UK: Financial Regulatory Developments (FReD) - May 3, 2013

Headlines

• EuVECA and EuSEF Regulations published in OJEU
• ECJ allows proportionate national derogation from MLD
• Crime and Courts Act gets Royal Assent
• FCA finalises platforms rules
• FCA fines for poor AML controls
• FCA censures money transfer business

EUROPEAN UNION AND INTERNATIONAL

European Commission (Commission)

EU derivatives group reports to G20: A group of EU derivatives regulators has published a report to G20 on the progress made on derivatives reform and the meetings the regulators have held with third country regulators. The report acknowledges both the importance of international cooperation and the difficulties of implementing identical global laws. It explains the measures regulators propose to take to deal with differences between national laws. (Source: EU Derivatives Group Reports to G20)

Contact: Rosali Pretorius or James Brennan

EuVECA and EuSEF Regulations published in OJEU: The Regulations on European Venture Capital (EuVECA) and Social Entrepreneurship (EuSEF) funds have now been published in the Official Journal of the European Union (OJEU) and will come into force on 22 July, the same day as the transposition deadline for the Directive on Alternative Investment Fund Managers (AIFMD). The Commission will be empowered to adopt delegated acts on various issues from 15 May. (Source: EuVECA Regulation and EuSEF Regulation)

Contact: Rosali Pretorius or Tom Harkus

Commission launches review of ESFS: The Commission is consulting, until 19 July, on the review of the European System of Financial Supervision (ESFS), composed of the European Supervisory Authorities (ESAs) and the European Systemic Risk Board (ESRB). The consultation covers:

• the effectiveness and efficiency of the ESAs in accomplishing the tasks entrusted to them, including in relation to the single rulebook, consistent implementation of EU Acts, supervisory convergence and coordination, emergency interventions, and consumer protection and market integrity;
• the governance of ESAs, which is guided by the principles of independence and accountability;
• ESRB's warning and recommendations on systemic risks and ESRB's governance;
• cooperation and interaction between the ESAs and ESRB; and
• the structure of ESFS, with special consideration to the potential impacts of the single supervisory mechanism and to whether further adaptations are needed to the legal framework of ESFS.

(Source: Consultation on the Review of ESFS)

Contact: Emma Radmore or Juan Jose Manchado

Commission consults on personal pensions: The Commission has opened a consultation on specific problems faced by consumers of third-pillar retirement products (personal private pension schemes). The consultative document considers how these products are already covered by existing or forthcoming EU legislation. It also asks whether consumer protection could be improved through voluntary codes coordinated at the EU level or an EU certification scheme, perhaps modelled on UCITS. The consultation is part of a broader initiative to develop a genuine Single Market for personal pension schemes. The consultation closes on 19 July. (Source: Consumer Protection in Third-Pillar Retirement Products)

Contact: Emma Radmore or Andrew Barber

European Parliament (EP)

Further delays to key voting dates: EP has delayed until 23 October the votes on the Key Information Document Directive (KID), the recast Insurance Mediation Directive (IMD2) and the Bank Recovery and Resolution Directive (RRD). Although the Council of the EU and EP reached preliminary agreement on the Mortgage Credit Directive (MCD) last week, EP's plenary vote to confirm its support to this agreement has been rescheduled for 2 July. The vote on the Directive on Criminal Sanctions for Market Abuse (CSMAD) has also been delayed until 22 October. (Source: OEIL File for KID, OEIL File for IMD2, OEIL File for RRD, OEIL File for MCD and OEIL File for CSMAD)

Contact: Emma Radmore or Juan Jose Manchado

EP wants FTT to finance EU budget: In the draft opinion to the Committee on Economic and Monetary Affairs (ECON) in EP, the Committee on Budgets proposes that the proceeds from collecting the Financial Transaction Tax (FTT) be used wholly or partly to finance the EU budget. It says that the Commission's FTT proposal meets most of the criteria for a genuine own resource: sufficiency, stability, visibility and simplicity, low operating costs, efficient allocation of resources and fair contributions. (Source: Draft Opinion on FTT by the Committee on Budgets)

