UK: Financial Regulatory Developments (FReD) - 20 September 2013

Last Updated: 20 September 2013

HEADLINES

  • Commission publishes benchmark regulation proposal
  • FCA fines Axa Wealth for advice failings
  • FCA concerned at RDR inducements compliance
  • Current Account Service launches
  • FReD Live 24 September

EUROPEAN UNION AND INTERNATIONAL

Presidency of the Council of the EU (Presidency)

ECOFIN pushes for quick banking union: The Presidency has published the initial discussions of the informal meeting of Economic and Finance Ministers (ECOFIN). The ministers agreed that banking union is a priority to ensure financial stability. Because of this, ECOFIN says the Single Resolution Mechanism should also be finalised urgently. (Source: ECOFIN Pushes for Quick Banking Union)

Contact: Rosali Pretorius or Andrew Barber

Council of the EU (Council)

Council announces application to annul sanctions: The Council has announced a further application to annul financial sanctions against Iran (see also FReD 13 September). Sorinet Commercial Trust Bankers Ltd has brought an action for annulment of certain restrictive measures, citing four grounds, including failure to state reasons and failure to carry out a genuine assessment. Separate applications are under way in relation to other entities affected by Iranian sanctions. (Source: Council Announces Application to Annul Sanctions)

Contact: Emma Radmore or Andrew Barber

Regulation on colleges for CCPs published in OJEU: The Commission Delegated Regulation supplementing the European Market Infrastructure Regulation (EMIR) with regulatory technical standards on colleges for central counterparties (CCPs) has now been published in the Official Journal of the European Union (OJEU) and will come into force 20 days after publication. (Source: Commission Delegated Regulation (EU) No 876/2013)

Contact: Emma Radmore or Juan Jose Manchado

European Parliament (EP)

EP agrees SSM accountability with ECB: EP and the European Central Bank (ECB) have signed an interinstitutional agreement setting out how ECB's Supervisory Board, at the top of the Single Supervisory Mechanism (SSM), will provide information and be accountable to EP. EP voted through its proposals on a large majority and now calls on the Commission and the Council to agree its texts. (Source: Green Light for Single Supervisor for Banks)

Contact: Emma Radmore or Juan Jose Manchado

EP updates voting dates: EP has rescheduled some of its forthcoming votes:

  • the vote on the review of the Insurance Mediation Directive (IMD2) is now expected on 5 November; and
  • a new vote on the Mortgage Credit Directive (MCD) will take place on 22 October, to confirm EP's support on the text agreed with the Council.

(Source: OEIL File on IMD2 and File for MCD)

Contact: Emma Radmore or Juan Jose Manchado

European Commission (Commission)

Commission publishes benchmark regulation proposal: The Commission has published its proposal for a Regulation on indices used as benchmarks in financial instruments and financial contracts (the Benchmark Regulation). The proposal will require:

  • those who provide benchmarks to be authorised and supervised at national and European level;
  • benchmark administrators to avoid conflicts of interest where possible, and manage them adequately where they cannot avoid them;
  • sufficient and accurate data to be used in setting benchmarks, so benchmarks represent the actual market or economic reality they are intended to measure. Verified estimates would be allowed only when no real transaction data is available;
  • the administrator to produce a code of conduct setting out the obligations and responsibilities of contributors who provide input data for a benchmark;
  • more transparency of the data used to calculate the benchmark and of the calculation method; and
  • banks to assess suitability for consumers where necessary, for instance when drawing up mortgage contracts.

The Commission proposes colleges of supervisors for critical benchmarks, and says each college will include ESMA, which will be able to make binding mediation decisions if college members cannot agree. It also suggests a power for the relevant competent authority to compel contributions to critical benchmarks. Finally it imposes sanctions for breach of the Regulation. The Commission says it expects the legislative process to adopt the Regulation to be complete by the end of the current parliamentary mandate, and for it to take effect one year later. (Source: Commission Publishes Benchmark Regulation Proposal)

Contact: Rosali Pretorius or Andrew Barber

European Systemic Risk Board (ESRB)

