Rely on the most comprehensive, up-to-date legal content designed and curated by lawyers for lawyers
Work faster and smarter to improve your drafting productivity without increasing risk
Accelerate the creation and use of high quality and trusted legal documents and forms
Streamline how you manage your legal business with proven tools and processes
Manage risk and compliance in your organisation to reduce your risk profile
Stay up to date and informed with insights from our trusted experts, news and information sources
Access the best content in the industry, effortlessly — confident that your news is trustworthy and up to date.
With over 30 practice areas, we have all bases covered. Find out how we can help
Our trusted tax intelligence solutions, highly-regarded exam training and education materials help guide and tutor Tax professionals
Regulatory, business information and analytics solutions that help professionals make better decisions
A leading provider of software platforms for professional services firms
In-depth analysis, commentary and practical information to help you protect your business
LexisNexis Blogs shed light on topics affecting the legal profession and the issues you're facing
Legal professionals trust us to help navigate change. Find out how we help ensure they exceed expectations
Lex Chat is a LexisNexis current affairs podcast sharing insights on topics for the legal profession
Printer Friendly Version
Welcome to the weekly Financial Services highlights from the Financial Services team for the week ending 8 February 2018.
The chief executive of the Financial Conduct Authority (FCA), Andrew Bailey, warned that there is a range of operational issues arising from Brexit which, if not tackled, will create financial stability risks and issues for both the UK and the EU. Mr Bailey said the FCA was treating Brexit as a high priority and was working with the government to take action to ensure there is a functioning regulatory regime from day one by implementing the EU withdrawal bill.
At the annual press conference on European Central Bank (ECB) banking supervision, held in Frankfurt on 7 February 2018, the chair of the supervisory board of the ECB, Danièle Nouy, and Sabine Lautenschläger, a member of the ECB executive board and vice-chair of its supervisory board, made introductory comments relating to the challenges that banks will continue to face during 2018, including preparing for Brexit.
TheCityUK warned that the politics of Brexit is blinding parties on both sides of the Channel to the mutual advantage of a continued close partnership between the UK and the EU. It points to a report prepared by the International Regulatory Strategy Group (IRSG) in September 2017, which makes detailed proposals on the terms of a free trade agreement that would allow financial services suppliers in the EU and UK to have access to each other's markets post-Brexit.
The FCA published a report detailing the results of an independent review into the FCA board's effectiveness. The board undertook its third independent effectiveness review towards the end of 2017, the previous ones having been undertaken in 2014 and 2015 respectively. The 2017 review was undertaken by Independent Audit Ltd
The FCA published the latest version of its policy development update, which provides information on its recent and upcoming publications. Future publications include a consultation paper on payment services and electronic money, which is expected in March 2018.
The FCA announced the appointment of Nausicaa Delfas as the executive director of international, responsible for setting, growing and leading the FCA’s strategy for international engagement. The role will involve leading relationships with foreign regulators, governments and other stakeholders, and facilitating the FCA’s work to shape the global regulatory agenda and international policy.
The Prudential Regulation Authority (PRA) published its regulatory digest for January 2018. This issue includes the PRA's announcement on 8 January 2018 that it is consulting on proposed expectations for reporting on the minimum requirement for own funds and eligible liabilities (MREL) through updates to Supervisory Statement 19/13 'Resolution planning'. The digest highlights the letter from the executive director of the prudential policy directorate, Vicky Saporta, sent on 8 January 2018 to selected firms on transition disclosures for IFRS 9. It also includes the PRA's announcement on 11 January 2018 that it is consulting on changes in insurance reporting requirements, which have been developed by the PRA as part of its work on adjustments to the insurance prudential framework in light of experience following the UK's implementation of Solvency II.
The Treasury Committee launched a new inquiry into small and medium-sized enterprise (SME) finance, looking at the lessons to be learned from the Royal Bank of Scotland’s (RBS) Global Restructuring Group (GRG), and more broadly at the state of the market for SME finance. The inquiry will consider the extent of competition in the market, the various sources of funding available to small businesses, including crowdfunding and peer-to-peer lending, and whether the current regulatory framework provides appropriate protection to SMEs when they borrow money.
