UK: Financial Regulatory Developments (FReD) - 9 August 2013

Last Updated: 12 August 2013

HEADLINES

  • ESMA deals with late AIFMD transposition
  • ICO fines BoS over data breaches
  • PRA consults on CRD4 implementation

EUROPEAN UNION AND INTERNATIONAL

Council of the European Union (Council)

Council corrects more 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 Securities and Markets Authority (ESMA)

ESMA deals with late AIFMD transposition: ESMA is aware that several Member States have not implemented the Alternative Investment Fund Managers Directive (AIFMD) by the 22 July deadline. It says this should not be allowed to cause problems for fund managers from compliant jurisdictions. Accordingly, it says fund managers from jurisdictions which have implemented the AIFMD should be able to use their management and marketing passports when they make the required notifications regardless of whether the relevant host state has implemented the relevant provisions. (Source: ESMA Deals With Late AIFMD Transposition)

Contact: Rosali Pretorius or Kam Dhillon

ESMA updates EMIR Q&A: On 5 August ESMA updated its Q&A on the European Market Infrastructure Regulation (EMIR). In addition to changes to several existing answers, the Q&A now contains new questions on:

  • whether funds or their managers should be considered the counterparty to a transaction;
  • the principal-to-principal model of OTC derivatives clearing;
  • determining the financial or non-financial status of entities not established in the EU;
  • portfolio reconciliation under article 13 of the Regulatory Technical Standard (RTS) on OTC derivatives;
  • dispute resolution under article 15 of the RTS on OTC derivatives;
  • organisational requirements under article 26 EMIR;
  • the definition of "independent board member" of a central counterparty (CCP);
  • allocation of additional resources under article 35 RTS on CCPs; and
  • reporting of intragroup transactions, of transactions within the same legal entity and in respect of non-European subsidiaries of European entities.

(Source: EMIR Q&A)

Contact: Rosali Pretorius or James Brennan

European Banking Authority (EBA)

EBA asks for views on unrealised gains: EBA has published a discussion paper (DP), open for comment until 27 September, on technical advice to the European Commission (Commission) covering possible treatments of unrealised gains measured at fair value. Under the Capital Requirements Regulation (CRR), and starting from 1 January 2015, unrealised gains and losses measured at fair value must count towards own funds, but the CRR also requires EBA to provide technical advice to the Commission on policy options for potential alternative treatments of unrealised gains. (Source: DP on Unrealised Gains)

Contact: Rosali Pretorius or Luca Salerno

EBA consults on retail deposits outflows: Following its February 2013 DP (see FReD 1 March), EBA is now consulting on its proposed draft guidelines on how to identify, for the purposes of liquidity reporting, less stable retail deposits that can be susceptible to higher outflows during 30 days under stress conditions. EBA continues to propose three "buckets" for allocation purposes, but has dropped the prescription of associated outflow rates, and expects institutions to provide their own estimates. The consultation also covers guidelines on how to identify retail deposits covered by a Deposit Guarantee Scheme and which are part of an "established relationship" or held in a "transactional account". These retail deposits would be subject to the lowest outflow rate assumption. Once data is collected on retail deposits outflows the Commission will calibrate the liquidity coverage requirement. EBA asks for comments by 1 October. (Source: Consultation on Draft Guidelines on Retail Deposits Subject to Different Outflows)

Contact: Rosali Pretorius or Luca Salerno

EBA reports on banking book RWAs: EBA has published its second interim report on the consistency of risk-weighted assets (RWAs) in lower default portfolios (sovereign, institutions and large corporates) of EU banks' banking books. This second analysis has involved a comparative benchmarking portfolio exercise. Some of the inconsistencies detected, driven by differing bank and supervisory practices, will be tackled through CRR-mandated technical standards, but additional efforts will be needed in terms of:

  • enhanced supervisory disclosure;
  • exchange of best practice among supervisors and banks;
  • additional guidelines and technical standards on low default portfolios; and
  • benchmarks or constraints, such as floors or fixed values, for some Internal Ratings Based (IRB) parameters.

(Source: EBA Reports on Banking Book RWAs)

Contact: Rosali Pretorius or Luca Salerno

UK GOVERNMENT AND PARLIAMENT

Legislation

Treasury makes more EMIR Regulations: Treasury has made the Financial Services and Markets Act 2000 (OTC Derivatives, CCPs and Trade Repositories) (No.2) Regulations 2013. The bulk of implementation work on EMIR was covered by Regulations in March 2013 (see FReD 15 March). These new Regulations amend the Companies Act 1989 to facilitate the segregation and porting of indirect clients' assets and positions, and impose new requirements on recognised CCPs to maintain effective loss allocation arrangements and recovery plans for preserving the continuity of service. Responding to stakeholders' concerns, the Treasury clarifies that CCPs have discretion to design loss allocation arrangements that satisfy regulatory expectations without exposing members to unlimited liability. Recognised clearing houses which are not CCPs must also maintain recovery plans. Most of the Regulations come into force on 26 August, but some provisions relating to recognition requirements for clearing houses and CCPs take effect on 1 February and 1 May 2014. (Source: Explanatory Memorandum to FSMA 2000 (EMIR) (No.2) Regulations 2013)

