European Union: Financial Regulatory Developments (FReD) – 01 May 2015

Last Updated: 1 May 2015
Article by Emma Radmore, Michael Wainwright, Luca Salerno and Rosali Pretorius

EUROPEAN UNION AND INTERNATIONAL

European Parliament (EP)

EP approves MMFs Regulation: EP has approved the draft Money Market Funds (MMFs) Regulation. Key elements of the version of the Regulation are:

  • limiting constant net asset value (CNAV) MMFs to two types: retail CNAV available for subscription only for charities, not-for-profit organisations, public authorities and public foundations; and public debt CNAV, which would invest 99.5% of assets in public debt instruments;
  • introducing a new type of MMF, the Low Volatility Net Asset Value (LVNAV) MMF, which might display a constant net asset value but under strict conditions;
  • a requirement that MMFs diversify their portfolios, investing in higher-quality assets, follow strict liquidity and concentration requirements and have in place sound stress testing processes;
  • a requirement that public debt and retail CNAVs and LVNAVs apply "liquidity fees" "redemption gates" in certain circumstances to help stem sudden outflows;
  • a requirement that MMFs report weekly all of the following information to their investors:

    • the liquidity profile;
    • the credit profile and portfolio composition;
    • weighted average maturity (WAM) of the portfolio;
    • weighted average life (WAL) of the portfolio; and
    • concentration of the top five investors in the MMF.

The vote consolidated EP's position in preparation for three-way discussions on the draft with Member States and the Commission. (Source: Making Money Market Funds More Resilient to Financial Crises)

Contact: Rosali Pretorius or Michael Wainwright

European Commission (Commission)

Commission urges EP to accept MLD 4: The Commission has published Communications addressed to EP setting out its support for the agreed versions of the fourth Money Laundering Directive (MLD 4) and revised Funds Transfer Regulation. (Source: Commission Communication on MLD 4 and Commission Communication on Funds Transfer Regulation)

Contact: Emma Radmore or Tom Harkus

European Banking Authority (EBA)

EBA updates compliance table: EBA has published an update to its table showing which national regulators comply, or intend to comply, with EBA Guidelines on Global Systemically Important Institutions (G-SIIs) published in June 2014. (Source: EBA G-SIIs Compliance Table Guidelines)

Contact: Rosali Pretorius or Michael Wainwright

EBA consults on data template: EBA is consulting on a revised data template for the identification of G-SIIs. The revision follows the new data template and some minor revisions the Basel Committee made in January for identifying global systemically important banks (G-SIBs). The consultation runs until 20 May. (Source: EBA Consults on a Revised Data Template for the Identification of G-SIIs)

Contact: Rosali Pretorius or Michael Wainwright

EBA updates single rulebook Q&As: EBA has updated its single rulebook Q&As to include one new item. (Source: Single Rulebook Q&As)

Contact: Rosali Pretorius or Michael Wainwright

European Securities and Markets Authority (ESMA)

ESMA updates EMIR Q&A: ESMA has issued the thirteenth update to its Q&A document on the implementation of the European Markets Infrastructure Regulation (EMIR). This update relates to the second level of the EMIR validation specifications that Trade Repositories (TRs) use to ensure that reporting complies with EMIR. The validation controls are based on the original rules in the December 2012 EMIR technical standards and entered into force on 12 February 2014. ESMA says it expects TRs to be able to implement the second level validation by the end of October. (Source: ESMA Publishes Updated EMIR Q&A – Focus on Reporting)

Contact: Rosali Pretorius or Tom Harkus

ESMA consults on knowledge and competence guidelines: ESMA is consulting on draft guidelines relating to the revised Markets in Financial Instruments Directive (MiFID 2) on criteria for assessing knowledge and competence of individuals in investment firms who provide investment advice or information about investments or services to clients. ESMA proposes tests based on "appropriate qualifications" and "appropriate experience" and lists the areas it thinks the assessments should relate to. ESMA suggests what areas the individuals should understand and wants national regulators to set the list of qualifications or criteria for assessing qualifications. It notes that some Member States already go further than the current MiFID requirements. Its new proposed guidelines cover organisational requirements for firms as well as specific requirements on relevant staff and the duty on firms to ensure they assess, maintain and update appropriate levels of knowledge and competence. Consultation closes on 10 July and ESMA plans to publish its final guidelines in the last quarter of 2015. (Source: ESMA Consults on Knowledge and Competence Guidelines)

