European Union: Financial Regulatory Developments (FReD) - May 22, 2015

The next edition of FReD will be published on 5 June 2015

HEADLINES

• EP approves MLD4
• Commission responds to EBA on CRD4 proportionality
• Commission consults on EMIR
• FCA fines Barclays for FX controls failings

EU AND INTERNATIONAL

European Parliament (EP)

EP approves benchmarks Regulation: EP has approved the draft Regulation designed to curb conflicts of interest in the benchmark setting process. The Economic and Monetary Affairs Committee had previously voted to approve it. Key provisions of the draft law include:

• a "college" of supervisors, including ESMA and other competent authorities, to oversee the setting of critical benchmarks that affect more than one country;
• critical benchmark administrators would have to have a clear organisational structure to prevent conflicts of interest, and be subject to effective control procedures;
• all benchmark administrators would have to register with ESMA and would have to publish a "benchmark statement" defining precisely what their benchmark measures and to what extent it is reliable. They would also have to publish or disclose existing and potential conflicts of interest and meet accountability, record keeping, audit and review requirements.

EP approval will now lead to trilogue talks between EP, the Commission and Member States with a view to having benchmark regulation ready for 2016. (Source: MEPs Voted for Robust and Transparent Benchmark Setting)

Contact: Rosali Pretorius or Michael Wainwright

EP approves MLD4: EP has approved in plenary session the fourth Money Laundering Directive and Payment Transfer Regulation (the MLD4 package). MLD4 should now appear in the OJEU around June or July, and, with a two-year implementation period, should become effective in mid-2017. (Source: EP Approves MLD4)

Contact: Emma Radmore or Tom Harkus

European Commission (Commission)

Commission responds to EBA on CRD4 proportionality: The Commission has responded to EBA's request for clarification as to the effect of the proportionality principle in Article 92(2) of the Capital Requirements Directive (CRD4) in respect of remuneration. The Commission agreed that the phrase "competent authorities shall ensure that institutions comply with these principles in a manner and to the extent that is appropriate to their size, internal organisation and the nature, scope and complexity of their activities" means that any discretion left to Member States and competent authorities must be exercised in compliance with the general EU principle of proportionality. It said this cannot justify a decision not to apply one or other rule contained, in this case, in the remuneration provisions in Article 94 of CRD4. The Commission thinks that, contrary to the interpretation by some EBA board members, national regulators and EBA cannot decide that certain rules adopted by the co-legislators do not apply. So, in relation to EBA's specific question on the implementation costs of the requirements on deferral and payment in instruments for small and non-complex institutions, the rules would apply uniformly to all those affected. EBA also hosted a public hearing on the draft guidelines on sound remuneration policies on 8 May. (Source: Commission Letter to EBA: Interpretation of Article 92(2) of CRD4  ̶ Remuneration Policies and EBA Slides for Presentation on Draft Guidelines on Sound Remuneration Policies)

Contact: Rosali Pretorius or Michael Wainwright

Commission consults on EMIR: The Commission has an obligation to review the Energy Market Infrastructure Regulation (EMIR), and has asked for feedback from stakeholders on their experiences in the implementation of EMIR to date. Feedback will help the Commission services to prepare their final report. The consultation closes on 18 August. (Source: Commission Consults on EMIR)

Contact: Rosali Pretorius or Tom Harkus

European Banking Authority (EBA)

EBA updates on correlated currencies: EBA has updated its December 2013 list of closely correlated currencies for the purposes of calculating the capital requirements for foreign exchange (FX) risk according to the standardised rules. (Source: EBA Updates List of Closely Correlated Currencies)

Contact: Rosali Pretorius or Michael Wainwright

EBA publishes resolution guidelines: EBA has published three sets of final guidelines which aim to facilitate the implementation of resolution tools in the banking industry. There are sets of guidelines for:

• the "sale of business tool": these guidelines outline the elements that national authorities should assess when determining whether they may deviate from the standard marketing requirements for the sale of the business of an institution under resolution on the grounds that the failure of the institution represents a material threat to financial stability and there is a conflict between the effectiveness of the tool and the marketing requirements;
• the "asset separation tool": these guidelines outline the three steps involved in analysing assets for the purposes of transferring them under the "asset separation tool" to an asset management vehicle ("bad bank"); and
• "necessary services": these guidelines define a minimum list of necessary "critical' services that Resolution Authorities may require from institutions under resolution.

