UK: Financial Regulatory Developments (FReD) - 7 June 2013

Last Updated: 10 June 2013

European Union and International

Presidency of the Council of European Union (Presidency)

Presidency tables new MiFIR compromise: The latest Presidency compromise text on the Markets in Financial Instruments Regulation (MiFIR), dated 4 June, expands on the circumstances in which open access to a central counterparty (CCP) must be granted, and also inserts new provisions on indirect clearing arrangements and on the order data that trading venues must maintain. The text of the accompanying Directive (MiFID 2) has not undergone substantial changes. (Source: MiFIR Compromise Text, 4 June and MiFID 2 Compromise Text, 4 June)

Contact: Rosali Pretorius or James Brennan

Presidency publishes KID compromise: The Presidency has published a compromise text for the proposed Key Information Document (KID) for packaged retail investment products. (Source: Presidency Publishes KID Compromise)

Contact: Josie Day or Emma Radmore

Presidency publishes CSD compromise: The Presidency has made publicly available a compromise text for the proposed Directive on securities settlement and central securities depositories (CSDs). (Source: Presidency Publishes CSD Compromise)

Contact: Rosali Pretorius or James Brennan

European Parliament (EP)

EP publishes RRD report: EP has published the report on the proposed Bank Recovery and Resolution Directive (RRD) that the Economic and Monetary Affairs Committee (ECON) adopted on 20 May. ECON has made the following amendments to the original proposals of the EU Commission:

  • The bail-in tool should not affect insured deposits nor interbank money-market operations with an original maturity of less than one month. Non-insured deposits should be the last category of liabilities to be bailed in.
  • Compensation to holders of written-down instruments should be based on the value of the firm at the point of non-viability.
  • Once a firm has been put under resolution, shareholders should no longer retain responsibility over the firm and resolution authorities should have the power to replace the management body of a firm with a special manager.
  • Resolution authorities should be able to depart from the principle of equal distribution among creditors within the same class where financial stability concerns justify it.
  • Group recovery and resolution plans should take into account their potential impact in all the Member States where the group operates.
  • Prudential supervisors in any Member State should not also be the resolution authority.

(Source: ECON Report on RRD)

Contact: Rosali Pretorius or Andrew Barber

EP updates voting dates: The OEIL legislative observatory shows some changes to forecast voting dates:

  • the date for the committee hearing on EU banking structure reform has been postponed to 10 June;
  • the UCITS amendment proposals on depositaries, remuneration policies and sanctions has an indicative plenary sitting date of 2 July; and
  • the indicative plenary sitting date for MiFID 2 and MiFIR and the revised Insurance Mediation Directive (IMD2) has been postponed to 10 December.

(Source:OEIL File on Banking Structure Reform, OEIL File on UCITS V, OEIL File on IMD2, OEIL File on MiFID 2 and OEIL File on MiFIR)

Contact: Emma Radmore or Juan Jose Manchado

Official Journal of the European Union (OJEU)

Credit rating amendments published in OJEU: The Directive amending the UCITS Directive and the Alternative Investment Fund Managers Directive (AIFMD) in respect of over-reliance on credit ratings and the Regulation amending the CRA Regulation in respect of ratings reliance have been published in the OJEU. Member States must implement the Directive by 21 December 2014. The Regulation takes effect at various dates up to 1 June 2018. (Source: UCITS CRA Amendment Directive in OJEU and CRA Amendment Regulation in OJEU)

Contact: Rosali Pretorius or Edward Hickman

European Banking Authority (EBA)

EBA updates on single rulebook Q&A: EBA has published details of how it plans to run its question and answer service for queries relating to the single banking rulebook. (Source: EBA Updates on Single Rulebook)

Contact: Rosali Pretorius or James Brennan

European Securities and Markets Authority (ESMA)

ESMA publishes CRA equivalence report: ESMA has published its final report confirming to the Commission its advice on the equivalence between the EU Credit Rating Agency (CRA) regime and those of Argentina, Brazil, Mexico, Hong Kong and Singapore. It had already given indications it considered the regimes appropriate in 2012, when it also confirmed the equivalence of the US, Canadian, Australian and Japanese regimes. (Source: ESMA Publishes CRA Equivalence Report)

