UK: Financial Regulatory Developments (FReD) - 28 June 2013

Last Updated: 1 July 2013

Headlines

CRD4 adopted and published in OJEU
ECOFIN agrees RRD 
Presidency and Council progress KID Regulation 
COREPER agrees MAR 
FATF releases plenary results

European Union and International

Financial Stability Board (FSB)

FSB updates on reform progress: FSB has met in Basel, where it announced forthcoming action to strengthen global financial regulation. Over the summer it will release guidance to support recovery and resolution plans for systemically important financial institutions, as well as Annexes to the Key Attributes of Effective Resolution Regimes that will cover insurance groups, financial market infrastructures, the protection of client assets in resolution and information sharing among authorities. It will also identify an initial list of global systemically important insurers. FSB has also announced a consultation on a methodology to enable the International Monetary Fund to assess countries' implementation of the Key Attributes. Regarding other areas of regulatory reform, FSB highlighted the launch of a study on global aggregation and sharing of data reported to trade repositories. FSB has also established a steering group to co-ordinate the reviews of interest rate benchmarks. (Source: Meeting of FSB in Basel)

Contact: Rosali Pretorius or Juan Jose Manchado

Council of the European Union (Council)

CRD4 adopted and published in OJEU: The Council adopted the fourth Capital Requirements Directive and Regulation (collectively known as CRD4) package on 20 June on a qualified majority vote, with the UK objecting to certain provisions. The CRD4 package has now been published in the Official Journal of the EU (OJEU) and it will take effect from 1 January 2014, although there are certain delayed implementation periods, transitional provisions and national discretions within the package. (Source: Council Adopts CRD4 CRD4 (Directive - CRD) Text as published in OJEU and CRD4 (Regulation - CRR) Text as published in OJEU)

Contact: Rosali Pretorius or Juan Jose Manchado

ECOFIN agrees RRD: The Economic and Finance Ministers (ECOFIN) within the Council have reached political agreement on the Recovery and Resolution Directive (RRD). The Presidency had previously published a note on its approach and a compromise proposal. It noted the importance of the "resolution triangle" comprising (i) the design of the bail in tool, in particular the balance between harmonisation and flexibility, (ii) minimum requirements for own funds and eligible liabilities and (iii) financing. Agreement on each of these elements is critical and a change in approach to one would affect the others. The Presidency believes it has now achieved a balance between harmonisation and flexibility that should meet the demands of conflicting Member State preferences. Michel Barnier, welcoming the agreement, said trilogue discussions should now begin. (Source: Approach Note on RRD Compromise RRD 19 June and Commission Welcomes RRD Agreement)

Contact: Rosali Pretorius or Andrew Barber

Presidency reports on CSD Regulation progress: The outgoing Irish Presidency of the Council (Presidency)has reported on the stage it has reached in negotiation towards a Regulation on Central Securities Depositories (CSDs). It says it has made progress, but several issues are outstanding, including the need for further discussion on settlement discipline, a third country regime and the need for authorisation of CSDs that are also authorised to provide banking services. This is the main area of debate, with some Member States opposing the need for authorisation for banking CSDs and some opposing the proposal that the European Securities and Markets Authority (ESMA) should have the final decision on authorisation. The Irish Presidency urges the Lithuanian Presidency to continue the negotiations. (Source: Presidency Reports on CSD Regulation Progress)

Contact: Rosali Pretorius or James Brennan

Presidency and Council progress KID Regulation: The Presidency of the Council published the latest in a series of compromise texts on the proposed Regulation for a Key Information Document for packaged retail investment products (PRIPs) (the KID Regulation). The text has changed to reflect conflicting requests from Member States to change its scope. Member States also cannot agree on whether there should bea harmonised administrative sanctions regime for breach of the KID Regulation or whether each Member State should still be allowed to impose criminal sanctions. The current compromise, agreed by the Committee of Permanent Representatives (COREPER) on 26 June, reflects the stance taken in the Markets in Financial Instruments Directive and Regulation (MiFID 2 and MiFIR) package. The Economic and Monetary Committee (ECON) in EP is yet to vote on its report. The Presidency urges negotiations with EP on the basis of the compromise text, with a view to reaching agreement on the text at first reading. (Source: KID Regulation Approach and KID Regulation Compromise Text 24 June)

