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Welcome to the weekly Financial Services highlights from the Financial Services team for the week ending 5 October 2017.
The European Council should determine that ‘sufficient progress’ has not been made on the EU’s three key aims unless the fifth round talks provide a major breakthrough, according to a draft resolution endorsed by the European Parliament’s Conference of Presidents. MEPs will debate the motion with EU Commission president, Jean-Claude Juncker and chief negotiator, Michel Barnier before a full vote takes place.
The chief executive of the Financial Conduct Authority (FCA), Andrew Bailey, called for regulatory co-operation to minimise the risks from Brexit and support a transition to a new relationship between the UK and the EU. In a speech at the Official Monetary and Financial Institutions Forum, he warned that Brexit could disrupt financial services for the UK, the EU and globally, and said that common regulatory standards are a necessary condition for free trade in finance.
The UK Prime Minister, Theresa May, expressed confidence that the UK and EU will be able to agree a new partnership that will enable them to 'continue to work together' to bring prosperity to all citizens. Speaking at the 20th anniversary of Bank of England (BoE) independence event on 27 September 2017, Ms May said that fragmentation of the financial services markets was in neither the EU's nor the UK's interest.
The Prudential Regulation Authority (PRA) published its regulatory digest for September 2017. This issue includes a letter from Sam Woods on transitional arrangements for capital impact of IFRS 9 expected credit loss accounting, and details on the consultation on regulated fee and levies: adjustment to rates for 2017/18.
The European Commission delivered an opinion strongly supporting the European Central Bank (ECB)’s proposal to regulate clearing systems for financial instruments for monetary policy purposes. The Commission says the move would enable the ECB to perform fully the responsibilities being granted to central banks of issue as concerns clearing systems for financial instruments denominated in euro. The ECB is seeking an amendment to Article 22 of Protocol No 4 on the Statute of the European System of Central Banks and of the European Central Bank.
European banking supervisors need more harmonised rules and tools, according to Sabine Lautenschläger, a member of the executive board and vice-chair of the supervisory board of the European Central Bank (ECB). Speaking at the European Supervisor Education Initiative's 2017 Conference in Vienna, Ms Lautenschläger also said that EU banks must be allowed to fail in order for markets to work.
The Board of Supervisors of the European Securities and Markets Authority (ESMA) appointed new chairs to its standing committees. The standing committees are expert groups drawn from ESMA staff and the national competent authorities for securities markets regulation in the Member States, and are responsible for the development of policy in their respective areas.
The FCA and the Pensions Regulator published a guide for employers and pension trustees who wish to help their employees with financial matters without needing to be authorised by the FCA. An employer or trustee will only need FCA authorisation if they are in the business of providing investment advice and if they receive a 'commercial benefit' for helping their employees. Because employers and trustees are not generally in the business of giving investment advice and do not normally receive any commercial benefit for giving advice, or helping their employees with pensions or other financial matters, employers usually should be able to help their staff without needing to be authorised.
The FCA released final guidance (FG17/8) on streamlined advice and the fact find process, together with a summary of feedback received to its guidance consultation GC17/4, which was published in April 2017.
The PRA published PS24/17 'Strengthening individual accountability in banking: changes to SMR forms', which includes amendments to a number of forms used in the Senior Managers Regime, which the PRA shares with the FCA.
The PRA has published an occasional consultation paper (PRA CP18/17, FCA CP17/34) which sets out proposed changes to PRA Rulebook Parts and supervisory statements (SS), together with joint PRA/FCA proposals.
The PRA published PS23/17 'Internal Ratings Based (IRB) approach: clarifying PRA expectations' and an update of SS11/13 'Internal Ratings Based (IRB) approaches'.
The PRA has published four documents on the Pillar 2A capital approach. The documents are:
The PRA published PS21/17 'UK Leverage Ratio treatment of claims on central banks', an update to SS46/15'UK leverage ratio: instructions for completing data items FAS083 and FSA084', and an updated FSA083template and instructions. These reporting changes come into effect immediately, so will apply to firms' reporting and disclosure requirements for end-December 2017 onwards.