ESRB considers macro-prudential policy under SSM: ESRB has published a report considering the consequences of the SSM for Europe's macro-prudential policy framework. It argues for a centralised model of macro-prudential policy within the SSM. The ECB would set the framework and apply the necessary tools, in co-operation with national authorities and to the extent those tools are provided in EU law, mainly the fourth Capital Requirements Directive (CRD4). It would act through its Governing Council, rather than the Supervisory Board, to avoid conflicts between micro- and macro-financial stability. ESRB would remain advocate of financial stability for the whole of the EU, and should retain effective capability to issue recommendations and warnings about developments in individual EU countries, including those in the SSM. The President of the ECB would have to step down as Chair of the ESRB. (Source: The Consequences of SSM for Europe's Macro-Prudential Policy Framework)

Contact: Rosali Pretorius or Juan Jose Manchado

European Securities and Markets Authority (ESMA)

ESMA publishes derivatives group report: ESMA has published a report by the OTC Derivatives Regulators Group that comprises the principals of OTC derivatives regulators in the EU, the US, Australia, Japan, Brazil, Hong Kong, Ontario, Quebec, Singapore and Switzerland. These regulators have agreed on ways to approach cross-border issues that arise in relation to OTC derivatives. The principles focus on:

  • consultation and communication during equivalence or substituted compliance assessments;
  • a flexible, outcome-based approach to such assessments;
  • applying the stricter rule, where one jurisdiction's requirements are higher than another's in respect of application of mandatory trading or clearing;
  • an agreed consultation framework on mandatory clearing determinations;
  • removing barriers on reporting to trade repositories (TRs) and on authorities accessing this data; and
  • appropriate transitional arrangements.

The regulators acknowledge there could be improvements, and will work particularly on authorities' access to registrant information and foreign bank branches and guaranteed subsidiaries. (Source: ESMA Publishes Derivatives Group Report)

Contact: Rosali Pretorius or James Brennan

ESMA confirms TR delay: ESMA has published an updated version of its timeline EMIR. It had hoped to make the first registration decisions on TRs in late September but says it does not expect to make the decisions until at least 7 November. Consequently, counterparties' reporting to TRs is not expected to start before February 2014. Source: ESMA Confirms TR Delay)

Contact: Rosali Pretorius or James Brennan

ESMA publishes EMIR RTS responses: ESMA has published the responses of stakeholders to its discussion paper on the clearing obligation under EMIR, and to its consultation on draft Regulatory Technical Standards (RTS) on contracts having a direct, substantial and foreseeable effect within the EU and non-evasion of provisions of EMIR. (Source: Discussion Paper - The Clearing Obligation Under EMIR and Consultation on Draft RTS on Contracts Having a Direct, Substantial and Foreseeable Effect Within the EU and Non-Evasion of Provisions of EMIR)

Contact: Rosali Pretorius or James Brennan

Court of Justice of the European Union (CJEU)

CJEU considers short selling annulment: The Advocate General has stated his opinion on the UK's contention that article 28 of the Short Selling Regulation (SSR) should be annulled on the basis that it should not legally have been adopted using article 114 of the Treaty of the European Union (TFEU). The Advocate General agreed, and also agreed that the powers given to ESMA under that article exceed the limits the mechanism was intended to address. Under the relevant powers, ESMA would have been able to replace national decision-making with EU level decision making. However, the Attorney General suggested the SSR article would have been properly adopted under another part of the TFEU. The CJEU must now decide the matter, and also whether the UK's contention that the measures gave ESMA too much power. (Source: CJEU Considers SSR Annulment)

Contact: Rosali Pretorius or Juan Jose Manchado

UK GOVERNMENT AND PARLIAMENT

Parliament

Parliament publishes Wheatley evidence: The Treasury Committee has published an account of the oral evidence given by Martin Wheatley at what is to be a regular meeting about FCA. The Committee posed questions on various matters, including:

  • the differences between FCA and its predecessor;
  • the proposal (with which Mr Wheatley did not agree) to put the Regulatory Decisions Committee on a statutory footing;
  • the progress of FCA's review on interest rate hedging products;
  • tailored business loans;
  • the potential conflict between easy bank switching and the money laundering requirements;
  • FCA's investigation into teaser rates;
  • consumer credit transfer;
  • senior persons and the licensing regime - assuming the Financial Services (Banking Reform) Bill gets Royal Assent (the Bill is due its Committee hearing in the House of Lords on 8 October), FCA intends to consult in the first half of 2014 on necessary rule changes and to introduce rules in 2015;
  • FCA's fining policy; and
  • annuities.

