European Union: Financial Regulatory Developments (FReD) - July 24, 2015

European Union and International

Council of the European Union (Council)

Council publishes ECOFIN minutes: The Council has published the minutes of a meeting of the Economic and Finance Ministers (ECOFIN). Among other things, it formally decided not to object to:

  • the Commission Regulation on the extension of the transitional periods related to pension scheme arrangements under the European Market Infrastructure Regulation (EMIR); and
  • the Commission's equivalency determinations in respect of third-country regimes for the purposes of Solvency 2.

(Source: Council Publishes ECOFIN Minutes)

Contact: Tom Harkus or Juan Jose Manchado

Council confirms IDD agreement: The Council has confirmed the Committee of Permanent Representatives' approval of the Insurance Distribution Directive (IDD). The text must now be approved by EP, hopefully at first reading, and then formally adopted by the Council. (Source: Council Publishes Final IDD Text)

Contact: Nicholas Ralph or Emma Radmore

European Parliament (EP)

EP engages on Solvency 2: The Chair of the Economic and Monetary Affairs Committee (ECON) in EP has written to both the Commission and the Council on aspects of Solvency 2. It has expressed concern over the way in which the Commission has addressed several implementing measures, and has notified both the Commission and the Council that the period for objection to any of the draft equivalence decisions will expire on 7 December. (Source: EP Engages on Solvency 2)

Contact: Michael Wainwright or Juan Jose Manchado

European Banking Authority (EBA)

EBA suggests RTS corrections: EBA has suggested changes to two of the Regulatory Technical Standards (RTS) the Commission adopted under the fourth Capital Requirements Directive (CRD 4). EBA says the Commission changed EBA's suggested text and in doing so inadvertently altered the meaning. It says the texts should be changed back to how EBA originally drafted them. The RTS relate to:

  • the treatment of non-delta risk of options in the standardised market risk approach. EBA had said that only institutions that exclusively purchase options and warrants can use the simplified approach, but they do not have to do so. The Commission's version had obliged these institutions to use the simplified approach, while not preventing other institutions from doing so; and
  • the criteria to identify categories of staff whose professional activities have a material impact on an institution's risk profile. EBA's intention was that there should be a refutable presumption that any staff whose total remuneration takes them into the same remuneration bracket as senior management and risk takers will be staff whose professional activities have a material impact on the institution's risk profile. It says the Commission's changes did not reflect this.

(Source: EBA Suggests RTS Corrections)

Contact: Rosali Pretorius or Michael Wainwright

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

Contact: Rosali Pretorius or Michael Wainwright

EBA status update on liquidity monitoring: EBA has published an update on the application date of its final draft Implementing Technical Standards (ITS) on additional liquidity monitoring metrics. EBA originally submitted the final draft ITS to the Commission in December 2013, with a proposed application date of 1 July 2015. As the Commission has not yet adopted the ITS, it is highly likely that the application date, which will be specified once the ITS are published in the OJEU, will be postponed by at least three months. (Source: EBA Updates on the Status of its Final Draft Technical Standards on Additional Liquidity Monitoring Metrics)

Contact: Rosali Pretorius or Michael Wainwright

EBA reports on macroprudential measures: EBA has published a report on macroprudential policy measures throughout the EU with a specific focus on the interaction of macro- and microprudential measures under the CRD 4 package. (Source: EBA Reports on Macroprudential Measures)

Contact: Rosali Pretorius or Michael Wainwright

EBA publishes management suitability assessment report: EBA has published its peer review report on assessing suitability of members of the management body and key function holders within banks. Despite most authorities being fully or largely compliant with EBA's guidelines, the peer review assessment found supervisory practices still do not converge enough. The report also reveals some best practices, including assessing candidates for key positions by performing interviews, applying the proportionality principle and the criteria used to assess suitability. EBA proposes to incorporate these identified best practices in the guidelines and will consult on an update in early 2016. EBA might also submit an opinion to the Commission suggesting legislative amendments that would allow for enhanced convergence of supervisory practices in this area. (Source: EBA Publishes Management Suitability Assessment Report)

