UK: Financial Regulatory Developments (FReD) - 12 July 2013

Last Updated: 18 July 2013

European Union and International

Council of the European Union (Council)

Council sets priorities: The Council on Economic and Finance Ministers (ECOFIN) in the EU Council set out its priorities under the Lithuanian Presidency and has published its work programme. Among its key priorities are:

  • banking union;
  • agreement with the European Parliament (EP) on the review of the Markets in Financial Instruments Directive (MiFID 2) and Regulation (MiFIR) and agreement on the Central Securities Depositary Regulation;
  • adoption of the bank Recovery and Resolution Directive (RRD) and Deposit Guarantee Directive (DGD);
  • agreement in Council on the fourth Money Laundering Directive; and
  • progress on Omnibus II.

It also noted the recent agreement on the Market Abuse Regulation (MAR) and hinted at a possible future review of sanctioning regimes in the financial services sector generally. (Source: Council Sets Priorities)

Contact: Emma Radmore or Juan Jose Manchado

Council validates MAR: The Council has published a validated version of the agreement reached with EP on MAR. (Source: Council Validates MAR)

Contact: Rosali Pretorius or Luca Salerno

Council corrects dates in CRD4/CRR final texts: The Council has published corrigenda for the texts of the recently adopted new Capital Requirements Directive and Regulation (CRD4 and CRR). They correct a number of dates throughout the text. (Source: Corrigendum for CRD4 and Corrigendum for CRR)

Contact: Rosali Pretorius or Juan Jose Manchado

European Commission (Commission)

Commission unveils SRM proposals: The Commission has announced its proposals for a Single Resolution Mechanism (SRM) for the Banking Union. The SRM aims to ensure the application of relevant provisions in the RRD to all banks in Members States within the Single Supervisory Mechanism (SSM). Aligning supervision and resolution at the same level will help prevent tensions between the single supervisor (the European Central Bank (ECB)) and relevant national authorities. The SRM will also contribute to breaking the link between sovereign and banking crises, given the clear rules and funding arrangements to avoid public bail-outs. The operation of the SRM will involve:

  • ECB signalling when a bank needs to be resolved;
  • a Single Resolution Board, with representatives from ECB, the Commission and relevant national authorities preparing the resolution;
  • the Commission taking the final decision to place a bank into resolution;
  • implementation of the resolution plan by national authorities; and
  • pooling national resolution funds into a Single Resolution Fund that would be used to ensure funding support while the bank is being restructured.

The Commission estimates that, with the CRD4 package and the RRD in place, needs for further bank recapitalisation will be rare but, as this possibility will always exist, the European Stability Mechanism will be allowed to recapitalise banks directly once the Banking Union is established. In respect of the resolution of cross-border banks established both within the Banking Union and in a non-participating Member State, coordination through resolution colleges and EBA mediation will continue to apply. The SRM proposals will also seek to avoid discrimination against credit institutions, deposit holders, investors or other creditors on grounds of nationality of place of business. (Source: Commission proposal for a Single Resolution Mechanism)

Contact: Rosali Pretorius or Juan Jose Manchado

European Banking Authority (EBA)

EBA consults on regulatory cooperation: EBA is consulting on draft Implementing Technical Standards (ITS) and Regulatory Technical Standards (RTS) that deal with how regulators collaborate and exchange information in relation to institutions which passport on a branch or services basis into another Member State. The standards focus on exchange of supervisory information. The RTS address information covered by Article 50 of CRD 4 including: management and ownership; solvency and liquidity; deposit guarantee schemes; large exposures; and internal control mechanisms. The ITS cover procedures, forms and templates for information sharing requirements. EBA asks for comments by 8 October and should submit the standards to the Commission by 1 January 2014. (Source: EBA Consults on Regulatory Cooperation)

Contact: Rosali Pretorius or James Brennan

EBA consults on publishing supervisory information: EBA is consulting on templates for the publication by national supervisors of information on Member States' prudential regulations, exercise of discretion when implementing EU legislation, supervisory review and statistical data. It asks for comments by 9 October. (Source: EBA Consults on Draft ITS on Supervisory Disclosure)