(Source: Treasury Committee Oral Evidence 10 September)

Contact: Emma Radmore or Juan Jose Manchado

HM Treasury (Treasury)

Treasury updates sanctions: Treasury has updated the sanctions lists. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Howard Cohen

Office of Fair Trading (OFT)

OFT reports on Lloyds and RBS divestments: OFT has published its report to the UK Government on the impact of Lloyds and RBS divestments on competition in the retail and SME banking sector. The report contains recommendations to strengthen this impact by enhancing Lloyds' divestments:

  • services arrangements between Lloyds and its divestment should provide the appropriate quality for the right cost, and contain an appropriate break clause;
  • the divested entity should be strengthened financially, possibly through a direct injection of capital from Lloyds; and
  • the divested entity should be capable of reaching 4.6% of the personal current accounts market, by providing it with an option to acquire further branches at a later date or with greater resources, in line with the second recommendation above, to develop its own branch network.

Regarding RBS, the report concludes that its divestment does not need further enhancement to grow and compete in the SME banking market. The report also notes that, in 2014, OFT will deliver its market study into SME banking. It will also respond to the Independent Commission on Banking's suggestion that OFT should consider making a market investigation reference by 2015 if competition in the retail banking sector has not improved by then. (Source: Letter from OFT to Chancellor)

Contact: Howard Cohen or Andrew Barber

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Financial Conduct Authority (FCA)

FCA fines Axa Wealth for advice failings: FCA has fined AXA Wealth Services Ltd (Axa) £1,802,200 for failings in its investment advisory business. Axa sold investment products through its advisers based in-branch at three banks and building societies. FCA found that, over an 18-month period, it:

  • failed to have in place an adequate process for establishing the level of risk customers were willing and able to take;
  • failed to ensure its advisers gathered and kept all information they needed before making recommendations to customers;
  • failed to ensure advisers paid enough attention to customers' investment objectives;
  • did not have in place proper policies to tell customers about charges relating to their products;
  • did not ensure customers received adequate explanation as to why products were recommended as being suitable for them;
  • had inadequate controls over incentives paid to sales advisers; and
  • did not have in place adequate procedures for monitoring sales of investment products.

FCA acknowledged the improvements Axa made to its policies and the low rate of customer complaint. It also noted customer detriment may be low given the rate of investment return to date. However, it saw potential for future losses and Axa agreed to contact all customers, compensate those who suffered loss and enable customers to exit products should they wish. Axa benefited from a 30% early settlement discount on a fine which was based on 10% of its total relevant revenue for the relevant period. (Source: FCA Fines Axa Wealth for Advice Failings)

Contact: Emma Radmore or Josie Day

FCA concerned at RDR inducements compliance: FCA has published the results of its thematic review into life insurance and advisory firms' compliance with the Retail Distribution Review (RDR). It has found widespread evidence of payments and joint ventures between providers and distributors that breach FCA's inducements rules and the principle of managing conflicts of interest fairly. FCA is concerned these practices undermine the purpose of the RDR. Two firms have been referred to enforcement. The results of the review are accompanied by proposed guidance setting out examples of good and bad practice, and FCA's views on how firms can act in compliance with RDR. FCA expects firms to review and revise their existing arrangements as required. Although the review was focused on retail distribution of life insurance, FCA stresses that the guidance is relevant to all providers and advisers on retail investment products. The consultation on the proposed guidance is open until 18 October. (Source: GC13/5 Supervising Retail Investment Advice: Inducements and Conflicts of Interest)

Contact: Andrew Barber or Emma Radmore

Financial Ombudsman Service (FOS)

FOS publishes newsletter: The latest edition of Ombudsman News focuses on interest rate hedging products and packaged bank accounts. (Source: Ombudsman News September 2013)

Contact: Andrew Barber or Emma Radmore

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

International Organisation of Securities Commissions (IOSCO)

IOSCO to encourage signing of co-operation MMoU: IOSCO has adopted, during its Annual Conference, a resolution which calls for gradually restricting the influence over IOSCO's decisions of those members (28 in total) that have not signed the Multilateral Memorandum of Understanding (MMoU) on co-operation and exchange of information. It also says signatory members take precautions when dealing with entities linked to non-signatory jurisdictions. Other announcements during IOSCO's Annual Conference included the imminent publication of the first annual IOSCO Risk Outlook, the beginning of IOSCO's Task Force on Cross-Border Regulation work, and the theme of next year's Conference, which will focus on long-term finance. (Source: IOSCO Confirmed as the Key Global Reference Point for Securities Regulation)