Contact: Rosali Pretorius or Jeremy Cape

European Court of Justice (ECJ)

ECJ allows proportionate national derogation from MLD: ECJ has held the Spanish authorities were entitled to request information they considered relevant to the prevention of money laundering and terrorist finance from a bank that had no establishment in Spain. Jyske Bank, operating from Gibraltar under a services passport, refused to give the Spanish authorities certain know your customer and other information the authorities requested, saying that to do so would breach Gibraltar banking secrecy and it had duties to disclose information only to the Gibraltar authorities. The Spanish regulators cited Spanish law, which requires all credit institutions operating there to inform them of certain transfers, including the transfers in question. ECJ held that in principle such a law would be a restriction of the freedom to provide services, but that in this case it was proportionate for Spain to impose its law. It said the requirement was proportionate as it had the aim of preventing money laundering and terrorist finance and there were shortcomings in cooperation between national Financial Intelligence Units. (Source: ECJ Allows Proportionate Derogation from MLD)

Contact: Emma Radmore or Andrew Barber

UK PARLIAMENT AND GOVERNMENT

UK Parliament

Lords consults on risks to EU Single Market: The House of Lords has launched an enquiry, open until 24 June, on the impact that an increasingly integrated Eurozone, along the lines of proposals for a Genuine Economic and Monetary Union, would have for the wider Single Market. Among other questions raised in the call for evidence, the Lords ask about the likely indirect impacts on the UK, in terms of its ability to attract investment and of its financial sector. (Source: Inquiry into EU "Genuine Economic and Monetary Union" and its Implications for the UK)

Contact: James Brennan or Juan Jose Manchado

Treasury Committee raises concerns over Solvency 2: Andrew Tyrie, Chairman of the Parliamentary Commission on Banking Standards at the Treasury Committee, has written to Andrew Bailey, PRA CEO, with questions on Solvency 2. The Treasury Committee is concerned about:

• the costs of the protracted negotiation process;
• the limited ability for national supervisory authorities to exercise judgement and address idiosyncratic risks under a maximum harmonisation Directive; and
• the impact of Solvency 2 on UK insurance companies' international competitiveness.

The correspondence has been published on the Parliament's website. (Source: Solvency 2 is "An Object Lesson in How Not to Make Law", says Tyrie)

Contact: Rosali Pretorius or Juan Jose Manchado

Legislation

Crime and Courts Act gets Royal Assent: The Crime and Courts Act 2013 has received Royal Assent. Among other things, the Act:

• replaces the Serious Organised Crime Agency with the new National Crime Agency, which will be the reporting authority for money laundering suspicions; and
• introduces deferred prosecution agreements (DPAs) as an option where a company commits an offence under certain legislation including under the Theft Act, certain FSMA offences (breach of the general prohibition, breach of the financial promotion and prospectus restrictions, and breach of the misleading statements etc requirements), the money laundering offences under the Proceeds Of Crime Act 2002 and article 45 of the Money Laundering Regulations, certain offences under the Fraud Act, and all the offences under the Bribery Act 2010. DPAs will not be available for prosecutions of individuals.

No Commencement Orders for the new laws have yet been made. (Source: Crime and Courts Act Gets Royal Assent)

Contact: Emma Radmore or Andrew Barber

Banking Reform Bill carried over to next session: Parliament has confirmed the Financial Services (Banking Reform) Bill has been carried over to the next Parliamentary session, when a date for the report stage in the Commons will be set. (Source: Banking Reform Bill Carried Over to Next Session)

Contact: Andrew Barber or Emma Radmore

HM Treasury (Treasury)

