UK: Financial Regulatory Developments (FReD) 13 December 2013

Last Updated: 17 December 2013
Article by Emma Radmore

Headlines

EP votes through MCD 
Banking Reform Bill continues in Parliament 
FCA fines Lloyds group firms for sales incentive failings 
FCA updates on CCA transfer

European Union and International

EU Legislation Tracker

Please follow the relevant link to see the European Parliament's (EP) "OEIL" voting date forecasts and access EP reports and positions on major legislative initiatives:

Bank Recovery and Resolution Directive (BRRD) OEIL file

Single Resolution Mechanism Regulation (SRM Regulation) OEIL file

Omnibus 2 Directive OEIL file

UCITS 5 OEIL file

Money Market Funds Regulation (MMFR) OEIL file

Directive on European long-term investment funds  (ELTIF Regulation) OEIL file

Central Securities Depositories Regulation (CSD Regulation) OEIL file

Recast Markets in Financial Instruments Directive (MiFID 2) OEIL file

Markets in Financial Instruments Regulation (MiFIR) OEIL file

Market Abuse Regulation (MAR) OEIL file

Benchmarks Regulation OEIL file

Directive on Criminal Sanctions for Market Abuse (CSMAD) OEIL file

Fourth Money Laundering Directive (MLD4) OEIL file

Recast Insurance Mediation Directive (IMD2) OEIL file

Payment Accounts Directive (PAD) OEIL file

Key Information Document for Packaged Retail Investment Products Regulation (PRIPs Regulation) OEIL File

Review of the Payment Services Directive (PSD2) OEIL file

Mortgage Credit Directive (MCD) OEIL file

Contact:  Emma Radmore or  Juan Jose Manchado 

Council of the EU (Council)

Council makes progress on Banking Union: The Council meeting of finance ministers (ECOFIN) has agreed the Council's general approach on BRRD and the Directive on deposit guarantee schemes. It has also announced progress on the SRM file, on which it will try to reach agreement before the end of the year. (Source: Council Ready to Conclude Negotiations with the Parliament on Banking Sector Rules)

Contact: Andrew Barber  or  Juan Jose Manchado

Presidency tables new PAD compromise text: The Presidency of the Council has published a new compromise text for the proposed PAD. Among other new provisions, the article on right of access to a payment account with basic features now says that Member States should ensure that payment accounts with basic features are not offered only as online facilities. (Source: New PAD Compromise)

Contact:  Andrew Barber or  Emma Radmore

European Parliament (EP)

EP votes through MCD: EP has approved the text of the MCD. The most important outstanding point on negotiations, which has now been resolved, was that EP wanted to ensure EBA would have powers to investigate breaches. Michel Barnier welcomed the vote on behalf of the European Commission. The MCD will, primarily:

  • provide customers with better information and more time to decide, and put in place heightened creditworthiness assessment standards;
  • harmonise conduct of business rules for mortgage intermediaries;
  • give customers rights to early repayment;
  • provide a passport regime for intermediaries; and
  • set principles lenders must follow on arrears and foreclosures.

(Source: EP Votes Through MCD)

Contact:  Andrew Barber or  Emma Radmore

European Banking Authority (EBA)

EBA finalises RTS on exposures to underlying clients: EBA has submitted to the Commission its final draft regulatory technical standards (RTS) on determining the overall exposure to a client or a group of connected clients in respect of transactions with underlying assets, as in funds of funds or securitisations. The RTS allow institutions not to identify the obligors of underlying assets where the exposure to each underlying asset is smaller than 0.25% of the institution's eligible capital. Where the exposure is larger than that, institutions will have to apply the look-through approach and identify the obligors. Any exposures for which the look-through is not possible will have to be assigned to an "unknown client" bucket subject to the large exposures limit. (Source: EBA Publishes RTS on Overall Exposure to a Client in Transactions with Underlying Assets)

Contact:  Rosali Pretorius or Andrew Barber

EBA publishes guidelines on retail deposits outflows: EBA has published its final guidelines on the outflow rates applying to retail deposits with different characteristics for the purpose of liquidity reporting. The minimum outflow rate should apply to retail deposits covered by a deposit guarantee scheme and which are held in a transactional account or form part of an established relationship. (Source: Guidelines on Retail Deposits Outflows)

Contact: Rosali Pretorius  or Andrew Barber

EBA finalises RTS on model changes: EBA has submitted to the Commission its final RTS on harmonising the supervisory process to assess the materiality of extensions and changes to approved Internal Risk Based (IRB) approaches and Advanced Measurement Approaches (AMA). The RTS also include standard documentation requirements. (Source: EBA Publishes RTS on Assessing Materiality of Extensions and Changes of Internal Approaches)

Contact: Rosali Pretorius or Andrew Barber

EBA reviews Pillar III 2012 reports: EBA has published the results of a follow-up assessment of Pillar III disclosures made by 19 European banks. (Source: EBA Publishes Follow-up Review of Banks' Transparency in their 2012 Reports)

