UK: Financial Services Europe and International Update - Regulatory Developments

Last Updated: 22 December 2010
Article by Martin Day and Richard Frase

This DechertOnPoint summarises regulatory developments in the UK, the European Union and internationally in the investment funds and asset management sector during recent weeks.


Corporate Governance in Financial Institutions: Commission Feedback Statement

In a Communication of 4 March 2009, the European Commission announced that it would examine and report on current corporate governance practices in financial institutions, making recommendations including for legislative initiatives, where appropriate, and on 3 June 2010, it published a Green Paper on Corporate Governance in Financial Institutions. The paper was issued in response to "numerous failings" by financial institutions, such as insufficient oversight of senior management by boards, a lack of independence and authority in risk management functions and a failure by shareholders to exercise control of management, and focused on:

  • improving the functioning and composition of boards of financial institutions in order to enhance their supervision of senior management;
  • establishing a risk culture at all levels of a financial institution in order to ensure that long-term interests of the business are taken into account;
  • enhancing the involvement of shareholders, financial supervisors and external auditors in corporate governance matters; and
  • changing remuneration policies in companies in order to discourage excessive risk taking.

The scope of the paper was limited to financial institutions, such as banks and life insurance companies, but the Commission said it recognised that issues relating to corporate governance of listed companies more generally also deserve to be addressed and it has started work to this end.

In November 2010, the Commission published a feedback statement summarising the responses it received to its June 2010 Green Paper.

The feedback statement notes that respondents agreed with the analysis in the Green Paper of the weaknesses in corporate governance in financial institutions, and supported more effective supervision of the implementation by financial institutions of principles on good corporate governance.

A number of respondents called for more clarity in relation to the respective duties of different bodies within the financial institution. Multiplication of controls and procedures should not lead to confusion as to which body is finally responsible for the decision-making and the overall governance of the financial institution.

The majority of respondents argued that any future Commission proposals should be principles-based and proportionate in order to take account of differences in the business models of financial institutions, the nature of their activity, their size, complexity, legal form and different corporate governance systems and arrangements. Respondents stressed that future action at European level should focus on desired outcomes and the detailed implementation of the principles could be dealt with at national level through legislation, supervisory review, increased transparency or codes of best practice with "comply or explain" approach.

Packaged Retail Investment Products: Commission Consultation

The European Commission was given a mandate by ECOFIN in May 2007 to examine Community law applicable to retail investment products with a view to assessing whether current investor protection standards are sufficient. The Commission held an initial consultation on this in late 2007.

The three Level 3 Committees of European Financial Supervisors published a joint report on 6 October 2010, on packaged retail investment products ("PRIPs"). The report focused on the following areas: the scope of the PRIPs regime; product disclosure requirements; and regulation of selling practices.

The Commission on 26 November 2010 launched a consultation on its PRIPs initiative, which outlines possible measures for improving the transparency and comparability of investment products and ensuring effective rules govern the sales of the products. It also addresses inconsistencies in the standards that apply to different products and industry sectors.

As to the scope of PRIPs, the Commission proposes that PRIPs rules should apply to all products where the investor is exposed to fluctuations in the market and that there should be some kind of "packaging" or "indirectness" to this exposure. This would include products with capital guarantees and those where, in addition to capital, a proportion of the return is also guaranteed. It would also include retail investment funds, closed and open-ended funds, structured products, unit-linked insurance contracts and derivatives products. The planned changes will not cover pensions, direct holdings in stocks and bonds, simple deposits or products whose total returns are set in advance, however.

The Commission proposes the best way of achieving its objective for PRIPs of making European saving and investment products more transparent is through its planned revision of MiFID and the Insurance Mediation Directive (the "IMD").

The Commission's consultation states that a new disclosure instrument is necessary and that further consultation is needed to determine how charges and performance history should be presented. The responsibility for disclosure should rest with the product provider rather than the distributor in its view.

