UK: Financial Regulatory Developments (FReD) - 28 September 2012

Last Updated: 9 October 2012


ECON approves MiFID 2 report

Wheatley to publish LIBOR findings

FSA speaks on financial promotions

FSA publishes PRA transition guidance

European Union and International

Presidency of the European Union (Presidency)

Presidency publishes more MiFID 2 compromises: The Presidency has published a further set of Compromise texts for the proposed Regulation and Directive amending the Markets in Financial Instruments Directive (MiFIR and MiFID 2). (Source: Presidency Compromise of MiFIR and Presidency Compromise of MiFID 2)

Contact: Rosali Pretorius or Emma Radmore.

Council of the European Union (Council)

Council publishes financial crime evaluations: The Council has published its final report on the mutual evaluations of the financial crime and financial investigatory laws and powers in Member States. The work started in 2008 and the work is now complete and has been analysed. The Council found all Member States have professional systems for dealing with financial crime and investigations, and many have made recent substantial improvements in their investigatory and other powers. Each Member State has a criminal policy, but there are many obstacles to investigations including organisational hindrances, limited resources and procedural issues. There are also still many difficulties in cooperation and information sharing. As a result, the Council has made several recommendations to Member States on improving both investigatory powers and cooperation. (Source: Summary of Mutual Evaluation on Financial Crime and Country Comments on Mutual Evaluation on Financial Crime)

Contact: Emma Radmore or Andrew Barber.

Next MiFID meeting on 3 October: The Working Party on Financial Services is due to discuss the proposals for MiFIR and MiFID 2 on 3 October. (Source: Next MiFID Meeting on 3 October)

Contact: Rosali Pretorius or Emma Radmore.

European Parliament (EP)

ECON approves MiFID 2 report: EP's Economics and Monetary Affairs Committee (ECON) has voted unanimously to adopt the Markus Ferber report on amendments to the MiFID 2 package. Critical to the ECON position are amendments that:

  • require firms designing products to ensure they are suitable for a defined class of investor and take reasonable steps to ensure they are sold to that type of investor;
  • ensure advisers are properly qualified;
  • ensure firms do not remunerate or assess their staff in a way that would give rise to conflicts between their interests and the interests of clients;
  • reserve Organised Trading Facilities (OTFs) to non-equities, to bring them under MiFID Rules;
  • ensure that all orders are valid for at least 500 milliseconds and that firms have good systems and controls in place to deal with market stresses;
  • impose thresholds on trading in commodities and commodity derivatives, such as the maximum net positions persons can hold or enter into over specified periods of time.

Markus Ferber said he hoped the amendments would go before the full EP in October and called on the Council and the Commission to engage in discussions with the EP with a view to reaching agreement on the proposals quickly. (Source: ECON Approves MiFID 2 Report)

Contact: Rosali Pretorius or Emma Radmore.

ECON Publishes MAD responses: ECON has published the responses it received to its consultation on addressing the issues arising from the LIBOR issue within the review of the Market Abuse Directive (MAD). It received over 40 responses. (Source: ECON Publishes MAD Responses)

Contact: Rosali Pretorius or Madeleine de Remusat.

EP updates voting dates: EP has updated its forecasts for votes on the Packaged Retail Investment Product (PRIPs) and Insurance Mediation Directive review (IMD 2) proposals. The committee date for the PRIPs vote is now 20 March 2013, with the IMD 2 committee vote on 26 March. Only the PRIPs proposal has an indicative plenary date, which is 8 May 2013. (Source: Legislative Observatory File on PRIPs and Legislative Observatory File on IMD 2)

Contact: Emma Radmore or Juan Jose Manchado.

European Commission (Commission)

Commission consults on energy reporting framework: The Commission is consulting on measures it will adopt under the Regulation on Energy Market Integrity and Transparency (REMIT). The consultation focuses on implementing a transaction and data reporting framework to allow the Agency for the Cooperation of Energy Regulators (ACER) to carry out effective, EU-wide market monitoring. The consultation discusses the links between REMIT and the MAD, and the need for consistency and lack of duplication where a market participant or third party acting on its behalf has already fulfilled reporting obligations under MiFID or Regulation on OTC Derivatives, Central Counterparties and Trade Repositories (EMIR) requirements. It seeks comments on the scope and content of reporting requirements. The consultation closes on 7 December 2012. (Source: Commission Consults on REMIT Reporting Framework)

Contact: Rosali Pretorius or Mark Cheney.

