ARTIFICIAL INTELLIGENCE IN THE FINANCIAL SECTOR
The European Commission's targeted consultation on artificial intelligence (AI) in the financial sector closes on 13 September 2024. The consultation included questions on the development of AI, specific use cases in finance and on the AI Act related to the financial sector.
The development and use of AI in the EU will be regulated by the AI Act. Watch the new series by our Technology and Innovation Group on the AI Act here: The EU AI Act.
BANK RESOLUTION
The EBA's consultation on the draft Handbook on independent valuers for resolution purposes runs until 19 September 2024. The EBA developed the handbook to improve the process of selecting independent valuers and facilitating its implementation by resolution authorities. The draft handbook also identifies some safeguards or measures which could be set in place to mitigate the effects of the potential conflict of interest or circumstances hampering the independence of the valuer.
CAPITAL REQUIREMENTS REGULATION
Commission Implementing Regulation (EU) 2024/855 which contains implementing technical standards (ITS) on supervisory reporting with regard to interest rate risk in the banking book (IRRBB) reporting requirements applies from 1 September 2024. It amends the ITS set out in Commission Implementing Regulation (EU) 2021/451 to provide supervisors with the appropriate data to monitor the IRRBB risks, such as changes in policy rates and the identification of outliers.
COMMERCIAL PAPER AND CERTIFICATES OF DEPOSIT
The European Commission is hosting a hybrid roundtable on EU markets for commercial paper and certificates of deposit on 11 September 2024. The Commission is hoping that the event will help it "gather evidence and insight into the functioning of short-term debt markets, identify potential avenues for improvement, and understand the role policymakers can play in addressing shortcomings".
EU BANKING PACKAGE
The EBA's consultation on the following three sets of draft regulatory technical standards (RTS) closes on 6 September 2024.
- RTS on establishing a risk taxonomy on operational risk (these give a list of operational risk event types, categories and attributes that institutions must use when recording operational risk loss events).
- RTS on the conditions under which it would be unduly burdensome for an institution to calculate the annual operational risk loss (these recognise cases when it would be disproportionate for an institution to promptly calculate the annual operational risk loss – in those cases, the draft RTS allow for a temporary waiver from the requirement to calculate the annual operational risk loss).
- RTS on the adjustments to an institution's loss data set (following the inclusion of losses from merged or acquired entities or activities provide indications on the currency and the risk taxonomy to be used when incorporating the loss data set of merged entities or activities).
EUROPEAN MARKETS INFRASTRUCTURE REGULATION (EMIR)
In March 2024, Commission Delegated Regulation (EU) 2024/818 amended Delegated Regulation (EU) 153/2013 relating to temporary emergency measures on collateral requirements under EMIR. Pending EMIR 3.0 coming into force (which contains specific provisions which will allow public guarantees to be considered eligible as highly liquid collateral (this is intended to benefit non-financial counterparties (NFCs) such as energy companies)), the March 2024 regulation further continued the existing temporary measures allowing for their use until 7 September 2024.
ESMA then issued a public statement on 10 July 2024 on deprioritising supervisory actions linked to the eligibility of uncollateralized public guarantees, public bank guarantees, and commercial bank guarantees for NFCs acting as clearing members, pending the entry into force of EMIR 3.0. This followed concerns expressed by stakeholders regarding the risks of letting the emergency measures lapse on 7 September 2024, thereby temporarily reducing the pool of eligible collateral for NFCs as clearing members, before the new provisions apply and the expansion of CCP eligible collateral for NFCs is made permanent with the entry into force of EMIR 3 (likely towards the end of 2024).
INSURANCE
The consultation by the International Association of Insurance Supervisors (IAIS) on a draft application paper on how to achieve fair treatment for diverse consumers closes on 25 September 2024. The draft application paper provides guidance on how supervisors, insurers and intermediaries can use a diversity, equality and inclusion perspective to interpret and fulfil existing requirements in Insurance Core Principle (ICP) 19 (Conduct of Business) to treat customers fairly (focusing on standards 19.1, 19.2 and 19.5). The recommendations in the draft application paper identify key opportunities to effectively implement the principle of fair treatment of customers so that a diverse range of customers experience fair treatment. They do not introduce new requirements.
INVESTMENT FIRMS
The Discussion Paper published by the EBA and ESMA on the potential review of the investment firms' prudential framework (in response to the European Commission's call for advice) closes on 3 September 2024. The EBA launched a voluntary data collection exercise in parallel with the discussion paper to assess the impact of the possible changes discussed in the paper. The discussion paper covers topics such as the adequacy of the current prudential requirements, an analysis of the existing methodology, and risks not covered by the current framework. It also looks at the implications of the adoption of the new EU Banking Package (CRR 3 and CRD VI) concerning the trading book, the fundamental review of the trading book, and credit valuation adjustments. Prudential consolidation and a possible extension to crowdfunding and crypto-assets service providers are also considered.
LIBOR TRANSITION
The 1-, 3- and 6-month synthetic US dollar LIBOR settings are expected to cease after publication on Monday 30 September 2024. These are the last remaining synthetic LIBOR settings and the last remaining LIBOR settings overall, so their cessation will mark the final milestone in the transition away from LIBOR.