Contact: Edward Hickman or James Brennan

ESMA reports on SSR: ESMA has published a report in response to a request from the Commission on how the Short Selling Regulation (SSR) has worked in practice. As the SSR has been in force for less than a year, data was limited. However, although ESMA concludes it has worked well, and only caused a slight decline in liquidity in European sovereign CDS, it recommends some changes to help it work more smoothly and clearly in practice. (Source: ESMA Reports on SSR)

Contact: Rosali Pretorius or Matthew Sapte

ESMA publishes guidelines on CCP colleges: ESMA has published a report with guidelines and recommendations on the written agreement that national authorities eligible for participation in a CCP college must enter into. Under the European Market Infrastructure Regulation (EMIR) refusal by a national authority to subscribe to the agreement and join the college would block the authorisation process for a CCP. ESMA explains that it has not been able to address, in technical standards, the problem this veto power poses. It expects that these guidelines and recommendations will facilitate the swift establishment of colleges within the timeframe EMIR requires. (Source: Guidelines and Recommendations Regarding Written Agreements Between Members of CCP Colleges)

Contact: Rosali Pretorius or James Brennan

UK Government and Parliament

Parliament

Public Accounts Committee reports on consumer credit: A report by the Public Accounts Committee (PAC) on the regulation of consumer credit criticises OFT, calling its regulation ineffective and timid. It accuses OFT of not understanding the markets and investing too little money in regulation. It notes OFT's recent actions in respect of payday lending and says it wants this to be the start of a "genuine step up" in approach. It says it is encouraged by what it has heard about the emerging plans of the Financial Conduct Authority (FCA) but says it does not expect to wait until 2014 to see meaningful change in the regulatory regime. It invites OFT and FCA to address plans for immediate action in their response to the report. OFT expressed disappointment at the report, commenting on OFT's recent actions not just in relation to payday lenders but also in its action in revoking or refusing licences for credit brokers and debt management firms. It said the PAC had not recognised the constraints of the current legislation, which the National Audit Office had noted in its report on which the PAC report was based. (Source: PAC Reports on Consumer Credit and OFT Reacts to PAC Report)

Contact: Andrew Barber or Howard Cohen

Bank of England (BoE)

BoE speaks on prudential regulation: In a speech to the Society of Business Economists, Andrew Bailey, the Prudential Regulation Authority's (PRA) CEO, has discussed BoE's approach to tackling current prudential challenges. He highlighted the coordination between the monetary and the financial policy committees (MPC and FPC, respectively) over the Funding for Lending Scheme. In its turn, PRA followed FPC's recommendations to ease capital requirements on new lending while raising the level of minimum equity capital. He explained that the exercise is aimed at solving legacy issues without restricting new lending to the real economy. The speech finished with a reference to a BoE report that points at the decreasing role of commercial property as security for lending. (Source: PRA Speaks on Regulatory Challenges)

Contact: Rosali Pretorius or Juan Jose Manchado

BoE publishes PRA Report: BoE has published its Annual Report 2013. Within its financial stability purpose it identifies the following strategic priorities:

  • Maintaining stability and improving the resilience of the financial system: this includes development of recovery and resolution regimes, implementing the operational framework for overseeing CCPs and settlement systems, and responding to the external reviews of its liquidity provision role.
  • Delivering macroprudential policy, operating through the FPC: BoE will continue to develop the interface between macro and microprudential regulation, using recommendations and directions by FPC to the financial regulators.
  • Integrating microprudential supervision into BoE: this includes delivering the new forward-looking, judgement-based approach to supervision, and affirming PRA's authority with PRA-authorised firms.