The Treasury Select Committee published a letter from Andrew Bailey, chief executive of the FCA, in which he provides an overview of the FCA's recent work regarding the regulatory framework for SMEs and the ongoing investigation into the RBS and its GRG. In the letter, dated 22 January 2018, Mr Bailey provides an overview of the FCA's consultation on access to redress for SMEs, and he expresses confidence that the Financial Ombudsman Service (FOS) will be able to develop their service to meet SMEs' needs.
Bulgaria set out its priorities for its six-month term as holder of the presidency of the Council of the EU, which commenced on 1 January 2018. Establishing a financial union as part of the completion of the economic and monetary union of the EU is one of its key priorities. It says it will direct its efforts towards the completion of the banking union with a focus on reducing the risks in the banking sector and on developing a capital markets union.
The vice-president of the European Commission, Valdis Dombrovskis, delivered a wide-ranging speech in Dublin, discussing Brexit, FinTech, sustainable finance and the banking union. Mr Dombrovskis called for the EU and the UK to maintain a strong convergence of rules and supervision, and said the EU aimed to ‘become a FinTech superpower’.
The World Federation of Exchanges (WFE), the global industry group for exchanges and central counterparties (CCPs), agreed its 2018 business priorities, which will focus on areas including regulatory coherence, CCP recovery and resolution issues, cyber security, FinTech, and SMEs.
The executive director for financial stability, strategy and risk at the Bank of England (BoE), Alex Brazier, gave a speech in which he considers the degree to which corporate credit markets have become stretched, and the impact this could have on the wider economy. Although banks should be able to keep lending through a global downturn, he says that more work is needed to understand the resilience of bond markets and whether they are prone to amplifying adjustments.
The PRA published policy statement (PS1/18), Strengthening individual accountability in insurance: optimisations to the Senior Insurance Managers Regime (SIMR). It provides feedback to responses to chapters 2 and 3 of consultation paper (CP8/17) ‘Strengthening individual accountability in banking and insurance: optimisations to the SIMR and changes to forms’. The appendices to PS1/18 also provide the final rules amending the SIMR and an updated supervisory statement (SS35/15) ‘Strengthening individual accountability in insurance’.
The International Swaps and Derivatives Association (ISDA) responded to the FCA's November 2017 consultation paper (CP17/37) on industry codes of conduct and discussion paper on FCA Principle 5 (a firm must observe proper standards of market conduct). CP17/37 proposed a general approach to supervising and enforcing the Senior Managers & Certification Regime (SM&CR) rules for authorised firms' unregulated activities, including those covered by industry-written codes of conduct.
Commission Delegated Regulation (EU) 2018/171 of 19 October 2017 supplementing Regulation (EU) No 575/2013 of the European Parliament and of the Council (Capital Requirements Regulation (CRR)) with regard to regulatory technical standards (RTS) for the materiality threshold for credit obligations past due was published in the Official Journal of the EU.
The PRA updated its webpage on waivers and modifications of rules to include new information regarding the voluntary requirement (VREQ) with regard to capital buffers and Pillar 2A model requirements under the CRR. Firms applying for the VREQ are also expected to apply for a minor modification by consent of 5.1 to 5.5 of the Capital Buffers Part of the PRA Rulebook.
The European Parliament’s Committee on Economic and Monetary Affairs (ECON) published amendments to its draft directive on MREL. Among the amendments are changes to promote greater flexibility, and the removal of pre-resolution moratoria, which is described as ‘very problematic as it would in essence be a resolution trigger, causing bank runs and contagion. In addition, it is likely that capital requirements would be raised’.
In a letter to the European Banking Authority (EBA) dated 22 January 2018, the vice president of the European Commission, Valdis Dombrovskis, confirmed that the Commission will promote the use of the EBA's non-performing loans (NPL) data templates by banks, investors and other financial market participants. The letter is in response to a letter from Andrea Enria of the EBA dated 20 December 2017, in which the EBA asked Mr Dombrovskis for the Commission's support in promoting the usage of the templates.
The Single Resolution Board (SRB) published the non-confidential version of documents related to the resolution of Banco Popular, including the resolution decision, valuation reports and the 2016 resolution plan. The SRB has decided to publish these additional documents relating to the resolution process in order to make as much information publicly available as possible.
The House of Commons European Scrutiny Committee cleared from scrutiny the proposal for a fifth anti-money laundering directive (MLD5) which will amend Directive (EU) 015/849 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing (MLD4) and amending Directive 2009/101/EC.
