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Welcome to the weekly Financial Services highlights from the Lexis®PSL Financial Services team for the week ending 9 March 2017.
During a roundtable meeting on 2 March 2017 with industry associations and representatives of major firms, government ministers underlined their commitment to maintaining London’s position as a global financial hub. Discussions centered around topics including the Great Repeal Bill, the movement of skilled workers and opportunities to increase the sector’s global competitiveness in the future.
On 2 March 2017, Sabine Lautenschläger, member of the executive board of the European Central Bank (ECB) and vice-chair of the supervisory board of the ECB, spoke at the LSE German Symposium in London about the harmonisation of European banking supervision and the impact of Brexit on the European banking sector. Ms Lautenschläger warns that UK banks will not be able to access the EU through empty shell companies post-Brexit, and discusses the future of euro clearing in London.
On 7 March 2107, the International Trade Committee (ITC) warned the government it must act quickly and set out its vision for UK trade after Brexit—and provide reassurance that contingency plans will be in place for the eventuality that agreement is not reached with the EU. The report also highlights the significant impact Brexit could have on the financial services industry in relation to passporting.
On 2 March 2017, the Bank of England (BoE) released the terms of reference for the Prudential Regulation Committee (PRC), the body through which it exercises its functions as the Prudential Regulation Authority (PRA). The PRC sets the PRA levy and adopts the budget of the PRA, with the approval of the Court of Directors of the Bank. It also has a number of non-delegable responsibilities, as listed in Annex A of the terms of reference, which include the PRA’s high-level strategy and policy-making functions.
On 6 March 2017, the Treasury Committee questioned the Court of Directors of the BoE as part of the Committee's remit to scrutinise the management of the Bank. The Committee heard evidence from the chair of the Court of the BoE, Anthony Habgood, and the deputy chair, Bradley Fried.
On 7 March 2017, the House of Commons Treasury Committee commented on the appointment of Charlotte Hogg as the BoE’s Deputy Governor for Markets and Banking following an oral evidence hearing on 7 March 2017 with the Court of the BoE. At the hearing, the Committee asked Anthony Habgood, BoE Court Chairman, and Bradley Fried, BoE Court Deputy Chairman, about the appointment which came into effect on 1 March 2017.
On 3 March 2017, the Financial Conduct Authority (FCA) published Quarterly Consultation Paper No. 16 (CP17/6), in which it consults on proposed miscellaneous amendments to the FCA Handbook.
On 3 March 2017, the FCA published its latest policy development update, which provides information on its recent and upcoming publications, including forthcoming consultations on implementation of the Insurance Distribution Directive and the Benchmarks Regulation, as well as changes to MAR 1 regarding inside information relating to commodity derivatives.
On 3 March 2017, Regulation (EU) 2017/353 of the European Parliament and of the Council of 15 February 2017 replacing Annexes A and B to Regulation (EU) 2015/848 on insolvency proceedings (recast) was published in the Official Journal of the EU.
On 1 March 2017, the European Parliament’s Committee on Economic and Monetary Affairs (ECON) called for a review of the financing arrangements of the European Supervisory Authorities (ESAs), and raised the possibility of funding by market participants. ECON’s views are expressed in three separate opinions regarding the implementation of the 2015 budgets of the European Insurance and Occupational Pensions Authority (EIOPA), the European Banking Authority (EBA) and the European Securities and Markets Authority (ESMA). The Opinions can be found as follows:
On 7 March 2017, ESMA published details of its third Financial Innovation Day for regulators, held on 10 February 2017.
On 7 March 2017, the European Parliament’s directorate-general for internal policies and its economic governance support unit produced a report on third-country equivalence in EU banking legislation and how it differs from passporting rights.
On 8 March 2017, ESMA set out its procedure for selection of the members of its Securities and Markets Stakeholder Group and issued a call for expressions of interest to join the group. The guidance aims to ensure that ESMA applies a legally sound and practicable process to establish a well-functioning stakeholder group.
On 7 March 2017, the FCA rules regarding regulatory references for Senior Managers and staff in the Senior Managers and Certification Regime (SMCR) came into force, the FCA announced. The rules have been introduced exactly one year after the SMCR came into force. The SMCR applies to staff in roles that can cause ‘significant harm’ to either the firm or its customers. This includes, for example, investment and mortgage advisers.