Contact: Emma Radmore or Josie Day

COREPER agrees MAR: COREPER has approved the Presidency compromise text on the Market Abuse Regulation (MAR), part of the package to update the Market Abuse Directive (MAD 2). MAR has now been agreed with EP, and the EU institutions will now negotiate agreement on the accompanying Directive on criminal sanctions for market abuse (CSMAD), with a view to both parts of the MAD 2 package being adopted at first reading. A mark-up of the proposals shows the agreed position that EP should now adopt, subject to some final changes to reflect policy decisions reflected in the MiFID 2 package. (Source:  COREPER agrees MAR and Agreed MAR position)

Contact: Josie Day or James Brennan

European Parliament (EP)

EP updates voting dates: EP's Legislative Observatory (OEIL) shows an indicative voting date for the proposal for a new Market Abuse Regulation (MAR) of 10 September. The date had previously moved from July to October. (Source: OEIL File on MAR)

Contact: Josie Day or James Brennan

ECON publishes MLD4 opinions: EP's Economic and Monetary Affairs Committee (ECON) has published draft opinions on for the Legal Affairs Committee (JURI) on the proposals to amend the Money Laundering Directive (MLD4) and Wire Transfer Regulation. Its main comments include:

  • the need to improve the beneficial owners' register, so as not to place a disproportionate burden on companies;
  • the need for more clarity on money laundering risk assessments and what they should comprise;
  • a suggestion for earlier guidance from the European Supervisory Authorities;
  • the need for coherent and effective group supervision; and
  • recognition of the limited information available to certain intermediaries.

(Source: ECON Draft Opinion on MLD4 and ECON Draft Opinion on Wire Transfers Regulation)

Contact:  Emma Radmore or Andrew Barber

ECON publishes FTT and bank structural reform reports: ECON has published the text of its opinion on the Financial Transaction Tax (FTT) Directive and its motion for an EP own-initiative resolution on bank structural reform. The FTT report includes, in addition to the legal ownership principle and the reduced tax rates identified in the previous issue of FReD, an extension of scope to OTC derivatives and to foreign branches of EU institutions registered within the FTT jurisdiction. (Source:  FTT Report and Bank Structural Reform Report)

Contact: Rosali Pretorius or Luca Salerno

ECON publishes NBFI resolution draft report: ECON has published a draft report on the recovery and resolution of non-bank financial institutions (NBFI). It calls on the Commission to prioritise those institutions that are exposed to credit risk and stresses the importance of following internationally agreed standards. It makes further specific suggestions regarding key elements of recovery and resolution planning for specific types of NBFI, such as central counterparties, securities depositories, insurers, asset managers and payment systems. (Source: ECON Publishes NBFI Resolution Report)

Contact: Rosali Pretorius or Andrew Barber

European Commission (Commission)

Commission proposes long-term funds Regulation: The Commission has published a proposal for a Regulation on European Long-term Investment Funds (ELTIFs), a new investment fund framework available to all types of investors. The proposed Regulation lays down requirements on the type of investments that ELTIFs would be allowed to make (long-term, illiquid and not traded on regulated markets), restrictions on redemptions, portfolio diversification, use of derivatives and leverage, and transparency and marketing. ELTIF managers would have to comply with the Alternative Investment Managers Directive (AIFMD). The Commission seeks to introduce a "second retail passport", based on the UCITS model of risk spreading and product specifications, to overcome regulatory fragmentation and the lack in many Member States of funds models addressing investment in long-term asset classes. (Source: Proposal for a ELTIF Regulation)