The Commission has also published two studies accompanying this consultation. The first identifies some of the costs of possible changes to sales rules for the industry. The Commission estimates that the PRIPs disclosure and sales rules would cost intermediaries, insurers and banks across Europe between €350 and €550 million with another €110 million or €220 million in ongoing costs. The impact for European advisers and brokers would be between €50 and €125 million in one-off costs and €50 and €80 million in ongoing costs. The second study focuses on decision-making by retail investors, and shows some of the factors that hinder effective decision-making and that simplifying and standardising product information can significantly improve investment decisions. The Commission also is completing a further study to assess current investment advice practices across Europe.

The deadline for responses to the consultation is 31 January 2011. A proposal for legislative instrument on disclosure is expected in Q2 of 2011.

Insurance Mediation Directive: Commission Consultation

The European Commission's Financial Services Action Plan stressed the urgency of developing a truly integrated retail market in which the interests of consumers and service providers are properly protected. The European Union already has a policy aimed at achieving an internal market for insurance intermediaries. A Directive has been adopted to set up a legal framework which ensures a high level of professionalism and competence among insurance intermediaries whilst guaranteeing a high level of protection of customers' interests. However, how the Insurance Mediation Directive has been applied varies considerably between EU member states. The Commission believes that this has led to fragmented insurance markets in the EU, with significant gaps and inconsistencies, in particular regarding the information requirements imposed on sellers of insurance products. The Commission therefore sent a request for advice in resolving these issues to CEIOPS in early 2010.

The Commission launched a public consultation on its review of the Insurance Mediation Directive (the "IMD") on 26 November 2010 in order to obtain the views of stakeholders on possible measures to be taken to enhance the rights of consumers of insurance. According to the Commission, the revision of the IMD aims to improve transparency and to establish a level playing field between the sales of insurance products through insurance intermediaries and those sold by insurance undertakings. The Commission has identified the following key problems that revision of the IMD should focus on addressing:

  • insufficient quality of information provided to consumers;
  • conduct of business rules: conflicts of interest and transparency;
  • legal uncertainty due to unclear definition of scope in the IMD;
  • burdensome notification system; and
  • SME aspects and administrative burdens.

The Commission's consultation states that the regulation of selling practices in relation to insurance PRIPs should also be covered by the IMD2. In this context, two regimes would appear to be necessary in the IMD, one for the sale of general insurance products and one for insurance PRIPs (i.e. investments packaged as life insurance policies).

The deadline for responses to this consultation is also 31 January 2011. The responses to this consultation will be fed into the preparation of the Commission's proposal for the review of the IMD in late 2011.

KIDs for All Packaged Investments

The European Commission is also reported to be considering the extension of the Key Investor Document ("KID") regime to all packaged investment products, not only UCITS, in its proposals published on 26 November 2010 (see the above items) aimed at addressing the asymmetry of information among packaged retail investment products.

It is therefore proposing the creation of a legislative framework using the UCITS KID as a blueprint. (The KID is a two-page document which includes information on risks, performance, costs and investment strategy and which will come into force in July 2011 as part of the UCITS IV Directive).

European Commission Recommends Amendments to EU Anti-Money Laundering Legislation

On 22 November 2010, the European Commission published a communication it has sent to the European Parliament and the European Council on the EU's internal security strategy which recommends that the EU should consider by 2013 making revisions to EU anti-money laundering legislation (presumably the Third Money Laundering Directive (2005/60/EC)) to enhance the transparency of legal persons and legal arrangements. In the annex to the communication, the Commission states that these amendments would enable the identification of owners of companies and trusts.

Short Selling Measures

On 2 December 2010, CESR published an updated version of its table of members' short selling measures and has indicated that it will continue to update this table (which was originally published on 22 September 2008 and last updated on 2 September 2010).

AIFM Directive Level 2 Measures

On 3 December 2010, the European Commission published a provisional request to CESR for technical advice on level 2 measures (in which up to 99 such measures are identified as likely to be required) relating to the Alternative Investment Fund Managers Directive ("the AIFM Directive").

The provisional nature of the request reflects the fact that the AIFM Directive has not yet been formally adopted. According to the accompanying letter from the Commission to CESR, formal adoption of the AIFM Directive by Council of the EU is now expected in January 2011, and the AIFM Directive is not now expected to enter into force until April 2011 at the earliest.