The Bank of England (BoE) published an updated version of its document 'The Bank of England's approach to resolution'. It describes the framework available to the BoE to resolve failing banks, building societies and some types of investment firms. It also explains arrangements for central counterparties (CCPs).
The ECB launched a public consultation on a draft addendum to the ECB guidance on non-performing loans (NPLs). The draft addendum specifies quantitative supervisory expectations for minimum levels of prudential provisions for new NPLs, and further reinforces the guidance of 20 March 2017 with regard to fostering timely provisioning and write-off practices. The supervisory expectations will apply to all exposures that are newly classified as non-performing in line with the EBA definition as of 1 January 2018.
The Committee on Economic and Monetary Affairs (ECON) of the European Parliament published draft reports on two proposals (2016/0361(COD) and 2016/0362(COD)) by the European Commission to amend EU legislation with regard to the loss-absorbing and recapitalisation capacity of credit institutions and investment firms.
The EBA signed a framework co-operation arrangement with several US financial regulatory agencies, laying out the basis for co-operation arrangements on bank crisis management and resolution between any of the EU supervisory or resolution authorities and any of the participating US agencies. The arrangement covers crisis management related topics, including early intervention, resolution planning, resolvability assessment, and resolution.
The General Secretariat of the Council of the EU recommended that the Council confirms that it will not object to the delegated regulation adopted by the European Commission on 11 August 2017 amending Regulation (EU) 575/2013 (the Capital Requirements Regulation) as regards the waiver of own funds requirements for certain covered bonds.
The EBA published a letter to the International Accounting Standards Board (IASB) setting out the EBA's comments on the post-implementation review of IFRS 13 on fair value measurement. The EBA believes that the introduction of IFRS 13 has improved the financial information provided in banks' financial statements and contributed to the understanding of their balance sheets. Application of the standard by banks has, however, highlighted some areas where it would be beneficial to provide further guidance.
The Financial Policy Committee (FPC) published a summary of its 20 September 2017 meeting. Topics covered included setting the countercyclical capital buffer (CCyB) rate, the appropriate loss rate on consumer credit in the Bank of England’s 2017 annual stress test of major UK banks, the interaction of IFRS 9 accounting with the stress test, and the FPC’s recommendation to the PRA about its rules on the leverage ratio.
The Bank of England (BoE)’s Sir Jon Cunliffe spoke at the Single Resolution Board Annual Conference in Brussels on the 10th anniversary of the failure of Northern Rock. In his speech, Mr Cunliffe considers why the BoE was unable safely to wind up a failing bank without taxpayer intervention, the progress that has been made in the UK towards rectifying those failings, and some of the challenges that remain.
The chair of the supervisory board of the ECB, Danièle Nouy, spoke at the Single Resolution Board Conference in Brussels, saying that while the EU banking union is going in the right direction, more needs to be done to help it keep its promises.
The European Parliament’s legal affairs committee called for rules to better protect and support whistle-blowers and their role in revealing serious breaches the public interest. The committee described current whistle-blowing protections as ‘patchy’ and less than adequate in many EU countries. It has urged the EU Commission to propose new rules before the end of 2017, to provide EU wide protection.
MEPs urged the EU to do more to prevent cyber-attacks and online sexual abuse. The European Parliament voted through a resolution which calls on Member States to step up cooperation and information exchange among police and judicial authorities. The resolution argues that preventative measures which have been taken by individual users, public institutions and businesses are ‘wholly inadequate’.
The European Parliament published its suggested amendments to the proposal for a regulation on controls on cash entering or leaving the EU, and repealing Regulation (EC) 1889/2005. The proposed regulation aims at tightening controls on people entering or leaving the EU with €10,000 or more in cash or precious commodities, or which are sent through postal parcels or in freight consignments. The proposed regulation is a further effort to stop the financing of criminal activities, and put an end to the exploitation by criminals of different national rules related to cash controls.