These guidelines all stem from the Bank Resolution and Recovery Directive (BRRD) and are designed to encourage convergence on resolution matters by giving detailed guidance to Resolution Authorities regarding the circumstances they should assess before making any resolution decisions. (Source: EBA Issues Guidance on the Implementation of Resolution Tools)

Contact: Rosali Pretorius or Michael Wainwright

EBA plans retail payments initiative: EBA is preparing to develop requirements that will harmonise regulatory and supervisory practices to ensure secure, easy and efficient payment services across the EU. It will do so by issuing guidelines under the revised Payments Services Directive (PSD2) and the Interchange Fee Regulation. It has also issued final Guidelines for the security of internet payments that are applicable from 1 August. (Source: EBA Plans Retail Payments Initiative)

Contact: Nicholas Ralph or Josie Day

European Securities and Markets Authority (ESMA)

ESMA publishes CRA responses: ESMA published the responses to its call for evidence on competition, choice and conflicts of interest in the credit rating agency (CRA) industry. (Source: Call for Evidence Competition, Choice and Conflicts of Interests in the CRA Industry)

Contact: Ed Hickman or Iain Walker

ESMA publishes CCP opinion: ESMA has published an opinion on the composition of central counterparty (CCP) colleges. The opinion clarifies which authorities qualify as a college member under EMIR following the establishment of the Single Supervisory Mechanism (SSM). The opinion states that where the European Central Bank (ECB) takes over the direct prudential supervision of any of the clearing members of the CCP established in the three Member States with the largest contributions to the default fund of the CCP, it should join the college. (Source: ESMA Publishes CCP Opinion)

Contact: Luca Salerno or Tom Harkus

ESMA responds to Commission on CMU: ESMA has published its response to Commission's Green Paper on Building Capital Markets Union (CMU). ESMA says it supports the CMU initiative and its stated aim of increasing the role of non-bank institutions and the availability of varied funding sources in EU capital markets. ESMA has also shown how its main objectives of enhancing investor protection and promoting stable and orderly financial markets can contribute to CMU. It has also made specific suggestions on improvements in access to credit information for SMEs and increasing cross-border retail participation in investment funds such as UCITS. ESMA has also responded on:

• the Prospectus Directive: ESMA recommends an approach that facilitates easier access to capital while maintaining a robust level of investor protection. So the prospectus should be easier to understand and focus on its actual purpose while reducing the burden on issuers; and
• the consultation on securitisations: ESMA emphasises the need to assess the full impact of ongoing reforms and to provide investors with incentives to conduct adequate risk surveillance, monitor ongoing risks and perform thorough due diligence of their securitisation investments.

Source: ESMA Publishes Response to Capital Markets Union Green Paper)

Contact: Rosali Pretorius or Tom Harkus

Official Journal of the European Union (OJEU)

Interchange fees Regulation in OJEU: The Regulation on interchange fees for card-based payment transactions has been published in the OJEU. (Source: Regulation on Interchange Fees for Card-Based Payment Transactions)

Contact: Alex Haffner or Josie Day

ELTIFs regulation in OJEU: The Regulation on European long-term investment funds (ELTIFs) has been published in the OJEU. (Source: Regulation on ELTIFs)

Contact: Rosali Pretorius or Kam Dhillon

UK GOVERNMENT AND PARLIAMENT

HM Treasury (Treasury)

Treasury announces Summer Budget date: George Osborne has announced that there will be a Summer Budget on Wednesday 8 July. (Source: Chancellor Announces Summer Budget Date)

Contact: Rosali Pretorius or Michael Wainwright

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

Contact: Emma Radmore or Juan Jose Manchado

Financial Markets Law Committee (FMLC)

FMLC comments on ESMA consultation on CCP access: FMLC has responded to ESMA's consultation on the provisions of the revised Markets in Financial Instruments Directive (MiFID 2) and Regulation (MiFIR) on non-discriminatory access to central counterparties (CCPs) and trading venues. FMLC thinks several issues need clarification. It notes these as:

• the interpretation of the meaning of "economically equivalent";
• the non-discriminatory netting obligations applicable to CCPs;
• potential conflicts of the non-discriminatory access to CCPs provisions with existing legislation such as the European Market Infrastructure Regulation (EMIR) and the obligations of the regulated markets under MiFID 2 and MiFIR;
• the grounds for refusal of access by CCPs and trading venues for their respective non-discriminatory access provisions; and
• the criteria for the approval of access by the relevant competent authorities.

