Weekly highlights—10 January 2019

10 Jan 2019 | 55 min read

Brexit

 

Commission Decision determining equivalence of UK regulatory framework for central securities depositaries published in Official Journal

Commission Implementing Decision (EU) 2018/2030 of 19 December 2018 determining, for a limited period of time, that the regulatory framework applicable to central securities depositories (CSDs) of the United Kingdom of Great Britain and Northern Ireland is equivalent in accordance with the Central Securities Depositaries Regulation (EU) No 909/2014 (CSDR) of the European Parliament and of the Council published in the Official Journal. Pursuant to the Decision, the regulatory framework applicable to UK CSDs will be considered equivalent under the CSDR for two years following the UK’s withdrawal from the EU.

Commission Decision determining equivalence of UK regulatory framework for central counterparties under EMIR published in Official Journal

Commission Implementing Decision (EU) 2018/2031 of 19 December 2018 determining, for a limited period of time, that the regulatory framework applicable to central counterparties (CCPs) in the United Kingdom of Great Britain and Northern Ireland is equivalent, in accordance with the European Market Infrastructure Regulation (EU) No 648/2012 (EMIR) of the European Parliament and of the Council was published in the Official Journal. Pursuant to the Decision, the regulatory framework applicable to UK CCPs will be considered equivalent under EMIR for one year following the UK’s withdrawal from the EU.

Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018

SI 2018/1403: This enactment is made in exercise of legislative powers under the European Communities Act 1972 and the European Union (Withdrawal) Act 2018 in preparation for Brexit. This enactment amends key pieces of UK domestic law and EU tertiary legislation in relation to markets in financial instruments arising from the withdrawal of the UK from the EU, to ensure that the legislation continues to operate effectively at the point at which the UK leaves the EU. It comes into force partly on 20 December 2018 and fully on exit day (Updated from draft on 21 December 2018).

Capital Requirements (Amendment) (EU Exit) Regulations 2018

SI 2018/1401: This enactment is made in exercise of legislative powers under the European Communities Act 1972 and European Union (Withdrawal) Act 2018 in preparation for Brexit. This enactment amends subordinate legislation and EU regulations in relation to capital requirements in order to address deficiencies in retained EU law arising from the withdrawal of the UK from the EU. This instrument will therefore act to ensure that the UK’s capital requirements regime continues to operate as intended in the UK once the UK leaves the EU. It comes into force partly on 20 December 2018 and fully on exit day (Updated from draft on 21 December 2018).

Bank Recovery and Resolution and Miscellaneous Provisions (Amendment) (EU Exit) Regulations 2018

SI 2018/1394: This enactment is made in exercise of legislative powers under the European Communities Act 1972 and the European Union (Withdrawal) Act 2018 in preparation for Brexit. This enactment amends and repeals UK primary and subordinate legislation and retained EU legislation in relation to recovery and resolution of credit institutions and investment firms in order to address deficiencies in retained EU law arising from the withdrawal of the UK from the EU. The amendments and repeals are made to bring up to date certain references in the relevant legislation to the European legislation, ensuring the legislation continues to operate effectively at the point at which the UK leaves the EU. It comes into force partly on 21 December 2018 and fully on exit day (Updated from draft 20 December 2018).

Solvency 2 and Insurance (Amendment, etc) (EU Exit) Regulations 2019

SI 2019/Draft: This draft enactment is laid in exercise of legislative powers under the European Union (Withdrawal) Act 2018 in preparation for Brexit. This draft enactment proposes to amend UK primary and subordinate legislation and retained direct EU legislation in relation to the prudential regulation of the insurance sector. The proposed amendments are made in order to address deficiencies in retained EU law arising from the withdrawal of the UK from the EU, ensuring the legislation continues to operate effectively once the UK leaves the EU.

Mortgage Credit (Amendment) (EU Exit) Regulations 2019

SI 2019/Draft: This draft enactment is laid in exercise of legislative powers under the European Union (Withdrawal) Act 2018 in preparation for Brexit. This draft enactment proposes to amend UK subordinate legislation and revoke retained direct EU legislation in relation to the EU’s framework of conduct rules for mortgage firms. The proposed amendments are made in order to address deficiencies in retained EU law, arising from the withdrawal of the UK from the EU, ensuring the legislation continues to operate effectively once the UK leaves the EU. It comes into force on exit day.

Insurance Distribution (Amendment) (EU Exit) Regulations 2019

SI 2019/Draft: This draft enactment is laid in exercise of legislative powers under the European Union (Withdrawal) Act 2018 in preparation for Brexit. This draft enactment proposes to amend retained direct EU legislation relating to the Insurance Distribution Directive 2016/97/EU (IDD) of the European Parliament and of the Council of 20 January 2016 on insurance distribution. The proposed amendments are made in order to address deficiencies in retained EU law, arising from the withdrawal of the UK from the EU, ensuring the legislation continues to operate effectively once the UK leaves the EU. It comes into force on exit day.

Draft Public Record, Disclosure of Information and Co-operation (Financial Services) (Amendment) (EU Exit) Regulations 2019—9 January 2019

HM Treasury published the draft Public Record, Disclosure of Information and Co-operation (Financial Services) (Amendment) (EU Exit) Regulations 2019 statutory instrument (SI) and explanatory information on 9 January 2019. The SI will make amendments to domestic legislation and retained EU law relating to the disclosure of confidential information to ensure that the legal framework can operate effectively in a UK context once the UK leaves the EU, in any scenario. Minor technical amendments to the legislative framework are also made under the European Communities Act 1972, the Financial Services and Markets Act 2000 and the Financial Services (Banking Reform) Act 2013. HM Treasury intends to lay the SI before Parliament before exit day. The changes made in the SI would not take effect on 29 March 2019 if the UK enters an implementation period.

Brexit Financial Services draft SI for Draft Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 published—8 January 2019

HM Treasury published the draft Benchmarks (Amendment and Transitional Provision) (EU Exit) Regulations 2019 to add to the explanatory information which was published on 23 November 2018. The SI will make amendments to retained EU law relating to financial benchmarks to be laid under the EU (Withdrawal) Act. HM Treasury intends to lay the SI before Parliament before exit.

Brexit SI Bulletin—latest drafts and sifting committee recommendations, 21 December 2018

The Commons European Statutory Instruments Committee (ESIC) and the Lords Secondary Legislation Scrutiny Committee (SLSC) are responsible for the sifting process under the European Union (Withdrawal) Act 2018 (EU(W)A 2018). These committees scrutinise proposed negative Brexit SIs and make recommendations on the appropriate parliamentary procedure before the instruments are laid in Parliament. This bulletin outlines the latest updates and recommendations, collated on 21 December 2018, including in relation to the Investment Exchanges, Clearing Houses and Central Securities Depositories (Amendment) (EU Exit) Regulations 2018, the Credit Institutions and Insurance Undertaking Reorganisation and Winding Up (Amendment) (EU Exit) Regulations 2018 and the draft Market Abuse (Amendment) (EU Exit) Regulations 2018. The committees will resume their scrutiny of Brexit SIs following the Christmas recess in the week commencing 7 January 2019, and our next bulletin on sifting committee recommendations will be collated on 11 January 2019.