Contact: Rosali Pretorius or James Brennan

Information Commissioner's Office (ICO)

ICO fines BoS over data breaches: ICO has fined the Bank of Scotland (BoS) £75,000 for repeatedly faxing protected information to the wrong addressees. Over a three-year period, the bank faxed information such as payslips, dates of birth and addresses to incorrect fax numbers, which meant they were sent outside the group rather than, as intended, to another office within the group. One organisation received 21 faxes and one member of the public 10. The organisation, whose fax number was one digit different to the intended recipient's, told BoS of the error but continued to receive faxes. It then told ICO, but the misdirected faxes continued during the investigation. ICO said the failings were particularly serious as they continued for so long, BoS did not itself report them and they compromised individuals' data in a way that would have made identity fraud easy. (Source: ICO Fines BoS Over Data Breaches)

Contact: Andrew Barber or Howard Cohen

National Audit Office (NAO)

NAO announces regulation study: NAO has announced it will carry out a study to look at the new structure of UK regulation. It will focus on what the new structure will deliver and how the regulators will work together. It will also consider the cost impacts of the changes and review the new regulators' performance measurement system. NAO will deliver its report in early 2014. (Source: NAO Announces Regulation Study)

Contact: Emma Radmore or Juan Jose Manchado

HM Treasury (Treasury)

Treasury updates sanctions: Treasury has updated the sanctions lists in relation to Al-Qaida. (Source: Treasury Updates Sanctions Lists)

Contact: Emma Radmore or Howard Cohen

Cases

Court looks at FX and FSMA: The High Court has considered the extent to which a foreign exchange trading account falls within the definition of "contract for differences" in the Financial Services and Markets Act 2000 (FSMA) Regulated Activities Order 2001 (RAO). A customer had complained about an authorised firm's management of his FX trading account and had taken the complaint to the Financial Ombudsman Service (FOS). The firm said FOS had no jurisdiction over the complaint. FOS considered it did, and the then FSA agreed with it. The firm took the matter to court. The judge considered the wording of the terms on which the firm and the customer did business and concluded that the contracts were contracts for differences and therefore FOS had jurisdiction over the complaint. (Source: The Queen on the Application of London Capital Group and the Financial Ombudsman Service Ltd)

Contact: Rosali Pretorius or Luca Salerno

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Prudential Regulation Authority (PRA)

PRA consults on CRD4 implementation: PRA is consulting on its plans to implement the Fourth Capital Requirements Directive (CRD4) into its rules. Like FCA (see FReD 2 August) it notes that much of the framework contained in the CRR will apply directly, and that Treasury is responsible for other aspects of implementation. The consultation covers:

  • PRA's use of discretions and derogations under CRR;
  • the transitional provisions in the CRD4 package;
  • how it plans generally to use its powers as a competent authority under CRD4;
  • issues already being addressed by other initiatives, such as recovery and resolution plans;
  • the role of the EBA technical standards, guidelines and Q&As;
  • the need for further work on new processes that CRD4 implementation will introduce into PRA's regulatory operations; and
  • coordination with other regulators.

PRA plans to make the changes by a number of instruments. Some will form a suite under the heading "PRA Rulebook - CRR Firms" and others will amend existing parts of the rulebook. The instruments will comprise:

  • the Capital Buffers Instrument;
  • the Internal Capital Adequacy Assessment Instrument;
  • the CRD (Governance and Remuneration) Amendment Instrument (amending the Glossary and the Senior Management Arrangements, Systems and Controls Sourcebook (SYSC));
  • the CRD (Passporting) Amendment Instrument amending the Supervision Manual (SUP);
  • the Definition of Capital Instrument;
  • the Benchmarking of Internal Approaches and the Credit Risk Instrument;
  • the Counterparty Credit Risk Instrument;
  • the Market Risk Instrument;
  • the Groups Instrument;
  • the Large Exposures Instrument;
  • the Banks, Building Societies and Investment Firms (BIPRU) (Liquidity Standards) Amendment Instrument;
  • the CRD (Reporting) Amendment Instrument which will amend the SUP;
  • the Public Disclosure Instrument;
  • the Waivers Transitional Provisions Instrument;
  • the Glossary Instrument;
  • the Interpretation Instrument; and
  • the CRD (Disapplication) Instrument amending the General Provisions Sourcebook (GENPRU) and BIPRU.

This will have the effect of disapplying almost all of GENPRU and BIPRU to CRD firms regulated by PRA.

It also proposes supervisory statements covering Pillar 2, Definition of Capital, Credit Risk, Counterparty Credit Risk, Market Risk, Operational Risk, and Groups and Large Exposures.

The consultation also addresses other practical measures, such as the treatment of existing waivers, and PRA's plans to grandfather over certain waivers currently in force under BIPRU and GENPRU rules which will no longer apply.