The Home Office published the 2018 circulars, coinciding with provisions of the recently enforced Criminal Finances Act 2017 (CFA 2017). The new policies make changes to the Proceeds of Crime Act 2002 (PCA 2002), including introducing new orders and implementing firmer policies on the handling of potentially criminal proceeds.
The Treasury Select Committee published a letter from the chief executive of the FCA, Andrew Bailey, to the chair of the committee, Nicky Morgan MP, with an update on the joint FCA and PRA investigation into certain former senior managers of HBOS. Mr Bailey said there was an ongoing and extensive document review, with evidential and legal analysis of relevant information. The separate investigation into the events surrounding the discovery of misconduct within HBOS’s Reading-based impaired assets team is also ongoing. Mr Bailey said the investigations were being treated as priorities and the FCA is committed to completing them as soon as possible.
The FCA is consulting on changes to its Handbook because of the changes introduced by the Benchmarks Regulation and the UK Benchmarks Regulations 2018. The FCA said it needs to amend the Decision Procedure and Penalties manual (DEPP) and the Enforcement Guide (EG). Feedback is sought by 5 March 2018, and the FCA aims to publish a policy statement in March 2018.
SI 2018/135: Parts of the Benchmarks Regulation are implemented in UK law. Among other things these changes specify the FCA to carry on the duty of competent authority under the Benchmarks Regulation. These changes come into effect for the most part on 27 February 2018, and in full on 1 May 2020.
The European Securities and Markets Authority (ESMA) published a final report on draft implementing technical standards (ITS) on forms and procedures for co-operation under Articles 24 and 25 of the Market Abuse Regulation (EU) 596/2014. The draft ITS clarify how national competent authorities and ESMA should co-operate with each other as well as with other EU authorities, entities and public bodies in the field of market abuse.
ESMA published its 2018 Supervisory Convergence Work Programme (SCWP), setting out its convergence priorities and aiming to foster co-ordination of national supervisory priorities. ESMA says that although most priorities identified for 2017 remain relevant for 2018, new priorities include the high impact of financial innovation and Brexit.
ESMA issued final guidelines on the management of conflict of interests for CCPs. Under the European Market Infrastructure Regulation (EMIR) CCPs are required to put in place organisational arrangements and policies to prevent potential conflicts of interest and to solve them if the preventive measures are not sufficient. The final guidelines were developed following a public consultation in June 2017.
The International Swaps and Derivatives Association (ISDA), the Association of Financial Markets in Europe (AFME), International Capital Market Association (ICMA) and the Securities Industry and Financial Markets Association (SIFMA) and its asset management group (SIFMA AMG) launched a roadmap that highlights key challenges involved in transitioning financial market contracts and practices from interbank offered rates, or ‘IBORs’, to alternative risk-free rates (RFRs).
ECON published its report on the European Commission's proposal for a regulatory framework for the recovery and resolution of CCPs. The report, which was adopted by ECON on 24 January 2018, makes a number of amendments to the Commission's proposal and includes a draft resolution for the Parliament to adopt the amended version as its position at first reading.
ECON published its draft report on the proposal of the European Commission for a regulation amending the ESMA Regulation (Regulation (EU) No 1095/2010 establishing ESMA) and amending EMIR in relation to the procedures and authorities involved for the authorisation of CCPs and requirements for the recognition of third-country CCPs.
ESMA updated its Q&A documents regarding the implementation of the Short Selling Regulation(SSR), the implementation of the Benchmarks Regulation and the implementation of EMIR.
ESMA published updated Q&As on the implementation of the Central Securities Depositories Regulation (EU) 909/2014 (CSDR).
ESMA updated its Q&As on transparency issues under MiFID II and MiFIR. The new questions cover pre-arranged/negotiated transactions for non-equity instruments, and minimum size of orders held in an order management facility for non-equity financial instruments.
ESMA published the official translations of its guidelines on MiFID II product governance requirements in all EU official languages. National competent authorities to which the guidelines apply must notify ESMA whether they comply or intend to comply with the guidelines, within two months of the date of publication, ie by 5 April 2018.
