UK: Financial Regulatory Developments (FReD) - 14 June 2013

Last Updated: 17 June 2013


ESMA reports on remuneration guidelines
EBA publishes near-final own funds RTS
Banks agree to "same day retry" scheme
FCA publishes more AIFMD information
Up next from FCA

European Union and International

European Commission (Commission)
Commission publishes bank structural reform FAQ: The Commission has published some FAQ on the templates accompanying its consultation on bank structural reform. It clarifies doubts on the assumptions on future scenarios that respondents must make when filling the template. It also reminds respondents that any information they provide that is not confidential nor a business secret will be accessible by the public. (Source: Consultation by the Commission on the Structural Reform of the Banking Sector)

Contact: Rosali Pretorius or Andrew Barber

Presidency of the Council of the European Union (Presidency)
Presidency publishes further MiFID 2 compromises: The Presidency has published a further compromise text for the revised Markets in Financial Instruments Directive (MiFID 2) and Regulation (MiFIR). The changes to MiFID 2 relate to organised trading facilities (OTF). A new provision allows Member States to permit an investment firm or market operator operating an OTF to engage in dealing on own account other than matched principal trading only with regard to sovereign debt instruments for which there is not a liquid market. A deletion removes certain detail on what is regarded as discretionary execution of orders on an OTF. The MiFIR changes address the definition of a "sovereign issuer" and also propose that ESMA reports by six months before MiFIR takes effect on whether to exclude exchange traded derivatives from the central counterparty (CCP) and trading venue access requirements for three years (in place of the current three-year exemption without the need for a study). (Source: Compromise Text MiFID 2 10 June and Compromise Text MiFIR 10 June)

Contact: Rosali Pretorius or Luca Salerno

European Parliament (EP)
MEPs worried about slow progress:
Members of the EP are worried about the slow progress being made on key regulatory initiatives. They pointed, among other causes, to the failure of the Council's consensus model and to the attention paid to industry views. They said some legislative initiatives should have been started earlier and others, once started, should have been forced ahead more quickly. MEPs noted in particular concerns over the progress of key initiatives including MiFID 2, the Deposit Guarantee Schemes Directive (DGSD), the proposed Directive amending the Investor Compensation Schemes Directive (ICSD), the proposed Omnibus II Directive, the proposals to revise the Market Abuse Directive (MAD 2), the proposed Regulation on central securities depositaries (CSDs), the proposed Bank Recovery and Resolution Directive (RRD), UCITS V, the revisions to the Insurance Mediation Directive (IMD2), and the proposed Securities Law Regulation. (Source: MEPs Worried About Slow Progress, Motion for Resolution and EU Countries and Commission Need to Deliver Faster on Financial Sector Reform)

Contact: Emma Radmore or Juan Jose Manchado

New voting forecasts: The Economic and Monetary Affairs Committee (ECON) in EP has postponed its vote on IMD2 and on the Directive on a key information document for packaged investment products (KID) until 8 July. There is a new indicative date for the plenary vote on the payment accounts proposals of 9 December. (Source: OEIL File for IMD2, OEIL File for KID and OEIL File for Payment Accounts)

Contact: Emma Radmore or Juan Jose Manchado

European Securities and Markets Authority (ESMA)
ESMA reports on remuneration guidelines:
ESMA has published its final report on remuneration guidelines under MiFID. The guidelines aim to improve implementation of the conflicts of interest and conduct of business provisions in MiFID. They cover the governance and design of remuneration policies and cover all staff who have a material impact on the services the firm provides. National regulators should "comply or explain" within two months of ESMA's publishing the official translation of the guidelines. (Source: ESMA Reports on Remuneration Guidelines)

Contact: Rosali Pretorius or Emma Radmore

ESMA publishes CCP interoperability guidelines: ESMA has published guidelines, addressed to national supervisors, on how they should expect CCPs to meet the requirements on interoperability arrangements under the European Market Infrastructure Regulation (EMIR). The first guideline concerns legal risk. Interoperability arrangements must be clearly defined, transparent and enforceable in all relevant jurisdictions. This legal certainty must extend to netting, the point of irrevocability of orders, default procedures and enforceability of collateral. The second guideline provides that any denial or restriction on access to interoperability arrangements must be based only on risk grounds. The rest of the guidelines deal with risk management, protection of collateral from default and cooperation between national supervisors. (Source: Guidelines and Recommendations for Establishing Assessments of Interoperability Arrangements)