Contact: Emma Radmore or Juan Jose Manchado

EBA consults on CVA risk: EBA has reformulated its original consultation on draft RTS on credit valuation adjustment (CVA) risk, in light of changes to the final version of CRR. The main changes concern the use of the proxy spread in the calculation of the advanced CVA charge. It asks for comments by 25 September. (Source: Draft RTS on CVA Risk)

Contact: Rosali Pretorius or James Brennan

European Securities and Markets Authority (ESMA)

ESMA consults on MiFID M&A RTS: ESMA is consulting on draft RTS under the current MiFID requirement for Member States to make publicly available the information necessary to carry out the assessment of a proposed acquirer of an investment firm. ESMA is required to produce by 1 January 2014 RTS for the Commission which set out an exhaustive list of the relevant information. The RTS are based on existing guidance from the European Supervisory Authorities. They address information on:

  • acquirers and the proposed acquisition;
  • the new group structure and its impact on supervision;
  • proposed changes in control of the target or where the acquirer's shareholding would fall within various bands within the Acquisitions Directive;
  • situations where EU acquirers acquire small, non-complex investment firms; and
  • validity of information.

ESMA asks for comments by 9 September. (Source: ESMA Consults on MiFID M&A RTS)

Contact: Andrew Barber or Josie Day

ESMA issues protocol on suspension notifications: ESMA has published a protocol on making the notifications required when a market operator or competent authority has used MiFID powers to suspend or remove a financial instrument from trading. Notifications must be made using the centralised facility SARIS (Suspension and Restoration Information System). (Source: Protocol on the Operation of Notifications under MiFID Article 41)

Contact: Josie Day or James Brennan

ESMA consults on CRA3 Level 2: ESMA has issued a discussion paper with a view to delivering draft RTS on several aspects of the implementation of the recently adopted revised Credit Rating Agencies Regulation (CRA3). These RTS cover:

  • content, frequency and template for the disclosure requirements on structured finance instruments;
  • the content and format of rating agencies' reports to the European Rating Platform; and
  • reporting on fees charged by rating agencies.

ESMA asks for comments by 10 October. (Source: ESMA launches consultation on implementation of new CRA Regulation)

Contact: Rosali Pretorius or James Brennan

European Systemic Risk Board (ESRB)

ESRB responds on forbearance: ESRB has responded to EBA's consultation on draft ITS on supervisory reporting on forbearance and non-performing exposures. It says that the lack of reliable and comparable data on the quality of assets in banks' balance sheets is a source of systemic risk. On the other hand, forbearance may have positive effects and ESRB suggests collecting data on forborne loans that resume regular payments. (Source: ESRB Response on Forbearance)

Contact: Rosali Pretorius or Andrew Barber

UK Government and Parliament


TSC publishes insurance evidence letters: The Treasury Select Committee (TSC) has published letters from Martin Wheatley and Otto Thoresen as part of its investigation into whether existing customers pay higher premiums for insurance than new customers and, if this is so, what action is being taken. (Source: TSC Publishes Insurance Evidence Letters)

Contact: Emma Radmore or Andrew Barber

Parliament publishes High Cost Credit Bill: Parliament has published the text of the Private Members' High Cost Credit Bill, which is currently in the early stages of the Parliamentary process. (Source: High Cost Credit Bill)

Contact: Andrew Barber or Howard Cohen


Banking Reform Bill continues through Parliament: The Financial Services (Banking Reform) Bill continued its passage through Parliament, completing its Report and Third Reading in the House of Commons. The Government has taken the opportunity to insert in the Bill provisions to implement the recommendations of the Parliamentary Commission on Banking Standards. The Bill has also had its first reading in the House of Lords, with its second reading due on 24 July. (Source: Banking Reform Bill continues through Parliament)

Contact: Andrew Barber or Emma Radmore

Treasury publishes Consumer Credit Order: Treasury has published in draft the statutory instrument that will make changes and clarifications to legislation in connection with the transfer of consumer credit regulation to FCA. It caters for the functions FCA will have under the Consumer Credit Act and provisions of the Financial Services and Markets Act that will apply to failures to comply with the Consumer Credit Act. (Source: Treasury Publishes Consumer Credit Order)