Contact: Rosali Pretorius  or Andrew Barber

EBA updates Single Rulebook Q&A: EBA has included a new final answer in its Q&A for the fourth Capital Requirements Directive (CRD4) and the Capital Requirements Regulation (CRR) and related technical standards and guidelines. The answers cover, among other topics, whether profits can be included in Common Equity Tier 1 capital before being final, and materiality of changes to pre-existing instruments for the purpose of whether they can be grandfathered. (Source: Single Rulebook Q&A)

Contact:  Rosali Pretorius  or Andrew Barber

European Insurance and Occupational Pensions Authority (EIOPA)

EIOPA publishes report on distributors' knowledge and ability: EIOPA has published a report on good supervisory practices regarding the knowledge and ability requirements for distributors of insurance products. (Source: EIOPA Report on Distributors' Knowledge and Ability)

Contact: Andrew Barber  or < Emma Radmore

UK Government and Parliament

Parliament

Banking Reform Bill continues in Parliament: The Financial Services (Banking Reform) Bill (the Banking Reform Bill) has had its third reading in the House of Lords and returned to the Commons for the "ping-pong" stage to agree all provisions. Treasury produced a briefing for Peers ahead of the reading, explaining the main amendments and additions. It highlighted:

  • the payday lending cap;
  • the certification regime for bank senior management and its application to foreign branches;
  • the FCA Consumer Panel's role;
  • a review by PRA of the extent to which authorised persons carry on proprietary trading to be carried out within one year of the ring-fence taking effect, and a general review of the ring-fence within two years of its taking effect;
  • requirements to hold and document meetings with auditors; and
  • provisions allowing for recouping of costs related to complaints against claims management companies.

A briefing note on the Lords stages followed.

(Source: Treasury Briefs on Banking Reform BillBriefing Note on Lords Stages and Banking Reform Bill Continues in Parliament)

Contact: Andrew Barber  or Emma Radmore

Legislation

Treasury makes CCA transitionals order: Treasury has made the Financial Services and Markets Act 2000 (Consumer Credit) (Transitional Provisions) Order 2013, which will take effect on 31 December 2013. The Order gives FCA powers to make payments to Consumer Credit Act (CCA) licensees, except those who had received a compliance visit from the Office of Fair Trading (OFT) (Source: Treasury Makes CCA Transitionals Order)

Contact: Andrew Barber  or  Howard Cohen

UK Government

Government presents Finance Bill 2014: The Government has published the draft Finance Bill 2014, which includes provisions on the bank levy, offshore non-UCITS funds and real estate investment trusts. (Source: Finance Bill 2014)

Contact:  Jeremy Cape or Rosali Pretorius

HM Treasury (Treasury)

Treasury publishes CRD4 country-by-country reporting rules: Treasury has laid before Parliament the Capital Requirements (Country-by-Country Reporting) Regulations 2013, which implement the transparency requirements under CRD4. These consist of certain annual disclosures, including on profits, taxes and subsidies in the case of systemically important institutions. Treasury is also publishing non-legally-binding guidance that provides a summary and aid to interpreting these Regulations. (Source: Capital Requirements (Country-By-Country Reporting) Regulations 2013 and Guidance)

Contact: Rosali Pretorius  or Andrew Barber

Treasury confirms changes to venture capital trusts: Treasury has fed back on the responses to its consultation on reforms to the venture capital trusts regime and published draft legislation with the proposed changes. The reforms tackle concerns about the increase in share buy-backs to return capital to investors, and also allow for investments via nominees to qualify under the scheme. (Source: Changes to Venture Capital Trusts)

Contact: Rosali Pretorius or Andrew Barber

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

Contact: Emma Radmore or Howard Cohen

UK Financial Services and Markets Regulators

Financial Conduct Authority (FCA)

FCA fines Lloyds group firms for sales incentive failings: FCA has imposed its largest ever fine. It has fined members of the Lloyds Banking Group £28,038,800 for serious failings in their controls over sales incentive schemes. It found failings relating to branches of Lloyds TSB, Bank of Scotland and Halifax. FCA found the firms had high-risk features in the financial incentive schemes for their advisers which they did not control properly and which therefore led to a significant risk that advisers would sell products that customers did not need or want in order to increase their bonuses and salaries. FCA was particularly displeased given all its warnings to the industry and its fine on Lloyds TSB 10 years ago for sale of unsuitable products. The fine related primarily to advised sales of investment and protection products over a two-year period. FCA found numerous failings in controls, including where advisers still received bonuses even when the firms themselves found the adviser had made unsuitable sales. Several advisers received a bonus even when all their sales were deemed unsuitable or potentially unsuitable. (Source: FCA Fines Lloyds Group Firms for Sales Incentive Failings)

Contact: Andrew Barber  or Josie Day

Up next from FCA: Before the end of 2013, FCA plans to issue policy statements on CRD4 implementation and data reporting under the Mortgage Market Review. It also plans feedback on application of the Financial Services Compensation Scheme (FSCS) to unincorporated associations and partnerships. Initiatives in early 2014 will include policy statements on crowdfunding, the client assets review and payments for referrals to discretionary managers. (Source: Up Next From FCA)