Treasury consults on SAR for settlement systems: The Government has decided to create a Special Administration Regime (SAR) for systemically important payment and securities settlement systems. It is concerned that, were one of these market infrastructures to become insolvent, the administrator or liquidator would have to work towards maximising value for creditors, rather than keeping critical payment and settlement services running. The Bank of England would have the power to apply to court for an order declaring the start of SAR proceedings. Ensuring continuity of service would be among the special administrator's objectives. Among the tools for achieving this objective would be a power of direction for BoE over the special administrator, restrictions on early termination rights and power for the special administrator to transfer business on an expedited basis. (Source: SAR for Payment and Settlement Systems)

Contact: Andrew Barber or Rosali Pretorius

Treasury updates on SRR extension: Treasury has announced that, before the end of the summer, it will consult on the secondary legislation needed, under the Financial Services Act 2012, to extend the Special Resolution Regime (SRR) to investment firms, UK clearing houses and parent undertakings. (Source: Extending the SRR)

Contact: Rosali Pretorius or Andrew Barber

Treasury sets FPC remit: Treasury has sent the Financial Policy Committee (FPC) at BoE a document setting out FPC's remit and providing it with recommendations on how to achieve its statutory objectives. The document explains the features of the Government's economic policy and the matters that FPC should have regard to in achieving its objectives. At this stage of the economic cycle, FPC should take into account the impact of its actions on economic recovery. Treasury also recommends that FPC communications be as fully coordinated and consistent as possible. (Source: Remit and Recommendations for FPC)

Contact: Rosali Pretorius or Emma Radmore

Treasury updates sanctions: Treasury has updated the sanctions lists in respect of Libya and North Korea. It has also notified firms of the removal of one name from the Iran list following a challenge in the General Court of the EU. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Andrew Barber

Treasury publishes cash ratio responses: Treasury has published a summary of the responses it received to its consultation on a review of the cash ratio deposit scheme. It received three responses, of which only one raised concerns. (Source: Treasury Publishes Cash Ratio Responses)

Contact: Rosali Pretorius or James Brennan

Bank of England (BoE)

BoE analyses CCP loss-allocation rules: BoE has published a paper on central counterparty (CCP) loss-allocation rules. To avoid a CCP's insolvency, these rules allocate among the CCP's participants any losses exceeding the CCP's pre-funded default resources, such as the margin posted by clearing members (CMs), the mutualised default fund and the CCP's own equity. The options the paper suggests include calling additional resources from CMs, applying haircuts to margin owed to any CM or terminating unmatched open contracts. The paper also offers principles to guide the design of loss-allocation rules and provides some examples of existing loss-allocation rules.(Source: CCP Loss-Allocation Rules)

Contact: Rosali Pretorius or James Brennan

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Prudential Regulation Authority (PRA)

PRA publishes rule correction: PRA has published an instrument correcting some minor errors in the original instruments designating rules to it. (Source: PRA Handbook Designation (Correction No 1) Instrument 2013)

Contact: Emma Radmore or Juan Jose Manchado

Financial Conduct Authority (FCA)

FCA finalises platforms rules: FCA has confirmed it will ban platform rebates and instead will require platforms to be paid for using a platform charge, which must be disclosed to and agreed by the investor. The new rules will apply to both the advised and non-advised markets. FCA says the current system allows investors to form the impression that platform usage is free. The new rules will take effect from 6 April 2014, but platforms will have two years from then to transition over existing customers. FCA says the changes will enable investors to make fully informed choices if they wish to use platforms and help them understand the costs of doing so. (Source: FCA Finalises Platforms Rules)

Contact: Andrew Barber or Emma Radmore

FCA reminds firms on powers over parents: FCA has reminded firms of the policy statement the Financial Services Authority (FSA) made in March setting out the circumstances in which FCA would have powers over certain ("qualifying") parent undertakings of authorised firms. It notes the powers enable FCA to make a direction to require these entities to act, or not act, in a particular manner. (Source: FCA Reminds Firms on Powers over Parents)