CESR has been asked to provide its advice to the Commission by 16 September 2011, and in response, CESR has published a call for evidence about implementing measures on the AIFM Directive. Responses must be made to the CESR call for evidence by 7 January 2011.

In its call for evidence, CESR invites all interested parties to submit their views on what CESR should consider in its advice to the Commission. CESR also asks for feedback on the following issues:

  • the categories of investment manager and investment fund which fall within the scope of the AIFM Directive;
  • whether implementing measures would be most appropriately adopted by regulations or directives; and
  • whether there are useful sources of data and statistical evidence from which CESR could benefit in the preparation of its advice to the Commission.

Issues for EU Firms Arising from the US Dodd-Frank Act

The European Private Equity and Venture Capital Association ("EVCA") has published a paper dated 25 November 2010 that outlines certain issues for EU firms arising from the US Dodd-Frank Act ("the Act").

The paper focuses on the US Securities and Exchange Commission's ("SEC") proposed rules to implement the exemptions from SEC registration as an investment adviser under the Act. The EVCA advises that the SEC's proposals provide helpful clarification for non-US advisers who are looking to rely on an exemption.

The EVCA explains in the paper that the Act abolishes the long-standing exemption that has allowed advisers of private funds to avoid SEC registration if they had fewer than 15 US clients (that is, if they were advising fewer than 15 funds). As a result, the Act may require many non-US private equity fund managers and advisers to register with the SEC by July 2011.

The EVCA advises that the most significant exemptions for non-US advisers and managers are now:

  • an exemption for certain advisers of "private funds" with less than $150 million in assets under management in the United States;
  • an exemption for advisers to "venture capital funds"; and
  • an exemption for certain "foreign private advisers".

It reminds firms that even if they are able to benefit from an exemption, they may still be subject to extensive SEC reporting requirements.

(The SEC's proposed rules are currently open for consultation).

Other EU Developments

The following additional developments are of interest.

OTC Derivatives: European Parliament

Derivatives were brought to the forefront of regulatory concerns in Europe as the financial crisis developed, from the near-collapse of Bear Stearns to the default of Lehman and the bailout of AIG. In October 2009, the Commission published a Communication outlining the range of legislative measures that it has now published as a draft regulation. On 15 September 2010, the Commission issued its formal proposal for a regulation on OTC Derivatives, central counterparties and trade repositories (known as "EMIR").

An exchange of views was held on the EMIR proposals in ECON on 30 November 2010. The rapporteur Werner Langen welcomed much of the Commission's proposal on the basis that it reflected many of the views set out in his earlier own initiative report on this issue. However, he believes there is still scope for improvement. Bilaterial clearing is a further area which needs to be addressed and the merits of the EU accessing a trade repository which would be under US jurisdiction was also questioned.

The European Commission has also expressed interest in the extension of the scope of the regulation to include all derivatives and will be considering what constitutes acceptable collateral, and has undertaken to take into account developments in the United States.

A draft report is due in late January or early February 2011, and the deadline for amendments will be 15 February 2011. Further consideration in committee will take place on 15 March 2011 with the vote in committee scheduled for 23 March 2011 and the plenary vote in the European Parliament before its recess.

Short Selling Measures

Over the summer of 2010, the Commission came under significant political pressure, notably from Germany and France, to accelerate its planned work in the area of short selling. In 2009, the Commission included in its consultation on the review of the Market Abuse Directive questions on a EU short selling regime. In March 2010, CESR published a report recommending a pan-EU model for the disclosure of short positions in EU shares, and in June 2010 the Commission released a new consultation document setting out possible options for legislation. In September 2010, the EU Commission published a proposal for a regulation on short selling and certain aspects of credit default swaps ("CDSs"). The Commission did not recommend any prohibition of naked short selling, but rather focused on enhanced transparency requirements, with a low threshold for notification to the regulator only and a higher threshold for disclosure into the market generally.