On 1 March 2017, the European Banking Authority (EBA) said ‘clear improvements were seen across the board’ in its most recent comparative analysis of 23 recovery and resolution plans across the EU. The Comparative Report on Recovery Options, dated 1 March 2017, forms part of the EBA’s ongoing efforts to provide supervisors and banks with valuable support in effectively taking forward recovery planning activities required under the Bank Recovery Resolution Directive (BRRD).
On 2 March 2017, the EBA issued a consultation 'Recommendations on the coverage of entities in a group recovery' (CP EBA/2017/03) on its draft recommendation on the coverage of entities in banking group recovery plans, which is aimed at defining common criteria to identify entities (subsidiaries and branches) that need to be covered in group recovery plans, and the extent of such coverage. The consultation runs until 2 June 2017.
On 2 March 2017, despite differences and delay, the Basel III post-crisis reforms are progressing, and Basel Committee members have confirmed their broad support for the key features, the chair, Stefan Ingves, announced.
On 3 March 2017, the EBA published two reports on the results of its 2016 market risk benchmarking exercise and its 2016 high default portfolios (HDP) exercise. The reports examine the consistency of risk-weighted assets (RWAs) and, for the first time, across all EU institutions authorised to use internal approaches for the calculation of capital requirements. According to the EBA, the results confirm previous findings and establish these annual benchmarking exercises as a fundamental supervisory tool to restoring trust in internal models.
On 3 March 2017, the PRA published a speech given by its director of banks, building societies and credit unions, Martin Stewart, on refining the standardised capital regime. In the speech, which was given at the British Bankers’ Association (BBA) conference on the Challenger and Specialist Banks’ Landscape in the UK, Mr Stewart focuses on the differences between the internal ratings based (IRB) capital approach used by the major UK banks and building societies and the standardised capital approach used by the mid-tier and smaller firms, and the PRA’s efforts to create a level playing field.
On 3 March 2017, the EBA published its final draft regulatory technical standards (RTS) on the disclosure of encumbered and unencumbered assets as set out in Article 443 of the Capital Requirements Regulation (CRR) (Regulation (EU) 575/2013). In addition to the mandate in Article 443 for the EBA to develop guidelines on the disclosure of unencumbered assets, the European Systemic Risk Board (ESRB) also made recommendations in ESRB/2012/2 on the funding of credit institutions. The draft RTS fulfill ESRB recommendation D on market transparency on asset encumbrance.
On 6 March 2017, the EBA published an Opinion (EBA/OP/2017/02) on transitional arrangements and credit risk adjustments to address the introduction of International Financial Reporting Standard 9 (IFRS 9) during a transitional phase-in period from January 2018 until 2021. The Opinion focuses on the main elements that should be considered when designing the transitional arrangements. Institutions may opt to recognise the full impact of IFRS 9 on day one.
On 7 March 2017, an extensive overview of the statistics published by the Bank for International Settlements (BIS) was published in the BIS Statistical Bulletin for March 2017. The statistics are compiled in cooperation with central banks and other national authorities. They aim to inform analysis of financial stability, international monetary spillovers and global liquidity.
On 7 March 2017, the BIS published its quarterly review for March 2017. According to the review which focuses on developments in international banking and financial markets, growth in international bank claims resumed in the second and third quarters of 2016 (Q2 and Q3 2016), following declines in late 2015 and early 2016.
ESMA's Securities and Markets Stakeholders Group (SMSG) and the EBA Banking Stakeholders Group (BSG) have issued a joint statement and advice in response to the joint ESMA and EBA guidelines on the assessment of the suitability of members of the management body and key function holders under Directive 2016/36/EU and Directive 2014/65/EU. The response warns that the draft guidelines may be too onerous for smaller institutions and subsidiaries.
On 7 March 2017, the BoE executive director for banking, payments and financial resilience, Andrew Hauser, gave a speech explaining how central banks manage their own risk exposures, in light of the huge rise in recent years of the complexity and size of their market operations and balance sheet exposures.