Contact: Rosali Pretorius or Michael Wainwright

European Securities and Markets Authority (ESMA)

ESMA speaks at MiFID 2 hearing: Stephen Maijoor spoke at EP's ECON hearing on the revised Markets in Financial Instruments Directive (MiFID 2) and Regulation (MiFIR). He addressed concerns that ESMA was not being transparent over its draft technical standards by saying the Commission Legal Services is currently reviewing the drafts to minimise the risk of any need for ESMA to formally resubmit them. He focused on the particular challenges ESMA faces relating to:

  • non-equity market transparency: ESMA needs to try to find solutions acceptable for a wide range of products, and notes there can never be a perfect solution because the products are so different;
  • position limits: ESMA has to work within the level 1 measures, but points out national regulators will be likely to work within the middle of the limits but must have power to set strict limits where necessary; and
  • ancillary activities: ESMA points out that the public complaint that ESMA must be wrong when it seeks to regulate non-financial business is flawed. The purpose of the changes MiFID 2 brings is to reduce "opaque" parts of the market and to bring non-financial and financial business carrying on the same activities on to a level playing field.

He also noted that ESMA will be able to recalibrate and change the standards, which gives some flexibility, but this will also entail the full Commission approval process. (Source: ESMA Speaks at MiFID 2 Hearing)

Contact: Rosali Pretorius or Luca Salerno

ESMA publishes clearing obligation responses: ESMA has published the responses it received to its consultation on the clearing obligation under EMIR. It received 12 responses. (Source: Consultation No 4 on the Clearing Obligation under EMIR)

Contact: Luca Salerno or Tom Harkus

ESMA updates AIFMD Q&As: ESMA has updated its set of Q&As on the Alternative Investment Fund Managers Directive (AIFMD). New questions relate to reporting to regulators and calculating assets under management. (Source: ESMA Updates AIFMD Q&As)

Contact: Rosali Pretorius or Emma Radmore

ESMA delays AIFMD third-country advice: ESMA had hoped to deliver its opinion on the third-country passport under AIFMD around 22 July, but now says it will do so around 28 July. (Source: ESMA Delays AIFMD Third Country Advice)

Contact: Rosali Pretorius or Emma Radmore

ESMA publishes knowledge and competence responses: ESMA has published the responses it received to its draft guidelines on knowledge and competence of those giving advice under MiFID 2. (Source: ESMA Publishes Knowledge and Competence Responses)

Contact: Michael Wainwright or Emma Radmore

European Insurance and Occupational Pensions Authority (EIOPA)

EIOPA seeks Solvency 2 interest rate coding input: EIOPA has launched an exercise to challenge the "beta" version of its risk-free interest rate (RFR) coding used in the current preparatory phase. EIOPA plans to revise the RFR coding based upon the results of the exercise and will publish the final RFR coding and methodology before 1 January 2016. The exercise closes on 31 August. (Source: EIOPA Seeks Input to its Solvency 2 Risk Free Interest Rate Coding)

Contact: Michael Wainwright or Juan Jose Manchado

UK Government and Parliament

Legislation

Treasury corrects MCD Orders: An amending Order corrects certain parts of the Treasury Order implementing the Mortgage Credit Directive (MCD) into UK law. The main corrections:

  • ensure that a non-residential or buy-to-let mortgage which would be exempt from being regulated as a credit agreement if entered into immediately before 21 March 2016, but which is a regulated credit agreement at that time (for instance because it was entered into before the existing exemption for these mortgages came into force), does not fall within the definition of "consumer credit back book mortgage contract". As a result, these mortgages will continue to be "regulated credit agreements" for FCA purposes, rather than being treated as regulated mortgage contracts when the MCD changes take effect;
  • clarify that where a person has permission to advise on regulated mortgage contracts immediately before 21 March 2016, the person is to be treated from that date as having permission to carry on that regulated activity in relation to all contracts which are regulated mortgage contracts after 21 March 2016, and not only in relation to those contracts which would have been regulated mortgage contracts before that date.