ESMA published the responses to its consultation on position calculation under EMIR. The purpose of the guidelines is to ensure that trade repositories calculate positions in derivatives in a harmonised and consistent manner in accordance with Article 80(4) of EMIR. The consultation closed on 15 January 2018.
ESMA published the responses it received to its consultation on proposed amendments to MiFID II RTS 1.
The BoE issued statements of commitment to the FX Global Code, the UK Money Markets Code and the Global Precious Metals Code, demonstrating that it is committed to adhering to the principles of these codes when acting as a market participant in the relevant markets, and that its internal practices and processes are aligned with the principles of the codes. The BoE strongly encourages all market participants to adhere to these codes, and has extended this expectation to its regular trading counterparties and participants in the sterling monetary framework.
The ECB, together with ESMA, the European Commission and the Financial Services and Markets Authority (FSMA), announced the composition of the working group on euro risk-free rates. Among other things, the working group will be tasked with identifying and recommending alternative risk-free rates and studying potential issues in relation to transition to these rates in line with its terms of reference. Such rates could serve as an alternative to the current benchmarks used in a variety of financial instruments and contracts in the euro area.
ESMA published the results of its second EU-wide stress test exercise regarding CCPs established in the EU. ESMA says that, overall, the system of EU CCPs is resilient to multiple clearing member (CM) defaults and extreme market shocks. In addition, the report also highlights individual CCP-specific results.
ESMA published a letter that it received from the European Commission, confirming ESMA's view that the practice of share cancellation, also known as reverse distribution or share destruction, is not compatible with the Money Market Fund (MMF) Regulation.
A corrigendum to Commission Implementing Regulation (EU) 2017/2382 of 14 December 2017 laying down implementing technical standards (ITS) with regard to standard forms, templates and procedures for the transmission of information, in accordance with MiFID II, was published in the Official Journal of the EU.
The European Money Markets Institute (EMMI) announced that, in light of the conclusions of the analyses performed in the context of the Eonia Review Data Exercise, together with the information on the overnight unsecured segment of the euro money market published by the ECB, EMMI will no longer pursue its review of the Euro OverNight Index Average (Eonia).
The chair of ESMA, Steven Maijoor, responded to Gerben Everts, chair of the Monitoring Group, which is consulting on ‘Strengthening the governance and oversight of the International Audit-related Standard-setting Boards in the public interest’, which was released on 9 November 2017.
ESMA released summaries of meetings of its management board and its board of supervisors, which took place on 13 December 2017 and 14 December 2017 respectively.
SI 2018/134: Changes are made to bring UK legislation into alignment with changes made by EU Regulation (EU) 2017/1991 to EU legislation on European venture capital funds and on European social entrepreneurship funds. These changes come into effect in part on 1 March 2018, and in full on 2 April 2018.
The International Organization of Securities Commissions (IOSCO) published final recommendations that seek to improve liquidity risk management practices of open-ended collective investment schemes (CIS) as part of its mission to protect investors, ensure fair and efficient financial markets and reduce systemic risk. IOSCO also simultaneously published a final report that sets out good practice examples regarding open-ended fund liquidity risk management, to supplement its recommendations.
Small business owners preparing to open or switch to a new business current account can now do so more easily, as 18 account providers now require the same basic set of information from new customers, UK Finance announced. The information is included in a new online guide launched by UK Finance, providing the essential details and documents that most businesses will need to open an account, so those applying can be ready for their first bank meeting.
In a rule change required by the Competition and Markets Authority (CMA) as part of its Retail Banking Investigation, banks must now set up an overdraft alert system which will help their customers avoid unnecessary charges, the government announced. The alert system is one of four new measures that were implemented on 2 February 2018 in response to the CMA's investigation.
Following the European Commission’s decision to postpone the application date of the Insurance Distribution Directive (IDD) from Friday 23 February 2018 to Monday 1 October 2018, the PRA, the FCA and the Association of British Insurers (ABI) issued responses. The PRA is proposing to update the IDD-related rules made in PS31/17 to be effective from the updated application date of Monday 1 October 2018. The FCA said once the IDD is transposed into UK law it will make its final rules, which were published in near-final form on 19 January 2018, and which it does not expect to make any changes to. The ABI welcomed the delay, saying it will provide insurers with ‘the maximum possible level of certainty at this stage of the difficult implementation process’.