(Source: BoE Publishes BoE Report)

Contact: Rosali Pretorius or Howard Cohen

Office of Fair Trading (OFT)

OFT and DECC publish Green Deal guidance: OFT and the Department of Energy and Climate Change (DECC) have published guidance for Green Deal Providers. The guidance sets out when providers should suspend payment collections. (Source: OFT and DECC Publish Green Deal Guidance)

Contact: Andrew Barber or Howard Cohen

UK Financial Services and Markets Regulators

Financial Conduct Authority (FCA)

FCA publishes AIF depositary forms: FCA has published in draft forms that authorised firms wanting to vary their permission to become Alternative Investment Fund (AIF) depositaries can use. Firms not currently authorised cannot use this route to becoming a depositary, and must complete a full application as well as the form. FCA asks for comments by 28 June and plans to start using the variation of permission (VoP) form in advance of the AIFMD implementation deadline of 22 July. FCA has also updated its AIFMD webpage to include all the latest news and developments. (Source: FCA Publishes AIF Depositary Forms and FCA Updates AIFMD Webpage)

Contact: Rosali Pretorius or Kam Dhillon

FCA updates UCIS page: FCA has updated its website to bring together its current materials on unregulated collective investment schemes (UCIS). It reminds firms of its concerns and expectations on firms that sell these products. (Source: FCA Updates UCIS Page)

Contact: Kam Dhillon or Tom Harkus

FCA bans UCIS and substitutes for retail investors: FCA has made rules to ban the marketing of UCIS or "close substitutes" to the retail market. It has created a definition of "non-mainstream pooled investments" (NMPI) to cover all these products. Within the scope of the restriction are units in qualified investor schemes (QIS), traded life policy investments, units in UCIS and securities issued by special purpose vehicles (SPVs) pooling investment in assets other than listed or unlisted shares or bonds. However, FCA has decided to exclude several products, including exchange traded products, overseas investment companies that would meet the criteria for investment trust status if based in the UK, real estate investment trusts, venture capital trusts, enterprise investment schemes and seed enterprise investment schemes (unless structured as UCIS). In addition, the restriction does not cover SPVs pooling investment primarily in shares and bonds. New rules amend the Glossary, the Conduct of Business Sourcebook and the Collective Investment Schemes Sourcebook, to introduce new definitions, set out the new restrictions and specify the circumstances in which firms may market NMPI to retail customers (including new provisions on high net worth and sophisticated individuals), give guidance on the suitability test and set out record-keeping requirements. The new rules take effect from 1 January 2014 although FCA encourages firms to apply them sooner if possible.
FCA notes it will continue to monitor promotions and sales of investments that fall outside the ban. Specifically, it plans to consult on restricting sales of products recently introduced to the retail market such as contingent convertibles (CoCos), building society deferred shares and similar instruments. (Source: FCA Bans NMPI Retail Sales)

Contact: Rosali Pretorius or Emma Radmore

FCA publishes UTCCR undertakings: FCA has published undertakings from the Clerical Medical Investment Group Limited and the Equitable Life Assurance Society. FCA noted terms allowing customers to transfer their funds implied the firm would be absolved of all liability under the customer's original contract and this would be unfair under the Unfair Terms in Consumer Contracts Regulations (UTCCR). The firms agreed to change their terms so it was clear customers were not waiving their rights against the firm in question. (Source: Clerical Medical UTCCR Undertaking and Equitable Life UTCCR Undertaking)

Contact: Andrew Barber or Josie Day

FCA fines £6 million for systems and controls failings: FCA has fined Sesame Limited £6,031,200 for two failings. A small part of the fine relates to failure to ensure customers received suitable advice about Keydata life settlement policies, and the majority of the fine relates generally to systems and controls failings across its advisory business. The entire fine relates to the way in which the firm supervised its appointed representatives (ARs). FCA found the Keydata failings occurred over a four-year period from 2005 to 2009, and a follow-up review identified greater systems and controls failings between 2010 and 2012. The firm's failure to learn lessons from the Keydata experience meant the problems could have occurred again across a larger range of sales. Its culture implied it regarded the ARs as its customers, with the result it did not properly monitor the ARs' activities to assess whether customers might receive unsuitable advice. FCA was particularly concerned as the firm has 1,220 ARs for which it took regulatory responsibility but patently did not properly monitor their activities for compliance with the rules, nor take action when things went wrong. (Source: FCA Fines £6m for Systems and Controls Failings)