Contact: Andrew Barber or Howard Cohen

NCA to take effect in October: A commencement order under the Crime and Courts Act 2013 makes provision for the National Crime Agency (NCA) to be established from 7 October. Among other things, this means the Serious Organised Crime Agency will be abolished from that date. (Source: Crime and Courts Act Commencement Number 2 Order)

Contact: Howard Cohen or Emma Radmore

HM Treasury (Treasury)

Government responds on banking standards: The Government has published its response to the recommendations of the Parliamentary Commission on Banking Standards. As suggested in the Chancellor's Mansion House speech, it intends to implement the recommendations as soon as possible. In particular it will:

  • introduce a criminal offence for reckless misconduct for senior bankers;
  • set rules to ensure bankers' pay is aligned with their performance, including provisions on bonus deferral and claw-back;
  • introduce stringent requirements on senior bank staff and new rules to promote higher standards for all bank staff;
  • reverse the burden of proof so bank bosses are accountable for breaches within their areas of responsibility;
  • strengthen corporate governance so firms can identify risks and maintain standards on ethics and culture;
  • give PRA a secondary competition objective to strengthen its role in ensuring the UK has banking markets with effective competition that delivers good outcomes for consumers; and
  • ask the new payments regulator to urgently examine account portability and whether the big banks should give up ownership of the payments systems.

(Source: Government Responds on Banking Standards)

Contact: Andrew Barber or Emma Radmore

NYSE Euronext to be next LIBOR administrator: The Hogg Tendering Advisory Committee for LIBOR announced BBA has accepted its recommendation that NYSE Euronext be the next LIBOR administrator. A new company, NYSE Euronext Rate Administration Limited, must now get FCA authorisation, and BBA will work to transfer responsibilities to it. BBA Libor Limited has issued plans for an interim regime. The transfer should happen in early 2014. (Source: NYSE Euronext to be Next LIBOR Administrator and BBA Libor Issues Interim Regime Documents)

Contact: Rosali Pretorius or Howard Cohen

Treasury updates on AML: Treasury has updated its anti-money laundering (AML) advisory notices following the recent Financial Action Task Force (FATF) meeting. (Source: Treasury Updates on AML)

Contact: Emma Radmore or Andrew Barber

Office of Fair Trading (OFT)

OFT publishes generic letter on payday loans: OFT has published a generic letter setting out its action to date on payday loans and the action it expects firms in the sector to take. It requires an audit report from firms showing the changes they have implemented to ensure they comply with legal obligations and the minimum standards OFT expects of its licensees. The letter requires acknowledgement within 14 days and the audit report within 12 weeks. OFT warns that failure to meet OFT standards may lead to a revocation of a licence or the imposition of requirements under the Consumer Credit Act. (Source: OFT Publishes Generic Letter on Payday Loans)

Contact: Andrew Barber or Howard Cohen

Competition Commission

Competition Commission updates on motor insurance investigation: The Competition Commission has published an annotated issues statement on its investigation into the private motor insurance market. So far, the Competition Commission has seen evidence of, among other issues, moral hazard arising where there is separation of cost liability and cost control in the provision of post-accident services to non-fault claimants. The Competition Commission will also consider the issue of add-ons further. (Source: Annotated Issues Statement on its Investigation into the Private Motor Insurance Market)

Contact: Emma Radmore or Andrew Barber

UK Financial Services and Markets Regulators

Financial Conduct Authority (FCA)

FCA consults on retail referrals: FCA is consulting on rules to clarify its application of the Retail Distribution Review (RDR) rules to referrals to discretionary investment managers. The paper:

  • clarifies what happens when an adviser recommends a client to place additional money with a discretionary investment manager from whom the adviser receives payments resulting from a referral made before RDR implementation. Following market consultation on commission for legacy business, FCA intends to allow referral payments for pre-RDR referrals to continue, but will ban payments for post-RDR top-ups when an adviser recommends more money be paid into investments already held with a manager;
  • bans referral payments where an adviser does not provide personal recommendations to particular clients, but provides other services to them, such as market research. FCA already consulted on this, and most respondents supported it as they believe it would stop firms trying to circumvent the ban on referral payments. So referral payments can continue only where firms provide pure non-advised services or pure introductions. Any payments that are still allowed will be subject to the rules on clients' best interests and inducements; and
  • clarifies that all complaints about any activities of a retail investment adviser should be reported to FCA.

