UK: Financial Regulatory Developments (FReD) - 13 September 2013

HEADLINES

• G-20 publishes declaration
• EP endorses MAR
• EP provisionally approves MCD
• General Court annuls sanctions designations
• FCA announces cash savings market study
• Up next from FCA
• FReD Live

EUROPEAN UNION AND INTERNATIONAL

G-20

G-20 publishes declaration: G-20's declaration following its September summit praises the unprecedented international cooperation in achieving so many aims of the regulatory reform programme over the past five years. However, it urges financial institutions and regulators to work on the foundations now in place and comply with the standards set down by international standard-setters. It also looks forward to further progress reports and recommendations from FSB. (Source: G-20 September 2013 Declaration)

Contact: Rosali Pretorius or Howard Cohen

G-20 publishes shadow banking roadmap: G-20 has published a summary of steps that will lead to a strengthened oversight and regulation of shadow banking. These include the final revised Basel Committee standards on large exposures and banks' investments in funds, the International Organisation of Securities Commissions (IOSCO) analysis of the hedge fund sector and FSB's recommendations on haircuts to non-centrally cleared securities financing transactions. (Source: G-20 Roadmap Towards Strengthened Oversight and Regulation of Shadow Banking)

Contact: Rosali Pretorius or Juan Jose Manchado

Financial Stability Board (FSB)

FSB updates G-20 leaders: Following publication of detailed reports on key areas of regulatory reform ahead of the G-20 September summit (see FReD 6 September), FSB updated the G-20 leaders by submitting:

• a letter from its Chair, Mark Carney, highlighting major developments and issues;
• a progress report on reforms currently underway and what further action will achieve full reform, alongside a more detailed report on reforms designed to strengthen financial stability; and
• a scoreboard setting out the current state of progress made in global policy development and implementation of financial regulatory reforms.

(Source: FSB Updates G-20 Leaders)

Contact: Rosali Pretorius or Juan Jose Manchado

FSB publishes peer review of the UK: FSB has completed the peer review of the UK, which follows up on the UK Financial Sector Assessment Program (FSAP) that the International Monetary Fund (IMF) undertook in 2011. The peer review examined three topics of relevance to financial stability. It concluded the UK had progressed well and made significant progress towards its goals. For the future, it recommended:

• Macro-prudential policy: FSB recommends that the relationship between the Financial Policy Committee (FPC) and FCA should be developed, and FCA capacity to undertake systemic risk analysis should be enhanced. The extent of permissible detail in FPC recommendations to PRA and FCA must also be clarified, to avoid tension between agencies and confusion in the marketplace.
• Micro-prudential policy: PRA should consider options to communicate to firms their rating under the supervisory proactive intervention framework (PIF) without triggering disclosure obligations for listed firms. PRA's supervisory ratings and strategies should be signed off by risk specialists.
• Central counterparties (CCPs): BoE should promote the integration and flow of information between the micro- and macro-prudential perspectives on CCPs, given that different UK agencies can apply policy tools that have systemic effects.

(Source: Peer Review of the United Kingdom)

Contact: Rosali Pretorius or Emma Radmore

Council of the European Union (Council)

Council publishes new CSD Regulation compromise text: The Council has published the compromise text of the Regulation on Central Securities Depositories (CSD) that its Presidency tabled for discussion on 24 July. The new compromise text expands on the requirements that would apply if a CSD provided ancillary banking services through a group entity or through a designated external credit institution. (Source: CSD Regulation Compromise Text)

Contact: Rosali Pretorius or Andrew Barber

European Parliament (EP)

EP endorses MAR: EP has approved the political agreement it reached with the Council on the Market Abuse Regulation (MAR). The final adoption of MAR will take place after final political agreement on the new Markets in Financial Instruments Directive and Regulation (MiFID 2/MiFIR), as many aspects of MAR need to be aligned with MiFID 2/MiFIR. The Directive on Criminal Sanctions for Market Abuse (CSMAD) is still in its trilogue negotiations stage. (Source: EP Endorsement of the Political Agreement on MAR and EP Adopted Text of MAR)

Contact: Rosali Pretorius or Luca Salerno

EP provisionally approves MCD: EP has provisionally approved the text of the Mortgage Credit Directive (MCD). MEPs agree with its aims and the provisions on pre-contractual information, the customer's rights during the contract and protecting the customer in the event of default. Before the MEPs formally approve the final rules, they want Member States to agree they will enforce them consistently. (Source: EP Provisionally Approves MCD and EP Adopted Text of MCD)

