Financial Regulatory Developments (FReD) - 2 August 2013

European Commission (Commission)

Data Protection WP warns on MLD4 risks to privacy: The Article 29 Data Protection Working Party (Data Protection WP) has published a letter it wrote in April to the European Parliament expressing its concerns over the impact on privacy and data protection of certain aspects of the fourth Money Laundering Directive (MLD4). The Data Protection WP recommends that the EU should specify more clearly:

• that the ban on tipping off extends only to suspicious transaction reports or investigations being carried out, and that Member States cannot gold-plate this provision to include information gathered in Know Your Customer or Customer Due Diligence (CDD) profiling operations;
• the conditions that would legitimise the transfer of personal data to a third country for anti-money laundering and counter-terrorist financing purposes where the third country does not have adequate data protection regulation;
• the type of data that can be processed in simplified CDD, as it is concerned that a blanket requirement to collect information is contrary to the risk-based approach in MLD4. It says CDD data should be processed only where necessary to comply with the law.

(Source: Letter from Data Protection WP to Mr López Aguilar)

European Supervisory Authorities (ESAs)

ESAs publish final FICOD RTS: The Joint Committee of the ESAs has published its final draft regulatory technical standards (RTS) on the application of article 6(2) of the Financial Conglomerates Directive (FICOD), relating to the calculation of capital at conglomerate level. (Source: ESAs Publish RTS on Calculation Methods under FICOD)

European Banking Authority (EBA)

EBA publishes final own funds RTS: EBA has published its final RTS on own funds. They cover, among other elements, own funds deductions and reductions, characteristics of savings institutions and the redemption of their capital instruments, and the concept of gain on sale. EBA has also published final RTS on credit risk adjustments and final implementing technical standards (ITS) on own funds disclosure. (Source: Merged Version of the RTS Submitted to the Commission, Final Draft RTS on the Calculation of Credit Risk Adjustments and Final Draft ITS on Disclosure for Own Funds)

EBA publishes final CRR supervisory reporting ITS: EBA has published the final version of its draft ITS on supervisory reporting requirements under the Capital Requirements Regulation (CRR). The ITS specify uniform formats, frequencies, reporting dates, definitions and IT solutions to comply with prudential and financial information reporting requirements under CRR. Although CRR applies from 1 January 2014, the RTS postpone the first reporting period for financial information until Q3 2014, with the first reference date therefore being 31 September 2014. Other reporting requirements are also delayed to ease implementation by firms. (Source: EBA Publishes Final Draft ITS on Supervisory Reporting)

EBA consults on instruments apt for variable remuneration: EBA is consulting on RTS setting out the characteristics required from Additional Tier 1, Tier 2 and other non-own funds instruments to be eligible for the purposes of staff variable remuneration. The RTS introduce strict trigger events, linked to regulatory capital levels, for the write-down or conversion of these instruments when the credit quality deteriorates but while the financial institution is still a going concern. To ensure these instruments are linked to market conditions, they must either be open to other investors (at least 60% of the issue) or have a cap on distributions. EBA asks for comments by 29 October. (Source: Consultation on RTS on Variable Remuneration Instruments)

EBA consults on internal models for debt instruments risk: EBA is consulting on RTS under article 77 of the fourth Capital Requirements Directive (CRD4) setting out at what point a national regulator should encourage a financial institution to develop internal models for calculating the level of capital needs arising from debt instruments in the institution's trading book. EBA proposes to set the trigger at the level where the sum of all long and short positions surpass EUR 1 billion, and where the institution's portfolio includes more than 100 positions in debt securities and each is greater than EUR 2.5 million. It asks for comments by 15 October. (Source: EBA Consults on RTS Related to the Specific Risk of Debt in the Trading Book)

UK Government and Parliament

Legislation

Government makes consumer credit orders: The Government has made two statutory instruments relating to the transfer of consumer credit (CC) regulation to FCA:

