UK: Financial Regulatory Developments (FReD) - 24 May 2013

Last Updated: 3 June 2013

HEADLINES

Commission consults on banking structure
ECON votes on RRD
EBA consults on bonus cap
Treasury warns of regulatory danger of Scotland split
FCA fines JP Morgan for retail business failings

EUROPEAN UNION AND INTERNATIONAL

Presidency of the Council of the European Union (Presidency)

Presidency publishes RRD compromise: The Presidency published the text of the proposed Directive on Recovery and Resolution of investment firms and credit institutions (RRD) that was discussed at the EU Council's March working party. (Source: Presidency Publishes RRD Compromise)

Contact: Rosali Pretorius or Andrew Barber

Presidency tables new MiFID 2 compromises: The Presidency has tabled new compromise texts for the recast Markets in Financial Instruments Directive (MiFID 2) and related Regulation (MiFIR). MiFID 2 extends the ban on proprietary trading on an Organised Trading Facility (OTF) to companies with close links to firms operating that OTF. It also defines the circumstances in which the OTF operator can exercise its discretion when executing orders on the OTF. In its turn, MiFIR has removed the threshold for using a pre-transparency waiver and reinstated a volume cap mechanism. It also mandates the European Securities and Markets Authority (ESMA) to specify the notion of liquidity fragmentation, to ensure liquidity fragmentation is not a consequence of opening access to clearing houses. MiFIR also introduces a new provision on non-discriminatory access to licence benchmarks. (Source: MiFID2 Compromise Text 21 May and MiFIR Compromise Text 21 May)

Contact: Rosali Pretorius or James Brennan

Official Journal of the EU (OJEU)

AIFMD measures published in OJEU: Two Commission Implementing Regulations relating to the Alternative Investment Fund Managers Directive (AIFMD) have been published in the OJEU. The Regulations cover:

  • the procedures for alternative investment fund managers (AIFM) who choose to opt into regulation under it; and
  • how to determine the Member State of reference of a non-EU AIFM.

Both Regulations apply from 22 July, when the implementing measures for the AIFMD must take effect. (Source: AIFMD Regulation on Opt-in and AIFMD Regulation on Member State of Reference)

Contact: Kam Dhillon or Tom Harkus

European Commission (Commission)

Commission consults on banking structure: The Commission is consulting on reforming the structure of the EU banking sector. It considers:

  • the problems that reforming the structure could address: the paper looks at the risk large banking groups pose, often because much of their activity is unrestricted or subject only to limited restrictions;
  • the necessity of EU action: the paper says interconnected economies and cross-border business make it necessary to have an EU-wide approach, and that national approaches alone will lead to fragmentation; and
  • the main options the Commission is contemplating. The main decisions the Commission must make relate to which banks should be subject to separation, and the nature and strength of that separation.

It asks for comment by 3 July. (Source: Commission Consults on Banking Structure)

Contact: Andrew Barber or Rosali Pretorius

Commission explains EMIR for non-EU CCPs: The Commission has published a note explaining the effects of the European Market Infrastructure Regulation (EMIR) on Central Counterparties (CCPs) established outside the EU. It looks at the CCPs that are subject to the EMIR recognition procedure, how it works and the benefits of recognition. Any non-EU CCP wanting recognition must apply to ESMA by 15 September 2013. (Source: Commission Explains EMIR for Non-EU CCPs)

Contact: Rosali Pretorius or James Brennan

European Parliament (EP)

ECON votes on RRD: The Economic and Monetary Affairs Committee (ECON) in the EP has voted through its negotiation position on the RRD. Key elements of the position are:

  • a struggling bank's own assets and liabilities must be used first, so shareholders, then bondholders and finally depositors would pay for the failure;
  • insured deposits of below €100,000 must never be used, and higher deposits used only as a last resort;
  • funds should not be diverted from deposit guarantee schemes; and
  • the bail-in scheme should be operating by January 2016.

