the benefits exceed the costs of doing so.
On 21 April 2017, ESMA published its final technical advice to the European Commission regarding supervisory fees for trade repositories under the Securities Financing Transactions Regulation (SFTR). In order to ensure a level playing field across SFTR and the European Market Infrastructure Regulation (EMIR), ESMA is also proposing some changes to the way its fees for trade repositories are calculated under EMIR.
On 21 April 2017, the European Systemic Risk Board (ESRB) published a report on the revision of EMIR. Although it shares the European Commission’s assessment that no fundamental change to the EMIR core requirements is needed at this time, the ESRB considers the EMIR review an opportunity to improve on certain aspects of the Regulation, while simplifying some of its requirements, increasing their efficiency and reducing disproportionate costs and burdens.
On 24 April 2017, the Association for Financial Markets in Europe (AFME) published a questionnaire to provide a standardised set of questions which can be sent from investment firms to entities that may fall under the scope of MiFID II as trading venues (organised and multilateral trading facilities).
On 24 April 2017, the London Metal Exchange (LME) and LME Clear published a Discussion Paper on Market Structure, seeking the views of all stakeholders on the future development of the LME. The LME market-wide engagement period will end on 30 June 2017.
On 25 April 2017, ESMA published an opinion on points for convergence in relation to Market Abuse Regulation —accepted market practices (AMPs) on liquidity contracts. The opinion is given pursuant to Article 29(1)(a) of the ESMA Regulation, which requires ESMA to provide opinions to national competent authorities (NCAs) for the purpose of building a common EU supervisory culture and consistent supervisory practices, as well as ensuring uniform procedures and consistent approaches throughout the EU.
On 25 April 2017, the chair of EIOPA, Gabriel Bernardino, gave a speech at the public hearing on the Capital Markets Union (CMU) mid-term review, saying the EU should aim to further reduce fragmentation across the sector and increase the confidence of European citizens in cross-border provision of services. Provided supervisory convergence is a high-level priority, the pan-European pension product (PEPP) can help tackle both fragmentation and confidence, Mr Bernardino argues.
On 25 April 2017, the vice-president of the European Commission, Valdis Dombrovskis, spoke on the challenges facing EU financial services policy, at the eighth Bruges European Business Conference. The wide-ranging speech looks at capital markets union (CMU), supervisory convergence, Brexit and equivalence.
On 26 April 2017, the Bank of England’s Money Markets Committee (MMC) published a new voluntary UK Money Markets Code, setting out the standards and best practice expected from participants in the deposit, repo and securities lending markets. The code is underpinned by the key principle that participants should always act in a manner to promote the integrity and effective functioning of these markets. It also outlines six high-level principles encompassing ethics, governance, risk management, confidentiality, execution and settlement.
On 26 April 2017, the European Parliament updated its procedure file to show it did not object to the delegated act delaying the EMIR clearing obligation for financial counterparties with a limited activity volume.
On 24 April 2017, the Law Society published a press release stating that it disagreed with the FCA's interpretation of ESMA's Market Abuse Regulation guidelines on delay in the disclosure of inside information.
On 21 April 2017, the European Commission published a corrigendum to its Delegated Regulation of 8 March 2017 supplementing Regulation (EU) 1286/2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs). The corrigendum corrects references in footnote 7 and annex IV.
On 24 April 2017, the FCA issued final guidance FG 17/3: The fair treatment of mortgage customers in payment shortfall: impact of automatic capitalisations, covering remediation for mortgage customers who may have been affected by the way firms calculate monthly mortgage instalments. The FCA expects all remediation programmes to be concluded by 30 June 2018.
On 19 April 2017, the Lloyd's Market Association (LMA) in association with Clyde & Co have issued v3.0 of the Consumer Wordings Guidance. It has been drafted as general guidance, intended to assist managing agents with the drafting of new consumer products and/or adaptation of existing commercial wordings to produce consumer versions that reflect current regulatory requirements and best practice.