European Securities and Markets Authority (ESMA)

ESMA publishes KIID FAQs: ESMA has published a set of FAQs on the Key Investor Information Document (KIID) required under the UCITS Directives. The questions relate to:

  • KIIDs for UCITS that are in liquidation or no longer marketed to the public;
  • communication of KIIDs to investors;
  • treatment of UCITS with share or unit classes;
  • past performance;
  • clear language; and
  • identification of the UCITS.

(Source: ESMA Publishes KIID FAQs)

Contact: Jim Baird or Andrew Barber.

European Banking Authority (EBA)

EBA adopts EMIR CCP draft standards: EBA has adopted its draft technical standards on capital requirements for central counterparties (CCPs) under EMIR. The Commission now needs to adopt the standards. Capital requirements will have a floor but the final figure will depend on many factors set out in the standards. Although the standards will take the form of a Regulation, EBA has suggested to the Commission that Member States should be able to set higher requirements for CCPs to mitigate risks not covered by EMIR. (Source: EBA Adopts Draft CCP Standards)

Contact: Rosali Pretorius or Edward Hickman.

UK Government and Parliament


Parliament publishes banking evidence: The Parliamentary Commission on Banking Standards has published the written evidence it received for its inquiry. The evidence comes from 47 contributors, including regulators, industry associations, firms and academics. (Source: Parliament Publishes Banking Evidence)

Contact: Andrew Barber or Emma Radmore.

Bank of England (BoE)

FPC holds policy meeting: The Financial Policy Committee's latest meeting decided the risks to financial stability remain sufficiently similar to the situation that existed at its last meeting. The recommendations set out in its June 2012 Financial Stability Report still apply. (Source: FPC Holds Policy Meeting)

Contact: Rosali Pretorius or Andrew Barber.

UK Financial Services and Markets Regulator

Financial Services Authority (FSA)

Wheatley to publish LIBOR findings: Martin Wheatley will publish the final report and findings of his review of LIBOR on 28 September. FReD will report separately on this. (Source: Wheatley to Publish LIBOR Findings)

Contact: Rosali Pretorius or Madeleine de Remusat.

FSA speaks on financial promotions: Clive Gordon has spoken on FSA's high-level priorities in relation to financial promotion, with specific reference to digital media. His key points included:

  • each promotion must be compliant in itself – FSA does not accept a click-through link to required disclosures. Neither does it accept a rollover to them;
  • all communications must be clear, fair and not misleading;
  • depending on the media chosen, it may be inappropriate to market certain products – for example, Twitter would not allow the necessary word count or restrictions for marketing complex products; and
  • firms must consider the shelf life of promotions in various media.

He concluded by saying FSA does not wish to stop firms using digital media, but wants them to ensure they have proper systems and controls when they do so. Finally, he referred to the Financial Conduct Authority's (FCA) powers to ban misleading promotions. (Source: FSA Speaks on Financial Promotions)

Contact: Emma Radmore or Andrew Barber.

FSA speaks on asset management supervision: Clive Adamson and Martin Wheatley both spoke at FSA's asset management conference. They focused on the FCA approach to supervision of firms. FCA will categorise firms into four new supervision categories depending on their impact on consumers and the market. It plans to write to all firms in early 2013 to let them know their category. Supervisors will be allocated to firms with the greatest potential to cause risks to consumers or to market integrity. Some firms will not have dedicated supervisors. The supervision model will be based on three "pillars" – the Firm Systematic Framework (FSF), event-driven, and issues and products. What drives each pillar will depend on the firm, emerging issues and FCA's research. Clive Adamson noted FSA and FCA will change the way Authorised Corporate Directors (ACDs) are authorised and supervised, following thematic work that showed some ACD firms do not understand the regulatory responsibilities the role entails. He also touched on product intervention powers. Martin Wheatley also spoke on product intervention, and additionally focused on the issues of charging and competition. (Source: Clive Adamson Speech at Asset Management Conference and Martin Wheatley Speech at Asset Management Conference)

Contact: Rosali Pretorius or Jim Baird.