The next stage is for the Council to adopt its position. (Source: ECON Votes on RRD)

Contact: Rosali Pretorius or Andrew Barber

EP approves SSM: EP has approved the text of the political agreement reached with the Council of the EU on the Single Supervisory Mechanism (SSM). Nonetheless, EP says this approval is not yet final, as it has still to discuss accountability arrangements with the European Central Bank, which will become the direct supervisor of the Eurozone's largest banks. (Source: Parliament Backs EU Banking Supervisory System Plans)

Contact: Emma Radmore or Juan Jose Manchado

European Banking Authority (EBA)

EBA agrees asset quality reviews: EBA has agreed recommendations with supervisors for conducting asset quality reviews of major EU banks. The review will look at the way banks classify and value their assets. (Source: EBA Agrees Asset Quality Reviews)

Contact: Rosali Pretorius or Andrew Barber

EBA consults on recovery plans: EBA is consulting on two draft Regulatory Technical Standards (RTS) relating to recovery plans. The RTS cover:

  • what supervisors should assess when reviewing recovery plans. EBA aims to set out a common approach across supervisors which should also help assessments of group plans; and
  • what scenarios recovery plans should cover. The draft RTS set out a number of events which banks should take into account but leave them to design scenarios specific and appropriate to their business.

EBA asks for comments by 20 August. (Source: EBA Consults on Recovery Plans)

Contact: Rosali Pretorius or Andrew Barber

EBA consults on exposures to underlying assets: EBA is consulting on draft RTS under article 379 of the impending Capital Requirements Regulation. The RTS set out how to calculate a firm's exposure to connected clients where the firm is invested in transactions with underlying assets, such as securitisations or funds. Where a firm cannot look through and identify the obligors of all credit risk exposures, EBA proposes that those exposures be added to one hypothetical "unknown client". Large exposures limits would apply to this "unknown client" in the same way they apply to other single clients. EBA asks for comments by 16 August. (Source: EBA Consults on Exposures to Underlying Assets)

Contact: Rosali Pretorius or Edward Hickman

EBA consults on joint supervisory decisions: EBA is consulting on draft Implementing Technical Standards (ITS) under the fourth Capital Requirements Directive (CRD4) setting out the process and templates that a college of supervisors must follow to reach joint prudential decisions on capital and liquidity. EBA asks for comments by 16 August. (Source: EBA Consults on Joint Supervisory Decisions)

Contact: Rosali Pretorius or Emma Radmore

EBA consults on bonus cap: EBA is consulting, until 21 August, on draft RTS under section 90 of the future CRD4, which caps the variable component of certain staff remuneration at 100% of its fixed component. The draft RTS set out the process to identify the staff who will be subject to the cap because they have a material impact on the regulated institution's risk profile. The identification process relies on criteria developed internally by each institution, and on regulatory quantitative and qualitative criteria. (Source: Draft RTS on Criteria to Identify Staff with Material Impact on an Institution's Risk Profile)

Contact: Rosali Pretorius or Emma Radmore

EBA consults on passporting notifications: EBA is consulting, until 21 August, on draft RTS and ITS related to notification requirements under CRD4 when exercising the freedoms of establishment and to provide services cross-border within the EU. The RTS require credit institutions to submit certain business-plan information to their home Member State. The ITS establish procedures and templates for notifications and for cooperation between competent authorities. (Source: Draft RTS on Passport Notifications under CRD4 and Draft ITS on Passport Notifications under CRD4)

Contact: Andrew Barber or Emma Radmore

European Insurance and Occupational Pensions Authority (EIOPA)

EIOPA launches discussion on pensions single market: EIOPA has published a discussion paper that marks its first step towards delivering technical advice to the Commission on creating a single market for personal pension products. The paper discusses the obstacles to passporting, the design of an EU legal framework parallel to Member States' regimes and the harmonised consumer protections that a successful single market for personal pensions would require. (Source: Discussion Paper on a Possible EU-Single Market for Personal Pension Products)

Contact: Andrew Barber or James Brennan

UK GOVERNMENT AND PARLIAMENT

HM Treasury (Treasury)

Treasury warns of regulatory danger of Scotland split: Treasury has warned that if Scotland becomes an independent sovereign state, EU law would require it to have its own system of financial regulation and a separate financial services regulator. Treasury ministers warned this would be "very, very seriously disruptive" to the UK's strong financial services sector. Treasury has also produced papers looking at the Scottish banking sector and the consumer protection that the Financial Services Compensation Scheme and Pension Protection Fund provide. (Source: Treasury Warns of Regulatory Danger of Scotland Split, Treasury Looks at Scottish Banking Sector and Treasury Looks at UK Consumer Protection)