On 8 March 2017, the European Commission published a report made to the European Parliament and the Council of the EU concerning market developments that potentially require the use of Article 459 of the CRR.
On 8 March 2017, the European Systemic Risk Board (ERSB) published a notification by the National Bank of Belgium under Article 131 of the Capital Requirements Directive providing details of Other Systemically Important Institutions (O-SII).
The Law Society (LS) published a practice note clarifying the status of legal professional privilege (LPP) following recent concerns about how the right of LPP has been asserted. The note also outlines practitioners’ duties and clarifies the main principles of LPP.
On 3 March 2017, the European Commission launched a consultation on whistleblowing, examining the benefits and drawbacks of whistleblower protection, the elements that are important for effective protection, problems arising at national and EU level from gaps and weaknesses of existing whistleblower protection and the divergences of protection across the EU. It also considers the need for minimum standards of protection.
On 2 March 2017, the FCA set a deadline of 29 August 2019 for making new payment protection insurance (PPI) complaints. It believes a targeted communications campaign plus a two-year window will encourage consumers to decide whether to make a claim.
On 1 March 2017, the latest version of the compliance calendar for over-the-counter (OTC) derivatives was published by the International Swaps and Derivatives Association (ISDA). The ISDA calendar is used as the global calendar of compliance deadlines and regulatory dates for OTC derivatives, and now runs to September 2020.
On 2 March 2017, the International Capital Market Association (ICMA) announced an update of its buy-in rules. The requirement to appoint a buy-in agent will be removed, under revisions to the buy-in and sell-out procedures, ICMA confirmed. The revised rules provide for the party initiating a buy-in/sell-out to execute the procedure themselves, subject to certain limitations. The changes come into effect from 3 April 2017.
On 2 March 2017, the Futures Industry Association (FIA) published its response to the latest proposal by the Commodity Futures Trading Commission (CFTC) on position limits for derivatives. In a letter dated 28 February 2017, the FIA urges the CFTC to assess whether position limits are needed and to expand exemptions for hedging activities before setting any new federal position limits.
On 2 March 2017, the European Commission adopted a delegated regulation that will exempt central banks and public bodies managing public debt in Australia, Canada, Hong Kong, Mexico, Singapore, and Switzerland from the clearing and reporting requirements of Regulation (EU) 648/2012 (EMIR).
On 3 March 2017, the ICE Benchmark Administration (IBA) published a feedback statement on its additional consultation on the evolution of the London Interbank Offered Rate (LIBOR) (also known as ICE LIBOR).
Following the publication of the European Commission’s EMIR Review report on 23 November 2016 on the implementation of the EMIR, the European Commission has discussed proposed amendments with Member States to make some targeted amendments to EMIR as part of the EMIR Review. Previous reports from the Commission and the Council of the EU indicated that the EMIR Review legislative proposal would be ready for publication in the first quarter of 2017. However, it appears from the European Commission college agendas for 8 March 2017-28 June 2017 that the REFIT revision of EMIR has been delayed until 7 June 2017 for discussion alongside the Capital Markets Union: mid-term review.
On 7 March, in a report, the International Organization of Securities Commissions (IOSCO) said it has found no substantial evidence showing that liquidity in the secondary corporate bond markets between 2004 and 2015 has deteriorated markedly from historic norms for non-crisis periods. IOSCO´s report points to changes to the characteristics and structure of corporate bond markets caused by new technology, the growth of electronic trading venues, and changes in execution models and dealer inventory levels. It says corporate bond markets remain fragmented among national and regional over-the-counter markets, and differ substantially across jurisdictions.
On 1 March 2017, the Investment and Life Assurance Group released minutes of its 3 November 2016 meeting with the PRA in which the PRA responded to a number of queries.
On 2 March 2017, a list of sample investor questions that may be asked during management presentations or conference calls for the marketing of high-yield bond transactions were issued by the Association for Financial Markets in Europe (AFME). The non-investment grade debt disclosure guidelines have also been updated to recommend investors have an opportunity to discuss the capital structure and covenants in each transaction.
On 3 March 2017, a review published by the FCA identified poor practices at the majority of 17 firms visited to assess dealing commission arrangements. According to the FCA, several of these firms could not demonstrate meaningful improvements in terms of how they spend their customers’ money through their dealing commission arrangements.