HM Treasury publishes updated guidance on no-deal Brexit for financial services

HM Treasury published an updated version of its guidance on banking, insurance and other financial services if there is no Brexit deal. The guidance sets out the government's approach to ensuring a functioning financial services regulatory framework if the UK leaves the EU without a withdrawal agreement, which includes a proposed new economic and regulatory arrangement with the EU to maintain the economic benefits of cross-border provision of the most important international financial services traded between the UK and EU countries.

HM Treasury publishes further update to guidance on no-deal Brexit for financial services

HM Treasury published a further updated version of its guidance on banking, insurance and other financial services if there is no Brexit deal. The updated guidance provides information on financial services such as banking, insurance, personal pensions and annuities for UK residents and businesses, people living in the EEA and financial services institutions if the UK leaves the EU without a withdrawal agreement.

Hard Brexit may push up transfer costs and bank scams, UK government says

Payments received by UK businesses from credit cards issued by European Union banks are likely to become costlier if Britain leaves the bloc without a transition deal, the British government warned. British consumers and sellers could face delays and extra expense when dealing with European companies if the UK crashes out of the bloc on March 29, the government said. Its warning came in an advisory note issued 80 days before Brexit, as banks, insurers and their customers brace for the risks of a no-deal departure. ‘The cost of card payments between the UK and EU will likely increase,’ the Treasury said, adding that Brexit will sweep away a ban that protects British consumers from being charged when they use specific methods for cross-border payments. British residents making payments or transfers in euros face similar risks, the government said.

US and UK sign bilateral agreement on prudential measures regarding insurance and reinsurance

The US and UK governments announced that the bilateral agreement between the US and the UK on prudential measures regarding insurance and reinsurance (the US-UK covered agreement) was signed on 18 December 2018. In a joint statement, the two governments said that the agreement is an important step in providing regulatory certainty and market continuity when the UK is no longer subject to the EU-US covered agreement, which was signed in September 2017.

MPs lack the facts for key Brexit vote, committee warns

The Treasury Committee published a letter from Chancellor of the Exchequer, Philip Hammond, in response to the Treasury Committee’s report on the Withdrawal Agreement and Political Declaration, published on 11 December 2018. In his response to the report which suggested that the government's analysis did not assess the short-term impact of EU exit or the temporary Backstop scenario, the Chancellor noted that the economic model used by the cross-Government group to assess the economic effects of different Brexit scenarios is not well suited to analysis of short-term developments. However, the Bank of England (BoE) published analysis on 28 November at the request of the Committee which assessed how Brexit could affect the UK economy over a five-year horizon.

Meeting of BoE Governor and Chancellor of Exchequer focuses on Brexit, November Financial Stability Report

record of the meeting on 12 December 2018 between Mark Carney, Governor of the BoE and Philip Hammond, Chancellor of the Exchequer, was published. The meeting focused on Brexit, the November 2018 Financial Stability Report and the 2018 stress test of the UK banking sector. Mr Carney highlighted that since the EU referendum in 2016, the Financial Policy Committee (FPC) and other authorities identified risks of disruption to the financial system that could arise from Brexit and worked to ensure they are addressed.

BoE and PRA publish Consultation Paper (CP32/18) on Brexit-related changes to PRA Rulebook and technical standards

The BoE published Consultation Paper (CP) 32/18 (CP32/18) setting out changes proposed by the Prudential Regulation Authority (PRA) to the PRA Rulebook and Binding Technical Standards (BTS) and changes proposed by the BoE to two BTS under the Bank Recovery and Resolution Directive 2014/59/EU (BRRD) to fix deficiencies arising from Brexit.

PRA and FCA clarify application of SM&CR to firms in the temporary permissions regime

The PRA and the Financial Conduct Authority (FCA) issued a note clarifying the interaction between the PRA's proposals for applying the Senior Managers and Certification Regime (SM&CR) to firms in the temporary permissions regime (TPR) as set out in paragraphs 7.8 to 7.12 of the PRA's CP26/18 'UK withdrawal from the EU: Changes to PRA Rulebook and onshored Binding Technical Standards' and summarised on the BoE's dedicated webpage for the TPR, and the FCA's equivalent proposals in paragraphs 4.92 to 4.97 of the FCA's CP18/29 'Temporary permissions regime for inbound firms and funds'. The note includes a set of FAQs on how the two sets of proposals would apply to dual-regulated, EEA firms currently operating in the UK via an establishment passport through a branch.

FCA publishes Consultation Papers (CP19/1 and CP19/2) on preparations for Brexit

The FCA published two new consultations, CP19/1 and CP19/2, as a further step in its preparations for Brexit. The first, CP19/1, sets out the FCA's proposed fees for regulating securitisation repositories after Brexit. The second, CP19/2, details the FCA's proposals for implementing the financial services contracts regime (FSCR) so that EEA firms can fulfil their existing contractual obligations in the UK in the event of a no-deal Brexit.

FCA publishes information on temporary authorisation regime notification process for DRSPs

The FCA updated its webpage 'Brexit—Temporary authorisation regime for data reporting services providers (DRSPs)' to provide information on the notification process for DRSPs entering the temporary authorisation regime. The Data Reporting Services Regulations 2017, amended by the Markets in Financial Instruments (Amendments) (EU Exit) Regulations 2018, provide that an entity established and authorised under the Markets in Financial Instruments Directive (2014/65/EU) (MiFID II) to provide data reporting services in an EEA Member State can notify the FCA that it wishes to provide a data reporting service in the UK from exit day.

FCA announces that the notification window for the temporary permissions regime is open

The FCA announced that the notification window for the TPR opened on 7 January 2019 and will remain open until 28 March 2019. The regime will allow EEA-based firms currently passporting into the UK to continue new and existing regulated business within the scope of their current permissions in the UK for a limited period, while they seek full FCA authorisation, if the UK leaves the EU on exit day without an implementation period in place. It will also allow EEA-domiciled investment funds that market in the UK under a passport to continue temporarily marketing in the UK.

FCA statement on treatment of Gibraltar in Handbook after Brexit

The FCA published a statement confirming that it will, as part of its preparations for Brexit, make a rule to preserve the existing treatment of Gibraltar in the FCA Handbook post-Brexit. This position is in line with the Government's commitment that Gibraltar financial services firms should, until December 2020, enjoy the same market access in the UK as they do now.

ISDA responds to PRA Brexit Consultation Papers (CP 25/18 and CP26/18)

The International Swaps and Derivatives Association (ISDA) submitted its responses to the PRA’s CP25/18 and  CP26/18 relating to Brexit. CP25/18 sets out the BoE’s approach to amending financial services legislation under the European Union (Withdrawal) Act 2018 and CP26/18 sets out proposed Brexit-related changes to the PRA Rulebook and onshored BTS.

ISDA responds to FCA's second Consultation Paper (CP18/36) on Brexit

ISDA submitted its response to the FCA’s CP18/36 on proposed Brexit-related changes to the FCA Handbook and BTS. The response sets out ISDA's feedback on the FCA's proposed approach, requests confirmations from the FCA in relation to transitional relief and sets out additional areas where ISDA is concerned that treating the EEA as a third country would result in a 'cliff edge' on Brexit day.