Contact: Emma Radmore or Juan Jose Manchado

FCA updates on COLL requirements: FCA has reminded firms that any UCITS or non-UCITS retail scheme that indicates in its name, investment objectives or fund literature an intention always to deliver positive returns will be required under new rules in the Collective Investment Schemes Sourcebook (COLL) to make additional statements in its documentation. The rule change applies from 26 January 2014, or earlier if the fund's prospectus is updated before then. (Source: FCA Updates on COLL Requirements)

Contact: Kam Dhillon or Emma Radmore

FCA publishes payday lending correspondence: FCA has published correspondence between Sajid Javid of Treasury and Martin Wheatley about the payday lending cap. FCA explains how it plans to design and calculate the appropriate cap. It plans to consult in late spring or early summer 2014 on whether it is to meet the challenging timeframe of bringing the cap into force by January 2015. (Source: FCA Publishes Payday Lending Correspondence)

Contact: Andrew Barber or Howard Cohen

FCA publishes quarterly consultation: FCA's latest quarterly consultation covers:

  • consequential amendments to the Handbook to make changes associated with the transfer of consumer credit regulation to FCA;
  • an introduction of an administrative charge for dealing with late publication of periodic reports due under the disclosure and transparency rules;
  • amendments to COLL to extend the ability of managers and other persons to communicate electronically with investors, if the investors agree; and
  • removing the provision that requires a decision on waiver applications within 20 days. FCA says this is no longer appropriate, because timing needs of firms often depend on expiry of a previous waiver, or on the date on which a new rule takes effect. It says that, by removing the time limit and communicating better with firms, it can use its resources better to meet the needs of firms and therefore their customers.

Comments on the consumer credit changes are due by 17 January and on the other proposals by 5 February. (Source: FCA Publishes Quarterly Consultation)

Contact: Emma Radmore  or Juan Jose Manchado

FCA updates on NPPR: FCA has updated its Alternative Investment Fund Managers Directive (AIMFD) pages on the application of the National Private Placement Regime (NPPR) on the marketing of non-EEA funds and managers. The page contains all necessary forms and an updated list of supervisory co-operation agreements. (Source: FCA Updates on NPPR)

Contact: Emma Radmore  or  Dhillon

FCA updates on CCA transfer: FCA's webpage on the transfer of CCA has been updated to put firms in no doubt that non-compliance is not an option and that FCA can and will enforce penalties for rule breaches from 1 April. It also notes certain specific rules that are not subject to the general six-month transitional period. Separately, new information explains how the consumer credit rebate scheme Treasury has introduced will apply. (Source: FCA Updates on CCA Transfer and FCA Updates on Rebates for Consumer Credit Firms)

Contact: Andrew Barber or Emma Radmore

FCA speaks on the year ahead: Martin Wheatley has spoken on the consolidation of requirements in trading and market structures that 2014 will bring. He focused on how all firms, with specific reference to asset managers, must increasingly prioritise good principles and culture so they put their customers first. He also discussed the forthcoming MiFID changes and said firms must engage with the European Securities and Markets Authority (ESMA) to get MiFID 2 "in the right place" before implementation. Finally he spoke on international derivatives markets and urgent points that still need to be addressed despite significant progress. He said these include detail on trading venues used by firms in both the EU and the US. (Source: FCA Speaks on Year Ahead)

Contact: Rosali Pretorius or Luca Salerno

FCA publishes November IRHP review data: The November figures on progress in the interest rate hedging products (IRHPs) review show an exponential growth in the redress determinations and pay outs to customers. (Source: Interest Rate Hedging Products)

Contact: Emma Radmore or Josie Day

Prudential Regulation Authority (PRA)

PRA updates on Solvency II preparation: PRA has updated its webpages on Solvency II to update its implementation assumptions. (Source: PRA Updates on Solvency II Preparation)

Contact: Rosali Pretorius or Emma Radmore

Other Regulators/Authorities/Industry Associations

Investment Management Association (IMA)

IMA issues outsourcing principles: IMA has issued a set of outsourcing principles, to address regulatory concerns about outsourcing in the asset management sector. The principles cover:

  • oversight;
  • exit planning; and
  • standardisation.

(Source: IMA Issues Outsourcing Principles)

Contact: Rosali Pretorius or Kam Dhillon

Recent Publications

Financial Crime 

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. (updated October 2012)

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)

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

Consumer Credit Regulation: Are you ready for the seismic shift?: Please contact Andrew Barber,  Emma Radmore or  Howard Cohen if you have any questions about what you need to do to prepare for the transfer of consumer credit regulation to FCA.

Are you clear on EMIR:  Rosali Pretorius and  Emma Radmore have written an article for Compliance Monitor on EMIR's application and recent developments. (October 2013)

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 Radmor  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

Court of Appeal dismisses interest rate swap appeal: Richard Caird and Kattalin Truman have written a briefing on the Court of Appeal judgment in the appeal by Mr Green and Mr Rowley against the decision that RBS had not missold an interest rate swap. (October 2013)

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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