Contact: Michael Wainwright or Emma Radmore

ESMA recognises third country CCPs: ESMA has recognised 10 third-country central counterparties (CCPs) for the purposes of EMIR. (Source: ESMA Recognises Third Country CCPs)

Contact: Rosali Pretorius or Tom Harkus

Court of Justice of the European Union (EU Court)

EU Court judges on plain and intelligible language: The EU Court has held that, in insurance contracts, terms that relate to the main subject-matter must not only be grammatically intelligible to the consumer but must also set out in a transparent manner how the insurance arrangements function, so the consumer can evaluate, on the basis of "precise, intelligible criteria", the economic consequences for him. If a term does not meet these criteria, it falls to be assessed for fairness. In this case, the complainant had taken out two mortgage contracts and, at the same time, a group insurance contract that would guarantee cover of the loan repayments in the event of "total incapacity for work". Following an accident, the insurer's doctor concluded that, while the complainant could no longer carry on his original job, he could carry on appropriate employment part-time. On this basis, the insurance company refused to cover the loan repayments. The complainant said the terms of the insurance contract were unfair in respect of how they defined "total incapacity for work", saying there was a significant imbalance to the detriment of the consumer, and that moreover the definition was unintelligible to a consumer. The insurer said the term did not fall to be assessed for fairness as it concerned the subject matter of the contract (and moreover that the definition was clear and precise). The French court had asked the EU Court for guidance on whether it could assess whether the term was unfair. The EU Court said that the term seemed to set out the insured risk and the insurer's liability while laying down the essential obligations of the insurance contract. On this basis, it said it could not rule out that the term was a core term, but said the national court should now determine this. It also said that the requirement for terms to be transparent does not merely mean they must be "formally and grammatically intelligible". It said it was possible a consumer could not understand the term sufficiently to be able to evaluate the consequences of it, and said the national court should also determine that. Finally, it noted that, because the insurance contract was allied to the loan contract, it was not reasonable to expect the consumer to exercise the same degree of vigilance over the risks it covered as he should have done had he concluded the contracts separately. (Source: Vase C-96/14 Jean-Claude Van Hove v. CNP Assurances SA)

Contact: Emma Radmore or Josie Day

European Central Bank (ECB)

ECB publishes fifth T2S report: EBA has published its fifth T2S harmonisation progress report to record the progress made following the first migration wave, as of March. The report shows good progress, with expected full compliance by the markets in the first T2S wave by the 22 June deadline. It notes the main outstanding area for attention is in the standards relating to settlement discipline. ECB plans the sixth T2S harmonisation progress report before the next T2S migration wave, scheduled for March 2016 (Source: Fifth T2S Harmonisation Progress Report)

Contact: Rosali Pretorius or Michael Wainwright

ECB announces fees: ECB has decided its supervisory fees for banking supervision in 2014/15. The total amount that ECB intends to recover for the costs of its prudential supervision of banks in the euro area for that year is €326 million. 89% of this will come from the 123 significant banks directly supervised by ECB. The remaining amount will come from the approximately 3,500 less significant banks indirectly supervised by ECB. At bank level, the fees will be calculated according to a bank's importance and risk profile. All euro area banks must supply the data for calculating their specific fees by 1 July. ECB will then allocate the total fees for each individual bank and send invoices in late 2015. (Source: ECB Banking Supervision Decides Supervisory Fees for 2014-15)

Contact: Rosali Pretorius or Juan Jose Manchado

UK GOVERNMENT AND PARLIAMENT

HM Treasury (Treasury)

Treasury updates sanctions: Treasury has updated the sanctions lists in respect of Afghanistan, the Ivory Coast and the Democratic Republic of Congo. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Tom Harkus

Serious Fraud Office (SFO)

Ponzi fraudster jailed: David Gerald Dixon, who created a multi-million-pound Ponzi scheme through two companies, collectively known as Arboretum Sports, has been jailed for three years and 10 months. He had pleaded guilty to five counts of fraud at Southwark Crown Court in March. (Source: Ponzi Fraudster Jailed for Over Three Years)

Contact: Emma Radmore or Tom Harkus

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Financial Conduct Authority (FCA)

FCA fines broker over telephone sales: FCA has fined Moorhouse Group Limited £159,300 for failing to have in place controls to ensure customers to whom it sold motor and liability-related insurance products on the telephone received the right information. The firm's client base included small and medium-sized businesses (SMEs) including some very small ones (micro-SMEs). FCA found customers did not receive information about limitations and exclusions of add-on products, so could not reach a balanced decision on whether the products were suitable. In addition to the fine, FCA has required the firm to contact customers who bought commercial vehicle add-on insurance during 2012 to inform them of the investigation and encourage them to raise with the firm any concerns about the way in which the firm sold the product to them. (Source: FCA Fines Broker over Telephone Sales)