The FCA released a report on the rates of return for prescribed projections relating to the maximum rates of return that financial services companies must use in their calculations when providing retail customers with projections of future benefits. The rules regarding projection rates can be found in the FCA Conduct of Business Sourcebook (COBS) in section 13. The FCA prescribed projection rates can be found in COBS 13 Annex 2.
The Complaints Commissioner (CC) published two final notices (FCA00062 and FCA00097) relating to an investigation which started in November 2012. Following the issue by the FCA's Regulatory Decisions Committee (RDC) of a warning notice in 2014, the FCA gave notice that it was not pursuing a case under Section 66 of the Financial Services and Markets Act 2000 (FSMA 2000) for reasons of limitation. The CC found that the FCA made serious errors in the way it handled potential limitation issues before the issue of the warning notice by the RDC but did not find evidence that the FCA acted in bad faith or that information was deliberately withheld from the RDC or the complainant.
ESMA published final guidelines on the management bodies of market operators and data reporting services providers (DRSPs). The guidelines are intended to develop common standards to be taken into consideration by market operators and DRSPs when appointing new and assessing current members of the management body, and to provide guidance on how information should be recorded by market operators and DRSPs in order to make it available to competent authorities for the exercise of their supervisory duties.
ESMA issued final draft regulatory technical standards (RTS) implementing the trading obligation for derivatives under the Markets in Financial Instruments Regulation (MiFIR). The draft RTS provide the implementing details for on-venue trading of interest rate swaps (IRS) and credit default swaps (CDS).
The EBA published an opinion on the design and calibration of a new prudential framework for investment firms, which is specifically tailored to the needs of investment firms' different business models and inherent risks. The opinion includes a series of recommendations aiming to develop a single and harmonised set of requirements that are reasonably simple, proportionate and relevant to the nature of investment firms authorised to provide MiFID services and activities.
ESMA updated its Q&As on MiFID II and MiFIR investor protection and intermediaries topics. There are new Q&As on best execution, recording of telephone conversations and electronic communications, post-sale reporting, information on costs and charges, and client categorisation.
ESMA further updated its Q&As on MiFID II and MiFIR. In addition to its new guidance on investor protection and intermediaries topics, ESMA provided further updates on market structure issues. Subjects covered include Direct Electronic Access (DEA) and algorithmic trading, as well as multilateral and bilateral systems.
ESMA and national competent authorities (NCAs) updated their work plan for the opinions on pre-trade transparency waivers and position limits that must be issued under the Markets in Financial Instruments Directive (MiFID II) and Regulation (MiFIR). In view of the large number of opinions to be issued, the work plan presents a pragmatic approach for ensuring that the waivers and position limits can be implemented as of 3 January 2018, pending the issuance of the opinions.
ESMA issued the official translations of its guidelines on transaction reporting, order record keeping and clock synchronisation under the Markets in Financial Instruments Directive (MiFID II).
The FCA announced the authorisation of Abide Financial DRSP Limited, Bloomberg Data Reporting Services Ltd, London Stock Exchange plc (UnaVista) and Xtrakter Ltd (Trax) as approved reporting mechanisms (ARMs). This follows the authorisation of six approved publication arrangements (APAs) on 24 August 2017.
ESMA launched a consultation on guidelines detailing the obligations which apply to non-significant benchmarks under the Benchmarks Regulation. The closing date for comments is 30 November 2017.
ESMA updated its Q&As on the implementation of the Benchmarks Regulation (BMR). The update includes four new answers, covering the scope of the BMR, including its application to EU and third country central banks and the exemption on single reference price, and definitions of ‘family of benchmarks’ and ‘use of a benchmark’.
ESMA updated its Q&As on the implementation of the Central Securities Depositories Regulation (EU) 909/2014 (CSDR). There are new Q&As on protection of securities of participants and those of their clients, the provision of banking-type ancillary services, and the requirements for central securities depository links.