The new rules will primarily amend the Conduct of Business Sourcebook (COBS) 6.1.A 4. FCA asks for comment by 4 October. (Source: FCA Consults on Retail Referrals)

Contact: Andrew Barber or Josie Day

FCA speaks on insurance broking: Simon Green of FCA spoke on the future of insurance broking. He focused on the need to restore trust and confidence in the industry generally, specifically addressing the lack of relationship between customers and insurers. He said brokers could help add value by keeping the customer at the heart of their business model. He said FCA will focus its supervision on senior management, business models and product design and distribution. He spoke of FCA's thematic work and announced the launch of a new thematic review of conflicts of interest where brokers receive money from both insurers and customers. (Source: FCA Speaks on Insurance Broking)

Contact: Emma Radmore or Andrew Barber

FCA speaks on first 100 days: Martin Wheatley spoke to the Association of British Insurers (ABI) on the first 100 days of FCA. He spoke both on how FCA differs from the Financial Services Authority and on its current insurance initiatives, such as its review of add-ons. He also spoke on the recent reviews of motor legal expenses insurance and mobile phone insurance, and FCA's use of thematic reviews in the life and pensions sector. (Source: FCA Speaks on First 100 Days)

Contact: Emma Radmore or Josie Day

FCA publishes last FSA annual report: FCA has released FSA's Annual Report 2012/2013, which contains a section on the organisational changes required by the move to a twin peaks regulatory model. (Source: FSA Annual Report 2012/2013)

Contact: Emma Radmore or Juan Jose Manchado

FCA calls for evidence on insurance add-ons: FCA has launched a call for evidence, which will be open until 10 September, on the cost and outcomes of insurance add-ons that are cross-sold to consumers and on constraints to competition that this practice may cause. (Source: Call for Evidence for the General Insurance Add-On Market Study)

Contact: Emma Radmore or Andrew Barber

Prudential Regulation Authority (PRA)

PRA speaks on insurance supervision: Andrew Bailey, speaking to the ABI, looked at the reasons PRA regulates insurers and its key regulatory priorities. He also spoke on particular regulatory initiatives, such as the continuing preparations for Solvency 2. (Source PRA Speaks on Insurance Supervision)

Contact: Rosali Pretorius or Emma Radmore

PRA issues insurance modification: PRA has issued a form of modification by consent from various rules in the Interim Prudential Sourcebook for Insurers (IPRU-INS) for firms in run-off. Firms can get the modification when PRA feels it no longer needs certain information in order properly to supervise them. (Source: PRA Issues Insurance Modification)

Contact: Rosali Pretorius or Emma Radmore

PRA and FCA to apply internal audit guidance: PRA and FCA have welcomed the Chartered Institute of Internal Auditors' guidance "Effective Internal Audit in the Financial Services Sector", and confirmed that they will consider compliance with the guidance in any assessment of internal audit within regulated firms. The guidance includes a section on internal audit's interaction with risk management, compliance and finance. (Source: PRA and FCA Welcome Internal Audit Guidance and Effective Internal Audit in the Financial Services Sector)

Contact: Emma Radmore or Andrew Barber

Financial Services Compensation Scheme (FSCS)

FSCS publishes approach to calculating expected compensation: FSCS has published a paper consulting on its approach to calculating the expected compensation costs over periods of three years. The new FSCS funding arrangements allow it to raise a levy amounting to a third of those costs. FSCS clarifies that the new power increases certainty for the industry, and that it shouldn't be seen as a move to a pre-funded model. Expected compensation levels will be based on past experience, adjusted to reflect new trends and "one off" situations. Any surplus at the end of a year will be offset against expected costs for the following three years. FSCS has also published a more general paper on its approach to funding and borrowing. (Source: FSCS Funding Policy Update)