Contact: Andrew Barber or Josie Day

EP brings forward Omnibus 2 vote: EP has brought forward by one month the vote on the Omnibus 2 Directive, which will now take place on 3 February 2014. Omnibus 2 will, among other things, determine the date of entry into force of Solvency 2. (Source: OEIL File for Omnibus 2)

Contact: Emma Radmore or Juan Jose Manchado

JURI publishes draft opinion on MLD4: The Committee on Legal Affairs (JURI) at EP has published a draft of the opinion it has to deliver to the Committee on Civil Liberties, Justice and Home Affairs on the fourth Money Laundering Directive (MLD4). JURI proposes distinguishing between casinos, on-line gambling and other providers of gambling services, because it says the last category of provider only gives rise to money laundering risks at the time of paying "prizes". On other issues, JURI seeks a better alignment with the FATF's February 2012 Recommendations. (Source: JURI Draft Opinion on MLD4)

Contact: Emma Radmore or Andrew Barber

European Commission (Commission)

Commission publishes shadow banking and MMF proposals: The Commission has published the final versions of its draft Communication on shadow banking and Regulation on money market funds (MMF). See FReD 6 September for details of the proposals. (Source: Commission Publishes Shadow Banking Communication and Commission Publishes MMF Regulation)

Contact: Andrew Barber or Juan Jose Manchado

European Banking Authority (EBA)

EBA publishes responses to consultations: EBA has published the responses to its consultations on draft regulatory and implementing technical standards (respectively, RTS and ITS) on recovery plans scenarios and assessments, and on passport notifications. (Source: Responses to Draft RTS on Recovery Plans Scenarios, Responses to Draft RTS on Recovery Plans Assessment and Responses to Draft RTS and ITS on Passport Notifications)

Contact: Andrew Barber or Juan Jose Manchado

European Securities and Markets Authority (ESMA)

ESMA publishes responses on acquisitions and increased holdings: ESMA has published the responses to its consultation on draft RTS on information requirements for assessment of acquisitions and increases in holdings in investment firms. (Source: Responses to Draft RTS on Acquisitions and Increases in Holdings in Investment Firms)

Contact: Howard Cohen or Emma Radmore

European Central Bank (ECB)

ECB speaks on Banking Union state-of-play: Jörg Asmussen, member of the Executive Board of ECB, has spoken on the Single Supervisory Mechanism (SSM) and the Single Resolution Mechanism (SRM). He looked forward to ECB beginning to exercise single supervision in autumn 2014. The preparations include drawing up the model for how the layers of national and European supervision will work together, and carrying out stress tests that "look the whole truth in the face". Regarding the SRM, he called for ECB to have the power to decide when a bank is no longer viable. Given the increased protection of depositors' interests that the SSM, the SRM and the current revision of the Deposit Guarantee Schemes Directive will bring about, Mr. Asmussen believes that the need for a single deposit guarantee scheme is less urgent. (Source: Towards a Banking Union: the State-of-Play from the ECB's Perspective)

Contact: Emma Radmore or Juan Jose Manchado

General Court of the EU

General Court annuls sanctions designations: The General Court of the EU has annulled several acts of the Council designating various entities under measures to prevent nuclear proliferation and terrorist financing. It found the Council had:

• not proved the facts on which it based its accusations against Post Bank Iran, Iran Insurance Company, Good Luck Shipping and Export Development Bank of Iran;
• made errors of assessment relating to facts or evidence in which it relied in its designations of Mr Bateni, Persia International Bank and Iranian Offshore Engineering & Construction Co;
• breached its obligation to state reasons and disclose evidence against Bank Refah Kargaran; and
• merely adopted a proposal of a Member State without properly evaluating it in relation to its acts of 23 May 2011 in relation to Europäisch-Iranische Handelsbank (but not in relation to other entities). However, the Council made later acts which were, in the Court's opinion, valid, so these more recent acts have not been annulled and the funds of Europäisch-Iranische Handelsbank remain frozen.

Bank Melli had also applied for annulment of acts, but the Court found against all these appeals and Bank Melli remains listed for all current purposes. The annulments will not take effect until the deadline for the Council to appeal has passed. During this period, the Council has an opportunity to make valid acts which will have the effect of continuing the designations. (Source: General Court Annuls Sanctions Designations)

Contact: Emma Radmore or Andrew Barber

European Supervisory Authorities (ESAs)

ESAs report on cross-sectoral risks: The Joint Committee of the ESAs has published its second report on risks and vulnerabilities in the EU financial system. In its last report it identified four key cross-sectoral risks which it says still exist:

• the weak macro-economic outlook;
• the protracted low-interest rate environment;
• EU financial sector fragmentation; and
• reduced confidence in balance sheet valuations and risk disclosures.