Contact: Rosali Pretorius or Andrew Barber

FCA fines for poor AML controls: FCA has fined EFG Private Bank Ltd (EFG) £4.2 million for failing to take reasonable care to establish and maintain effective anti-money laundering (AML) controls for high risk customers. EFG is a subsidiary of a Swiss global banking organisation which provides private banking and wealth management services to high net worth individuals. Some of its customers are based in high risk jurisdictions, and some are Politically Exposed Persons (PEPs). FSA visited EFG as part of a thematic review and found that EFG had not put its AML policies fully into practice. Nearly half of the sample of customer files it reviewed contained customer due diligence that highlighted significant money laundering risks including allegations of criminal activity on the part of the customer or that the customer had been charged with financial crime offences. The files did not adequately show how the bank's senior management had mitigated those risks. The review also found EFG had failed to appropriately monitor its higher risk accounts. FCA found EFG had breached Principle 3. Tracey McDermott said: "In this case while EFG's policies looked good on paper, in practice it manifestly failed to ensure that it was addressing its AML risks ... Firms that accept business from high risk customers must have systems, controls and practices to manage that risk." (Source: FCA Fines for Poor AML Controls)

Contact: Emma Radmore or Andrew Barber

FCA makes new rules: FCA has held its first board meeting and has published new rules, as follows:

• The Financial Conduct Authority Handbook Designation (Correction) Instrument 2013 took effect on 26 April and makes corrections to errors in the original Handbook designation instruments, to ensure all relevant rules now appear in the FCA Handbook.
• The Handbook Administration Instrument (No 29) 2013 took effect on 1 May and makes minor administrative changes, including to bring the new regulated activities within the definition of "regulated activity".
• The Training and Competence Sourcebook (Qualifications Amendments No 8) Instrument 2013 took effect on 26 April and adds three new approved qualifications.
• The Conduct of Business Sourcebook (Platforms) (Amendment) Instrument 2013 took effect partly on 1 May and mainly on 6 April 2014, and makes the changes described above relating to platform rebates and other payments for use of platforms. The rules also correct the definition of "platform service".
• The Listing Rules (LR) Sourcebook (Amendment No 9) Instrument 2013 took effect on 1 May and make amendments to LR for depositaries issuing global depositary receipts and the appointment of a sponsor for the submission of supplementary circulars.

FCA has also made changes to some of the forms regulated collective investment schemes submit to it. (Source: FCA Handbook Notice No 1)

Contact: Emma Radmore or Juan Jose Manchado

Up next from FCA: FCA has published its first Policy Development Update. Before the end of June, it plans to publish:

• policy statements on the consultations on fees, the consumer credit regime, recovery and resolution plans, technical amendments relating to the Conglomerates Directive, restrictions on retail distribution of unregulated collective investment schemes, multiple client money pools and implementation of the AIFMD;
• feedback on transparency of FCA and other aspects of recovery and resolution plans; and
• consultation on the Client Assets Review.

(Source: Policy Development Update April 2013)

Contact: Emma Radmore or Juan Jose Manchado

FCA brings charges over unregulated scheme: FCA has charged two men with ten offences relating to an unauthorised investment scheme that claimed to carry out foreign exchange for investors. (Source: FCA Brings Charges over Unregulated Scheme)

Contact: James Brennan or Rosali Pretorius

FCA censures money transfer business: FCA has publicly censured Horn Express Limited (formerly Qaran Express Money Transfer Limited) for failing to safeguard and segregate customer funds. This is the first action taken for misconduct by a payment institution registered under the Payment Services Regulations (PSRs). FCA found many failings, including that the firm:

• mixed customer funds with its own moneys and did not record accurately how much of that money was customers' funds;
• failed to properly reconcile the customer funds held in its bank account;
• did not set the bank account up correctly; and
• failed to sufficiently supervise its branches and agents.