The more controversial part of the proposal was the proposed granting of emergency powers to impose temporary restrictions on short selling and CDS transactions, with ESMA to be given the power to issue opinions to competent authorities on when to intervene, as well as a power to adopt temporary measures itself restricting or prohibiting short selling. National regulators will have the power, if the price of a financial instrument falls by a significant amount in a day, to restrict short selling in that instrument until the end of the next trading day.

The European Parliament's ECON Committee has published a draft own initiative report on the EU Commission's proposal for a regulation on short selling and certain aspects of CDSs in September 2010 arguing that permanent measures are needed to provide a framework for tackling the potential negative effects of short selling, naked short selling and naked CDSs.

Also the Belgian Presidency published a progress report on short selling and CDSs. The outstanding key issues can be summarised as follows:

  • Scope of the Regulation: inclusion of sovereign debt instruments;
  • Restrictions on Uncovered Short Sales: whether there is a need to impose permanent restrictions on short selling, specifically in relation to sovereign debt instruments; and
  • Intervention Powers of ESMA: the proposed regulation gives emergency powers to ESMA to intervene in case of unjustified inaction of a competent authority.

The ECON committee expect to vote on this on 7 February 2011 and the Commission has indicated that, if adopted, the Regulation will apply from 1 July 2012.

Credit Rating Agencies

In November 2008, the Commission issued proposals on credit rating agencies ("CRAs") including provisions on registration, oversight and internal governance. CRAs operating in the EU were required to apply for registration between 7 June 2010 and 7 September 2010 for their ratings to be used for regulatory purposes in the European Community.

In June 2010, the Commission put forward amendments to the EU rules on CRAs proposing a more centralised system for supervision at the EU level. Under the proposed changes, ESMA would be entrusted with exclusive supervision powers over CRAs registered in the EU. ESMA could fine rating agencies that cannot show how they decided on their ratings or stop them from issuing ratings temporarily — or even permanently, as a last resort. In November 2010, the Commission launched a consultation on CRAs arguing that recent developments during the Euro debt crisis have shown that there may be a need to re-examine certain aspects of the current regulatory framework. These issues relate to the following perceived problems: a risk of overreliance on credit ratings by financial market participants, the high degree of concentration in the credit rating sector, the civil liability of credit rating agencies and their remuneration models.

The Economic and Monetary Affairs Committee has published an own initiative report on the "Future Perspectives of Credit Rating Agencies" arguing that market participants should only be able to invest in a structured finance instrument if they can prove to have an understanding and ability to asses the credit risk involved in such a product or, alternatively, use the highest capital risk weighting for regulatory purposes. The report also considers that credit ratings are not just mere opinions, but that CRAs should be accountable for their ratings and that their exposure to civil liability should be enhanced.

On the basis of the responses to the Commission's consultation, the Commission will decide on the need for any measures in 2011. The deadline for replies to the Commission's consultation is 7 January 2011.


HM Treasury has published a speech given on 17 November 2010 by the Financial Secretary, which clarifies the future of the FSA's function as the UK Listing Authority ("UKLA"). In its July 2010 consultation paper, HM Treasury suggested that the UKLA function could be merged with the Financial Reporting Council to form a new companies regulator. However, the Financial Secretary's speech confirmed that, following industry responses to its consultation paper, the Government has now decided to keep the UKLA in the Markets Division of the proposed Consumer Protection and Markets Authority (the "CPMA").

On 24 November 2010, HM Treasury published a summary of the responses which it has received to its July 2010 consultation paper on reforms to the UK financial services regulatory structure, making the following additional announcements:

  • the Government intends to develop accountability mechanisms for the Prudential Regulation Authority ("PRA") and to ensure that the PRA consults firms and practitioners on rule changes;
  • the Government will legislate to ensure that the PRA and the CPMA have equal status, with the PRA's veto only available when needed to protect financial stability;
  • the Government hopes that a CPMA Chief Executive-designate will be in place as an executive member of the FSA Board in time for the "shadow running" of the new structure by the FSA in the Spring of 2011;
  • as announced above, the CPMA will retain the FSA's current function as the UKLA, and it will also retain the FSA's criminal enforcement powers concerning insider dealing (but see below); and
  • HM Treasury and the Department of Business, Innovation and Skills will publish a joint consultation this month on whether the CPMA should take over responsibility for consumer credit.