This paper has endeavoured to address these issues, proposing solutions for ESMA's further consideration, where possible. (Source: FMLC comments on ESMA consultation on CCP access)

Contact: Rosali Pretorius or Tom Harkus

Serious Fraud Office (SFO)

SFO speaks on engagement with corporates: Ben Morgan has spoken to a mining compliance conference on the benefits of engaging with SFO where companies suspect corruption. He discussed the dangers of corporates failing to report problems, versus the benefits of constructive engagement with SFO. (Source: SFO Speaks on Engagement with Corporates)

Contact: Emma Radmore or Nicholas Ralph

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Financial Conduct Authority (FCA)

FCA fines Barclays for FX controls failings: FCA has levied a record £284,432,000 fine on Barclays Bank PLC (Barclays) for failing to control business practices in its London FX business. FCA said the failing was particularly serious in light of its potential impact on the systemically important spot FX market. The failings occurred in Barclays' London voice trading FX business, were extensive, and lasted from January 2008 to October 2013. FCA found:

• the failings in systems and controls gave traders the opportunity to engage in behaviours that put Barclays' interests ahead of those of its clients, other market participants and the wider UK financial system;
• inappropriate activities included inappropriately sharing information about clients' activities and attempting to manipulate spot FX currency rates;
• Barclays primarily relied on its front office FX business to identify, assess and manage the relevant risks, but the front office did not see obvious risks. Moreover, some of those responsible for front office management were aware of or at times involved in the misconduct;
• collusion with other banks' traders, through which traders determined their trading strategies, and attempted to manipulate fix rates and trigger client stop loss orders;
• the control failings also meant that traders had the opportunity to benefit Barclays' trading positions in FX options by attempting to manipulate fix or spot FX market rates to prevent Barclays' clients from receiving pay-outs from the options they had purchased from Barclays;
• examples of inappropriate sharing of confidential information by spot FX traders and sales staff; and
• the failings persisted despite enforcement action against Barclays for similar control failings in relation to LIBOR and the Gold fixing.

FCA noted that Barclays was open and cooperative during the investigation and benefited from a 20% discount for settling at stage 2 of the investigation. (Source: FCA Fines Barclays for FX Control Failings)

Contact: Richard Caird or Katharine Harle

FCA fines and bans adviser: FCA has fined Paul Reynolds £290,344 and banned him for lack of integrity. It found that, over a five-year period, he recommended complex and high-risk products to clients, many of whom were on low incomes and had little or no investment experience, in circumstances where he could not justify that the investments were suitable. FCA found letters on file that clients had not received, and evidence that clients did not know they had invested in unregulated investments or the risks of having done so. (Source: FCA Fines and Bans Adviser)

Contact: Emma Radmore or Nicholas Ralph

FCA issues data bulletin: FCA has published the May issue of its data bulletin. This issue contains items on:

• the FCA Contact Centre;
• complaints about firms;
• approved persons; and
• skilled person reports.

(Source: Data Bulletin: May Issue (Issue 3))

Contact: Emma Radmore or Josie Day

FCA takes action against debt management firms: FCA has issued supervisory notices against three debt management firms: Sterling Financial Security Limited, Haydon Associates Debt Management Consultants Limited and Clear View Finance Limited. All three firms are no longer permitted to provide debt management services. Most customers of the firms had been paying 90% of their monthly payments in fees and the firms failed to comply with FCA's requirement to provide written statements to customers setting out their debt position. FCA is reviewing the authorisation of all firms providing debt adjusting or debt counselling as firms transition from interim to full permission. (Source: FCA Warns Clients of Three Debt Management Firms to Review Their Debts)

Contact: Emma Radmore or Josie Day

Prudential Regulation Authority (PRA)

PRA speaks on financial crisis response: Andrew Bailey, CEO of PRA, has spoken on the role of financial markets and non-bank institutions in the recent financial crisis and the important role that they can play in the global economy if properly regulated. He identified three key developments following the crisis:

• the rapid growth in bond markets while trading volumes in many markets have fallen, which has led to growth in markets but less capacity to maintain liquidity;
• the high degree of monetary policy easing by central banks, which has led to a fall in market volatility; and
• the impact of the growth of automated trading and how this poses a challenge when attempting to maintain continuous market liquidity.

He then went on to identify and detail six areas where action is already under way by regulators to reduce impediments to the development of diverse and sustainable market-based finance:

• identifying risks that can appear in financial markets and the non-bank financial systems and how these can affect the critical functions performed by banks: Band of England (BoE) and PRA will stress test how fast banks could unwind or hedge their trading positions in the stress scenario;
• BoE, alongside FCA and Treasury, has set up the Fair and Effective Markets Review to restore confidence in the fixed income, currency and commodity markets;
• the setting up of initiatives to improve the functioning of markets to support activity in the real economy: for example, the Commission's Capital Markets Union;
• the introduction of "haircuts" to securities and financing transactions that are not centrally cleared to prevent excessive leverage becoming available to shadow banks in a boom, thereby reducing the procyclicality of that leverage;
• various actions to address the risk of asset managers offering short-term redemptions to investors against potentially illiquid securities; and
• central banks can back-stop market liquidity by acting as market makers of the last resort.