HM Treasury announced that the UK government would delay making the Insurance Distribution (Regulated Activities and Miscellaneous Amendments) Order 2018 until it is known whether the application date of the IDD will be delayed until 1 October 2018, as proposed by the European Commission. The government had originally planned for the Order to come into force on 23 February 2018, the original application date of the IDD.
The European Insurance and Occupational Pensions Authority (EIOPA) published a consultation paperon a proposal for draft regulatory technical standards (RTS) adapting the base euro amounts for professional indemnity insurance (PII) and for financial capacity of intermediaries under the IDD.
The Council of the EU published an I/A item note requesting confirmation that the Council has no objection to the Commission Delegated Regulation of 20.12.2017 (C(2017) 8681 final), which postpones the date of application of Commission Delegated Regulation (EU) 2017/2358 and Commission Delegated Regulation (EU) 2017/2359 to the date eventually agreed for application of the IDD. In December 2017, the Commission proposed postponement of the application of IDD to 1 October 2018.
EIOPA published the first in a series of papers with the aim of contributing to the debate on systemic risk and macroprudential policy. EIOPA says that debate, until now, has mainly focused on the banking sector due to its prominent role in the recent financial crisis. Through the new series of papers, EIOPA seeks to ensure that any further extension of the debate to the insurance sector fully reflects the industry's specific nature.
The FCA published a discussion paper to gather views on the market for non-workplace pensions. The FCA is seeking feedback to better understand the market for non-workplace pensions, including whether competition is working well and if there are issues that need to be addressed in order to protect consumers. Feedback is sought by 27 April 2018.
Commission Implementing Regulation (EU) 2018/165 of 31 January 2018 laying down technical information for the calculation of technical provisions and basic own funds for reporting with reference dates from 31 December 2017 until 30 March 2018, in accordance with Directive 2009/138/EC of the European Parliament and of the Council on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), was published in the Official Journal of the EU.
The PRA issued a letter to chief actuaries of general insurers, following the PRA’s review of actuarial function reports (AFRs). The letter, sent by the PRA’s chief actuary, general insurance, James Orr, sets out areas where the PRA thinks that Solvency II requirements are not always being met, emerging good practice in AFRs, and some observations on how firms’ actuarial functions can be more engaged with the firm’s board and the firm’s risk management.
EIOPA published a number of new sets of Q&As on the Solvency II framework.
EIOPA published the technical information on the relevant risk free interest rate term structures (RFR) with reference to the end of January 2018. For the first time, the risk-free interest rates were calculated with ultimate forward rates (UFRs) derived in accordance with the UFR methodology published by EIOPA in April 2017. The UFR applied to the euro decreased from 4.2% to 4.05%.
EIOPA published the technical information on the symmetric adjustment of the equity capital charge for Solvency II, with reference to the end of January 2018.
Insurance Europe (IE) published a response to a European Commission consultation on institutional investors and asset managers' duties regarding sustainability. IE noted that the insurance industry has for some time considered and incorporated environmental, social and governance (ESG) factors in their business models and investment strategies, and a number of insurers across Europe have increasingly made (public) commitments to sustainability goals.
The ECB published the user requirements documents for its future real-time gross settlement (RTGS) services. The project has now entered the implementation phase and the consolidated system is expected to be ready in November 2021. The ECB says the new system will exploit the synergies across all TARGET Services, ‘bringing significant improvements to liquidity management’.
The chair of the Treasury Select Committee, Nicky Morgan MP, commented on LINK’s ATM plans, saying the Committee will take ‘a very dim view if all those with a role to play—be that LINK, the banks, the ATM deployers, or the Payment Systems Regulator (PSR)—fail to work constructively to ensure that the 2.7 million people reliant almost entirely on cash transactions aren’t cut off’.
The Payment Systems Regulator (PSR) released the minutes of its 22 November 2017 board meeting, where authorised push payment (APP) scams, the ongoing work establishing the New Payment Systems Operator, direct debit facilities management, and the PSR’s regulatory fees were discussed. The meeting also discussed the PSR’s 2018/19 action plan.
The EU Blockchain Observatory and Forum was launched by the European Commission and is designed to highlight key developments of the blockchain technology, promote European actors and reinforce European engagement with multiple stakeholders involved in blockchain activities.
0330 161 1234