Contact: Rosali Pretorius or Juan Jose Manchado

Payments Council

Current Account Service launches: The Payments Council confirmed the launch of the Current Account Switch Service on 16 September. 33 banks and building society brands now offer consumers and small businesses the chance to switch current accounts within seven days, on a date of their choosing, and with a new guarantee and "Trustmark". More brands will join the service next year. (Source: Payments Council Announces Current Account Switch Launch)

Contact: Andrew Barber or Josie Day

Transparency International (TI)

TI writes to Government on BA review: TI has written to the Government stressing the importance of leaving the Bribery Act (BA) and guidance untouched during the "Red Tape Review" programme. It said the Government should focus its efforts on helping small and medium-sized businesses design proportionate anti-corruption programmes. (Source: TI Writes to Government on BA Review)

Contact: Howard Cohen or Emma Radmore

Forthcoming Events

FReD Live 24 September: To clear or not to clear: or is that the question? It is not too late to register for this breakfast seminar which will cover EMIR's mandatory clearing rules and margin requirements and the CRR Prudential requirements for cleared and uncleared derivatives on market participants. To register, RSVP here.

Africa: Now Open for Business: Please join us for a telephone conference or in person briefing in our New York office from Dentons experts and a panel of expert speakers.

AIFM Directive Implementation conference : Rosali Pretorius will be speaking at this Infoline conference in London in December. Dentons clients and contacts can get a 20% discount by quoting VIP code FKM62678EMSPK when registering. Bookings by 11 October can benefit from a further early registration discount of up to £900.

The 2013 COBS Conference: Dentons will host the 2013 COBS Conference organised by the Compliance Register on 15 November, and members of our London Financial Services and Funds team will present at it.

Recent Publications

Financial Crime

UK authorities move forward on tougher financial crime prevention: Emma Radmore wrote an article for Financial Regulation International on current consultations on sentencing and deferred prosecution agreements. (August 2013)

Sanctions restrictions do not prevent payment of debts: Richard Caird and Tom Rocher comment on the judgement in DVB Bank SE and others v. Shere Shipping Company Limited and others. (August 2013)

Deferred Prosecution Agreements: Emma Radmore has written an article for Financial Regulation International on the introduction of Deferred Prosecution Agreements in the UK. (June 2013)

Anti-Bribery and Corruption Laws in Key Jurisdictions: Lawyers from Dentons offices in six jurisdictions prepared a table comparing key provisions of anti-corruption laws for Thomson Reuters Compliance Complete. (May 2013)

Preventing Financial Crime: Emma Radmore has written an article for Financial Regulation International on recent developments in financial crime prevention. (April 2013)

The Evolving Financial Sanctions Landscape – UK and US Perspectives: Emma Radmore, Thomas Laryea, Michael Zolandz and Peter Feldman have written an article for Financial Regulation International on financial sanctions under the UK and US regimes. (November 2012)

The Bribery Act – Has It Made A Difference?: We have updated our previous overview of the Bribery Act to take into account the Serious Fraud Office's latest guidance. (October 2012)

Dealing with Anti-Corruption Laws – the Bribery Act and FCPA in Context: This article summarises the effects of the Bribery Act and US Foreign Corrupt Practices Act. For further information, please contact Emma Radmore or Dominic Sedghi (London), or Michelle Shapiro (New York). (May 2012)

Investment Services and Markets Reform

Mobile Banking - FCA sets out the risks: Candice Chapman, Andrew Barber and Winston Green comment on FCA's thematic review of mobile banking. (See also FReD 30 August.) (August 2013)

Mobile Network Operator Billing: Andrew Barber and Alex Haffner have written an alert on the effects of the Payment Services Directive on the development of direct-to-phone-bill purchases by mobile network operators. (August 2013)

US Government announces six-month delay in FATCA rules: John Harrington, Jeffrey Koppele, Marc Teitelbaum and Jerome Walker have written an update on the delay in implementing certain elements of FATCA. (July 2013)