FSA fines for sales and compliance failures: FSA has fined Pi Financial Limited £58,300 for breaches of Principles 3 and 9. It found that, over a three-year period, the firm failed to have adequate monitoring processes for sales to ensure advice complied with regulatory requirements. It did not give its advisers adequate training and supervision and failed to put in place the right compliance and file checking arrangements for its business. Also, FSA found that, in a sample of files, half the sample revealed unsuitable sales of high-risk products, including all the recommendations relating to unregulated collective investment schemes and structured products. (Source: FSA Fines for Sales and Compliance Failings)

Contact: Emma Radmore or Andrew Barber.

FSA publishes PRA transition guidance: FSA has published a letter to firms telling them what publications will help them understand the transition to the Prudential Regulation Authority (PRA). It plans to publish two documents building on the original "launch" documents for banks and investment firms, and for insurers, that will set out:

  • PRA's interpretation of its statutory objectives;
  • how PRA expects firms to comply with the threshold conditions and help it meet its objectives; and
  • what firms can expect from PRA in the course of supervision.

It also notes that FSA will be consulting on how PRA and FCA plan to split the approved persons regime. The accompanying documents indicate the Financial Services Bill should receive Royal Assent by the end of 2012 and that existing permissions will be grandfathered over to the new regime, which will maintain one register of authorised persons. (Source: FSA Publishes PRA Transition Guide)

Contact: Rosali Pretorius or Emma Radmore.

FSA brings charges for unauthorised CIS: FSA has charged Ben Wilson with a number of offences relating to operating an unauthorised investment scheme. It alleges offences under the Financial Services and Markets Act 2000 (FSMA) of operating a collective investment scheme(CIS) without authorisation or exemption and making false, misleading or deceptive statements. It also alleges offences under the Fraud Act 2006 and the Forgery and Counterfeiting Act 1981. (Source: FSA Brings Charges for Unauthorised CIS)

Contact: Jim Baird or Andrew Barber.

FSA finalises remuneration guidance: FSA has published finalised guidance on proportionality in respect of the Remuneration Code and Pillar 3 disclosures. The guidance covers:

  • the process for dividing firms into proportionality levels;
  • guidance to firms on proportionality levels;
  • guidance on part-year Remuneration Code staff;
  • remuneration committees; and
  • the requirements in chapter 11 of the Prudential Sourcebook for Banks, Building Societies and Investment Firms (BIPRU) for remuneration disclosures.

(Source: FSA Finalises Remuneration Guidance)

Contact: Rosali Pretorius or Andrew Barber.

FSA confirms no change to Solvency 2 timeline: FSA has confirmed that despite speculation that the Commission may delay Solvency 2 implementation by one year, the current timetable remains with transposition by 30 June 2013 and implementation from 1 January 2014. (Source: FSA Confirms No Change to Solvency 2 Timeline)

Contact: Rosali Pretorius or Emma Radmore.

FSA publishes SSR notification guidelines: FSA has published its guidelines for firms wanting to make use of the exemption from the notification and disclosure requirements of the EU Short Selling Regulation (SSR) for primary market operations and market-making activities. The guidelines set ouf how the notification procedure will work. (Source: FSA Publishes SSR Notification Guidelines)

Contact: Rosali Pretorius or Matthew Sapte.

Other Regulators/Authorities/Industry Associations     

Bank for International Settlements/Basel Committee on Banking Supervision (BIS/Basel)

Joint Forum publishes FICON principles: The Joint Forum of Basel, IOSCO and the IAIS has published its final report on Principles for the Supervision of Financial Conglomerates (FICON). The updated principles focus on closing regulatory gaps, eliminating supervisory "blind spots" and making sure supervision properly captures the risks that unregulated activities pose. The principles are divided into headings covering:

  • supervisory powers and authority;
  • supervisory responsibility;
  • corporate governance;
  • capital adequacy and liquidity; and
  • risk management.

(Source: Joint Forum Principles for FICON Supervision)

Contact: Rosali Pretorius or Edward Hickman.

Basel publishes monitoring results: Basel has published the results of its monitoring exercise on the Basel III framework. The study notes the increases in tier 1 capital that Group 1 banks will require to meet the standards of Basel III. (Source: Basel Publishes Monitoring Results)

Contact: Rosali Pretorius or Edward Hickman.