• the Financial Services Act 2012 (Consumer Credit) Order 2013 transfers responsibility for CC regulation to FCA, provides for FCA to use certain of its powers in relation to CC business and makes other consequential changes to various pieces of legislation. It also ensures FCA can take appropriate action for breaches of the Consumer Credit Act 1974 (CCA) and requires it to make statements of policy relating to its new supervisory responsibilities. It took effect on 26 July for the purposes of allowing FCA to make policies and take certain actions under the CCA and will otherwise take effect on 1 April 2014; and
• the Financial Services and Markets Act 2000 (FSMA) (Regulated Activities) (Amendment) (No 2) Order 2013 primarily amends the FSMA (Regulated Activities) Order (RAO) to bring a variety of consumer credit and related activities within RAO scope and regulated by FCA. The Order, which was consulted on and placed before Parliament in draft (see previous FReDs and our "Recent Publications"), brings within the RAO various activities relating to credit broking, operating electronic systems in relation to lending, activities relating to debt, regulated credit agreements, regulated consumer hire agreements and activities relating to information. It makes consequential and related changes to other pieces of secondary legislation, including those on the business test and exemptions, and makes changes to apply the appointed representative regime to CC firms. It also brings CC activities within the scope of the financial promotion regime and applies the FSMA control provisions to it proportionately. Other changes amend or revoke parts of the CCA and legislation made under it and explain what guidance FCA must give. It also sets the regime for transitional provisions and interim FCA permissions. This Order is also partly already in force for various purposes, will take effect from 2 September in respect of interim permissions, and will all take effect from 1 April 2014.

(Source: Financial Services Act 2012 (CC) Order 2013 and FSMA (RAO) Amendment Order 2013)

Parliament

Business Committee reports on Kay review: The Business, Innovation and Skills Select Committee in the House of Commons (Business Committee) has issued a report on its inquiry into the Kay Review of UK Equity Markets and Long-Term Decision Making (Kay review). A year on from its publication, the Business Committee has asked the Government to do more to drive the implementation of the Kay review. The Business Committee recommends, among other points, that the Government:

• brings forward the creation of the Investors' Forum, the finalisation of the Law Commission's work on the definition of fiduciary duty and the requirements for companies to consult with major investors over all board appointments;
• sets a minimum acceptable level of sign-up to the Stewardship Code. The Financial Reporting Council should consult on enhancing the Code to allow investment managers to focus on strategic issues of investee companies; and
• through FCA intervention, establishes the minimum proportion of institutional investors' annual commission that must be used in long-term investment research.

(Source: Third Report of Session: The Kay Review)

Banking Bill continues in October: The line-by-line examination of the Banking Reform Bill will start on 8 October. (Source: Banking Bill Continues in October)

Lords publishes EU correspondence with Government: The House of Lords European Union Select Committee has published correspondence with the UK Government in relation to developments on various EU legislative initiatives. The most recent correspondence covers the following aspects:

• Council's general approach on the recast Markets in Financial Instruments Directive (MiFID 2) and Regulation (MiFIR): The Government has achieved its preferred outcome of retaining all transparency waivers, enhancing competition through open access to trading venues and central counterparties, and leaving third country firms' access to the Single Market in the hands of individual Member States. The Government also stresses the importance of the new non-discrimination clause that will, for example, prevent any location requirements related to the currency of financial instruments over which services are provided.
• Council's general approach on the bank Recovery and Resolution Directive (RRD): The Government welcomes the flexibility for resolution authorities to depart from the creditor hierarchy when the bail-in would cause financial instability. It has also ensured that the UK's bank levy can count towards the target level set for the national resolution fund required under RRD. 
• Political agreement between EU Parliament and Council on the Mortgage Credit Directive (MCD): The Government highlights the exemption achieved for buy-to-let mortgage lending. On the other hand, the UK could not block the introduction of a new European Standard Information Sheet (ESIS), but its contents have been brought closer to those of the UK's own current Key Facts Illustration. 
• The Financial Transaction Tax: The Government reiterated its view that a narrower tax, similar to the UK stamp duty, based on the issuance principle and with exemptions to mitigate a cascade effect, would pose fewer risks to the EU growth and the UK financial services sector. 
• Lords report on the impact of the EU Banking Union on the UK financial services industry: The UK Government has kept the Lords up-to-date on the state of play of the Single Supervisory and Resolution Mechanisms (respectively, SSM and SRM). In a letter dated 12 July, the Commission outlined the safeguards, built into the SSM proposals, for the interests of Member States not participating in the SSM.