Contact: Rosali Pretorius or Kam Dhillon

Asia-Pac regulators concerned over CCP recognition: Securities and markets regulators, acting under the umbrella of IOSCO's Asia-Pacific Regional Committee, have written to the Commission expressing concerns over ESMA's assessments of third country rules. For ESMA to recognise third country central counterparties (CCPs), rules regulating them must be equivalent to those under the European Market Infrastructure Regulation (EMIR). Asia-Pacific regulators propose that, to introduce greater transparency, IOSCO's "Principles for Financial Market Infrastructures" should be the benchmark for the equivalence assessments. (Source: Recognition of Asia-Pacific CCPs under EMIR)

Contact: Rosali Pretorius or James Brennan

European Supervisory Authorities (ESAs)

ESAs Board of Appeal rules against EBA: The Board of Appeal of the ESAs has published its first decision, ruling in favour of an appeal against a decision by EBA not to allow a complaint on the grounds there was no breach of EU law. An Estonian court had found that two managers of a large branch in Estonia of a European bank had not given truthful evidence in the course of Estonian proceedings, but neither the Estonian nor the bank's home supervision authorities took action against the individuals for failure to be "fit and proper" persons. The appellant brought the complaint before EBA, which declared it inadmissible. The question was whether the fitness and properness of branch managers was a matter of local or EU law. The Board of Appeal of the ESAs found that the fit and proper requirements under the Capital Requirements Directive had to be read in the light of the EBA Guidelines on assessing suitability of management and key function holders, which extended the scope of the fit and proper requirements beyond those that direct the institution as a whole and therefore made the suitability of the governors of the Estonian branch a matter under EU law. The case has been remitted to EBA to decide whether it will exercise its discretion to investigate the breach. (Source: ESA Board of Appeal Publishes its First Decision)

Contact: Emma Radmore or Juan Jose Manchado

European Banking Authority (EBA)

EBA consults on correlated currencies and diversified indices: EBA has published two consultations, running until 8 September, on implementing technical standards (ITS) under the CRD4 package. These ITS identify lists of correlated currencies and of diversified indices for calculating capital requirements to cover, respectively, foreign exchange and equity risks. (Source: EBA Consults on Correlated Currencies and Diversified Indices)

Contact: Rosali Pretorius or James Brennan

UK Government and Parliament

Parliament

High Cost Credit Bill starts parliamentary process: A Private Members' Bill has had its first reading in Parliament and is scheduled to have its second reading on 12 July. The High Cost Credit Bill would regulate high-cost credit arrangements and their providers. Its proposer calls for a number of further safeguards relating to these arrangements such as:

  • controls on advertising, information and communications;
  • measures to address cost and affordability;
  • regulating matters concerning repayments; and
  • providing for advice and advice services in relation to debt arising from the arrangements.

(Source: High Cost Credit Bill Starts Parliamentary Process)

Contact: Andrew Barber or Howard Cohen

Parliament publishes report on Banking Reform Bill Committee stage: The Library of the House of Commons has published a paper summarising the discussions in Committee stage of the Banking Reform Bill. Most of the amendments and new clauses proposed by the opposition were based on recommendations of the Vickers Reports or the Parliamentary Commission on Banking Standards which had been rejected by the Government. (Source: Banking Reform Bill: Committee Stage Report)

Contact: Rosali Pretorius or Andrew Barber

Bank of England (BoE)

FPC makes new recommendations: The Financial Policy Committee (FPC) has published its biannual Financial Stability Report and made the following new recommendations:

  • FCA and PRA should assess vulnerability to increases in long-term interest rates and credit spreads;
  • the Liquidity Coverage Ratio (LCR) should be set at 80% until January 2015, rising thereafter to 100% in January 2018. This contrasts with the revised Basel Committee standards, which require that the LCR should not start applying until January 2015 and then only at 60%;
  • work should continue on comparability of Pillar 3 disclosures to the market;
  • major UK banks should start complying with the recommendation of the Enhanced Disclosure Task Force (EDTF);
  • PRA should consider the feasibility of major UK banks also calculating their capital ratios using the standardised approach;
  • Government, regulators and industry should improve and test resilience to cyber attack.