Contact: Emma Radmore or Josie Day

FCA fines Deutsche Bank £227 million for IBOR failings and misleading it: FCA has levied its largest fine of LIBOR and EURIBOR (together IBOR) misconduct. It has fined Deutsche Bank £227 million, including a 30% early settlement discount. The fine is so large because FCA says the firm also misled it. On the same day, three US agencies levied fines of US$800 million, US$775 million and US$600 million. FCA found that between January 2005 and December 2010 trading desks at the bank manipulated its IBOR submissions across all major currencies, and that the misconduct involved at least 29 individuals in London, Frankfurt, Tokyo and New York. The bank had inadequate systems and controls that allowed the conduct to continue unchecked, and did not put any controls specific to IBOR in place even after it was put on notice that there was a risk of misconduct. Because of this, and other failings in audit and investigation, the bank took over two years to provide FCA with recordings it asked for. Moreover, the bank (i) told FCA it could not share with it a report commissioned by the German regulator when this was not true and (ii) attested to FCA that its systems and controls in relation to LIBOR were adequate when the person drafting the attestation knew this was not true. FCA's investigation was also hampered by the bank being unable to provide information that was timely, accurate or complete. (Source: FCA Fines Deutsche Bank £227 Million for IBOR Failings and Misleading It)

Contact: Richard Caird or Rosali Pretorius

FCA makes new rules: FCA has held several board meetings since its last Handbook Notice. We have reported in previous editions of FReD on the rules made at many of them. At its latest meeting, on 23 April, it made:

  • the Training and Competence Sourcebook (TC) (Qualifications Amendment No 12) Instrument 2015: this amended TC from 24 April to add some new qualifications and amend some existing ones;
  • the Client Asset Sourcebook (CASS) (Amendment No 2) Instrument 2015: this amends CASS and the Consumer Credit Sourcebook (CONC) partly from 1 May and partly from 1 June. The amendments make minor changes and clarifications to CASS 6 and 7, and ensure that CASS applies to loan-based crowdfunding; and
  • the Alternative Dispute Resolution Directive Instrument 2105: this amends the Dispute Resolution Sourcebook (DISP) from 9 July to implement the Alternative Dispute Resolution Directive.

Financial Ombudsman Service (FOS) also made a change to its voluntary jurisdiction rules in respect of advising on conversion or transfer of pension benefits, effective from 24 April. (Source: FCA Makes New Rules)

Contact: Emma Radmore or Juan Jose Manchado

FCA looks at de-risking: A new page on FCA's website considers the trend for banks to de-risk by citing money laundering concerns as reasons not to do business with generic types of customer. FCA says that, generally, banks should consider their position on a case-by-case basis and that it would not normally expect them to refuse business on the basis solely of compliance with anti-money laundering (AML) legislation. It acknowledges that the decision to accept or maintain a business relationship is ultimately a commercial one for the bank but says it will now consider during its AML work whether firms' de-risking strategies give rise to consumer protection and/or competition issues. (Source: FCA Looks at De-Risking)

Contact: Emma Radmore or Tom Harkus

FCA publishes second charge mortgage forms: FCA has published supplements to its application pack for credit firms who wish to add second charge mortgage business to their applications. (Source: Supplement for Second Charge Mortgage Broking and Supplement for Second Charge Mortgage Lending/Administration)

Contact: Emma Radmore or Juan Jose Manchado

FCA updates on FC guidance: FCA has published a summary of the feedback it received on proposed changes to its Financial Crime (FC) guidance. FCA has taken into account comments, but disagreed with respondents who suggested it should make few changes before the EU's fourth Money Laundering Directive is implemented. The main changes relate to:

  • how FCA expects firms to establish source of wealth and source of funds; and
  • arrangements intermediaries should make in respect of oversight and management of third-party introducers and other intermediaries.