Take aim for AIFMD implementation: Emma Radmore and Kam Dhillon have written an article for Compliance Monitor on the final steps towards implementation of the AIFMD. (July 2013)

Taking the Credit - the Transfer of Consumer Credit Regulation: Andrew Barber, Emma Radmore and Juan Jose Manchado have written an article for Compliance Monitor on the transfer of consumer credit regulation to FCA. (April 2013)

Last Lap to Legal Cut-Over: Emma Radmore has written an article for Compliance Monitor on FSA's first two consultations on preparing for the new regulatory regime. (January 2013)

A New Handbook for a New Era?: Emma Radmore has written an article for Thomson Reuters Compliance Complete on FSA's proposals to update the General Provisions Sourcebook for legal cut-over. (October 2012)

Treasury Publishes Banking Reform Bill: Read our summary of the Bill implementing the Vickers reforms into FSMA. (October 2012)

RDR: How Long Can it Last?: Emma Radmore and Andrew Barber have written an article for Compliance Monitor on the future of the Retail Distribution Review. (October 2012)

What's next for LIBOR? Summary of the Wheatley Review Recommendations: We have written a summary of the Wheatley 10-point plan for the reform of the LIBOR process. (September 2012)

Rate Setting and Regulation: In Everyone's Interests?: Rosali Pretorius and Katharine Harle wrote an article for Financial Regulation International on the background to LIBOR setting and potential regulatory action. (August 2012)

Money through your mobile – regulation of m-payments: Andrew Barber and Emma Radmore have written an article for Compliance Monitor on the regulatory aspects of mobile payments. (May 2012)

MiFID 2 – Prescription and Change: Emma Radmore wrote an article for Compliance Monitor on the breadth of the proposals to amend the Markets in Financial Instruments Directive (MiFID 2). (January 2012)

Prudential Regulation

UK Treasury Publishes Banking Structure Reform Plans: This article summarises the June 2012 White Paper on implementation of structural change to UK banking (as covered in FReD 15 June). For more information, please contact Rosali Pretorius, Emma Radmore or Andrew Barber. (June 2012)

EU Living Wills Plans – the Key Proposals: This article is the latest in our suite of articles about Living Wills and Recovery and Resolution Plans looks at the European Commission's proposals. For further information, please contact Rosali Pretorius or Andrew Barber. (June 2012)

Living Wills update: We have produced an update on FSA's current plans for Recovery and Resolution Plans. For further information, please contact Rosali Pretorius or Andrew Barber. (May 2012)

Asset management

The Alternative Investment Fund Managers Directive – Theory Becomes Reality: Rosali Pretorius and Emma Radmore wrote an article on implementation of the AIFMD for the Global Asset Management & Servicing Review 2013/14 published by Euromoney Yearbooks.

Product Regulation

More Protection for Retail Markets – the EU's PRIPs Package: We have written a detailed summary of the PRIPS, IMD2 and UCITS V proposals. (July 2012)

Another Stable Door?: Emma Radmore and Katharine Harle wrote an article for Thomson Reuters Complinet on IOSCO's proposals for complex product distribution. (April 2012)

Enforcement and Litigation

Appeal dismissed in first interest swap case: Richard Caird and Kattalin Truman have written an article on the Court of Appeal's decision in the first interest rate swap case in the English courts. (August 2013)

It's all in the detail: a cautionary tale for handling complaints: Richard Caird and Felicity Ewing have written an article on the FCA's fine on Policy Administration Services.

Having Your Cake and Eating It: FOS Award is no Bar to Issuing Proceedings: Katharine Harle has written an article for Compliance Monitor on the High Court award in Clark and another v. In Focus Asset Management & Tax Solutions Ltd. (January 2013)

The Not So Remote Risks of Recommendations: Richard Caird, Sam Coulthard and Kattalin Truman have written an article on the case of Rubenstein v. HSBC Bank plc. (September 2012)

The Long Arm of FSA: Overseas Firms and Senior Management Beware: Emma Radmore and Katharine Harle have written an article for Compliance Monitor on the lessons from recent FSA enforcement cases involving overseas firms and their approved persons. (August 2012)

More Confusion on Client Money: Rosali Pretorius and Josie Day have written an article on the Supreme Court decision in the Lehman client money case. (March 2012)

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