MARKETS IN FINANCIAL INSTRUMENTS REGULATION (MIFIR)
Post-Trade Transparency: Under Article 21a of MiFIR (added earlier this year by the MiFIR Amending Regulation (Regulation (EU) 2024/791)) when a designated publishing entity (DPE) to an investment firm is party to a transaction, it is responsible for making the transaction public through an approved publication arrangement (APA). ESMA must establish a public register of all DPEs by 29 September 2024, specifying their identity and the classes of financial instruments for which they act as DPEs. However, MiFIR (as amended) doesn't contain a transitional regime for applying the DPE regime for post-trade transparency. ESMA published a statement on 22 July 2024 on the transition to the new regime for post-trade transparency of OTC-transactions in light of the amendments to MiFIR, in which it confirmed that ESMA and the national competent authorities (NCAs) have agreed that ESMA will start publishing the DPE register on 29 September 2024, and the new DPE regime for post-trade transparency will become fully operational on 3 February 2025. ESMA expects that, as of 3 February 2025, registered DPEs that are party to a transaction will make the transaction public through an APA. At the same time, ESMA expects that the current approach relying on systematic internalisers to make transactions public through an APA should stop. ESMA encouraged investment firms intending to become DPEs to register with their NCA, indicating the classes of financial instruments for which they wish to take up this function (these are listed in table 1 in the statement), along with other identifying information requested by the NCAs. NCAs will transmit the information regarding the DPEs for specific classes of financial instruments to ESMA so that the information is included in the future DPE public register. At the end of September 2024, ESMA will publish the list of DPEs based on the information received.
Consultation Deadlines: ESMA's third consultation package arising from the changes to MiFID II and MiFIR focused on equity transparency, volume caps, circuit breakers, systematic internaliser notifications, equity consolidated tape providers, and post-trade transparency flags for non-equity instruments. 15 September 2024 is the closing date for feedback on the following aspects of that consultation package:
- Technical advice to the Commission following changes to Commission Delegated Regulation 2017/567: ESMA recommended substituting free-float with market capitalisation, setting a market capitalisation threshold of at least €100 million for liquidity determination, classifying certain financial instruments as illiquid, using the number of trading days on the most relevant market in terms of liquidity to calculate various trading parameters, and adding provisions for IPO days to ensure consistent application of transparency parameters.
- Equity transparency (changes to RTS 1 and Commission Delegated Regulation 2017/567): This contains proposals to amend the calculation of average daily turnover, average daily number of transactions, and introduce market capitalisation as a parameter. Enhancements to pre-trade and post-trade transparency obligations are also included.
- Equity consolidated tape provider (CTP) (new RTS on input/output data): This contains specifications for data to be provided to and disseminated by CTPs, including core market data for both pre-trade and post-trade transparency.
- Flags for non-equity transparency (changes to RTS 2): This would introduce new deferral flags based on transaction size and liquidity, and additional flags for sovereign debt instruments.
ESMA will prepare a final report and intends to submit the technical advice and the draft technical standards for all of the above in December 2024.
PAYMENTS
The Financial Stability Board's consultations on Recommendations to Promote Alignment and Interoperability Across Data Frameworks Related to Cross-border Payments and Recommendations for Regulating and Supervising Bank and Non-bank Payment Service Providers Offering Cross-border Payment Services close on 9 September 2024.
The first consultation sets out recommendations for promoting alignment and interoperability across data frameworks applicable to cross-border payments. The recommendations deal with addressing uncertainty regarding how to balance regulatory and supervisory obligations; promoting the alignment and interoperability of regulatory and data requirements related to cross-border payments; mitigating restrictions on the flow of data related to payments across borders; and reducing barriers to innovation.
The second consultation looks at the role of banks and non-banks in cross-border payments; discusses the relevant frictions and risks; defines the principles identified based on the analysis conducted in the report, which frame the boundaries of the report's recommendations; and proposes specific recommendations for strengthening consistency in regulating and supervising banks and non-banks in their provision of cross-border payment services.
SECURITISATION REFORM
The European Commission's consultation on reforms to the EU Securitisation Regulation is expected in late September / early October 2024, following its 3 July 2024 workshop.
The Financial Stability Board's consultation on evaluating the effects of the G20 financial regulatory reforms on securitisation closes on 2 September 2024. Through the consultation, the FSB is looking to assess the extent to which risk retention and higher bank prudential requirements implemented to date have achieved their financial stability objectives, and to examine the broader effects of the G20 financial regulatory reforms on the functioning and structure of the securitisation markets and on the financing of the real economy.
SETTLEMENT
The following ESMA consultations on key aspects of CSDR Refit close on 9 September 2024:
- Information to be provided by European CSDs to their NCAs for review and evaluation (technical standards). The consultation suggests a harmonisation of the information to be shared by CSDs on their cross-border activities and the risks to be considered by the relevant authorities for the purpose of feeding the overall assessment of the competent authorities. ESMA plans to publish a final report and submit the draft technical standards to the Commission for endorsement by 17 January 2025.
- Information to be notified to ESMA by third-country CSDs (technical standards). ESMA is proposing to streamline the information to be notified, aiming for an accurate understanding of the provision of notary, central maintenance and settlement services in the EU and limiting the reporting burden. ESMA plans to publish a final report and submit the draft technical standards to the Commission for endorsement by 17 January 2025.
- The scope of settlement discipline (technical advice). This deals with ESMA's proposals on the underlying cause of settlement fails that are considered as not attributable to the participants in the transaction, and the circumstances in which operations are not considered as trading. ESMA plans to publish a final report and submit its technical advice to the Commission by 31 December 2024.
Separately, Commission Delegated Regulation (EU) 2023/1626 applies from 2 September 2024. It amends the existing regulatory technical standards under the CSDR on the penalty mechanism for settlement fails by moving the responsibility for the process of collecting and distributing penalties for settlement fails on cleared transactions from central counterparties to CSDs.
ESMA also plans to provide its technical advice to the Commission shortly arising from its December 2023 Consultation Paper on the penalty mechanism under the CSDR.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.