Contact: Emma Radmore or Juan Jose Manchado

Other Regulators/Authorities/Industry Associations

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

Basel Committee consults on capital for exposures to funds: The Basel Committee is consulting on a three-step decision tree framework for applying capital requirements to banks' equity investments in funds. As a general principle, banks should apply a look-through approach to identify the risks of the underlying assets. If that is not possible, banks would have to resort to a mandate-based approach. In the absence of investment mandate information, a fall-back approach would require the application of a 1,250% risk weight. The resulting capital requirements would also have to reflect the fund's leverage. It asks for comments by 4 October. (Source: Consultation on Capital for Banks' Equity Investments in Funds)

Contact: Rosali Pretorius or Andrew Barber

Basel Committee publishes analysis of RWA in the banking book: As part of its Regulatory Consistency Assessment Programme, the Basel Committee has published the results of its analysis of the variation across major international banks in the application of risk weights for credit risk in the banking book. The analysis has found that a quarter of the variation registered is due to diversity in bank and supervisory practices, rather than just responding to underlying differences in banks' risk appetite. This variation can cause up to a 20% divergence from the benchmark level of capital. To tackle these variations, the Basel Committee will consider providing additional guidance on the Basel framework and enhancing Pillar 3 disclosure, through more granular information and standardised definitions and templates. Over the medium term, the Basel Committee might consider reviewing national discretions in the implementation of the Basel framework or constraining the flexibility of internal ratings-based calculation of capital requirements. In a related development, the Basel Committee has also published a discussion paper on whether the Basel capital framework strikes the right balance between risk sensitivity, simplicity and comparability. It asks for comments on this discussion paper by 11 October. (Source: Basel Committee Reports on Consistency in RWAs in the Banking Book and Basel Committee Consults on Balancing Risk Sensitivity, Simplicity and Comparability)

Contact: Rosali Pretorius or Andrew Barber

City of London Police

City of London Police supports anti-bribery training: The City of London Police and the British Standards Institute (BSI) have announced a set of training programmes designed to help British businesses implement effective anti-bribery management systems and conduct internal investigations. The City of London Police said it is currently investigating 25 cases of bribery. The BSI's new BS10500 Anti-Bribery Management System has been designed to respond to concerns over the Bribery Act's "adequate procedures" provisions. (Source: City of London Police Supports Anti-Bribery Training)

Contact: Howard Cohen or Andrew Barber

Transparency International (TI)

TI publishes Global Corruption Barometer: TI's 2013 Global Corruption Barometer shows a reported increase in payment of bribes by UK businesses. More than one in four respondents had paid a bribe in the past year, and the police and the judiciary were viewed as being most prone to bribery. Over half the people surveyed thought corruption had got worse in the past two years. In the UK, 5% of respondents to the survey reported having paid a bribe. (Source: TI Publishes Global Corruption Barometer)

Contact: Howard Cohen or Emma Radmore

Recent Publications

Financial Crime

Deferred Prosecution Agreements: Emma Radmore has written an article for Financial Regulation International on the introduction of Deferred Prosecution Agreements in the UK. (June 2013)

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. (May 2013)

Preventing Financial Crime: Emma Radmore has written an article for Financial Regulation International on recent developments in financial crime prevention. (April 2013)

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. (November 2012)

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. (October 2012)

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). (May 2012)

Investment Services and Markets Reform

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. (April 2013)

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. (January 2013)

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. (October 2012)

Treasury Publishes Banking Reform Bill: Read our summary of the Bill implementing the Vickers reforms into FSMA. (October 2012)

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. (October 2012)

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. (September 2012)

Rate Setting and Regulation: In Everyone's Interests?: Rosali Pretorius and Katharine Harle wrote an article for Financial Regulation International on the background to LIBOR setting and potential regulatory action. (August 2012)

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. (May 2012)

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). (January 2012)

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. (June 2012)

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.

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