Contact: Rosali Pretorius or James Brennan

ESMA compares prospectus liability regimes: In response to a request for advice, ESMA has prepared for the Commission a comparison table of the different liability regimes Member States apply under the Prospectus Directive. It includes information on civil, administrative, government and criminal liability, as well as on the sanctions attached. ESMA clarifies that the document does not have legal effect. (Source: ESMA Publishes Report on Prospectus Directive Liability Regimes in the EU)

Contact: David Cohen or Laura Cansdale

ESMA updates EMIR Q&A: EMIR has updated the Q&A document for EMIR. (Source: EMIR Q&A)

Contact: Rosali Pretorius or James Brennan

European Banking Authority (EBA)
EBA publishes near-final own funds RTS:
EBA has published a near-final version of draft regulatory technical standards (RTS) it will submit to the Commission once the text of the Capital Requirements Regulation (CRR) is confirmed. The RTS develop the requirements on own funds under CRR, specifying:

  • how dividends have to be deducted from profits;
  • limits on the cooperative banking sector's ability to redeem the capital instruments it issues;
  • how losses, deferred tax assets and defined benefit pension fund assets must be deducted from own funds;
  • rules on the activation of hybrid instruments;
  • how to estimate underlying exposures arising from index holdings;
  • restrictions on the use of special purpose entities for indirect issuance of own funds;
  • the process for receiving supervisory permission to reduce own funds;
  • waivers applicable during the implementation of financial assistance plans; and
  • transitional provisions and grandfathering of instruments.

(Source: Near-Final Draft RTS on Own Funds)

Contact: Rosali Pretorius or Edward Hickman

European regulators publish final principles for benchmarks: EBA and ESMA have published the final report on the principles for benchmark-setting in the EU. It includes a new principle on ensuring the continuity of benchmarks. These principles are an interim solution that will help providers and users in the transition period until the Commission proposals that are currently under discussion become law. EBA and ESMA have also announced further work on transaction-based methodologies for calculating benchmarks. In the meantime, they also keep reviewing the implementation of their recommendations to reform Euribor. (Source: ESMA and EBA Publish Final Principles on Benchmarks)

Contact: Rosali Pretorius or James Brennan

European Insurance and Occupational Pensions Authority (EIOPA)
EIOPA speaks on personal pensions:
EIOPA's Chairman has discussed EIOPA's recent consultation on a single market for personal pension products. He said personal plan holders are the most vulnerable consumer group, as the average citizen has limited time and motivation for long-term retirement planning, does not like complexity and uses rules of thumb. (Source: Opening Speech by Gabriel Bernardino)

Contact: Andrew Barber or Emma Radmore

European Central Bank (ECB)
ECB consults on systemic payment systems:
ECB is consulting, until 9 August, on a draft of an ECB Regulation on oversight requirements for Euro-area systemically important payment systems (SIPS). These requirements are based on the global standard "Principles for financial markets infrastructures". The ECB will publish a list of SIPS, which will be subject to specific risk management requirements and sanctions for not complying with the Regulation. (Source: ECB Consults on Draft Regulation on Oversight Requirements for SIPS)

Contact: Andrew Barber or Emma Radmore

UK Government and ParliamentLegislation
Treasury publishes funds regulations:
Treasury has published:

  • the Alternative Investment Fund Managers Regulations 2013 in draft: these Regulations need approval from both Houses of Parliament and constitute most of the UK's implementation of the Alternative Investment Fund Managers Directive (AIFMD). They are the Regulations consulted on by Treasury and broadly contain the provisions relating to authorisation of alternative investment fund managers (AIFMs), marketing of alternative investment funds (AIF), transparency and incentives, treatment of third country funds and managers and data gathering and sharing powers. The Regulations must take effect from 22 July; and
  • the Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013: these Regulations were made on 5 June and took effect from 6 June. They provide for the establishment, authorisation and supervision of collective investment schemes which are contractual funds.