UK Government Determines to Take Criminal Prosecution Away from CPMA in the Medium Term

Having previously announced that it had decided to keep the criminal prosecution of insider dealing within the CPMA rather than transfer it to a new Economic Crime Agency ("ECA"), it was subsequently reported in the media on 1 December 2010 that the Government has now reiterated that it has not abandoned its plan to take criminal prosecution powers away from the CPMA and transfer them to a new Economic Crime Agency ("ECA") in the longer term. Early last month HM Treasury stated that the CPMA would inherit the FSA's criminal powers "for the moment". In a juxtaposition of sentences obfuscatory even by Treasury standards, it went on: "...the Government recognises the importance to the City of London of a strong markets division being established within the CPMA and giving it these powers will make it a stronger and more credible regulator. The Government remains committed to the creation of a strong and powerful new ECA to tackle serious economic crime coherently and effectively."

In fact, provisions in the Market Abuse Directive ("MAD") could make it difficult for the Government to separate the conduct regulator's civil and criminal powers. Article 11 of MAD provides that "... each member state shall designate a single [emphasis added] administrative authority competent to ensure that the provisions adopted pursuant to this Directive are applied." Article 12 continues: "The competent authority shall be given all supervisory and investigatory powers that are necessary [emphasis added] for the exercise of its functions. It shall exercise such powers:

  1. directly, or
  2. in collaboration with other authorities or with the market undertakings; or
  3. under its responsibility by delegation to such authorities or to the market undertakings; or
  4. by application to the competent judicial authorities."

However, to separate these powers would not be insurmountable if the Government is determined to do so. The purpose of MAD was to give national regulators civil market abuse powers, where they did not have them in order to supplement the criminal powers they already had from earlier EU legislation. Although MAD provides that Member States should have a single authority to exercise these powers, the directive also allows regulators to collaborate with, or delegate their powers to, other authorities (see (b) and (c) above). (The result is that civil and criminal enforcement of the market abuse regime is already split between authorities in some other EU Member States.)

Comment: It seems unfortunate that this uncertainty will continue to hang over the CPMA's markets enforcement function for some time. This is a very specialised area and one where investigators and prosecutors need to be able to use civil and criminal powers in tandem and in a closely coordinated way. In our view the case is compelling to keep all aspects of markets enforcement within the CPMA.

HMRC's Statement on Equalisation in Offshore Funds

The Offshore Funds (Tax) Regulations 2009 ("the Regulations") came into force on 1 December 2009. Following the introduction of the Regulations a number of concerns about the operation of specific rules were raised, the most immediate of which related to funds which operate equalisation in respect of accumulation units. HMRC will now issue a draft of further regulations by the end of 2010 showing how such funds should calculate reported income.

HMRC further intends to address a number of other issues raised by industry in early 2011. The Government will then make a statutory instrument in Spring 2011 to amend the Regulations. Offshore funds have six months from the end of the reporting period to make their reports. As the legislation will be in place for Spring 2011 it will allow the option for funds reporting on periods already ended at that time to use the new equalisation rule in calculating their reported income.

FSA Guidance Consultation on Senior Asset and Liability Management Committee Practices

On 30 November 2010, the FSA published for consultation a draft "Dear CEO letter" on the practices of firms' senior committees charged with the responsibility for managing asset and liability management ("ALM") issues (GC10/6).

The proposed guidance relates to the FSA's detailed risk management requirements on liquidity, funding and interest rate risks to be found in chapters 12.3 and 12.4 of the Prudential Sourcebook for Banks, Building Societies and Investment Firms ("BIPRU"), and the Senior Management Arrangements, Systems and Controls Sourcebook (SYSC).

Policy Change on Disclosure of Bank Executives' Remuneration

On 25 November 2010, the UK's Prime Minister, David Cameron, indicated in reply to a question in the House of Commons that the Government had decided against implementing the draft Executives' Remuneration Reports Regulations 2010, which reflect the recommendations of the Walker Review on the disclosure of banks' remuneration levels.