European Fund and Asset Management Association (EFAMA)

EFAMA comments on PRIPs: EFAMA's comments on the Commission's proposal for a Regulation on PRIPs have been published. EFAMA fully supports the Commission's aims and that the UCITS KIID should be the benchmark for the PRIPs equivalent. However, it thinks the scope of the PRIPs regime needs some clarification, specifically on certain pensions products and nationally-regulated, open-ended non-UCITS funds. (Source: EFAMA Comments on PRIPs)

Contact: Emma Radmore or Andrew Barber.

Futures and Options Association (FOA)

FOA publishes electronic trading guidance: FOA has published guidance for listed derivative market participants, which sets out industry standards aimed at mitigating risks in electronic trading environments. The guidance supports and complements ESMA's guidelines on systems and controls in automated trading environments, gives clarifications and suggests standards against which firms can assess their compliance with those guidelines. FOA also sets out suggested documentation and information for market participants to use. (Source: FOA Publishes Electronic Trading Guidance)

Contact: Rosali Pretorius or Madeleine de Remusat.

International Association of Insurance Supervisors (IAIS)

IAIS publishes G-SII responses: IAIS has published a compilation of responses it received to its consultation on which insurers are Global Systemically Important Insurers (G-SII). (Source: IAIS Publishes G-SII Responses)

Contact: Rosali Pretorius or Emma Radmore.

Investment Management Association (IMA)

IMA publishes charges disclosure guidance: IMA has published final industry guidance on enhanced disclosure of fund charges and transaction costs for UK authorised funds. The guidance suggests disclosures firms should make on their websites which go beyond existing requirements, and IMA wants firms to comply by the end of March 2013. (Source: IMA Publishes Charges Disclosure Guidance)

Contact: Jim Baird or Rosali Pretorius.

Forthcoming Events

BBA SARs and Court Orders Masterclass: Emma Radmore, Sam Coulthard and David Pope will be speaking at this event on 11 October.

Save the date! FReD Live and Investment Funds briefings: Our next FReD Live breakfast briefing will take place on 27 November, and our next Investment Funds briefing on 21 November.

Recent Publications

New this week

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.

Financial Crime

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).

New EU Sanctions Expand Restrictions on Iran: Michael Zolandz, Peter Feldman, Stuart Cavet and Emma Radmore have written an update on the new EU sanctions against Iran.

Testing your ABC – the Bribery Act Six Months on: Emma Radmore  and Dominic Sedghi have updated our previous suite of articles on Bribery Act implementation.

Financial Crime Podcast: Emma Radmore joined Finance IQ to discuss the FSA's Financial Crime Guide and issues associated with cutting financial crime.

Compiling the Pieces: The FSA's Financial Crime Guide: Emma Radmore wrote an article for Compliance Monitor on FSA's new draft Financial Crime Guide.

Bribery and Sanctions presentation: Our UK and US offices gave a seminar on dealing with bribery and sanctions risks. Please check our website for up to date summaries of key sanctions regimes.

Investment Services and Markets Reform

Rate Setting and Regulation: In Everyone's Interests?: Rosali Pretorius, Madeleine de Remusat and Katharine Harle wrote an article for Financial Regulation International on the background to LIBOR setting and potential regulatory action.

Treasury Publishes LIBOR Consultation: We have written a summary of the initial report and consultation of the Wheatley Review of LIBOR.

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.

Bank Notes March 2012: The latest edition of our Bank Notes newsletter includes two articles by Rosali Pretorius and Emma Radmore.

The Battle for Control of the Mobile Wallet: Alex Haffner and Ingrid Silver have written an article on the Project Oscar initiative to make mobile payments across networks easier.

Treasury presents FS Bill: We have produced a separate summary of the FS Bill and accompanying documents. For more information, please contact Rosali Pretorius or Emma Radmore.

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).

I'm a commodity dealer – get me out of here!: Rosali Pretorius and Matthew Hodgson have written an article (published in two parts on Thomson Reuters Compliance Complete) on the effects of the MiFID II proposals on commodity dealers.

The Son of MiFID: Rosali Pretorius, Josie Day and Emma Radmore have written an article looking at the major impacts of the potential changes to the Markets in Financial Instruments Directive (MiFID) on hedge funds.