(Source: Draft AIFM Regulations 2013 and Contractual Schemes Regulations)

Contact: Rosali Pretorius or Kam Dhillon

Consumer Rights Bill introduced in Parliament: The Government has laid before Parliament the draft Consumer Rights Bill. Part 2 of the Bill consolidates and amends the legislation governing unfair contract terms. Clause 67 clarifies when the terms establishing price and subject matter of a contract will be exempt from being assessed under the fairness test. Clause 66 introduces a longer "grey list" of examples of terms which may be regarded as unfair. (Source: Draft Consumer Rights Bill and Explanatory Notes)

Contact: Andrew Barber or Josie Day

Treasury Committee to inquire into FPC independence: The Treasury Committee has announced that it will conduct an inquiry into the inconsistency of the rules governing the appointment and conduct of members of the Bank of England' s bodies. It is particularly concerned about the independence of the Financial Policy Committee (FPC): critical members have not been renewed in their post, the Chancellor has delimited FPC's remit, and it is unclear whether it will be given the power to vary the leverage ratio, as originally suggested. (Source: Treasury Committee to Inquire into BoE Appointments and FPC Independence)

Contact: Emma Radmore or Juan Jose Manchado

HM Treasury (Treasury)
Treasury updates sanctions:
Treasury has updated the sanctions lists in relation to Iran. It has also updated the asset freeze list. (Source: Treasury Updates Sanctions)

Contact: Howard Cohen or Andrew Barber

Office of Fair Trading (OFT)
OFT publishes CCA Green Deal Guidance:
OFT has published guidance on licences under the Consumer Credit Act (CCA) for Green Deal participants. It explains the categories of licence Green Deal participants are most likely to need and warns of the specific regime for canvassing off trade premises. The guidance also gives examples of situations in which no licence will be necessary. (Source: OFT Publishes CCA Green Deal Guidance)

Contact: Andrew Barber or Howard Cohen

The Office of Gas and Electricity Markets (OFGEM)
OFGEM consults on REMIT enforcement:
OFGEM has published a package of documents relating to the Regulation on Energy Market Integrity and Transparency (REMIT). Its enforcement powers relating to market abuse come into force on 29 June and OFGEM has set out how it proposes to use the powers. It asks for comments by 29 August. (Source: OFGEM Consults on REMIT Enforcement, Proposed Procedural Guidelines, Proposed Penalties Statement and The Electricity and Gas (Market Integrity and Transparency) (Enforcement etc.) Regulations 2013)

Contact: Rosali Pretorius or Luca Salerno

UK Financial Services and Markets Regulators

Financial Conduct Authority (FCA)
Banks agree to "same day retry" scheme:
Seven banks have agreed with FCA to "retry" later in the same day payments that originally fail. Barclays, The Co-operative, HSBC, Nationwide, RBS Group, Santander and National Australia Group have signed up to the scheme and Lloyds, which already operates a same day retry policy on some types of payment, will now apply it to all transactions. FCA says this means that many transactions which banks try to process early in the day and which fail because funds are not available until later in the day will now succeed, with savings to consumers as the banks will not levy non-payment fees. The banks have also agreed to be clear with customers about the time by which moneys need to be in their account to meet obligations. (Source: Banks Agree "Same Day Retry" Scheme)

Contact: Andrew Barber or Josie Day

FCA publishes more AIFMD information: FCA has published further materials relating to implementation of the AIFMD. Its latest form is a draft variation of permission (VOP) form for full scope AIFMs. It asks for comments on the form by 5 July, after which time it will publish the final version form that firms can complete. It stresses it will not accept applications on this darft version of the form. FCA's web page on AIFMs also contains information on the transitional provisions that will allow sub-threshold, EEA or third country AIFMs to carry on business after 22 July. It has also updated firms on whether AIFMs will be allowed to provide MiFID services on a cross-border basis. FCA's position is that they should be able to do so, but the Commission's position is that MiFID services are not covered by an AIFM passport and that AIFMs are not allowed separately to apply for MiFID authorisation. Accordingly FCA warns firms that some Member States may share the Commission's view. (Source: FCA Publishes More AIFMD Information and AIFMD Latest News)

Contact: Kam Dhillon or Tom Harkus

FCA publishes MLEI thematic review: FCA has published a thematic review into before the event selling of Motor Legal Expenses Insurance (MLEI). It noted that because MLEI is a complex product, it is often hard for consumers to understand, though often useful to certain consumers. It concluded firms should review their practices in three areas:

  • the basis on which MLEI is provided;
  • the quality of explanation of MLEI at all stages of the customer journey; and
  • the extent of the cover.