The Financial Stability Board (FSB) published a consultation on 'Governance arrangements for the unique product identifier (UPI)'. It sets out proposals for the governance arrangements for a global UPI, as a key harmonised identifier designed to facilitate effective aggregation of transaction reports about over-the-counter (OTC) derivatives markets. The consultation closes on 13 November 2017.
The European Commission adopted two delegated regulations (C(2017) 6474 final and C(2017) 6464 final) supplementing Regulation (EU) 2016/1011 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds (the Benchmarks Regulation).
The European Commission adopted a third delegated regulation (C(2017) 6469 final) supplementing the Benchmarks Regulation. The delegated regulation specifies how the criteria of Article 20(1)(c)(iii) are to be applied for assessing whether certain events would result in significant and adverse impacts on market integrity, financial stability, consumers, the real economy or the financing of households and businesses in one or more Member States.
The rules relating to the filing of information by issuers with the FCA set out in chapter 6 of the Disclosure Guidance and Transparency Rules sourcebook (DTR) have been amended. Under the DTR, an issuer is required to file regulated information with the FCA at the same time as it discloses this information to the public. Under new DTR 6.2.2A, which came into force on 1 October 2017, an issuer is required to supply the FCA with a legal entity identifier (LEI) when it files regulated information. An LEI is a 20-character reference code that uniquely identifies a legal entity that is a party to a financial transaction.
The FCA is now accepting early applications to become an authorised or registered benchmark administrator ahead of the process formally opening on 1 January 2018. The timeframes set out in the EU Benchmarks Regulation—four months for authorisation and 45 days for registration—apply from 1 January 2018. Submitting an early application allows the FCA to review draft applications before the time limits are triggered.
ESMA updated its Q&As on the Market Abuse Regulation (MAR) to include a new Q&A 5.2 on the delayed disclosure of inside information that subsequently loses the element of price sensitivity. Under Article 17(1) of the MAR, an issuer has to inform the public as soon as possible of inside information that directly concerns that issuer. However, Article 17(4) of the MAR states that an issuer may, on its own responsibility, delay disclosure of inside information to the public, provided that certain conditions are met.
ESMA issued practical guidance on the recognition by ESMA of third-country central securities depositories (CSDs) under Article 25 of Regulation (EU) No 909/2014 (CSDR) and Article 46 of Commission Delegated Regulation (EU) 2017/392.
ESMA published a template to be used by competent authorities to send information to ESMA for inclusion in the central securities depository (CSD) register pursuant to Articles 21 and 58 of Regulation (EU) No 909/2014 (the CSDR).
The Presidency of the Council of the European Union published a compromise text of the European Commission's proposal for a regulation amending Regulation (EU) No 648/2012 (EMIR) as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for over-the-counter derivatives contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories.
The quality and quantity of dividend policy and practice disclosures improved, according to the findings of a study conducted by the Financial Reporting Council’s (FRC) Financial Reporting Lab (Lab). Among other things, the study covers how practice has improved based on the Lab’s review of dividend disclosures by FTSE 350 companies in their 2016 annual reports.
The International Swaps and Derivatives Association (ISDA) published a paper on the European Commission’s proposed moratoria powers under the Bank Recovery and Resolution Directive (BRRD). ISDA warns that the proposed powers could trigger opt-out rights for entities that have adhered to the ISDA 2015 Universal Resolution Stay Protocol (Universal Stay Protocol), thereby jeopardising the protocol’s effectiveness for EU financial institutions.
The Committee on Payments and Market Infrastructures (CPMI) and the International Organization of Securities Commissions (IOSCO) co-published a report on Harmonisation of the Unique Product Identifier (UPI), providing technical guidance to authorities on a uniform global UPI applying to over-the-counter (OTC) derivatives transactions.
The Futures Industry Association (FIA) responded to a call from the Commodity Futures Trading Commission (CFTC) for suggestions on simplifying and modernising CFTC rules via ‘Project KISS’. FIA says its suggestions are designed to maximise the CFTC’s ability to promote competitive, well-regulated markets while reducing unnecessary burdens on market participants.