Contact: Rosali Pretorius or Emma Radmore

Treasury makes conglomerates regulations: Treasury has made the Financial Conglomerates and Other Financial Groups (Amendment) Regulations 2013, which take effect from 10 June. These Regulations reflect changes to the Financial Conglomerates Directive (FICOD). They amend secondary legislation regarding the role of the supervisors in relation to the substantive changes introduced in the FICOD review. These cover changes to capital calculations, the requirement to include asset management companies and alternative investment fund managers, identification threshold triggers and stress testing. (Source: The Financial Conglomerates and Other Financial Groups (Amendment) Regulations 2013)

Contact: Rosali Pretorius or James Brennan

Treasury updates sanctions: Treasury has updated the sanctions lists in relation to Al-Qaida, Afghanistan and Terrorism and Terrorist Financing. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Andrew Barber

Treasury consults on CTF transfer: Treasury is consulting on a mechanism that would allow the transfer of Child Trust Funds (CTF) into Junior ISAs. It seeks views by 6 August. (Source: Treasury Consults on CTF Transfer)

Contact: Emma Radmore or Josie Day

Bank of England (BoE)

Tucker speaks on bank resolution: Paul Tucker, Deputy Governor of Financial Stability at BoE has delivered a speech on bank resolution and the future of finance. He explained why capital requirements alone will not suffice to end the "too-big-to-fail" problem, and how a healthy international financial system requires cross-border cooperation on resolution regimes and independent prudential supervisors. He also reviewed the statutory regime developed so far, the resolution strategies available and the hierarchy of creditors when taking losses. He finally defended the UK's retail ring fence as a fall back that protects market infrastructure and deposits where an orderly resolution cannot be achieved. (Source: Resolution and Future of Finance)

Contact: Rosali Pretorius or Andrew Barber

Office of Fair Trading (OFT)

OFT confirms no PCA reference: OFT has confirmed it will not be referring the personal current account (PCA) market to the Competition Commission. (Source: OFT Confirms No PCA Reference)

Contact: Andrew Barber or Josie Day

OFT updates AML enforcement principles: OFT has published an updated version of its enforcement principles in respect of compliance with the Money Laundering Regulations 2007. (Source: OFT Updates AML Enforcement Principles)

Contact: Andrew Barber or Howard Cohen

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Financial Conduct Authority (FCA)

FCA fines JP Morgan for retail business failings: FCA has fined J.P. Morgan International Bank Limited (JP Morgan) £3,076,200 for systems and controls failings. FCA found JP Morgan could not show it had given clients to whom it offered retail advisory services and portfolio management services advice that was suitable, and as a result customers were exposed to the risk of incorrect advice and of buying inappropriate investments. FCA found senior management had not had enough information or tools to identify and address the failings. As a result, FCA discovered the failings, which lasted for two years, in the course of its thematic review of wealth management firms. (Source: FCA Fines JP Morgan for Retail Business Failings)

Contact: Andrew Barber or Josie Day

FCA issues RCB Factsheet: FCA has issued a factsheet explaining what it requires of issuers of Regulated Covered Bonds (RCB). (Source: Covered Bonds Issuers Factsheet)

Contact: David Cohen or Laura Cansdale

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

The City UK

City reports on hedge fund markets in UK: The City UK reports that London has kept its position as Europe's hedge fund capital, and that hedge fund activity levels throughout Europe have benefited from the rise in UCITS-compliant hedge funds. The UK is the dominant management location for these funds, which will not be affected by the AIFMD. (Source: City Reports on Hedge Fund Markets in UK)

Contact: Rosali Pretorius or Kam Dhillon

Organisation for Economic Cooperation and Development (OECD)

OECD consults on financial consumer protection: OECD is consulting on effective approaches to support implementation of the G20 high level principles of financial consumer protection. The paper outlines some possible regulatory options and key themes behind each principle. OECD asks for comments by 30 May. (Source: OECD Consults on Financial Consumer Protection)

Contact: Andrew Barber or Josie Day

FORTHCOMING EVENTS

New: UCITS and AIFMD Conference: Rosali Pretorius is speaking at IBC's UCITS and AIFMD Conference in Luxembourg on 2 and 3 July. FReD readers can benefit from a 20% discount by quoting FKW52573EMSPK.

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

New This Week

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.

Financial Crime

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

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).

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.

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.

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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