The review found consumers are usually aware of MLEI but do not fully understand it. MLEI is often offered on an "opt out" basis and many consumers would be nervous about deselecting the option. Following discussions with a number of firms, FCA now wants all firms to consider how they offer, explain and sell MLEI. Specifically, it criticised firms who did not understand the nature of cover well enough to explain it properly to customers, and those that pre-selected the cover and offered confusingly bundled products, sometimes with misleading warnings for customers who tried to deselect the cover. FCA will revisit firms' behaviour in a year's time. (Source: FCA Publishes MLEI Thematic Review)

Contact: Emma Radmore or Andrew Barber

FCA fines for client asset failings: FCA has fined Xcap Securities PLC £120,900 for breach of Principles 3 and 10 in respect of client money and assets. It found the firm did not properly segregate client money from its own, did not keep accurate records of client money and assets and did not carry out required reconciliations. FCA applied its new penalty policy when deciding the level of fine. This fine represented 2% of the firm's average client money balance and 0.2% of its average client asset balance over the breach period. The firm also settled at stage 2 of the executive settlement process, giving it a 20% discount. (Source: FCA Fines for Client Asset Failings)

Contact: Rosali Pretorius or James Brennan

Up next from FCA: FCA's latest Policy Development Update highlights the following publications due before the end of June:

  • policy statement on rates for 2013/2014;
  • policy statement on consultation on consumer credit regulation;
  • feedback on transparency of FCA;
  • policy and feedback statements on recovery and resolution plans; and
  • policy statement to the second consultation on AIFMD implementation.

(Source: Up Next from FCA)

Contact: Emma Radmore or Juan Jose Manchado

FCA publishes quarterly consultation: FCA's first quarterly consultation paper covers:

  • proposed changes to the Insurance: Conduct of Business Sourcebook (ICOBS) to make the claims handling rules consistent with the Consumer Insurance (Disclosure and Representations) Act 2012;
  • amendments to the Perimeter Guidance Manual (PERG) on aspects of Mortgage Market Review (MMR) implementation, specifically mortgage advice, professional standards and pipeline applications;
  • a correction to the definition of "platform service" to include execution-only firms that also arrange for safeguarding and administration of their customers' investments and an updated compatibility statement;
  • changes to the Training and Competence Sourcebook (TC) to add six new qualifications; and
  • changes to the Decision Procedure and Penalties Manual (DEPP) and Enforcement Guide (EG) arising from AIFMD implementation.

It asks for comments on the first three proposals by 6 August and the others by 6 July. (Source: FCA Publishes Quarterly Consultation)

Contact: Emma Radmore or Juan Jose Manchado

FCA creates structured products page: FCA has created a page on its website devoted to structured products. Its initial advice alerts firms to the financial promotions and suitability requirements relating to these products. (Source: FCA Creates Structured Products Page)

Contact: Josie Day or Tom Harkus

FCA publishes short selling factsheet: FCA has published a factsheet covering the practical issues for complying with the Short Selling Regulation: how to register as reporting person and how to submit, correct or delete notifications. It also explains how to use the new forms in meeting these requirements. (Source: FCA 006 Factsheet ̶ Short Selling and New Registration and Notification Forms)

Contact: Rosali Pretorius or James Brennan

AXA agrees to change travel policy wording: AXA Insurance UK plc has agreed to change wording on certain travel insurance polices it underwrites for the Lloyds Banking Group. FCA found some wording confusing and contradictory and therefore potentially unfair to consumers. (Source: AXA Agrees to Change Travel Policy Wording)

Contact: Emma Radmore or Andrew Barber

Other Regulators/Authorities/Industry Associations

British Bankers' Association (BBA)
BBA announces LIBOR submissions not viewable from 1 July:
BBA has confirmed that, from 1 July, LIBOR participant banks' daily submissions will only be published after three months. This implements the Wheatley report recommendation that responded to concerns that real-time publication of submissions could facilitate and/or incentivise manipulation. (Source: Announcement of LIBOR Changes)

Contact: Emma Radmore or James Brennan

Transparency International (TI)
TI writes to PM on Bribery Act:
TI has written to the Prime Minister expressing its concerns at reports that the Government is to review the Bribery Act after only two years. It comments the Act has not yet had a chance to work and criticises those that have continually sought to water it down. It acknowledges the concerns of smaller businesses and their need for clarification over the Act's application, but says this can be achieved by better communication and user-friendly practical guidance. Meanwhile, the City of London Police announced the establishment of an international taskforce to enhance law enforcement's response to foreign bribery on an international scale. Police experts from Australia, the United States, Canada and the United Kingdom will use the platform to share knowledge, skills, methodologies and case studies. (Source: TI Writes to PM on Bribery Act and City Police Sets Up Bribery Taskforce)

Contact: Howard Cohen, 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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