ESMA released compliance tables listing the competent authorities that either comply or intend to comply with its guidelines on sound remuneration policies under the UCITS Directive (ESMA/2016/575) and under the AIFMD (ESMA/2016/579).
The executive director of supervision for investment, wholesale and specialists at the FCA, Megan Butler, clarified the FCA's supervisory priorities and provided an update on its ongoing work regarding the asset management industry. Speaking at the FT Investment Management Summit Europe 2017 on 28 September 2017, Ms Butler also provided detail on the FCA's approach to the extension of the Senior Managers and Certification Regime (SMCR), the implementation of MiFID II, and Brexit.
The International Organization of Securities Commissions (IOSCO) launched its first World Investor Week (WIW) from 2-8 October 2017. Throughout the week, securities regulators and other stakeholders from more than 70 countries are organising activities and events to increase the awareness of investor education and protection in their own jurisdictions.
The Competition Appeal Tribunal (CAT) refused the applicant, Walter Hugh Merricks, permission to appeal the CAT’s judgment of 21 July 2017 (the judgment), dismissing the applicant’s application for a collective proceedings order (CPO) under section 47B of the Competition Act 1998. The CAT refused on the basis that there is no jurisdiction to grant permission to appeal under section 49(1A) of the Competition Act 1998 and rejected the applicant’s grounds of appeal on the merits. It remains to be seen whether the applicant will now challenge the judgment by judicial review.
The Consumer Finance Association (CFA) announced its merger with the BCCA. In the agreement to merge the CFA has purchased the assets of the BCCA. Both sets of directors have agreed that they will operate under the CFA brand. The new association brings together lenders, brokers and service suppliers, and will be the principal trade association representing the short-term lending sector in the UK.
The European Insurance and Occupational Pensions Authority (EIOPA) published its work programme for 2018, highlighting and specifying the activities and tasks of EIOPA for the coming year, within the framework of a multi-annual work programme for 2017-2019.
The chair of the European Insurance and Occupational Pensions Authority (EIOPA), Gabriel Bernardino, wrote an article in Enterprise Risk magazine on the lessons to be learned by insurers in implementing Solvency II. EIOPA’s analysis shows that while insurance and reinsurance companies are making good progress in implementation, there is scope for further improvements.
The FCA is looking at the advice consumers receive on defined benefit (DB) pension transfers and whether they are at risk of harm. The number of people transferring has grown ‘significantly’ in the last year, and the FCA’s preliminary research has identified areas of risk and cases where firms have not given enough attention to customer outcomes when changing their business models.
Insurance Europe (IE) responded to the International Association of Insurance Supervisors (IAIS) consultation on revisions to Insurance Core Principle (ICP) 24. IE made a number of suggested amendments and deletions.
The European Commission adopted a Delegated Regulation supplementing the Payment Accounts Directive 2014/92/EU (PAD) with regard to regulatory technical standards (RTS) for Union standardised terminology for most representative services linked to a payment account. The Delegated Regulation will enter into force on the 20th day following its publication in the Official Journal of the EU.
The European Commission referred Spain to the Court of Justice of the EU for failure to notify measures for fully implementing the EU Payment Accounts Directive (Directive 2014/92/EU).
The FCA updated its webpage on the revised Payment Services Directive (EU) 2015/2366 (PSD2), which provides background, timelines and links to related documents, including the FCA’s consultations and policy statements.
The managing director of the Payment Systems Regulator (PSR), Hannah Nixon, provided a progress update on the new payment system operator (NPSO), reflecting on the steps that have been taken so far as well as the work that remains to be done. The NPSO was created to take forward a number of recommendations made by the Payments Strategy Forum, including the consolidation of the operators of BACS, Faster Payments and the new cheque imaging system.
The Committee on Payments and Market Infrastructures (CPMI) is consulting on a strategy to tackle the increasing threat of wholesale payments fraud related to endpoint security. The strategy sets out seven elements designed to address all areas relevant to preventing, detecting, responding to and communicating about wholesale payments fraud. Feedback is sought by 28 November 2017.
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