UK Finance responds to PRA Brexit consultation papers (CP 25/18 and CP26/18)

UK Finance responded to the PRA’s CP25/18 and CP26/18 on proposed changes to its Rulebook in the event of a no-deal Brexit. UK Finance's response is supportive of the work undertaken by the PRA and the BoE and highlights several areas where further clarity or extended transition periods would be helpful. UK Finance also published an article by Simon Hills, Director of UK Finance Prudential Policy, summarising UK Finance's position.

FMLC raises issues regarding the draft Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018

The Financial Markets Law Committee (FMLC) published a paper considering the legal uncertainties arising from the changes proposed by the draft Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018. The FMLC highlighted complexities related to references to other legislation, the new requirement to determine whether EU regulatory requirements are of 'equivalent effect', information and thresholds published in the EU after exit day, and the new powers and functions given to the FCA.

FMLC Letter to HM Treasury regarding 'in-flight' legislation in event of no-deal Brexit

The FMLC published a letter, dated 3 January 2019, from Joanna Perkins, FMLC Chief Executive, to Hal Hainsworth, Policy Advisor at HM Treasury regarding the Financial Services (Implementation of Legislation) Bill. The Bill provides the power to HM Treasury, in the event that no deal is agreed between the UK and EU, to implement and make changes to a category of legislation which the Bill describes as 'in-flight'. The FMLC, in this letter, raised two issues of uncertainty arising from this proposal.

UK finance sector shifts £800bn in assets to EU, report says

Companies in Britain’s financial services sector transferred assets worth almost £800bn ($1trn) from the UK to rival cities in the European Union since the Brexit referendum, according to a report from the EY accounting firm published Monday. The report, which tracked the Brexit preparations of 222 financial services and insurance firms since Britain voted in June 2016 to leave the EU, found that 80 companies confirmed that they are relocating assets and staff to the continent, or are considering doing so.

Insurers QBE and Chubb confirm relocation plans ahead of Brexit

On 3 January 2019, Chubb European Group and QBE European Operations both confirmed that they finalised Brexit relocation plans by transferring their UK cross-border contracts or offices to the EU, adding to the list of insurers and reinsurers relocating ahead of Britain's withdrawal from the EU. Chubb European Group, a publicly traded property and casualty insurer that operates in 54 countries, said it relocated its business from London to France in preparation for Brexit in March. Meanwhile QBE European Operations also announced plans to shift its UK managed general business insurance policies for European Union customers through its branches in continental Europe.

 

Financial Conduct Authority updates

 

FCA policy development update for January 2019

The FCA published the latest version of its policy development update, which provides information on its recent and upcoming publications. Future developments include a new consultation on recovering the costs of regulating securitisation repositories after Brexit and a consultation and discussion on the investment platforms market study remedies.

FCA publishes Conflicts of Interest Policy for FCA/PSR employees

The FCA published its Conflicts of Interest Policy, applicable to employees of the FCA and Payment Systems Regulator (PSR). Breaches of the policy may result in disciplinary action or dismissal. The processes and controls associated with the conflicts of interest policy are designed to prevent issues including loss of public confidence that FCA decision-making is objective, impartial and independent, and employees failing to recognise, declare and manage any potential conflict of interests.

FCA sets out framework for evaluating impact of past interventions

The FCA published a paper setting out its framework for measuring the impact of past interventions using ex post impact evaluations. It incorporates views received in response to the FCA's discussion paper (DP) 18/3 of April 2018, which the FCA summarised in a feedback statement. The FCA published DP18/3 on 9 April 2018. The consultation ran until 9 July 2018. DP18/3 set out the FCA's intended approach to ex post impact evaluation and sought views on its proposed framework.

 

Prudential requirements

 

Council of the EU publishes Presidency compromise texts on Regulation and Directive on prudential requirements for investment firms

The Council of the EU published Presidency compromise texts on the proposed Regulation on the prudential requirements of investment firms and amending the Capital Requirements Regulation (EU) 575/2013 (CRR), the Markets in Financial Instruments Regulation (EU) 600/2014 (MiFIR) and the European Banking Authority Regulation (EU) 1093/2010, and the proposed Directive on the prudential supervision of investment firms and amending the Capital Requirements Directive 2013/36/EU (CRD IV) and MiFID II.

Council invites Coreper to approve final text of regulation addressing non-performing exposures

The General Secretariat of the Council of the EU invited the Permanent Representatives Committee (COREPER) to approve the final compromise text of the proposed regulation amending the CRR as regards minimum loss coverage for non-performing exposures (NPEs). The text was provisionally agreed with the European Parliament on 18 December 2018.

Commission issues corrected version of third progress report on the reduction of NPLs

The European Commission issued a corrigendum to the English language version of its third progress report on the reduction of non-performing loans (NPLs) and further risk reduction in the Banking Union, published in November 2018. The new version corrects a typo in point 3.4 of the report.

EBA responds to questions on reclassification of grandfathered own funds instruments

The European Banking Authority (EBA) published a response to two letters it received from the law firm Akin Gump LLP regarding the redesignation by HSBC Holdings plc (announced on 4 May 2018) of just under US$2bn of discount perpetual Tier 2 capital securities. The letters, which were sent to the EBA on 8 June and 19 July 2018, raised some specific questions relating to their eligibility as Tier 2 capital and MREL liabilities, respectively.

 

Regulatory architecture

 

European Court of Auditors reports on SRB's, Commission's and Council's contingent liabilities

The Single Resolution Board (SRB) and the European Commission should continuously assess their financial risks and accounting thereof, arising from contingent liabilities related to bank-resolution lawsuits as from their 2018 accounts, according to a new report by the European Court of Auditors. The auditors reviewed the possible obligations of the SRB, Commission and Council arising from pending litigation against their actions in resolving failing or likely-to-fail banks in the euro area. They call for improved management of financial risks deriving from these litigation since the number of court cases could increase further.

ESMA is seeking corporate reporting experts for stakeholder panel

The European Securities and Markets Authority (ESMA) issued a press release containing a call for candidates in order to renew the composition of its consultative working group which advises ESMA's Corporate Reporting Standing Committee (CRSC). The CRSC undertakes ESMA's work on issues related to accounting (under International Financial Reporting Standards (IFRS)), audit, periodic financial reporting, electronic reporting developments and storage of regulated information.

Appointments of external members to FPC announced

The Chancellor, Philip Hammond, announced the appointment of Dame Colette Bowe and Dame Jayne-Anne Gadhia as external members of the BoE's FPC. Dame Colette and Dame Jayne-Anne will replace Richard Sharp and Martin Taylor, who are stepping down at the end of Q1 2019 and Q2 2019 respectively. Dame Jayne-Anne will take up her role in time for the FPC's Q2 2019 round of meetings, with Dame Colette taking up her role in time for the FPC's Q3 2019 round of meetings. Both Dame Colette and Dame Jayne-Anne will serve three-year terms.