The report notes reform measures recently agreed and which should address some of these risks. The ESAs also stressed the importance of working together to assess risks on a cross-sectoral basis. (Source: ESAs Report on Cross-Sectoral Risks)

Contact: Rosali Pretorius or Andrew Barber

UK GOVERNMENT AND PARLIAMENT

HM Treasury (Treasury)

Treasury updates sanctions list: Treasury has updated the sanctions lists in respect of Al-Qaida. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Andrew Barber

Bank of England (BoE)

BoE calls for independent financial stability policy: Andy Haldane, BoE's Executive Director for Financial Stability, has argued in a speech that financial policymakers, such as the FPC, should be at arm's-length from the political process. This would "reduce the temptation to trade off an asset boom today for a bust tomorrow". (Source: News Release - Why Institutions Matter (More Than Ever))

Contact: Andrew Barber or Juan Jose Manchado

BoE publishes FMI webpages: BoE has published new webpage content linking to information on the different legal regimes covering BoE's supervision of financial market infrastructures (FMIs), which comprise:

• Securities settlement systems;
• Recognised clearing houses (RCHs);
• Overseas clearing houses;
• Recognised payment systems; and
• Designated systems.

(Source: Standards for Financial Market Infrastructure)

Contact: Rosali Pretorius or James Brennan

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Financial Conduct Authority (FCA)

FCA announces cash savings market study: FCA has announced that it will conduct a market study into competition in the UK cash savings market. Some of the issues the study will cover include the use of "teaser rates" and the frequency of consumers' switching between providers of cash saving accounts. (Source: FCA to Carry Out Market Study into Cash Savings)

Contact: Andrew Barber or Emma Radmore

FCA speaks on competition: Christopher Woolard, Director of Policy, Risk and Research at FCA, has spoken on FCA's approach to its new competition objective. FCA actions to promote competition include streamlining the authorisation process for new competitors, reviewing the Handbook for unintended effects on competition and carrying out market studies. The latter include studies on insurance add-ons, SME banking, the cash savings market, annuities and, from next spring, the wholesale markets. The studies into retail markets will use behavioural economics to understand how consumers actually buy products and improve consumer outcomes. (Source: Competition and Conduct Regulation in Financial Services)

Contact: Andrew Barber or Emma Radmore

Up next from FCA: During September, FCA plans to:

• consult on the designated investment exchange (DIE) regime;
• publish a policy statement on its client assets review (including on porting under the European Market Infrastructure Regulation) and consult further on a client money review for insurance intermediaries;
• consult on changes to the Compensation Sourcebook; and
• consult on conduct and prudential consumer credit rules.

(Source: Up Next from FCA)

Contact:Emma Radmore or Juan Jose Manchado

FCA publishes quarterly consultation: FCA proposes minor changes to several parts of the Handbook. It plans changes to:

• the Training and Competence Sourcebook (TC) to add new qualifications and amend some existing qualifications;
• the Conduct of Business Sourcebook (COBS) in respect of charging and platforms, and to clarify the rules on payments to platforms from other firms and the ban on cash rebates;
• the Supervision Manual (SUP) to clarify existing requirements on making Suspicious Transaction Reports under the Market Abuse Directive;
• the Prospectus Rules (PR) to clarify the timing and method of filing a prospectus with FCA;
• the Decision Procedures and Penalties Manual (DEPP) and Enforcement Guide (EG) to reflect FCA's powers under the Legal Aid, Sentencing and Punishment of Offenders Act;
• SUP in respect of submission of controllers and close links reporting, and minor changes to other data items FCA requires from firms;
• SUP to reflect discontinuance of the Listing Authority Review Committee;
• COBS to address queries FCA has received relating to inflation-adjusted pension projections;
• The Collective Investment Schemes Sourcebook (COLL) to include links to ESMA guidance on Exchange Traded Funds and other UCITS issues;
• Various Handbook changes to explain FCA's powers under the European Market Infrastructure Regulation (EMIR);
• Various Handbook changes to reflect the removal of the designated investment exchange regime;
• COBS in respect of investing in authorised funds through nominees. FCA has decided to defer implementation of its finalised rules in COBS 14.4 until 2015;
• The Senior Management Arrangements, Systems and Controls Sourcebook (SYSC) to reflect ESMA's Alternative Investment Fund Managers Directive (AIFMD) Remuneration guidelines. FCA specifically asks for views on whether its proposals are proportionate; and
• Various Handbook changes consequent on the AIFMD and the fourth Capital Requirements Directive (CRD4) implementation.