(Source: Financial Stability Report June 2013)

Contact: Rosali Pretorius or Juan Jose Manchado

Office of Fair Trading (OFT)

OFT appoints new credit director: OFT has appointed Mario Theodosiou as its new director of credit. He is seconded from FCA, and his mandate is to strengthen OFT's use of its enforcement powers against consumer credit licence holders. (Source: OFT Appoints New Credit Director)

Contact: Andrew Barber or Howard Cohen

Courts

Supreme Court publishes Mellat ruling: The Supreme Court has published its judgment on whether Treasury properly used its powers under the Counter Terrorism Act 2008 (CTA) in making a direction requiring all persons operating in the UK financial sector not to enter into or continue to participate in any transaction or business relationship with, among others, Bank Mellat or its branches. Subsequently, EU measures having a similar effect came into force, so Treasury did not renew the direction when it expired. Bank Mellat applied, successfully, for annulment of the EU measures, although this decision is under appeal to the EU Court of Justice. Pending the outcome of this appeal, there are no measures in force against the bank. The bank claimed Treasury had not followed correct procedure when making the direction as it had not given the bank the opportunity to make representations. It also claimed the decision was irrational, disproportionate and discriminatory, that Treasury did not give adequate reasons for making it and that its reasons were vitiated by irrelevant considerations or mistakes of fact. The Supreme Court concluded the direction should be set aside and the Order quashed, on both grounds. (Source: Supreme Court Publishes Mellat Ruling)

Contact: Howard Cohen or Emma Radmore

UK Financial Services and Markets Regulators

Prudential Regulation Authority (PRA)

PRA creates AIFMD web page: PRA has created a new web page on the Alternative Investment Fund Managers Directive (AIFMD). It says its interest in the AIFMD is where firms wish to apply to become depositaries under it. (Source: PRA Creates AIFMD Web Page)

Contact: Kam Dhillon or Tom Harkus

Financial Conduct Authority (FCA)

FCA speaks on credible deterrence: Tracey McDermott spoke on the first 78 days of FCA's existence. She focused on the structural changes within the new FCA such as the creation of the Policy, Risk and Research division and on the process changes and the creation of the new supervisory model. She discussed FCA's increasing use of behavioural economics to determine its regulatory strategy and outlined some experiments it has carried out to assess what communications are most likely to gain customers' attention. She said firms will have to get used to earlier engagement with enforcement teams and stressed the need for both two-way communication and a change in the culture in some areas of the financial services marketplace. She then focused on the need for senior management to lead by example and discussed regulatory actions against individuals. Finally, she discussed the credible deterrence policy and enforcement priorities. She said the LIBOR actions show FCA will focus on wholesale markets. She said it will also continue its drive against misselling and looking at particular products. (Source: FCA Speaks on Credible Deterrence)

Contact: Howard Cohen or Andrew Barber

FCA updates approach documents: FCA has updated its approach documents on the Payment Services Regulations 2009 (PSR) and the Electronic Money Regulations 2011 (EMR). The changes mainly reflect the new regulatory structure but make some other amendments, including to correct a misleading interpretation of "establishment" previously used in the PSR Approach Document. The EMR Approach Document has been changed to reflect the end of the transitional period under the EMR and to clarify several aspects of the regulatory process and compliance requirements. FCA has also published an updated factsheet and form for an individual responsible for the management of an electronic money institution. (Source:  Updated PSR Approach Document and Updated EMR Approach Document)

Contact: Andrew Barber or Josie Day

FCA gets court settlement over land banking: FCA has achieved a settlement in the High Court that will enable investors in an illegal land banking scheme to recover £380,000. Several unauthorised entities were involved in the scheme, which FCA believes had around 70 investors. The sums FCA has obtained are a small fraction of the amount lost but FCA believes that in settling the action now it has achieved the best possible outcome from court proceedings for the investors. (Source: FCA Gets Court Settlement Over Land Banking)