He concluded by saying that in order to understand potential risks regulators should first focus on the activities from which these risks arise before moving on to the entities housing those activities. (Source: Financial Markets: Identifying Risks and Appropriate Responses)

Contact: Emma Radmore or Josie Day

PRA amends account protection statements: Following consultation, PRA has published amendments to both its Policy Statement and its Supervisory Statement on depositor and dormant accounts protection. The changes include:

• a new definition of "public authority";
• extending deposit protection to deposits held by local authorities with an annual budget of up to €500,000;
• amendments to the template exclusions list to add clarity to the requirement that firms should ensure that depositors are informed about the deposits or categories of deposits or other instruments no longer covered by a deposit guarantee scheme from 3 July;
• guidance on continuity of access system requirements that now cover accounts which are in overdraft; and
• a requirement on deposit-takers to provide information to the Financial Services Compensation Scheme in respect of dormant account funds transferred to a dormant account fund operator.

PRA also asks firms to note that, in response to queries to the Depositor Protection rules published in April, it will consult further later in the year on clarifications and administrative amendments. (Source: Depositor and Dormant Account Protection  ̶ Further Amendments)

Contact: Michael Wainwright or Josie Day

PRA consults on board responsibilities: PRA is consulting on a draft supervisory statement to help firms strengthen their corporate governance. PRA says the statement is not a comprehensive good practice guide, but underscores the collective responsibilities of board members, and complements PRA's new requirements for senior managers in banks and insurance firms. The statement sets out PRA's expectations on:

• setting strategy;
• culture;
• risk appetite and risk management;
• board composition;
• the respective roles of executive and non-executive directors;
• knowledge and experience of non-executive directors;
• board time and resources;
• management information and transparency;
• succession planning;
• remuneration;
• subsidiary boards; and
• board committees.

PRA asks for comment by 14 September. (Source: PRA Consults on Board Responsibilities)

Contact:Michael Wainwright or Katharine Harle

Payment Systems Regulator (PSR)

PSR delays fees consultation deadline: PSR has published a supplementary paper to its consultation on fees and levies which provides clarification on the consultation and extends the deadline for responses from 18 May to 29 May. The supplementary paper also provides additional information on:

• the scope of the payment systems regulated under the Financial Services (Banking Reform) Act 2013 and on which PSR fees will be levied;
• how PSR will use the transaction data collected; and
• commentary on the onward allocation of PSR fees by Payment Systems' Operators to system's direct members.

(Source: Timeframe Extended for Responding to Consultation on PSR Fees)

Contact: Nicholas Ralph or Josie Day

Competition and Markets Authority (CMA)

CMA consults on NI banking review: CMA has published a consultation paper asking any interested parties to comment, with evidence, on whether CMA should review the Northern Ireland (NI) personal current account (PCA) Banking Market Investigation Order 2008, which it last reviewed in 2011. CMA will use the evidence received and conduct its own analysis to make a decision as to whether or it will undertake a further review. (Source: Competition – Open Consultation: NI PCA Banking Market Investigation Order 2008)

Contact: Emma Radmore or Josie Day

Financial Ombudsman Service (FOS)

FOS publishes annual review: On its 15th anniversary FOS has published its 2014/15 annual review. Statistics from the review show that:

• since 2001 FOS has received 2.8 million complaints of which 1.3 million have been about payment protection insurance (PPI);
• during 2014/15 20% of initial complaints developed into a formal dispute  ̶ 329,509 in total;
• 55% of cases were resolved in the consumer's favour in 2014/15;
• PPI still made up 66% of FOS's workload in 2014/15 despite the number of PPI complaints halving to 204,943 from the record highs of 2013/14;
• during 2014/15 FOS settled 448,387 disputes;
• during 2014/15 FOS resolved 20% of disputes using its webchat service alone;
• four of the UK's largest banking groups accounted for 58% of all complaints; and
• people from Bolton were the most likely to phone FOS and those from the North East were most likely to complain about PPI.

(Source: The Ombudsman at Fifteen – Lessons from the Past, Looking to the Future)

Contact: Emma Radmore or Josie Day

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

Pensions Ombudsman (PO)

PO rejects due diligence complaint: PO has rejected the application made by Mr Michael Beasley against Berkeley Burke SIPP Administration Ltd (BB) in respect of the Berkeley Burke Private Pension Plan. Mr Beasley complained that BB had failed to carry out sufficient due diligence into his investments into Green Oil Plantations and Harlequin Property, both of which had subsequent financial difficulties. BB had provided Mr Beasley with a variety of documentation that clearly stated that BB was not authorised to provide investment advice. It had stated its sole responsibility was to ensure the investments met the requirements of HM Revenue and Customs for SIPP investments, and had said Mr Beasley should take professional advice on the suitability of the investments. PO found for BB, saying it had made the limits of its role clear and had no duty to carry out the level of due diligence described by Mr Beasley on investments that he had himself entered into. (Source: Ombudsman's Decision in Beasley v. Berkeley Burke)

Contact: Emma Radmore or Josie Day

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