PRA publishes PS33/18 with final rules, amended Branch Return form and feedback on CP24/18

The PRA published Policy Statement (PS) 33/18, which provides feedback to responses to Chapter 2 of CP24/18 'Occasional Consultation Paper' and includes the final rules and Branch Return form. The final rules amend the Incoming Firms and Third Country Firms Part of the PRA Rulebook. The revised rules and Branch Return form will take effect from 1 January 2019.

 

Authorisation, approval and supervision

 

PRA publishes Policy Statement (PS1/19) and updates Supervisory Statement (34/15) on liquidity reporting

The PRA published a PS1/19 setting out its feedback on CP22/18 on liquidity reporting under FSA047 and FSA048 and the proposal in CP16/18 on regulatory reporting to correct the level of consolidation of the PRA110 reporting requirements. PS1/19 also sets out the PRA's final policy on amending the Regulatory Reporting Part of the PRA Rulebook and updating the guidelines for completing regulatory reports in Supervisory Statement (SS) 34/15.

FCA publishes fees information

​The FCA published several guidance sheets which provide details on the data to include within a firm's fee tariff data submission. The FCA gave links to relevant parts of the Handbook to help complete the form correctly. The FCA needs this fees information to calculate a firm's Financial Guidance Levy debt advice, which replaces the Money Advice Service debt advice levy. The levy continues to be based on value of lending. The guidance sheets relate to:

CMCs can now register for temporary FCA permission to continue operating

From April 2019, claims management companies (CMCs) will need to be authorised by the FCA to continue operating legally. Those companies can now register with the FCA for the temporary permission they will need to allow them to operate from April 2019 until they are fully FCA-authorised. The requirement to be FCA-authorised from April 2019 will apply to all CMCs set up or serving customers in England, Scotland and Wales. This will mean some CMCs, including those incorporated in Scotland and serving Scottish customers only, will need to be authorised and regulated for the first time. The FCA published its rules that will apply to CMCs in PS18/23 in December 2018.

ECB publishes consolidated Guide to assessments of licence applications

The European Central Bank (ECB) published a consolidated version of the Guide to assessments of license applications. This text, which is not legally binding, combines the content of the first guide published in March 2018 and that of Part 2, the public consultation for which ended on 25 October 2018. The consolidated guide is intended as a practical tool to support those involved in the process of authorisation and to ensure a smooth and effective procedure and assessment.

 

Risk management and controls

 

Government updates European Scrutiny Committee on progress of proposed Whistleblowing Directive

The Government published a letter sent by Kelly Tolhurst, Minister for Small Business, Consumers and Corporate Responsibility, to the European Scrutiny Committee regarding progress of EU negotiations on the proposed Directive on whistleblowing. In the letter, the Government provides an overview of their and the European Commission's views on certain points raised by the European Scrutiny Committee. The letter addresses the Committee's questions on issues including:

  • the scope of the proposal and corresponding legal bases
  • developments related to disclosures which could undermine national security, and
  • aligning with the Directive as part of the UK's future relationship with the EU
BoE Quarterly Bulletin Q4 2018—systemic impact of a cyber attack

The BoE published its Quarterly Bulletin 2018 Q4: 'Could a cyber attack cause a systemic impact in the financial sector?'. The paper critically evaluates the link between cyber risk and systemic risk within the financial sector. The authors analyse common features of existing definitions for systemic risk and test their applicability to cyber risk. The paper concludes that there is a credible case to link cyber risk to systemic risk in the financial sector.

 

Financial crime

 

Council of the EU decision incorporating WTR2 and MLD4 into EEA Agreement published in Official Journal

Council Decision (EU) 2018/259 of 29 November 2018 on the position to be adopted, on behalf of the European Union, within the EEA Joint Committee concerning the amendment of Annex IX (Financial Services) to the EEA Agreement was published in the Official Journal of the EU. The decision incorporates the Second Wire Transfer Regulation (EU) 2015/847 (WTR2) and the Fourth Money Laundering Directive (EU) 2015/849 (MLD4) into the Agreement on the European Economic Area.

EU investigation: Commission issues statement of objections in US Dollar supra-sovereign, sovereign and agency bond trading cartel

On 20 December 2018, the European Commission issued a statement of objections to four banks, with a preliminary finding that they breached EU antitrust rules by colluding, in periods from 2009 to 2015, to distort competition in secondary market trading in the EEA of supra-sovereign, sovereign and agency bonds denominated in US dollars.

HM Treasury publishes Insurance Fraud Taskforce Report 2017

HM Treasury published a report on the progress made during 2017 on the 26 recommendations put forwards by the Insurance Fraud Taskforce (IFT) to reduce the level of insurance fraud. The IFT was set up in January 2015 to investigate the causes of insurance fraud and recommend solutions, in order to lower costs and protect the interests of consumers. An interim report was published in March 2015 and a final report was published in January 2016. This 2017 report sets out the progress made during 2017 on the original 26 recommendations by updating the 2016 progress report.

Suspicious financial activity reports hit record high

Britain’s crime-fighting authorities received more reports of suspicious financial activity than ever before in 2018, which led to nearly £52m ($65.7m) of dubious cash being denied to criminals, figures published on Thursday, 20 December 2018, reveal. The National Crime Agency said in its annual report that suspicious activity reports—which alert law enforcement agencies that client or customer activity at a firm is suspicious and might indicate money laundering or terrorist financing hit record levels.

UBS insider trading case gets April London trial date

A former compliance officer with UBS Group AG and her day trader friend, who are both accused of insider dealing by the FCA, will face a retrial in April after a jury failed to reach a verdict in the original trial, it was confirmed at a hearing at a London court. Former UBS employee Fabiana Abdel-Malek and Walid Choucair, a day trader, will be retried on charges that they illegally traded shares in companies involved in five potential takeover deals that the Swiss investment bank was working on between 2013 and 2014.

 

FCA conduct requirements

 

FCA publishes Dear CEO letter on financial promotions

The FCA issued a press release stating that it placed on its website a  letter addressed to the CEOs of all FCA regulated firms to remind them of their responsibilities relating to the use of financial promotions. The FCA recently became aware of firms issuing financial promotions which suggest or imply that all of the activities which they undertake are regulated by the FCA and/or the PRA when they are not.

 

Enforcement and redress

 

FCA announces investigation into London Capital and Finance PLC

The FCA announced that it is investigating the affairs of London Capital & Finance Plc (LCF). The FCA also imposed certain requirements on LCF, prohibiting it from dealing in any way with its assets (including money in its bank accounts) without the FCA’s prior consent and requiring LCF to cease conducting all regulated activity.

FCA bans Darren Newton from working in the financial services sector

The FCA banned Darren Lee Newton from working in the financial services sector after he used clients' money to purchase the debt management firm First Step Finance Limited. This showed a serious lack of honesty and integrity and the FCA decided that Mr Newton is not a fit and proper person.

Permission to appeal sought in Berkeley Burke SIPP Administration v FOS

The Court of Appeal's civil appeals case tracker was updated with an application for permission to appeal the decision in Berkeley Burke SIPP Administration Ltd v Financial Ombudsman Service Ltd [2018] EWHC 2878 (Admin). The application by the claimant self-invested personal pension (SIPP) provider and administrator, for judicial review of a Financial Ombudsman Service's (FOS) decision, was dismissed by the High Court on 30 October 2018. The claimant seeks permission to appeal the decision.