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.

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.

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.

Reform of Financial Services and Banking 2012: Rosali Pretorius and Emma Radmore look forward to some of the key changes facing UK-regulated financial institutions in 2012.

Financial Stability Board Identifies 29 Global SIFIs and Announces Agreed Policy Measures: We have written an article exploring the FSB announcements and policies endorsed at the November G20 Summit. For further information, please contact Jerome Walker (US) or Rosali Pretorius (UK).

Living Wills in the US and UK: We have written an article on the current US and UK laws and proposals on living wills. For more information contact Robert Bostrom or Jerome Walker (US) or Rosali Pretorius, Emma Radmore or Andrew Barber (UK).

What the Vickers Report means to you: Rosali Pretorius and Emma Radmore have written a note on the major impacts of the Vickers Report.

Recovery and Resolution Plans – Breaking up the banks by stealth: Rosali Pretorius has written an article on FSA's proposals for Recovery and Resolution Plans.

Asset Management

AIFMD's Impact on Private Equity Funds: If you were unable to attend our briefing on an update on AIFMD implementation, critical issues and remuneration provisions, you can now watch the lecture. For further information please contact Rosali Pretorius, Richard Nicolle or Josie Day.

AIFMD Level 2: Josie Day and Emma Radmore have written an article for Compliance Monitor on ESMA's consultations on Level 2 measures and industry response.

Outsourcing for Fund Managers: Rosali Pretorius and Amanda Lewis have written a guide to key success factors for outsourcing in fund management.

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.

SEC No Action Letter on Foreign-Issued Covered Bond: Thomas Parachini has written a briefing on the US SEC no-action letter in respect of the Royal Bank of Canada's plan to offer and sell covered bonds in the United States in a public offering registered on SEC Form F-3.

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

Product Bans – A Radical New Power: Katharine Harle has written an article for Thomson Reuters Complinet on FSA's powers to ban products.

FSA's Product Design Consultations: Emma Radmore has written an article for Thomson Reuters Complinet on FSA's latest consultations on product design.

Product Intervention: Hitting the Wrong Note?: Emma Radmore and Rosali Pretorius wrote an article for Thomson Reuters Accelus on industry and FSA's responses to proposals for Product Intervention.

The Future for PRIPs: Rosali Pretorius and Emma Radmore have written an article for Compliance Monitor on current proposals affecting Packaged Retail Investment Products.

Enforcement and Litigation

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.

FSA Lessons for Foreign Firms: Senior Management Expectations Crystal Clear: Katharine Harle, Felicity Ewing and Emma Radmore have written an article on the implications of FSA's enforcement action against Mitsui Sumitomo Insurance Company (Europe) Ltd.

Tribunal Backs CEO Against FSA Fine: Katharine HarleRichard Caird and Felicity Ewing have written an article on the Upper Tribunal's Decision reversing FSA's decision to fine John Pottage for misconduct.

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.

FSA Not Obliged to Provide Cross-Undertaking in Damages: Alexandra Doucas has written an article for Thomson Reuters Complinet on Financial Services Authority v. (1) Sinaloa Gold plc and others.

The Pitfalls of Personal Recommendations: Richard Caird, Sam Coulthard and Kattalin Truman have written an article on the Zaki and others v. Credit Suisse (UK) case.

An end to the PPI Saga? Wider Implications of the PPI Judgment: Alexandra Doucas and Katharine Harle wrote an article for Thomson Reuters Accelus on learning points for firms stemming from the PPI judgment.

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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Events from this Firm
21 Sep 2017, Seminar, London, UK

Is there such a thing as "energy law"? What do "energy lawyers" do? And why should it be of interest to anyone else?

28 Sep 2017, Seminar, London, UK

On 26 July the FCA published its long-expected consultation paper on the extension of the SMCR to all FCA-authorised firms. The so-called "core regime" introduces the key concepts of regulator-approved senior managers, firm-approved certification staff and conduct rules applicable to virtually all staff.

3 Oct 2017, Conference, Zurich, Switzerland

As the founding Partner of the Europe-Iran Forum, Dentons Europe will once again support this year’s event. This compelling event which explores all Iran-related topics will take place in Zürich on 3rd and 4th October.

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