(Source: Responses and Correspondence with Ministers, Published 26-29 July)

Transport Committee publishes whiplash report: The Transport Select Committee has published its report on whiplash claims and their impact on the cost of motor insurance. It recommends that the Government:

• makes rules requiring claimants to provide evidence of having received medical attention shortly after the accident;
• monitors that reductions in legal costs resulting from any reform are passed to consumers; and
• ensures that proposed changes to rules on the use of small claims courts for whiplash claims does not impair access to justice, nor make fraudulent claims easier.

(Source: Tighter Rules and Better Data Needed on Whiplash Claims)

Bank of England (BoE)

Sir Jon Cunliffe becomes BoE Deputy Governor: Sir Jon Cunliffe has been appointed, on the recommendation of the Chancellor and the Minister, as BoE's next Deputy Governor for Financial Stability, replacing Paul Tucker. He has been the UK's Permanent Representative to the European Union since January 2012 and, previously, Prime Minister's Adviser on Europe and Global Economic Issues. (Source: Sir Jon Cunliffe Appointed Deputy Governor for Financial Stability)

Office of Fair Trading (OFT)

OFT updates on payday lending compliance review: OFT has released an update of the results to date of the payday lending review. As a consequence of OFT's requirement that 50 payday lenders prove they have addressed areas of non-compliance, 14 lenders are leaving the market, three of which have surrendered their licences. OFT had previously revoked three firms' licences and another two firms had surrendered their licence. (Source: OFT Payday Lending Compliance Review)

UK Financial Services and Markets Regulator

Prudential Regulation Authority (PRA)

PRA announces more prudential adjustments: PRA has agreed to Barclays' capital plan aimed at meeting a leverage ratio of 3%, set by PRA, by June 2014. PRA has also stressed that it expects UK firms to set the triggers for write-down of Additional Tier 1 capital, or for its conversion to Core Equity Tier 1 (CET1), at a level that ensures the firm can recover from stress without entering resolution. PRA says that level may even have to be above the 5.125% CET1 minimum established by article 54 CRR. (Source: PRA Statements on Bank Capital and Leverage Ratios)

PRA writes to credit unions on capital: PRA has written to credit unions with the findings of its annual assessment of their compliance with prudential standards. Those credit unions not meeting minimum capital requirements (3%, 5% or 8% of capital-to-total assets ratio, depending on the size of the firm) must consider raising funds, merging or effecting a solvent winding-down. (Source: Credit Unions)

PRA consults on changes to Handbook: PRA is consulting on its Handbook Administration Instrument (No 2) 2013, which makes several amendments to "tidy up" modules of the PRA Handbook. (Source: PRA Administration Instruments)

Financial Conduct Authority (FCA)

FCA consults on CRD4: FCA is consulting on the changes it will need to make to its rules to implement CRD4. PRA will consult separately on changes to its rules and Treasury will consult on elements of CRD4 implementation that require legislative change. In principle, the CRR, as a Regulation, does not need to be implemented into UK law as it will apply automatically. FCA's paper focuses on:

• changes relevant to its regulated community (most investment firms falling within CRD4);
• applying a proportionate approach which does the minimum required effectively to implement CRD4, using intelligent (or even "strict") copy-out to avoid misinterpretation or gold-plating of provisions;
• minimising change yet being forward-looking;
• applying national discretions that CRD4 and the CRR offer and which it is within FCA's remit to address;
• reducing burden on firms by granting general guidance on treatment of certain circumstances, rather than requiring case-by-case applications.