2018 ISDA Arbitration Guide published

ISDA published the 2018 ISDA Arbitration Guide (the Guide), offering updated guidance on the use of an arbitration clause with an ISDA Master Agreement. The Guide includes an expanded range of ‘ISDAfied’ model arbitration clauses for more arbitration institutions and seats of arbitration (as compared to the 2013 version of the Guide).

 

Markets and trading

 

Council of EU publishes UK statement on EMIR CCP supervision proposal

The Council of the EU published a summary record of the meeting of the COREPER on 3 December 2018, at which the UK submitted a statement saying that it would not support the general approach on the proposed regulation amending the EMIR supervisory regime for EU and third-country CCPs. The UK objected to Article 25(7)(f), which would require third country regulators to agree procedures to 'assure' the enforcement of ESMA decisions as part of a memorandum of understanding.

Commission decision extending equivalence for Swiss stock exchanges published in Official Journal

Commission Implementing Decision (EU) 2018/2047 of 20 December 2018 on the equivalence of the legal and supervisory framework applicable to stock exchanges in Switzerland in accordance with MiFID II was published in the Official Journal. The decision extends for six months the European Commission’s previous decision to recognise trading venues in Switzerland as eligible for compliance with the trading obligation for shares. The new decision will take effect from 1 January 2019 and expire on 30 June 2019.

ESMA decision on marketing, distribution or sale of binary options to retail clients published in Official Journal

ESMA Decision (EU) 2018/2064 of 14 December 2018 renewing the temporary prohibition on the marketing, distribution or sale of binary options to retail clients was published in the Official Journal of the EU. The decision renews the existing prohibition on the marketing, distribution or sale of binary options to retail clients, which expired on 2 January 2019.

ESMA SMSG End of Term Report, Summary of Conclusions of SMSG meetings published

The Securities and Markets Stakeholders Group (SMSG) of ESMA published its End of Term Report. ESMA also published its Summary of Conclusions of the SMSG meeting 8-9 November which includes discussion of money market funds (MMF) stress testing, benchmarks and sustainable finance. It also published its Summary of Conclusions of the BoS and SMSG meeting 8 November 2018 which addresses Brexit, MiFID II implementation and FinTech.

ESMA issues guidelines on non-significant benchmarks under the Benchmarks Regulation

ESMA published its final report on guidelines on non-significant benchmarks under the Benchmarks Regulation (EU) 2016/1011 (BMR). The final report sets out guidelines relating to the oversight function, input data, transparency of methodology, and governance and control requirements for supervised contributors, with the intention of ensuring common, uniform and consistent application of those requirements in relation to non-significant benchmarks under the BMR.

ESMA consults on guidelines on settlement fails reporting and standardised procedures and messaging protocols under CSDR

ESMA published two consultations relating to standardised procedures and messaging protocols under Article 6(2) of the CSDR and settlement fails reporting under Article 7(1) of the CSDR. The consultations are intended to be the first step in developing guidelines in these areas. ESMA is requesting feedback on both consultations until 20 February 2019 and aims to finalise both sets of guidelines by July 2019.

ESMA renews restrictions on CFDs for three months from 1 February 2019

ESMA agreed to renew the restriction on the marketing, distribution or sale of contracts for differences (CFDs) to retail clients, in effect since 1 August 2018, from 1 February 2019 for a further three-month period. ESMA says that it carefully considered the need to extend the intervention measure currently in effect. ESMA considers that a significant investor protection concern related to the offer of CFDs to retail clients continues to exist. It therefore agreed to renew the measure from 1 February 2019 on the same terms as the previous renewal decision that started to apply on 1 November 2018.

Working group on euro risk-free rates consults on transition from EONIA to ESTER and ESTER-based term structure methodologies

The working group on euro risk-free rates issued a request for market feedback on its technical analysis of the paths available for transitioning from the euro overnight index average (EONIA) to the euro short-term rate (ESTER), and on its assessment of alternative ESTER-based term structure methodologies that can serve as a fallback for EURIBOR linked contracts.

Working Group on Sterling Risk-Free Reference Rates publishes paper on loans referencing Sterling LIBOR

The Working Group on Sterling Risk-Free Reference Rates published a paper entitled 'New and legacy loan transactions referencing Sterling LIBOR'. The paper is intended to raise market awareness regarding potential considerations for loan market participants in relation to new and legacy loan agreements which reference LIBOR. Its aim is to help market participants increase their level of preparedness and forward planning.

FCA opens advance applications from CRAs and TRs

The FCA announced that it opened advance applications from credit rating agencies (CRAs) and trade repositories (TRs) looking to offer services in the UK after 29 March 2019. CRAs and TRs looking to register a new UK entity or convert their ESMA registration into an FCA registration can find information on how to submit an advance application on the FCA's CRA and TR webpages.

ISDA reports on results of derivative benchmark fallbacks consultation

ISDA published a report summarizing the final results of a consultation on technical issues related to new benchmark fallbacks for derivatives contracts that reference certain interbank offered rates (IBORs). The consultation, which was launched in July 2018, covered the proposed methodologies for certain adjustments that would apply to the fallback rate in the event an IBOR is permanently discontinued.

ISDA rejects recommendations to remodel financial instrument on disclosure

ISDA’s Accounting Committee rejected the International Accounting Standards Board’s (IASB) recommendation to introduce a new model for IAS 32 ‘Financial Instruments: Disclosure and Presentation’. In a letter to the IASB, the ISDA outlines its members’ beliefs that several IAS 32 accounting requirements could be improved, but introducing a new model with untested principles ‘may have unintended consequences’.

ISDA updates OTC derivatives compliance calendar

ISDA published the January 2019 update of its global calendar of compliance deadlines and regulatory dates for the over the counter (OTC) derivatives space.

Streamlined licensing process for ISDA SIMM released

ISDA released a streamlined licensing process for its ISDA SIMM. This is in preparation for September 2020, when an increased number of entities are expected to be in scope for the initial margin regulations (phase 5 entities). The ISDA SIMM will ensure firms are able to utilise the tool to prepare for the deadline. No fees will be charged to phase 5 entities for the use of ISDA SIMM. To access the licensed materials, required information should be filled out and the standard license agreement needs to be accepted.

NEX Exchange seeks views on proposed changes to Growth Market Rules

NEX Exchange launched a consultation seeking views on its proposed changes to the Growth Market Rules for Issuers (the Rules). The proposed changes aim to reflect the new requirements to which the Growth Market will now be subject as a designated SME Growth Market. The SME Growth Market designation is a new market category introduced as part of MiFID II. The deadline for responses is 4 January 2019.

 

MiFID II

 

Commission adopts draft Delegated Regulation concerning MIFIR third-country central banks exemption for the People's Bank of China

The European Commission adopted a Delegated Regulation amending Delegated Regulation (EU) 2017/1799 as regards the exemption of the People's Bank of China from the pre- and post-trade transparency requirements in MiFIR. This Delegated Act extends to the People's Bank of China the exemption under MiFIR in respect of transactions where the counterparty is a third-country central bank carrying out monetary policy, foreign exchange and financial stability operations.