On 21 April 2017, the Pensions Regulator (TPR) released its corporate plan for 2017-20, saying it is aiming to intervene more frequently, act more quickly, and become ‘a bolder, more effective regulator’. The corporate plan sets out eight priorities and five risk areas facing the UK pensions landscape. The plan states that TPR is ‘committed to protecting members and limiting calls on the Pension Protection Fund’ and will continue to shift the focus of its resourcing to frontline regulatory activity, ‘to drive positive outcomes on cases on a quicker timetable wherever possible’.
On 21 April 2017, EIOPA published a new set of Q&As on Commission Implementing Regulation (EU) 2015/2450 of 2 December 2015 laying down implementing technical standards with regard to the templates for the submission of information to the supervisory authorities according to the Solvency II Directive.
On 21 April 2017, EIOPA sought feedback on proposed amendments to the Implementing Technical Standard (ITS) on the templates for the submission of information to the supervisory authorities (Commission Implementing Regulation (EU) 2016/1868) and to the ITS with regard to the procedures, formats and templates of the solvency and financial condition report (Commission Implementing Regulation (EU) 2015/2452). The proposed amendments concern the ITS, the guidelines on reporting for financial stability purposes, and the guidelines on the supervision of branches of third-country insurance undertakings. Responses should be sent by 8 May 2017.
On 26 April 2017, EIOPA published a thematic review which assesses potential issues for consumers due to monetary incentives and remuneration payments from asset managers to insurance undertakings in the unit-linked market.
On 26 April 2017, EIOPA issued a call for evidence on the treatment of unlisted equity and debt without an external credit assessment institution (ECAI) rating in the standard formula. The call for evidence follows a request from the European Commission, and is a first step by EIOPA in the preparation of a Technical Advice. This initial consultation period ends on 24 May 2017.
On 24 April 2017, the Payment Systems Regulator (PSR) published the minutes of a meeting held on 21 March 2017 by the Payment System Operator Delivery Group (PSODG) in which the PSODG discussed sharing its draft report with the PSO Board and the necessary approvals that would be needed for the proposed consolidation of the current payment systems operators to proceed. On the same day, the PSODG also submitted its recommendation and implementation plan to the PSR and the Bank of England (BoE).
On 24 April 2017, SWIFT, the global, member-owned co-operative provider of secure financial messaging services, urged firms and organisations to prepare now for the SWIFT FIN Standards Release 2020, which will see the end of free format fields in payment party data. The move is being made to improve the quality of information financial institutions have about who they are engaging with and to ensure that all transactions comply with the growing body of regulation.
On 25 April 2017, ECON adopted a report urging the European Commission to present a comprehensive action plan to boost FinTech in Europe. ECON’s key priorities are cybersecurity, level playing fields for traditional companies and start-ups and controlled experimentation with new technologies.
On 26 April 2017, the FCA’s executive director of strategy and competition, Christopher Woolard, spoke at the Leeds Digital Festival on how and why the FCA encourages FinTech innovation. Mr Woolard said the FCA is especially interested in areas where ‘Fin’ and ‘Tech’ collide, ie areas that have both strong financial centres and a technology presence, often backed by strong relationships with local universities.
On 26 April 2017, the ECB issued its opinion on a draft Act transposing Directive (EU) No 2015/2366 on payment services in the internal market into Slovenian law. The ECB welcomes the fact that the provisions laying down the requirements for payment system operators follow the principles and general requirements set out in the Eurosystem oversight framework for retail payment systems, and says it will facilitate the consistent and harmonised application by Banka Slovenije of Eurosystem standards when conducting its oversight of payment systems in Slovenia.
 UKUT 0158 (TCC)
The Upper Tribunal (Tax and Chancery Chamber) has published its decision in this case which upheld the FCA's decision to cancel the Part 4A permission of Anthony Badaloo, a financial adviser trading as Church Hill Finance. In its Decision Notice, the FCA stated that Mr Badaloo had failed to satisfy the suitability Threshold Condition in that he had repeatedly failed to comply with reasonable FCA requests to provide information and documents to the FCA, had not been open and co-operative with the FCA and had been convicted of trespassing and theft. In light of this, the FCA found that Mr Badaloo was not fit and proper to be permitted to conduct regulated activities.
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