Separately, Treasury has published draft amendments to the Regulated Activities Order (RAO) that will:

  • clarify the scope of the exemption from regulation as a credit agreement for mortgage contracts and home purchase plans, so that they are only exempted from regulation as credit agreements if entering into them is in fact subject to regulation in one of those other categories;
  • ensure that mortgages dating from before 31 October 2004 and which are currently regulated as credit agreements, are instead regulated as mortgages from 31 March 2016; and
  • ensure that an existing exemption from the regulation of credit agreements remains available for equitable mortgages used as bridging loans once they become regulated as mortgages rather than credit agreements from 31 March 2016.

(Source: Treasury Corrects MCD Order and Treasury Publishes Draft RAO Amendments)

Contact: Nicholas Ralph or Emma Radmore

Parliament

House of Lords EU Committee Publishes Notes: The notes from the House of Lords EU Committee, publishing correspondence between 31 March and 10 July 2015, focus on the UK position on negotiations on EU bank structure reform legislation. The UK is pushing for recognition of the Banking Reform Act. (Source: House of Lords EU Committee Publishes Notes)

Contact: Michael Wainwright or Juan Jose Manchado

HM Treasury (Treasury)

Treasury publishes productivity plan: Treasury has published a productivity plan for the UK. Among many other initiatives, the plan features a section on financial services. Treasury says the UK will:

  • support actively the Capital Markets Union;
  • promote the development of simple, transparent and comparable securitisation;
  • continue to work to remove barriers to the development of a private placements market;
  • support efforts to improve the Initial Public Offering market;
  • catalyse a market-wide discussion of the costs and benefits of greater standardisation in corporate bond markets;
  • commit to PRA and FCA creating a joint New Bank Unit to help new entrants to the banking markets and promote competition;
  • launch a FinTech benchmarking exercise in the autumn; and
  • encourage PRA and FCA to be transparent on their use of competition powers.

(Source: Treasury Publishes Productivity Plan)

Contact: Michael Wainwright or Nicholas Ralph

Treasury updates sanctions: Treasury has updated the sanctions lists in respect of Belarus, South Sudan and Iran. In relation to Iran, the effect of the recent agreement and change to the Joint Plan of Action is that the situation remains unchanged with the suspension of the restrictive measures further extended to 14 January 2016. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Nicholas Ralph

Treasury publishes draft overseas firms scope SI: Treasury has published a draft statutory instrument (SI) setting out which foreign credit institutions and investment firms that have a branch in the UK will be "relevant authorised persons" for the purposes of certain parts of the Financial Services and Markets Act (FSMA) and Banking Reform Act. (Source: Financial Services and Markets Act 2000 (Relevant Authorised Persons) Order 2015)

Contact: Rosali Pretorius or Tom Harkus

Treasury updates AML guidance: Treasury has updated its guidance to firms on anti-money laundering (AML) and terrorist finance risks, following FATF's June meeting. It says firms must:

  • consider Algeria, North Korea, Iran and Myanmar as high-risk jurisdictions and must apply enhanced due diligence (EDD) in any dealing with them; and
  • take appropriate action, which may include EDD, to minimise risks in respect of Afghanistan, Angola, Bosnia and Herzegovina, Ecuador, Guyana, Iraq, Lao PDR, Panama, Papua New Guinea, Sudan, Syria, Uganda and Yemen.

It notes sanctions regimes also apply in relation to many of these jurisdictions. (Source: Treasury Updates AML Guidance)

Contact: Emma Radmore or Tom Harkus

Treasury consults on BoE reforms: Treasury has published a consultation paper in advance of putting forward legislation on reforms that would improve the governance and accountability of the Bank of England (BoE). The key reform will be to bring PRA fully within the BoE structure, so it will no longer be a subsidiary of BoE, and call it the Prudential Regulation Committee. Another change will see the Financial Policy Committee elevated to being a committee of the bank, rather than of the court – the same status as the reconstituted PRA will have. It asks for comments by 11 September. (Source: Treasury to Consult on BoE Reforms)

Contact: Rosali Pretorius or Michael Wainwright

Serious Fraud Office (SFO)