ESMA confirms decision extending temporary prohibition of binary options

ESMA published a notice of its 14 December 2018 decision to renew the prohibition on the marketing, distribution or sale of binary options to retail clients. The notice provides details of the decision and specifies that the renewed measure will apply from 2 January 2019 for a period of three months. The full text of the decision will be published in the Official Journal of the European Union.

ESMA updates guidelines on the application of C6 and C7 of Annex 1 under MiFID II

ESMA published amended guidelines on the application of C6 and C7 of Annex 1 of MiFID II with regard to commodity derivatives. The amended guidelines, which are an update to the guidelines originally adopted under MiFID I, will be adapted to the new MiFID II regulatory framework without any change to the substance. ESMA originally adopted a set of guidelines in October 2015 in order to ensure a common, uniform and consistent application of MiFID I in relation to commodity derivatives defined in the C6 and C7 sections of the MiFID Annex. The application start date of MiFID II and its supplementing regulation means that these guidelines formally require updating while their substance is maintained.

ESMA updates Q&As on transparency under MiFID II and MiFIR

ESMA updated its Q&As regarding transparency issues under MiFID II and MiFIR. The new Q&As provide clarification on the publication of request for market data transactions, the default transparency regime for equity instruments, and the default large in scale and size specific to the instrument thresholds for bonds.

ESMA updates MiFID II and MiFIR Q&As on commodity derivatives

ESMA updated its Q&As on commodity derivatives topics under the MiFID II and MiFIR. ESMA clarified the correct application of the 'price multiplier' field in Table 3 of the Annex to Commission Delegated Regulation (EU) 2017/585 when reporting electricity contracts.

ESMA provides update on assessment of third-country trading venues under MiFID II and MiFIR

ESMA provided an update on its assessment of third-country trading venues (TCTVs) for the purpose of post-trade transparency and position limits under MiFID II/MIFIR. ESMA was unable to review a sufficient number of TCTVs to publish a comprehensive list, so transactions concluded on TCTVs will not yet need to be made public, and commodity derivatives contracts traded on TCTVs will not be considered as economically equivalent over-the-counter contracts for the purpose of the position limit regime.

 

Regulation of capital markets

 

Harmonised securitisation rules apply across EU from 1 January 2019

Regulation (EU) 2017/2402 (The Securitisation Regulation) and the CRR Amendment Regulation (EU) 2017/2401, which entered into force in January 2018, now apply in all EU Member States as of 1 January 2019. The new harmonised rules set the criteria for simple, transparent and standardised (STS) securitisation in the EU as part of the CMU action plan. The Securitisation Regulation applies to all securitisation products and includes due diligence, risk retention and transparency rules together with a clear set of criteria to identify STS securitisations. The CRR Amendment Regulation amends the CRR to make the capital treatment of securitisations for banks and investment firms more risk-sensitive and able to reflect properly the specific features of STS securitisations.

ESMA issues final RTS on supervisory cooperation under Securitisation Regulation

ESMA issued its final Regulatory Technical Standards (RTS) on supervisory cooperation between competent authorities and the European Supervisory Authorities (ESAs) under the Securitisation Regulation. The RTS clarify how competent authorities and ESAs should cooperate and exchange information with each other and make notifications to each other in relation to securitisation transactions.

PRA and FCA issue joint statement on reporting of private securitisations under Securitisation Regulation from 15 January 2019

The PRA and the FCA issued a joint statement setting out how firms should make information regarding 'private' securitisations available to their UK competent authorities under the Securitisation Regulation. This direction applies to all UK established originators, sponsors and securitisation special purpose entities from Tuesday 15 January 2019.

FCA publishes Handbook instruments implementing Securitisation Regulation (FCA 2019/1, FCA 2019/2)

The FCA Board published FCA 2019/1: The Securitisation Regulation Implementation (Fees for Third Party Verifiers) Instrument 2019 and FCA 2019/2: The Enforcement (EU Securitisation Regulation) Instrument 2019. The instruments reflect changes to the FCA Handbook in order that it is consistent with the Securitisation Regulation. The instruments come into effect on 3 January 2019. The instruments reflect FCA PS18/25: Implementation of the EU Securitisation Regulation and the amendment to the CRR–Final and near-final rules.

ICMA updates guide to best practice in the European repo market

The International Capital Markets Association (ICMA) published an updated version of the ICMA European Repo and Collateral Council Guide to Best Practice in the European Repo Market along with a consolidated blackline of amendments to the Guide since it was previously updated in December 2017. The latest version of the Guide is effective as of 21 December 2018.

New ICMA members announced

ICMA announced the firms admitted to ICMA membership in January 2019. The following firms were admitted to ICMA membership in January 2019; (1) BNP Paribas Securities Services, Paris (2) Capula Investment Management LLP, London (3) Export Development Canada, Ottawa (4) ICICI Bank Limited, Mumbai (5) JPMorgan Asset Management (UK) Limited, London (6) Kerdos Investment-AG TGV, Düsseldorf (7) Nivaura Ltd, London (8) Tokai Tokyo Securities Europe Limited, London. This brings the total number of ICMA members to 552 members in 60 countries.

 

Investment funds and asset management

 

FCA to host event on patient capital

The FCA announced that it will be hosting an event on 17 January 2019 about patient capital, in particular about how its rules on permitted links and authorised funds can support investment in patient capital in ways that benefit investors. The FCA is currently consulting on potential changes to the permitted links rules in its Conduct of Business (COBS) sourcebook. On 12 December 2018, the FCA published CP18/40 on proposed amendments to the COBS 21.3 permitted links rules. It also published DP18/10 on the impact of its regulatory regime on investment in patient capital through authorised funds. The deadline for responses to both papers is 28 February 2019.

AMIC publishes joint paper with EFAMA on investment fund liquidity stress tests

ICMA’s Asset Management and Investors Council (AMIC) published a joint paper with the European Fund and Asset Management Association (EFAMA) on liquidity stress testing in investment funds. The report highlights the role of stress tests in risk management and outlines the long-standing standard practices in the fund industry and the existing comprehensive requirements under European and national laws.

Blackrock Investment Management (UK) Ltd v Revenue and Customs Commissioners [2018] UKUT 415 (TCC)

European Union–Value added tax. The First-tier Tribunal (Tax Chamber) was right to hold that the single supply of services to the appellant taxpayer of an integrated trading, portfolio management and risk reporting software application amounted to fund management, within the meaning of that term for the purposes of Article 135.1(g) of Council Directive (EC) 2006/112. However, the case law of the Court of Justice of the European Union (the CJEU) was not clear on the issue of whether the consideration for those services could be apportioned in circumstances where they were used to manage both special investment funds and other investment funds. Accordingly, the Upper Tribunal (Tax and Chancery Chamber) stayed the appeal on the basis that the parties should seek to agree both the question or questions to be referred to the CJEU.

 

Banks and mutuals

 

EBA reports on impact and implementation of IFRS 9 by EU institutions

The EBA published a report with some initial observations on the post-implementation impact of IFRS 9 on EU banks. The objective of the report is to provide preliminary observations on the first stages of implementation of IFRS 9 since it first came into effect on 1 January 2018, while a deeper analysis is still ongoing. The report also identifies some areas for ongoing scrutiny and further work from an EBA perspective.