Contact: Andrew Barber or Josie Day

FCA confirms SSR notification process: FCA has published a note confirming how firms and investors should make notifications to it under the SSR. (Source: FCA Confirms SSR Notification Process)

Contact: Matthew Sapte or James Brennan

FCA makes more new rules: At its May Board Meeting, FCA made several sets of rules including the rules on restricting promotion of NMPI. Other new rules cover:

  • the Financial Conglomerates Directive (FICOD) (FCA Handbook Amendments) Instrument 2013: this amends the Glossary, the General Prudential Sourcebook (GENPRU), the Prudential Sourcebook for Banks, Building Societies and Investment Firms (BIPRU) and the Supervision Manual (SUP) from 10 June to make technical changes to bring the Handbook into line with FICOD; and
  • the Employers' Liabiliiy Insurance: Disclosure by Insurers (No 4) Instrument 2013: this amends the Insurance: Conduct of Business Sourcebook (ICOBS) from 4 December to requir firms to make effective searches of their historical policy records when they receive an actual or prospective claim in respect of employers' liability insurance.

The PRA instrument relating to FICOD has also been published (see further FReD 31 May). (Source: FCA Makes More New Rules)

Contact: Emma Radmore or Juan Jose Manchado

Financial Services Consumer Panel (FSCP)

FSCP responds to OECD on financial consumer protection: FSCP has responded to the Organisation for Economic Cooperation and Development's (OECD) consultation on the G20 High Level Principles of Financial Consumer Protection. FSCP calls for a duty of care on financial firms towards customers. It also recommends an independent professional standards body and ethical code for bankers. Finally, FSCP favours Alternative Dispute Resolution processes that are independent and produce binding decisions. (Source: FSCP Response to OECD on Financial Consumer Protection)

Contact: Andrew Barber or Juan Jose Manchado

Other Regulators/Authorities/Industry Associations

Agency for the Cooperation of Energy Regulators (ACER)

ACER publishes work programme: ACER's 2014 work programme includes several initiatives relating to the Regulation on Energy Market Integrity and Transparency (REMIT). Among its priorities are:

  • establishing a European register of market participants;
  • data collection;
  • monitoring of trading activity; and
  • promoting best practices for REMIT implementation.

(Source: ACER Publishes Work Programme)

Contact: Luca Salerno or Rosali Pretorius

Institute of International Finance (IIF)

IIF calls for regulatory consistency: IIF has published a report with recommendations to promote a greater international regulatory consistency. Among other recommendations related to different stages of the regulatory cycle, IIF suggests that:

  • international standards should balance consistency and local flexibility;
  • standard-setters should set realistic deadlines and allow time for consultation;
  • national regulators should coordinate the timing of their implementation of international standards; and
  • the Financial Stability Board should review the organisation and resources available for international regulatory work.

(Source: Promoting Greater International Regulatory Consistency)

Contact: Emma Radmore or Andrew Barber

International Organisation for Securities Commissions (IOSCO)

IOSCO feeds back on benchmarks: IOSCO has published the responses to its consultation on Principles for Financial Benchmarks. (Source: IOSCO Feeds Back on Benchmarks)

Contact: Rosali Pretorius or Andrew Barber

Transparency International (TI)

TI criticises "watered down" legislation: TI has reacted strongly to reports the UK is to review the provisions of the Bribery Act as they relate to facilitation payments. It stressed that bribes are always illegal and said it is too soon to tell how well the Act will work in practice. It also noted the Act was introduced in response to criticism from OECD and said public opinion in Britain would be "scandalised" if an overseas company tried to bribe a UK politician. (Source: TI Criticises Watered Down Legislation)

Contact: Emma Radmore or Andrew Barber

Forthcoming Events

FReD Live: Our FReD Live breakfast briefing on 25 June will focus on key changes for the retail financial markets outside the Retail Distribution Review. It will include discussion on the Mortgage Market Review, FCA's Wealth Management Review and related issues, and current EU initiatives.

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.

Recent Publications

Financial Crime

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.

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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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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