FCA comments that firms will need to consider all of the CRR, EBA sets of standards and guidance and FCA's rules when considering their compliance with capital standards. The consultation explains the key messages and proposals, and the effects on FCA's rules, of several significant aspects of CRD4. The bulk of rule changes will be contained in a new handbook module to be called Investment Firms Prudential Sourcebook (IFPRU). FCA asks for comments by 30 September and aims to publish a policy statement and final rules in advance of the implementation date of 1 January 2014. However, as some of its rules are subject to Treasury's approval of its use of discretion, it may need to consult further later in the year. (Source: FCA Consults on CRD4)

FCA publishes first results of RDR thematic review: FCA has published the results of the first stage of its thematic review into RDR implementation. It found its sample of 50 firms had made significant progress, but also found areas where some could improve. The review found examples of firms that:

• are not disclosing their charging structure in cash terms, but rather as a percentage fee or based on hourly rates, which consumers may find hard to quantify and makes it difficult for them to compare providers;
• charge by instalments for advice on a single premium product, despite RDR having banned this practice;
• represent themselves as independent but place almost all business with one platform or have a predetermined panel of products and would not practically be able to offer bespoke independent advice to all clients; or
• do not disclose clearly the nature of restrictions on the advice they offer or what ongoing review services involve.

The review includes examples of good and poor practice, and is accompanied by research into how best to help consumers understand charges and services disclosures. The thematic review will continue in October with a wider sample of firms and the possibility of enforcement action against firms that have not acted on the feedback and best practice laid down by this first stage of the review. (Source: TR13/5 – How Firms are Implementing the RDR)

FCA publishes annual AML report: FCA has published its 2012/2013 annual AML report. The report summarises enforcement action and the findings of the thematic reviews of banks' management of high money laundering risk situations and banks' control of financial crime risks in trade finance. It then goes on to list the current trends and emerging risks that FCA is helping identify to produce the National Risk Assessment required by the Financial Action Task Force (FATF). These are:

• e-money issuers;
• cybercrime; 
• money service businesses; 
• digital currencies; and 
• alternative banking platforms.

The report also announces forthcoming reviews of e-money and new payments methods, and follow-up work on high-risk politically exposed persons (PEP) as customers of smaller banks. FCA also published its first Financial Crime Newsletter, which summarises recent regulatory and enforcement developments. (Source: AML Annual Report 2012/2013)

FCA makes new rules: FCA has made changes to the Handbook with the following instruments:

• the Listing Rules (Alternative Investment Fund Managers Directive) (AIFMD) Instrument 2013: These changes to the Listing Rules took effect on 1 August and clarify the existing approach, for premium closed-end investment companies, in the light of AIFMD;
• the Collective Investment Schemes Sourcebook (Amendment No 8) Instrument 2013: These changes took effect from 26 July and amend the Senior Management Arrangements Systems and Controls Sourcebook and the Collective Investment Schemes Source to clarify and improve the rules on disclosure for property authorised investment funds (PAIFs) and funds using certain descriptions in their names or objectives;
• the Alternative Investment Fund Managers Regulations (Enforcement Guidance) Instrument 2013: These change the Glossary, Enforcement Guide and Decision Procedure and Penalties Manual (DEPP) from 26 July in respect of FCA's duty under the AIFMD to issue a number of statutory notices in various circumstances and provide relevant guidance.; 
• the AIFMD (Private Placement and Registration Fees and Miscellaneous Directions) Instrument 2013: This instrument took effect from 26 July and amends the Fees and Supervision Manuals and the FUND Sourcebook in respect of primarily regulatory fees for certain entities which will fall within FCA's regulatory remit for the first time (registered alternative investment fund managers (AIFMs)) and AIFMs marketing alternative investment funds (AIFs) in the UK under national private placement. It also includes directions for AIFMs relating to reporting, marketing applications and notifications and; 
• the AIFMD (No 2) Instrument 2013: FCA decided it needed to follow Treasury in implementing rules to cater for the AIFMD third country passporting rights, even though these will not take effect until 2015. FCA explains it did not have time to consult on these rules, as it had to follow Treasury Regulations, which were themselves published just before the AIFMD implementation date. FCA has inserted the new rules as chapter 12 of its new FUND sourcebook, to take effect from a date to be specified by the Commission under AIFMD; and 
• Training and Competence Sourcebook (TC) (Qualifications Amendments No 9) Instrument 2013: This updates the list of qualifications in TC.