EU banks have further improved resilience, but profitability remains weak, updated EBA Risk Dashboard shows

The EBA published its updated Risk Dashboard, summarising the main risks and vulnerabilities in the EU banking sector using quantitative risk indicators. The Dashboard shows that EU banks further improved their resilience, with improvements in both asset quality and capital ratios, but profitability remains weak. The updated Risk Dashboard, published by the EBA alongside the results of its Risk Assessment Questionnaire, showed that in the third quarter of 2018 European banks' capital ratios remained high with a modest increase since the second quarter of 2018, while the quality of the EU banks' loan portfolio improved further, with a continuing decrease in the ratio of NPLs to total loans.

FCA evaluates impact of 2013 review of requirements for entrant banks

The FCA published an evaluation paper (EP18/3), which evaluates the impact of the review carried out in 2013 by the BoE and the Financial Services Authority (FSA) of the requirements for firms entering into or expanding in the banking sector. The FCA finds that the authorisations process is more efficient since the review, which encourages new entrants into the banking sector.

UK Finance: banks should put SME customers back at the heart of their business

UK Finance published an article by Dan Cooper, partner and head of UK Banking at EY, on the banking needs of small and medium-sized enterprises (SMEs). Mr Cooper says that UK smaller companies demonstrated remarkable resilience since the crisis through a decade of austerity. This segment now generates an annual turnover of £1.9tn for the UK economy and is at the cutting edge of innovations reshaping industries and employment patterns in a connected age. But, despite being such an important segment and for all their innovation, entrepreneurship and rapid growth, smaller businesses continue to be serviced by non-specialist advisers.

 

Islamic finance

 

IFSB publishes standards on disclosures and supervision of takâful and retakâful undertakings

The Islamic Financial Services Board (IFSB) published a Revised Standard on Disclosures to Promote Transparency and Market Discipline for IIFS [Banking Segment] (IFSB-22) and Key Elements in the Supervisory Review Process of Takâful/Retakâful Undertakings (IFSB-20). IFSB-22 aligns the IFSB's standards and guidelines with global regulatory standards and aims to specify a set of key principles and practices to be followed by banking sector institutions offering Islamic financial services in making disclosures, with a view to achieving transparency and promoting market discipline in regard to these institutions. IFSB-20 is primarily intended to guide the firm-level supervision of takâful undertakings and retakâful undertakings. It aims to provide guidance and support for the implementation of common approaches to the supervision of the takâful and retakâful industry, while addressing the specificities of these institutions.

 

Payment services and systems

 

EBA updates guidelines on fraud reporting under PSD2

The EBA updated its guidelines on reporting requirements for fraud data under Article 96(6) of Directive (EU) 2015/2366 (PSD2). The guidelines, which were finalised in July 2018, were updated to reflect editorial changes applied to pages 4, 27, 29 and 30. The guidelines provide detail on statistical data on fraud related to different means of payment that payment service providers are required to report to their competent authorities, as well as on the aggregated data that the competent authorities are required to share with the EBA and the ECB, in accordance with Article 96(6) of PSD2.

EPC publishes Single Euro Payments Area (SEPA) Proxy Lookup scheme rulebook

The European Payments Council (EPC) published the first version of the Single Euro Payments Area (SEPA) Proxy Lookup (SPL) scheme rulebook, which consists of a set of rules, practices and standards that makes it possible to operate, join and participate in the SPL scheme. The eligibility criteria to join the scheme, including a template adherence agreement, are also included in the rulebook.

FCA publishes revised December 2018 version of its Payment Services and Electronic Money Approach Document

​The FCA published a revised December 2018 version of its Payment Services and Electronic Money Approach Document. Changes to the July 2018 version of the Approach Document are shown in track changes. The Chapters of the Approach Document affected by new guidance on strong customer authentication and secure communication under PSD2 are 17 and 20. The Chapters of the Approach Document containing minor changes to clarify the guidance or reflect legislative change are 1, 3, 6, 8, 13, 18, 19.

 

Insurance and pensions

 

Corrigendum to pension fund statistical reporting regulation published in Official Journal

corrigendum to Regulation (EU) 2018/231 of the ECB on statistical reporting requirements for pension funds was published in the Official Journal of the EU. The corrigendum clarifies the frequency of reporting of the information set out in Table 1c of the Regulation. Pursuant to the corrigendum, data regarding the country breakdown for stocks and revaluation adjustments (including exchange rate adjustments) or financial transactions will need to be provided on a quarterly basis with regard to assets data. Liabilities data is required to be provided on an annual basis. As originally drafted, the Regulation called for all data to be provided on an annual basis.

Privacy and Electronic Communications (Amendment) (No 2) Regulations 2018

SI 2018/1396: Amendments are made to privacy and electronic communications regulations to restrict firms from making unsolicited direct marketing calls to individuals regarding their pension schemes, with two tightly drafted exemptions in the UK. These are where the individual being called gives consent to the caller to receive direct marketing calls in relation to pensions, and where the recipient of the call enjoys an existing client relationship with the caller such that they would reasonably envisage receiving direct marketing calls in relation to pensions (Updated from draft 20 December 2018).

Pensions cold-calling ban comes into effect

Companies that make unwanted, unsolicited phone calls to people about their pensions may face enforcement action, including fines of up to half a million pounds, from 9 January 2019. Pensions fraud can be devastating, leaving victims without the means to fund their retirement. One of the most common methods used by scammers to commit pensions fraud is through cold calls, which is why the government took action. The ban prohibits cold-calling in relation to pensions, except where the caller is authorised by the FCA, or is the trustee or manager of an occupational or personal pension scheme, and the recipient of the call consents to calls, or enjoys an existing relationship with the caller.

Work and Pensions Committee launches inquiry into contingent charging, PIMFA responds

Following its inquiry into pension freedom and choice, the Work and Pensions Committee launched a further inquiry into contingent charging. The Committee previously recommended that this charging structure should be banned for defined benefit pension transfer advice and issued a call for evidence from members of the public affected by this issue. The Personal Investment Management and Financial Advice Association (PIMFA) responded to the launch of the Work and Pensions Select Committee inquiry into contingent charging. PIMFA is concerned that the removal of contingent charging will not necessarily improve the quality of advice received by consumers or improve their overall outcomes, and that such a ban would create unintended consequences and may adversely affect access to advice on retirement planning.

EIOPA publishes its seventh Consumer Trends Report

The European Insurance and Occupational Pensions Authority (EIOPA) published its Seventh Consumer Trends Report outlining key developments in the insurance and pensions sectors impacting European consumers. The report found that digital technologies in insurance and pensions continue to grow alongside cross-selling practices and the sale of add-on insurance.

EIOPA outlines key financial stability risks for (re)insurers and pension funds

EIOPA published its December 2019 Financial Stability Report on the (re)insurance and occupational pensions sectors in the EEA. The report outlines the key financial stability risks for the sectors and concludes that the insurance and pension fund markets require continued supervisory attention, particularly in the context of the risk of sudden reassessment of risk premia as well as increasing exposure to climate-related risks and their impact on the stability of financial markets.