SFO publishes annual report: SFO's annual report highlights convictions under the Bribery Act achieved in the past year. It also notes 12 ongoing prosecutions over the LIBOR scandal, and that it is actively considering cases for a first deferred prosecution agreement. (Source: SFO Publishes Annual Report)

Contact: Emma Radmore or Nicholas Ralph

UK Financial Services and Markets Regulators

Financial Conduct Authority (FCA)

Martin Wheatley to stand down: Martin Wheatley will stand down as FCA chief executive from 12 September. He will stay at FCA for a few months overseeing its work on the Fair and Effective Markets Review. Tracey McDermott will take over the role of acting chief executive. (Source: Martin Wheatley to Stand Down)

Contact: Michael Wainwright or Nicholas Ralph

FCA creates new MCD pages: FCA has created new pages on its website for consumer buy-to-let (CBTL) firms and housebuilders to help them comply with the Mortgage Credit Directive (MCD), alongside its frequently asked questions. It also confirmed that CBTL registration applicants may apply from 20 July. (Source: FCA Creates New MCD Pages)

Contact: Nicholas Ralph or Emma Radmore

Prudential Regulation Authority (PRA)

PRA issues LCR reporting statement: PRA has published a supervisory statement on CRD 4 interim liquidity coverage requirement (LCR) reporting. The approach will apply from 1 October until the introduction of mandatory reporting of the new LCR return once the Commission has adopted the amending ITS on liquidity reporting. The statement outlines the reporting arrangements, standard approach and requirements for smaller firms for this period. (Source: CRD 4: Interim LCR Reporting)

Contact: Rosali Pretorius or Michael Wainwright

PRA issues depositor protection statement: PRA has issued a supervisory statement on depositor and dormant account protection. The statement addresses:

  • eligibility;
  • disclosure;
  • marking eligible deposits and accounts and transitional issues;
  • temporary high balances;
  • dormant accounts information requirements;
  • calculation of levies;
  • the Single Customer View;
  • in-flight transactions;
  • continuity of access;
  • the scope of depositor protection requirements; and
  • the change in the deposit protection limit.

(Source: Depositor and Dormant Account Protection)

Contact: Michael Wainwright or Nicholas Ralph

PRA writes to Treasury on HBOS report: Andrew Bailey, deputy governor of PRA, has written with Sir Brian Pomeroy, Senior Independent Director of FCA, to Andrew Tyrie MP, Chairman of the Treasury Committee, with an update on the HBOS report. They explain that:

  • the lengthy report is currently in draft and is being checked for accuracy and fairness;
  • the first wave of Maxwellisation to the extent legally required of all those criticised in the Report has now been completed, as has consideration of the large number of representations that resulted. A further Maxwellisation will now start for any person who may have been further criticised as a result of changes to the report; and
  • once this re-Maxwellisation process is complete, consent will be needed to publish in the report any confidential information under FSMA;

Since these steps must be sequential and their complexity makes it hard to estimate timing on any one of them, it is not possible to estimate a delivery date for the report. (Source: PRA/FCA Letter to the Treasury Committee on the HBOS Review)

Contact: Felicity Ewing or Nicholas Ralph

Financial Services Compensation Scheme (FSCS)

FSCS releases annual report: FSCS has released its annual report and accounts for 2014/15. The report shows that FSCS received more than 53,000 new claims during that period, roughly the same as the previous year. However, the distribution of those claims is quite different. This year there were 21,900 new general insurance provision claims, a significant increase on last year. Average compensation payments were up from £5,136 last year to £8,855. (Source: FSCS Annual Report and Accounts 2014/15)

Contact: Emma Radmore or Josie Day

Financial Ombudsman Service (FOS)

FOS publishes Ombudsman News: The latest edition of Ombudsman News focuses on complaints about mortgages. Several complaints related to lenders who told customers the new rules implementing the Mortgage Market Review meant they could not "port" their mortgage to a new property. FOS commented that lenders should not use an inflexible tick box approach to lending as a way of complying with FCA requirements. The update also looks at the breadth of complaints FOS has recently received, showing the number of complaints received in relation to several products and the success rate of the complaints. (Source: Ombudsman News Issue 126)