FCA asks for comments on the changes to TC, PR, DEPP and EG, parts of the SUP reporting chapter, COBS in respect of nominee investment in funds and changes in respect of CRD4 by 6 October and comments on all other proposals by 6 November. (Source: Quarterly Consultation No 2)

Contact: Emma Radmore or Juan Jose Manchado

FCA to review gas and power forwards trading: FCA has acknowledged that brokers who offer markets in gas and power forwards need clarity on the regulatory classification of trading on broker-operated systems. Physically settled gas and power forwards that are traded on multilateral trading facilities (MTFs) are MiFID financial instruments and are OTC derivatives or OTC derivative contracts for the purposes of EMIR. Market participants need to know the correct classification of trading of these products on broker-operated systems so they can comply with EMIR. The brokers have agreed with FCA to review their systems, by 16 December, so there are clear distinctions between the MTF and non-MTF services they provide. FCA says it will not expect market participants to change their current views on trading before that date. (Source: FCA to Review Gas and Power Forwards Trading)

Contact: Luca Salerno or Rosali Pretorius

Prudential Regulation Authority (PRA)

PRA consults on insurance run-offs and schemes of arrangement: PRA is consulting on its supervisory approach when reviewing:

• Companies Act 2006 schemes of arrangement proposed by PRA authorised general insurers; and
• proposals for capital extractions by general insurers in run-off.

It asks for comments by 26 October. (Source: PRA Consults on Insurance Schemes of Arrangement and PRA Consults on Run-Off Capital Extractions)

Contact: Rosali Pretorius or Howard Cohen

Financial Services Compensation Scheme (FSCS)

FSCS publishes 36 month funding policy: FSCS has published its position papers setting out its levying, borrowing and recoveries policy, and its approach to calculating the 36 month expected compensation costs. FSCS can raise levies based on 36 month compensation costs from 2014/15. The policies follow consultation and engagement with the industry. (Source: FSCS Publishes 36 Month Funding Policy)

Contact: Andrew Barber or Josie Day

OTHER AUTHORITIES/REGULATORS/INDUSTRY ASSOCIATIONS

Financial Action Task Force (FATF)

FATF stresses AML importance in eastern and southern Africa: FATF spoke on the importance of its standards in eastern and southern Africa. It complimented progress towards compliance in many jurisdictions and highlighted the measures countries should consider of major importance. It noted many countries within the region are under FATF group review and noted steps they could take to be removed from this process. (Source: FATF Stresses AML Importance)

Contact: Emma Radmore or Andrew Barber

Forthcoming Events

FReD Live: On 24 September, our FReD Live Breakfast Seminar will be presented by Rosali Pretorius and Adrian Berendt, Regulatory Consultant, formerly of LCH.Clearnet, and the topic will be "To clear or not to clear?: Implications of EMIR and CRR". FReD readers should have received their invitations. To register, RSVP here.

The 2013 COBS Conference: Dentons will host the 2013 COBS Conference organised by the Compliance Register on 15 November, and members of our London Financial Services and Funds team will present at it. To register, please use this online registration form.

Recent Publications

Financial Crime

UK authorities move forward on tougher financial crime prevention: Emma Radmore wrote an article for Financial Regulation International on current consultations on sentencing and deferred prosecution agreements. (August 2013)

Sanctions restrictions do not prevent payment of debts: Richard Caird and Tom Rocher comment on the judgement in DVB Bank SE and others v. Shere Shipping Company Limited and others. (August 2013)

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

Mobile Banking - FCA sets out the risks: Candice Chapman, Andrew Barber and Winston Green comment on FCA's thematic review of mobile banking. (See also FReD 30 August.) (August 2013)

Mobile Network Operator Billing: Andrew Barber and Alex Haffner have written an alert on the effects of the Payment Services Directive on the development of direct-to-phone-bill purchases by mobile network operators. (August 2013)

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. (July 2013)

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. (July 2013)

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

Appeal dismissed in first interest swap case: Richard Caird and Kattalin Truman have written an article on the Court of Appeal's decision in the first interest rate swap case in the English courts. (August 2013)

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)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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