(Source: Handbook Notice No. 4)

FCA takes action against unauthorised CISs: FCA has announced that it has asked the High Court to find out whether several firms and individuals were promoting and/or operating collective investment schemes (CISs) in the UK illegally and without authorisation. The CISs involved investments in farm harvests and carbon credits generated from land. FCA has obtained court orders to freeze the defendants' assets and prevent the promotion of the schemes. (Source: Capital Alternatives Taken to Court Over Investment Schemes)

FCA publishes Primary Market Bulletin: FCA has published the sixth edition of the Primary Market Bulletin. This edition announces future guidance on sponsors' management of conflicts of interest, and also refers to the new FCA powers relating to the supervision and discipline of sponsors. It also updates on changes made to the Knowledge Base following recent consultations on several procedural and technical notes. Against the background of the fine to Prudential for failure to deal with the regulator in an open and cooperative manner during the early stages of a significant transaction, FCA is also consulting on guidance on Listing Principle 6. (Source: Primary Market Bulletin No. 6)

Other Regulators/Authorities/Industry Associations

International Organisation of Securities Commissions (IOSCO)

IOSCO publishes CRA supervisory colleges report: IOSCO has published its final report on recommendations for the establishment of supervisory colleges for credit rating agencies (CRAs). These colleges would share information on a CRA compliance with regulation and its adherence to the IOSCO Code of Conduct for CRAs. (Source: IOSCO Publishes Recommendations for Supervisory Colleges for CRAs)

Organisation for Economic Cooperation and Development (OECD)

OECD publishes final long-term finance principles: OECD has published the final text, which was reviewed by the G20 meeting of Finance Ministers and Central Bank Governors, of the High-Level Principles of Long-Term Investment Financing by Institutional Investors. The eight principles cover issues such as institutional investors' governance and the need for pooled investment vehicles and securities channelling long-term finance, also to start-up firms. (Source: July 2013 the High-Level Principles of Long-Term Investment)

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

US Government announces six-month delay in FATCA rules: John Harrington, Jeffrey Koppele, Marc Teitelbaum and Jerome Walker have written an update on the delay in implementing certain elements of FATCA.

Take aim for AIFMD implementation: Emma Radmore and Kam Dhillon have written an article for Compliance Monitor on the final steps towards implementation of the AIFMD.

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. For further information, please contact Rosali Pretorius or Andrew Barber. (June 2012)

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. (May 2012)

Asset management

The Alternative Investment Fund Managers Directive – Theory Becomes Reality: Rosali Pretorius and Emma Radmore wrote an article on implementation of the AIFMD for the Global Asset Management & Servicing Review 2013/14 published by Euromoney Yearbooks.

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. (July 2012)

Another Stable Door?: Emma Radmore and Katharine Harle wrote an article for Thomson Reuters Complinet on IOSCO's proposals for complex product distribution. (April 2012)

Enforcement and Litigation

It's all in the detail: a cautionary tale for handling complaints: Richard Caird and Felicity Ewing have written an article on the FCA's fine on Policy Administration Services.

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. (January 2013)

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. (September 2012)

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. (August 2012)

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. (March 2012)

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