Contact: Nicholas Ralph or Juan Jose Manchado

National Audit Office (NAO)

NAO begins mis-selling study: NAO is to conduct a study into financial services mis-selling, looking particularly at regulation and redress. It will consider how well FCA, FOS and FSCS work together to detect problems and secure redress for consumers; how FCA regulates financial services institutions to counter mis-selling; whether the regulatory regime provides the right incentives to deter mis-selling; and how it identifies and responds to mis-selling risks. (Source: Financial Services Mis-selling: Regulation and Redress)

Contact: Emma Radmore or Nicholas Ralph

Other Regulators/Authorities/Industry Associations

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

Basel Committee publishes weak banks guidelines: The Basel Committee has published its final guidelines for identifying and dealing with weak banks. The guidelines update the 2002 edition, and the changes from the earlier edition include:

  • emphasising the need for early intervention and the use of recovery and resolution tools, and updating supervisory communication policies for distressed banks;
  • providing further guidance for improving supervisory processes;
  • highlighting the issues of liquidity shortfalls, excessive risk concentrations, misaligned compensation and inadequate risk management; and
  • expanding guidelines for information-sharing and cooperation.

The report covers both the underlying supervisory preconditions for dealing with weak banks and techniques that will allow the supervisor to identify problems, and corrective measures for turning round or resolving banks. (Source: Basel Committee Publishes Weak Bank Guidelines)

Contact: Rosali Pretorius or Tom Harkus

Basel Committee consults on revised account opening guide: The Basel Committee is consulting on a revised version of the general guide to account opening, which was first published in February 2003. It plans to annex the new version to its "Sound management of risks related to money laundering and financing of terrorism" guidelines. The proposed guide is not intended to strengthen, weaken or otherwise modify the existing FATF standards but rather should support banks in implementing the FATF standards and guidance. Consultation closes on 22 October. (Source: Revised Guide to Account Opening for Consultation Issued by the Basel Committee)

Contact: Rosali Pretorius or Tom Harkus

Basel Committee issues market and CVA risk documents: The Basel Committee has issued instructions and the workbook for firms participating in its Quantitative Impact Study (QIS) on the Fundamental review of the trading book (FRTB) and the Review of the Credit Valuation Adjustment risk framework (CVA). Firms must report all data as of 30 June, unless the national supervisor provides alternative guidance. Banks will have until 14 September to fill in the requested templates and submit them to their national supervisory agency. In case of data quality issues, some questions/requests for clarification will be sent to the banks concerned. These banks will be asked to resubmit data to their National Supervisory Authority by 7 October. (Source: Basel 2 Monitoring)

Contact: Rosali Pretorius or Michael Wainwright

TheCity UK

TheCity UK consults on easier listings: TheCity UK has published its report on reviewing the European Listings regimes in the context of the Prospectus Directive review. One of many recommendations is to review the scope of "offer to the public" in the current Directive, to make it easier for SMEs to raise capital without feeling the full impact of regulation. (Source: TheCity UK Consults on Easier Listings)

Contact: Rosali Pretorius or David Cohen

Financial Action Task Force (FATF)

FATF reports on gold risks: FATF has published a report looking at the risks and vulnerabilities to money laundering and terrorist finance presented by the gold markets. The report includes case studies and red flag indicators to raise awareness of the key vulnerabilities of gold and the gold market. (Source: FATF Reports on Gold Risks)

Contact: Emma Radmore or Nicholas Ralph

International Swaps and Derivatives Association (ISDA)

ISDA publishes EMIR classification letter: ISDA has published a new classification letter that will enable counterparties to notify each other of their status for clearing and other regulatory requirements under EMIR. The ISDA EMIR Classification Letter and accompanying Guidance Note are available on the ISDA's EMIR Focus page on ISDA's website. (Source: ISDA Publishes EMIR Classification Letter)

Contact: Rosali Pretorius or Tom Harkus

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