PRA needs comments by 2 October so it can make its rules in time. (Source: PRA Consults on CRD4)

Contact: Rosali Pretorius or Luca Salerno

PRA confirms its approach to IRB credit risk: PRA has confirmed the adoption, in the form of a Supervisory Statement, of Financial Services Authority legacy material on supervisory expectations on firms that use IRB approaches to calculate credit risk. This Supervisory Statement supplements BIPRU4 and PRA Handbook guidance on:

  • Definition of Default;
  • Probability of Default;
  • Loss Given Default;
  • Exposure at Default;
  • Income-Producing Real Estate Portfolios;
  • Unrated Exposures; and
  • Notification and Approval of Changes to Approved Models.

PRA will soon consult on changes to this Supervisory Statement to prepare for CRR and the EBA technical standards on model validation. (Source: Credit Risk: Internal Ratings Based Approaches - SS 1/13)

Contact: Rosali Pretorius or Luca Salerno

Financial Conduct Authority (FCA)

FCA updates on AIFMD: FCA has updated its website to clarify the basis on which AIFMD transitional provisions can benefit firms. It also confirms those seeking authorisation or variation of permission under the AIFMD must apply by 22 January 2014, because if their application has not been determined by 22 July 2014, they will not be able to carry on the relevant activities until FCA has reached its decision. FCA says it should be able to determine applications for full-scope UK AIFMs if it receives applications by 22 April, but it is not legally obliged to do so. The page also refers firms to ESMA's remuneration guidelines and the view FCA previously published on the relationship between the AIFMD and passports under the Markets in Financial Instruments Directive (MiFID). (Source: FCA Updates on AIFMD)

Contact: Rosali Pretorius or Kam Dhillon

Up next from FCA: FCA's latest Policy Development Update indicates the following publications during the third quarter of 2013:

  • policy statements on transparency and FCA, and on recovery and resolution plans, and also on the capital regime for self-invested personal pension operators; and
  • consultations on the client money rules for insurance intermediaries, changes to the Compensation Sourcebook, and conduct and prudential consumer credit rules.
    (Source: Policy Development Update 4)

Contact: Emma Radmore or Juan Jose Manchado

FCA explains fees policies: A new webpage explains FCA's policy behind its fee calculations. (Source: FCA Explains Fees Policies)

Contact: Howard Cohen or Juan Jose Manchado

FCA announces referral fee MoUs: FCA has announced formal arrangements for its cooperation with the Solicitors' Regulation Authority and the Claims Management Regulator in the context of referral fee bans. (Source: FCA Announces Referral Fee MoUs)

Contact: Emma Radmore or James Brennan

FCA publishes feedback on "journey" responses: FCA has published its response to questions respondents raised on its "Journey to the FCA" document. Generally, respondents wanted to know more about FCA's approach and powers and welcomed greater transparency. Industry raised concerns about what safeguards would be in place regarding some of the new powers. The document elaborates on some of these issues. (Source: FCA Publishes Feedback on "Journey" Response)

Contact: Emma Radmore or Josie Day

FCA feeds back on transparency: FCA has published feedback on its discussion paper setting out how it might increase its transparency. Most respondents agreed with its proposals on providing further information on whistleblowing, supervision themes and reviews, and made some suggestions about where it could go further. Responses were mixed on some of the sector-specific proposals, with many respondents expressing concern at proposals to publish certain information. FCA will now work further on its plans and has published an indicative timeline for implementing key elements of them. (Source: FCA Feeds Back on Transparency)

Contact: Howard Cohen or Josie Day

FCA publishes post-trade publication guidelines: FCA has published guidelines for investment firms using Trade Data Monitors (TDMs) to meet post-trade reporting obligations. Investment firms must check the systems they use monitor data for errors and facilitate its consolidation and public accessibility. This requirement will be deemed fulfilled if either the FCA or an external auditor has confirmed that the arrangement is fit for purpose, in which case the arrangement would be awarded TDM status. (Source: Guidelines for Investment Firms using TDMs)

Contact: Rosali Pretorius or Luca Salerno

FCA publishes Market Watch newsletter: FCA has published a new edition of Market Watch, its newsletter on market conduct and transaction reporting. It includes summaries of the recent enforcement action against a US trader for layering and against RBS for transaction reporting failings. The newsletter also highlights how the total amount of suspicious transaction reports (STRs) has doubled since 2011. It also provides updates on LIFFE's switch to ICE Clear Europe as CCP and on Turquoise Derivatives. The latter, a former Multilateral Trading Facility (MTF), will be purchased by the London Stock Exchange and therefore transactions on Turquoise will be subject to rules applying to instruments admitted to trading on regulated markets. (Source: Market Watch No. 44)

Contact: Rosali Pretorius or Luca Salerno

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

Investment Management Association (IMA)

IMA publishes annual survey: IMA has published its annual asset management survey. This year's survey reveals more assets than ever under management by UK firms. Industry wants to focus on meeting the end-client expectations in the face of regulatory change, communicating with clients and offering market-based finance. (Source: IMA Publishes Annual Survey)

Contact: Rosali Pretorius or Kam Dhillon

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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