Contact: Howard Cohen or Josie Day

FCA publishes reference guidance: FCA has published finalised guidance under the new section 234D FSMA 2000 on when and how regulated persons and the Financial Ombudsman Service (FOS) can refer matters to FCA. Regulated persons comprise authorised persons, e-money issuers and payment services providers. Regulated persons can refer a matter to FCA only if it relates to their own compliance failure, while FOS references can relate to any regulated person. The guidance details how to meet the two sets of conditions laid down in section 234D. FCA has also published finalised guidance for designated consumer bodies to raise supercomplaints. (Source: Finalised Guidance on Super Complaints and References Under Section 234D)

Contact: Andrew Barber or Josie Day

FCA speaks on balance and transparency: Martin Wheatley spoke on getting the balance of regulation right, market transparency (particularly in the light of EMIR) and the overhaul of LIBOR. (Source: FCA Speaks on Balance and Transparency)

Contact: Rosali Pretorius and James Brennan

Other Regulators/Authorities/Industry Associations

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

Basel Committee unveils leverage ratio: The Basel Committee has published a consultation on the revised Basel 3 leverage ratio framework and disclosure requirements. The document sets out how to capture the exposures that constitute the denominator of the leverage ratio calculation, and the disclosure requirements. Further calibration of the leverage ratio is possible before it comes into force in January 2018, particularly in the light of a Quantitative Impact Study that the Basel Committee will undertake. Public disclosure requirements will apply from January 2015. In its recent Annual Report, BIS had highlighted the complementarity of risk-weighted capital and maximum leverage metrics, as it is difficult to manipulate one without affecting the other in the opposite direction. Comments are due by 20 September 2013. (Source: Consultation on Revised Basel 3 Leverage Ratio Framework and Disclosure Requirements and BIS 83rd Annual Report)

Contact: Rosali Pretorius or Edward Hickman

Basel updates on large exposures QIS: The Basel Committee has updated its website with FAQs on the QIS exercise on large exposures. (Source: Basel Committee Updates on Large Exposures QIS)

Contact: Rosali Pretorius or Juan Jose Manchado

Financial Action Task Force (FATF)

FATF releases plenary results: FATF has released the results of its plenary meeting in Oslo. There is no change to its recommendation to apply counter measures for Iran and North Korea. It also identifies as jurisdictions with significant deficiencies Ecuador, Ethiopia, Indonesia, Kenya, Myanmar, Pakistan, Sao Tome and Principe, Syria, Tanzania, Turkey, Vietnam and Yemen. It says that if Ecuador does not take significant actions by October it will call on its members to apply counter measures against it. It encourages Afghanistan, Albania, Angola, Argentina, Bangladesh, Cambodia, Cuba, Kuwait, Kyrgystan, Lao PDR, Mongolia, Morocco, Namibia, Nepal, Nicaragua, Nigeria, Sudan, Tajikistan and Zimbabwe to continue progressing their reforms and notes that Algeria and Antigua and Barbuda have not made enough progress. It has removed Bolivia, Brunei Darussalam, the Philippines, Sri Lanka and Thailand from its list of countries subject to an ongoing compliance process because of the progress they have made. At the meeting, FATF also endorsed several reports, including those addressing prepaid cards, mobile payments and internet-based payment services and further guidance on Politically Exposed Persons (PEPs). (Source: FATF Releases Plenary Results)

Contact: Emma Radmore or Andrew Barber

Futures and Options Association (FOA)

FOA and FIA to combine: FOA and the Futures Industry Association (FIA) have announced they are to combine to form a global association to be known as FIA Global. (Source: FOA and FIA to Combine)

Contact: Rosali Pretorius or Luca Salerno

International Association of Insurance Supervisors (IAIS)

IAIS consults on AML: IAIS is consulting on changing its standards on anti-money laundering (AML) and countering terrorist finance (CTF) in line with the 2012 FATF Recommendations. It asks for comments by 22 August. (Source: IAIS Consults on AML)