In March 2010, HM Treasury published a draft of the regulations, which were to be made under the Financial Services Act 2010 which built on recommendations in Sir David Walker's review of corporate governance in banks and other financial institutions that the largest UK banks and building societies should be required to prepare executives' remuneration reports, with information on, among other things, the number of executives whose total remuneration fell within specified bands. (The intention was that there would be a consultation on the draft regulations after the 2010 Act had received Royal Assent).

The Prime Minister suggested that the Government now agrees with the subsequent view that the UK should not now proceed with these disclosure requirements "in the absence of closely aligned similar initiatives elsewhere in Europe, and, above all, in the US". The Chancellor of the Exchequer has also indicated that he had decided not to proceed with these regulations until the EU rules on remuneration disclosure have been agreed.

Additional draft Legislation on the Collection of the Bank Levy

On 24 November 2010, HMRC published additional draft legislation detailing how, when and by whom the bank levy is to be reported and paid.

Under the additional draft legislation, the bank levy is to be treated as corporation tax. The levy is to be collected under the quarterly installment payment rules and the draft legislation gives HMRC power to make regulations enabling this. A corporate group will be able to nominate one of its members that meets certain conditions to be primarily liable for payment of the levy (the responsible member). HMRC may reject a nomination in certain circumstances, such as if HMRC has reason to believe that the nominee will not be able to pay the levy. If no entity is validly nominated, default rules provide for allocation of responsible member status or, if those rules do not apply, HMRC will allocate a responsible member. Even if a group has a responsible member, other group members may be jointly and severally responsible for the levy.

As well as catering for the reporting and payment of the levy, HMRC has clarified when HMRC will be satisfied that intra-group finance constitutes long-term finance for the purposes of the levy.

Groups potentially affected by the levy should therefore now start to consider the identity of their responsible member, noting, in particular, the possibility of making a nomination before the levy legislation is enacted.

Derivatives Risk Management Procedures

On 8 December 2010, the FSA published a consultation on guidance resulting from a survey of derivative risk management practices in asset management firms (GC10/7).

The FSA has carried out a survey of twelve asset managers to consider their derivative risk management practices following the identification of risks in the FSA's Financial Risk Outlook for 2009.

The three themes that emerged from the survey as inconsistently addressed by firms are:

  • approaches to monitoring and reporting derivative risks;
  • the extent to which firms sought to ensure board members, fund directors and staff in settlement and monitoring functions understand the risks around derivatives; and
  • varying definitions of market and counterparty risk. (This means that the oversight processes varied greatly in frequency, content and depth of analysis (particularly in relation to unsettled trades, margin money and prime broker collateral monitoring).

The consultation sets out the FSA's expectations and explains that the Collective Investment Schemes sourcebook ("COLL") requires authorised fund managers to use a risk management process which enables it to monitor and measure as frequently as appropriate the risk of a fund's positions and their contribution to the overall risk profile of the fund. Firms should review the findings in the paper and the corresponding guidance on good practices as a non-exhaustive list of examples which may assist them in complying with the COLL requirements. (The consultation also contains a summary of good practices identified by the FSA).

Comments can be made in response until 20 December 2010.

Stop Press — MiFID Review: Commission Could Directly Ban 'Products, Practices or Operations' Under Proposed New Powers

The European Commission would be able to indefinitely ban products, practices or operations that raise significant investor protection concerns, generate market disorder or create serious systemic risk under proposals contained in its public consultation on the Review of the Market in Financial Instruments Directive ("MiFID") published on 8 December 2010. As part of its consultation on the review of MiFID, the Commission may seek such a power to ban products, practices or operations directly, bypassing national regulators, if it thinks these would pose significant and sustained investor protection concerns. The new European Securities and Markets Authority (ESMA), which starts operations on 1 January 2011, would in practice make the decision and advise the Commission accordingly.

If this proposal is adopted in due course it will result in a more interventionist regime that the UK Government had previously envisaged as being necessary. (The Commission's consultation document also contains other wide-ranging proposals and we will report on these developments more fully in a future OnPoint).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.