On 3 March 2017, the European Parliament updated its procedure file to show it is planning to debate the Money Market Funds Regulation in plenary on 15 March 2017, and a vote in plenary is scheduled for 16 March 2017. For further information see LNB News 03/03/2017 146.
On 3 March 2017, the FCA expressed concern that firms are not following the recommendations of its thematic review on best execution and payment for order flow, with some treating review of the processes as a box-ticking exercise. Outlining findings from supervisory work looking at how investment managers deliver best execution for their clients, the FCA complains that most firms have failed to take on board the findings of the 2014 thematic review. It says that firms are taking too long to improve client outcomes in best execution, and few firms have a ‘cohesive strategy’ for improving client outcomes.
On 3 March 2017, the Dormant Assets Commission issued a final report which concluded that the current dormant assets scheme should be expanded to include a range of new types of assets. The Commission’s final report also estimates there is up to £2bn of additional funding potentially available from the inclusion of additional types of asset. In total, the report sets out 50 recommendations aimed at building upon and improving the existing scheme.
On 7 March 2017, the FCA issued a Policy Statement PS17/4: ‘Handbook changes to reflect the introduction of the Lifetime ISA: Feedback on CP16/32’ (the PS) summarising the feedback received from its consultation CP16/32 of November 2016 on introducing the Lifetime Individual Savings Account (LISA), together with final rules and guidance.
On 7 March 2017, the Investment Association (IA) issued a guide designed for use by those considering investment in a UK authorised fund and who wish to understand in more detail the UK regulatory regime for authorised funds. The IA suggests authorised fund managers could use the guidance, supplemented with fund and management company specific information, to inform potential investors, or to use relevant parts of it within their own literature.
On 2 March 2017, the chief executive officer of UK Asset Resolution (UKAR), Ian Hares, assured the Treasury Committee that, where a portfolio landlord seeks to redeem a mortgage within their portfolio of buy-to-let properties, UKAR will not use its ‘right to consolidate’ clause to force portfolio landlords to redeem the whole portfolio. Andrew Tyrie MP, Chairman of the Treasury Committee, said it would be ‘very concerning’ if UKAR did exercise that right.
On 6 March 2017, the Council of the European Union released the final compromise text (‘I’ Item Note 6968/17) for a proposal for a Regulation of the European Parliament and of the Council on establishing a Union Programme to support specific activities enhancing the involvement of consumers and other financial services end-users in the Union policy making for the 2017-2020 period. The final compromise text is set out in the Annex to the Note. The Permanent Representatives Committee is invited to approve the final compromise text and the Council to approve the European Parliament’s position.
On 1 March 2017, the European Insurance and Occupational Pensions Authority (EIOPA) published its 2016 year-end report on functioning of colleges of supervisors and priorities for 2017. The report shows that the European insurance market is dominated by more than 90 cross-border insurance groups with a head office in the European Economic Area (EEA).
On 1 March 2017, the Information Commissioner’s Office (ICO) said the large volumes of data which are available online presents the insurance sector with both challenges and opportunities. The ICO is preparing guidance to help the insurance sector, and others, comply with the new General Data Protection Regulation (GDPR), coming into force from May 2018.
On 1 March 2017, the Society of Lloyd’s published a market bulletin on enforcement proceedings against Mr Charles Christopher O’Sullivan for discreditable conduct. Mr O’Sullivan has been declared unfit and unsuitable to act as a member of the Society, which is a limited liability partnership, and his permissions to transact in insurance business at Lloyd’s has been removed permanently. In addition, Mr O’Sullivan was ordered to pay £138,687 in respect of the costs of these proceedings.
On 2 March 2017, the FCA and the ICO published details of the break-out sessions at a 16 January 2017 joint forum on big data in retail general insurance. The sessions covered social media, obtaining consent, transparency of data, and data protection.
On 3 March 2017, EIOPA issued a request to insurance and reinsurance undertakings from the European Economic Area and subject to Solvency II to provide the information for EIOPA’s second Long-Term Guarantees (LTG) Report, which is due in 2017. The deadline for insurance and reinsurance undertakings to submit results to their National Supervisory Authority (NSA) is 15 June 2017. The deadline for NSAs to report to EIOPA is 16 July 2017.