Contact: Emma Radmore or Andrew Barber

Investment Management Association (IMA)

IMA reports on adherence to Stewardship Code: IMA has published the results of its enquiry into investors' and service providers' adherence to the Financial Reporting Council's Stewardship Code. One of the case studies in the report covers the engagement by institutional investors to bring about a change in Barclays' remuneration policy. The report finds that there has been an increase in resources allocated to stewardship, and an increase in monitoring and voting. (Source: Investors are Engaging on Issues Beyond Governance)

Contact: Andrew Barber or Kam Dhillon

International Organisation for Securities Commissions (IOSCO)

IOSCO publishes principles for ETFs: IOSCO has published the final report on Principles for the Regulation of Exchange Traded Funds (ETFs). These principles cover the disclosure of ETFs':

  • classification, to help investors distinguish them from exchange-traded products and to differentiate between index and non index-based ETFs;
  • portfolio composition or the reference index and the way it is tracked. Complex investment strategies, such as those involving leverage, should also be clearly disclosed; and
  • costs and securities lending.

The principles also require the management of conflicts of interest arising from physical and synthetic replication, and of risks arising from counterparty exposures and collateral management. (Source: Principles for the Regulation of ETFs)

Contact: Rosali Pretorius or James Brennan

International Swaps and Derivatives Association (ISDA)

Industry responds on recognising cost of credit: ISDA and the Global Financial Markets Association (GFMA) have responded to the Basel Committee's proposals that the present value of premia paid for credit protection should be assigned a 1,250% risk weight. The proposals seeks to address capital arbitrage achieved through credit risk mitigation or synthetic securitisation transactions that do not produce a significant transfer of risk. ISDA and GFMA support this objective but find that the concern could be addressed by Pillar 2 guidance and supervision, together with forthcoming changes to accounting of loan loss reserves. (Source: Response to Consultation on Recognising Cost of Credit Protection Purchased)

Contact: Rosali Pretorius or Edward Hickman

Lloyd's

Lloyd's announces financial crime review approach: Lloyd's has issued a review work plan and document request to all managing agents. The review aims to establish what compliance programmes are in place and what Lloyd's expects of managing agents. (Source: Lloyd's Announces Financial Crime Review Approach)

Contact: Howard Cohen or Emma Radmore

Loan Market Association (LMA)

LMA highlights role of banks in long-term finance: In its response to the Commission's Green Paper on long-term financing, LMA has highlighted the role that banks and the syndicated loan product must continue to play in the provision of long-term financing. It believes that uncertain and untargeted regulation, such as the new prudential requirements, is one of the greatest barriers to long-term lending. (Source:LMA Consults with Commission on Long-Term Financing Solutions)

Contact: Rosali Pretorius or Edward Hickman

Organisation for Economic Co-operation and Development (OECD)

OECD consults on governance of regulators: OECD is consulting, until 31 August, on principles for the governance of regulators, aimed at ensuring that regulatory decisions are made on an objective, impartial and consistent basis, without conflict of interest, bias or improper influence. The principles cover aspects of how a regulator should be set up, directed, controlled, resourced and held to account. (Source: Draft Best Practice Principles for the Governance of Regulators)

Contact: Andrew Barber or Emma Radmore

Sentencing Council

Sentencing Council consults on financial crime guidance: The Sentencing Council is consulting on guidance for sentencing certain financial crimes, including fraud, bribery and money laundering. The proposed guidance focuses on assessment of culpability and harm factors. It then sets out the range of potential custodial sentences based on these factors and other aggravating factors. It contains a separate section on treatment of corporate offenders, proposing a "harm figure multiplier" to be used together with the culpability factor. The consultation is unrelated to the introduction of deferred prosecution agreements. Consultation closes on 4 October. (Source: Sentencing Council Consults on Financial Crime Guidance)

Contact: Howard Cohen or Andrew Barber

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From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.