FCA would have fined the firm over £136,000 but for evidence the fine would cause serious financial hardship. The firm has not traded for over a year. (Source: FCA Censures Money Transfer Business)

Contact: Andrew Barber or Emma Radmore

FCA consults on member controls: FCA has published a guidance consultation setting out how it expects recognised investment exchanges (RIEs) and multilateral trading facilities (MFTs) to monitor how their members comply with their rules. It expects to see a risk-based and proactive approach to active oversight. FCA asks for comments by 21 May. (Source: FCA Consults on Member Controls)

Contact: Rosali Pretorius or James Brennan

FCA publishes Regulation round-up: FCA's first regulation round-up summarises current issues for firms. This month's issue includes:

• FCA's planned timetable for consulting on changes to it rules following the adoption of the fourth Capital Requirements Directive and Regulation package. Its main consultation will be in the summer, with further separate consultation on specific aspects, such as waivers;
• a reminder of how controlled functions are split between PRA and FCA for dual-regulated firms; and
• an update on FCA's Mortgage Market Review implementation timetable.

(Source: FCA Publishes Regulation Round-Up)

Contact: Emma Radmore or Juan Jose Manchado

Financial Ombudsman Service (FOS)

FOS publishes ombudsman news: The latest edition of ombudsman news focuses on complaints received over payday lending and individual savings accounts. (Source: Ombudsman News – Issue 109)

Contact: Andrew Barber or Emma Radmore

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

International Organisation for Securities Commissions (IOSCO)

IOSCO reports to G20 on CRA transparency and competition: IOSCO has responded to G20's request for a report on transparency and competition among credit rating agencies (CRAs). IOSCO says it is currently revising the 2004 CRA Code, which develops, among other IOSCO CRA Principles, that of "transparency and timeliness of ratings disclosure". Transparency allows investors to compare the practices of CRAs, and can therefore play an important role in market competition. IOSCO also notes that the main CRAs' market share of structured finance ratings had dropped from 96% in 2008 to 91% in 2011. (Source: Re: Transparency and Competition Among CRAs)

Contact: Rosali Pretorius or Edward Hickman

Lending Standards Board (LSB)

LSB reviews handling of customers in difficulties: LSB has published the results of its review into how subscribers to the Lending Code and their agents handle customers in financial difficulties. The review focused first on affordability assessments, based on income and expenditure statements, that are required when offering repayment plans. The second issue considered was compliance with the May 2012 requirements on the use of debt collection agencies (DCAs). Among some of the breaches found, which merit follow-up work, are:

• repayment plans proposed by DCAs that focused solely on obtaining an agreement to pay, rather than assessing the customer's circumstances;
  a DCA not offering information on available free money advice services;
• omission of the 30 days' breathing space; and
• DCAs following a generic approach to collection, rather than having regard to the historic account information they have received or to previous payment plans agreed by the subscriber. On several occasions, DCAs did not transfer cases of vulnerable customers back to the subscriber's specialist collections teams.

(Source: Themed Review of Subscribers' Handling of Customers in Financial Difficulties)

Contact: Andrew Barber or Emma Radmore

Transparency International (TI)

TI welcomes UK commitment to ownership publication: TI has welcomed the commitment of the UK to encourage governments all over the world to make corporate beneficial ownership public. David Cameron has written to the heads of the EU on how to tackle tax evasion and aggressive tax avoidance, referring to the need for transparency of corporate ownership. He stressed the solution, which the EU can take steps to achieve through the fourth Money Laundering Directive, must be global. (Source: TI Welcomes UK Commitment to Ownership Publication)

Contact: Emma Radmore or Andrew Barber

FORTHCOMING EVENTS

Infoline AIFMD Level 2 Implementation: Rosali Pretorius is leading a workshop at Infoline's conference on implementation of the AIFMD on 22 May.

Compliance Management and Practice: Emma Radmore and Andrew Barber are speaking at the Compliance Register's training course on Compliance Management and Practice on 6 June. This one-day intensive training course is limited to 12 delegates. Dentons clients and contacts can take advantage of a discounted price of £290 + VAT by quoting "Dentons" in a covering email.

RECENT PUBLICATIONS

Financial Crime

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.

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.

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).

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

Investment Services and Markets Reform

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.

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.

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

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.

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.

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.

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.

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).

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.

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.

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

Enforcement and Litigation

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.

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.

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.

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.

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