On 3 March 2017, the Association of British Insurers (ABI) and the British Insurance Brokers Association (BIBA) published a review of their January 2016 Code of Good Practice regarding support for potentially vulnerable motor and household customers at renewal. The review focuses on how the guidance has been implemented and aims to share best practice across the sector.
On 3 March 2017, the International Association of Insurance Supervisors (IAIS) launched a consultation aimed at ensuring a more efficient process of developing supervisory materials. In ‘Revised Insurance Core Principles (ICPs) and ComFrame material integrated with ICPs’ the IAIS seeks comments from interested stakeholders by 1 June 2017.
On 3 March 2017, the IAIS asked for feedback on a draft application paper on group corporate governance. The purpose of the application paper is to create a common understanding among supervisors on how to assess or evaluate the governance frameworks of insurance groups. Responses are sought by 3 April 2017 via the consultation webpage..
On 6 March 2017, Insurance Europe published its response to a EIOPA consultation on the potential harmonisation of recovery and resolution frameworks for insurers. Insurance Europe said there is no need for a major overhaul of EU recovery and resolution rules for insurers as Solvency II already provides strong consumer protection and financial stability safeguards. However, there is room for ‘a degree of convergence’ on certain issues within the existing framework.
On 6 March 2017, the FCA has launched the first of two consultation papers on implementing the Insurance Distribution Directive (IDD). Among the proposals consulted on is a change to the definition of ‘durable medium’ in the FCA Handbook (5.36). Responses are requested by 5 June 2017.
On 6 March 2017, the secretariat staff of the ESRB published a response to a European Insurance and Occupational Pensions Authority (EIOPA) Discussion Paper (DP) on the potential harmonisation of recovery and resolution (RR) frameworks for insurers published in December 2016. The response summarises ESRB Secretariat staff views on the DP with the aim of providing a macroprudential perspective and draws on positions taken in previous reports by the ESRB while also reflecting ongoing work.
On 7 March 2017, EIOPA published the technical information on the symmetric adjustment of the equity capital charge for Solvency II with reference to the end of February 2017.
On 7 March 2017, it was announced that the BoE , in collaboration with the London Business School, is hosting an event on 20 March 2017 where it will set out the approach of the PRA to supervising insurers. The deputy governor of the BoE and chief executive of the PRA, Sam Woods, will deliver a speech on PRA policy approaches. The event will also mark the launch of a report from the BoE’s Independent Evaluation Office on the PRA’s approach to its insurance objective, focusing on how it is interpreted, implemented and communicated.
On 7 March 2017, the ABI called the planned rise in insurance premium tax (IPT) a ‘raid on the responsible’, and co-signed a letter of protest with business, finance and charity groups calling for the government to reconsider. The ABI says the move would mean IPT had doubled in under two years.
On 8 March 2017, Insurance Europe responded to a EIOPA discussion paper on the upcoming review of Solvency II, raising a range of concerns on current Solvency II provisions and proposed ways to address them.
On 28 February 2017, the European Cards Stakeholders Group (ECSG) issued new technical guidance to help ensure the interoperability and security of cards in Europe. Version 8.0 of the Single Euro Payments Area SEPA Cards Standardisation Volume incorporates comments received during public consultation, and provides guidelines to facilitate the implementation of some aspects of the Interchange Fee Regulation (IFR). It takes effect immediately.
On 2 March 2017, the ECB published an Opinion on the provision of information and data by payment systems, payment schemes, securities depositories and clearing and settlement systems.
 UKUT 82 (TCC)
The Upper Tribunal (Tax and Chancery Chamber)(the tribunal) ruled on the application by the Financial Conduct Authority (the FCA) to amend its Statement of Case in circumstances where a reference had been made to the tribunal by the applicant, a former employee of Deutsche Bank AG, seeking a determination that the opinions expressed in relation to him in a Decision Notice given by the FCA to that bank, notifying it of the decision to impose a financial penalty on it as a result of serious misconduct, were not justified and should therefore be excised.
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