(Source: FCA Updates on FC Guidance)

Contact: Emma Radmore or Tom Harkus

Financial Services Compensation Scheme (FSCS)

FSCS announces final levy: FSCS has announced its levy for 2015/16. It will be £319 million. The final amount is £32 million more than the amount forecast in FSCS's Plan and Budget in January. The increase is primarily because of a rise in claims relating to self-invested personal pensions. FSCS will levy firms in the life and pensions intermediation sector £100 million in 2015/16 to fund the compensation costs for these claims. A full explanation of the 2015/16 annual levy can be found in the latest edition of "Outlook", FSCS's industry newsletter. (Source: FSCS Announces Final Levy for 2015/16 at £319 Million)

Contact: Emma Radmore or Josie Day

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

Investment Association (IA)

IA publishes Principles for managers: IA has published a Statement of Principles for investment managers. The Statement outlines what having responsibility for managing other people's money means in practice for corporate culture and individual mindset. It goes further than simply "treating customers fairly" and expresses the core Principle that investment managers "always put clients' interests first and ahead of our own" in the execution of their duties. Signatories to the Statement will have to show how they adhere to the Principles and how they identify and deal with any issues that compromise their adherence. They will also confirm annually that their processes for this are effective and that any issues identified are being addressed. IA will maintain a list of signatories on its website from 31 July, a link to members' descriptions of their approach from 1 January 2016 and a link to annual reports on the Principles from 1 January 2017. Also in January 2017 IA will review the Principles, considering uptake, impact and feedback from all stakeholders. (Source: The Investment Association Publishes Statement of Principles for Investment Managers)

Contact: Emma Radmore or Josie Day

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

BIS publishes Basel progress report: BIS has published its eighth progress report on the adoption of the Basel regulatory framework. The update provides a high-level overview of Basel Committee members' progress in adopting Basel II, Basel 2.5 and Basel III standards as of the end of March. The report focuses on the status of domestic rule-making processes to ensure that the Basel standards are transformed into national law or regulation according to the internationally agreed timeframes. (Source: Eighth Progress Report on Adoption of the Basel Regulatory Framework)

Contact: Rosali Pretorius or Michael Wainwright

Chartered Insurance Institute (CII)

CII launches best practice guide: CII has released a new best practice guide relating to requests made under Section 29(3) of the Data Protection Act. The guidance has been launched after two years of work behind the scenes with support from the Insurance Fraud Bureau (IFB). The guide is designed to improve the quality of data sharing under Section 29(3), which allows organisations to share data with a third party in order to prevent and detect crime. It is aimed at requests made in respect of claims, underwriting or financial crime within the insurance industry. (Source: CII New Generation Group Launch Best Practice Guide)

Contact: Nick Graham or Danielle Van der Merwe

Lending Standards Board (LSB)

LSB publishes complaints review: LSB has published its April review of complaints, covering:

  • Policies and procedures: All subscribers reviewed had established processes to deal with complaints due to the requirements specified under FCA's DISP rules. However, there were limited procedures in place to ensure that, once identified, complaints were reviewed against the Lending Code (Code). In most cases the Code was not specifically referenced as a complaint category.
  • Controls: Three subscribers had revisited the operational processes and procedures to ensure their current approach was capable of capturing potential systemic issues in relation to the Code. One firm subsequently introduced a "Lending Code Tracker", a monthly Lending Code Forum and a bi-annual surgery where complaints could be assessed for materiality.
  • Monitoring and oversight: Complaints resolution resided in subscribers' first line complaint handling or product functions. Responsibility for the review and challenge of this information resided with second line compliance or risk teams.
  • Training: As most firms did not view the new Code requirement as a change, training on it was limited and firms could not evidence it. However, two subscribers did provide bespoke training to complaints handlers.
  • Audit and compliance reviews: One firm carried out post-implementation reviews to assess the extent to which these provisions are being met in practice.

The report concluded that all subscribers taking part in the review had policies and procedures in place to deal with complaints and identify potential systemic issues, and there was no reason to strengthen the Code. (Source: Lending Code Review of Complaints April 2015)

Contact: Emma Radmore or Josie Day

Islamic Financial Services Board (IFSB)

IFSB releases prudential and structural indicators: IFSB has announced the release of prudential and structural Islamic finance indicators (PSIFIs) for 15 member countries. These are a set of indicators to highlight the soundness and growth of the Islamic banking systems in the applicable countries. The PSIFIs capture information on the size, growth and structural features of Islamic banking systems and on their macroprudential condition by looking at measures of their capital, earnings, liquidity, and exposures to various types of risks. They also cover the indicators on capital adequacy and liquidity based on newly issued IFSB Standards to complement international regulatory reforms under the Basel III regime. The PSIFIs will be regularly collected on a quarterly basis from the participating countries. (Source: IFSB Announces the Release of PSIFIs for 15 Member Countries)

Contact: Rosali Pretorius or Michael Wainwright

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