EIOPA Opinion on non-life cross-border insurance business of a long-term nature

EIOPA published an Opinion on non-life cross-border insurance business of a long-term nature and its supervision. The Opinion is addressed to national competent authorities (NCAs) and outlines EIOPA's expectations on the calculation of technical provisions and the governance for cross-border business. The objective of EIOPA's Opinion is to ensure the appropriate application of the legal requirements and consistent supervisory practices with regards to the calculation of technical provisions and quantitative information on non-life long-term business with distinctive features or a high degree of local specificities.

EIOPA publishes second annual report on use of capital add-ons under Solvency II

EIOPA published its second annual report on the use of capital add-ons by NCAs under the Solvency II Directive. The objective is to contribute to a higher degree of supervisory convergence in the use of capital add-ons between supervisory authorities in the different Member States and to highlight any concerns regarding the capital add-ons framework. The analysis is based on 2017 year-end Solvency II data.

EIOPA publishes third annual report on use of exemptions and limitations from Solvency II reporting

EIOPA published its third annual report on the use of exemptions and limitations from the regular supervisory reporting during 2017 and Q1 2018 by NCAs under the Solvency II Directive. The report surveys how proportionality measures are applied to the reporting requirements by NCAs across the EEA.

EIOPA publishes updated Q&As on Solvency II

EIOPA published updated Q&As on Solvency II, related level 2 legislation and guidelines. The updated Q&As relate to a number of topics including:

  • increases of the weight for the parameter expressed in Solvency II Article 308b(13)(b) (Transitional Equity Stress)
  • Commission Delegated Regulation (EU) 2015/35 supplementing Solvency II, and
  • Commission Implementing Regulation (EU) 2015/2450 with regard to the templates for the submission of information to the supervisory authorities
The benefits of internal models to reinsurers

The Insurance Europe Reinsurance Advisory Board (RAB) set out the supervisory benefits of insurers using internal models by publishing an overview. The RAB, a group of some of Europe’s largest reinsurers, state the benefits range from increased transparency and clarity in risk perception. The benefits listed in ‘Internal models: a reinsurance perspective’ include the improvement of the transparency of the risk profile of insurers, the ability to analyse risk in more detail and the enrichment of insurers’ discussions with supervisors.

 

Fintech and virtual currencies

 

ESAs publish report on regulatory sandboxes and innovation hubs

The ESAs—ESMA, EIOPA and the EBA—published a joint report on regulatory sandboxes and innovation hubs (innovation facilitators). The report sets out a comparative analysis of the innovation facilitators established to date within the EU and best practices for the design and operation of innovation facilitators.

ESMA and EBA report on crypto-assets

ESMA published its advice to the European Union Institutions—Commission, Council and Parliament on initial coin offerings (ICOs) and crypto-assets (the Advice). The EBA also published a report containing the results of its assessment of the applicability and suitability of EU law to crypto-assets (the Report). In its 2018 FinTech Action plan, the European Commission requested the ESAs assess the suitability of the EU regulatory framework with regards to ICOs and crypto-assets more generally. The Advice and Report were published as a result of the request.

Government and FCA respond to Treasury Committee's crypto-assets report

The Treasury Committee published responses from the Government and the FCA to the Treasury Committee's report on crypto-assets. In its report, published on 19 September 2018, the Committee set out recommendations to strengthen and improve UK regulation of the crypto-asset market. The Government and the FCA, in their responses to the report, agreed with the Committee's concerns around the need for increased regulation of crypto-assets and announced a series of consultations on how to mitigate the risks identified in the report.

UK government 'stands ready' to regulate cryptocurrencies

The UK government said Thursday it ‘stands ready’ to give the FCA more powers to oversee cryptocurrencies after a parliamentary committee warned that the rapidly growing market was the ‘wild west’. City minister, John Glen said that government was prepared to give the city watchdog more powers to oversee parts of the cryptocurrency industry that pose risks to consumers. Lawmakers also fear its anonymity is attractive to money launderers. ‘The government stands ready to legislate to expand the regulatory perimeter to ensure that FCA regulation can be applied to all cryptoassets that have comparable features to security tokens, regardless of the way they are structured,’ Glen said in  response to a report by the Treasury Committee.

BIS publishes survey on central bank digital currency and cryptocurrencies

The Bank for International Settlements (BIS) published a paper looking at central banks’ current work and thinking on new central bank digital currencies and how they could replace traditional money. The paper is based on a recent survey which showed that most central banks are collaboratively looking at the implications of a central bank digital currency, but that while many are considering practical issues they seem to be proceeding cautiously and few report plans to issue a digital currency in the short or medium term.

HM Treasury provides a progress report on EU crowdfunding service providers proposals

The UK Government published a letter from John Glen MP, Economic Secretary to the Treasury, to Lord Boswell of Aynho, Chair of the House of Lords European Union Committee, providing an update on the progress of the European Commission's legislative proposals regarding European crowdfunding service providers (ECSPs). According to Mr Glen, most Member States now support changing the proposed ECSP regulation into a directive.

IA secures rapid FinTech membership growth as applications open for second Velocity cohort

The Investment Association (IA) opened applications as it seeks its second cohort of cutting-edge FinTech innovators for Velocity, the IA's specialist FinTech accelerator and innovation hub for the asset management industry. Since the launch of Velocity and the creation of the IA's FinTech membership category, more than 70 FinTech firms join its ranks in the past six months, with five of these forming the first Velocity cohort in October last year.

DIFC's FinTech Hive Cements Collaboration with Innovate Finance

Dubai International Financial Centre (DIFC) and Innovate Finance signed a Memorandum of Understanding which aims to cement cooperation and collaboration between the UK and Dubai Fintech ecosystems. Innovate Finance and DIFC's FinTech Hive will explore concepts that will help startups in both locations. Concepts range from sharing knowledge and hosting learning initiatives for startups, such as financial technology programmes, in The Academy at DIFC to fostering relationships between their regulatory and financial communities.

 

Sustainable finance

 

Commission publishes draft rules requiring investment firms and insurance distributors to consider sustainability issues when advising clients

The European Commission published draft rules on how investment firms and insurance distributors should take sustainability issues into account when providing advice to their clients. The draft rules would amend delegated acts under MiFID II and the IDD. In particular, the Commission is proposing to adopt delegated regulations that would amend:

  • Delegated Regulation (EU) 2017/565, which supplements MiFID II as regards organisational requirements and operating conditions for investment firms, and
  • Delegated Regulation (EU) 2017/2359, which supplements the IDD with regard to information requirements and conduct of business rules applicable to the distribution of insurance-based investment products (IBIPs)
AFME calls for creation of clear and responsive classification framework for sustainable finance

Simon Lewis OBE, Chief Executive of the Association for Financial Markets in Europe (AFME), called for the creation of a clear and responsive classification framework for sustainable finance. AFME considers this to be a vital first step in the development of an overall greener and more transparent financial system. AFME welcomes the European Commission's proposals to create a harmonised EU-wide 'taxonomy' for classifying whether an economic activity is environmentally sustainable, as part of its Sustainable Finance Action Plan, but for the Plan to be fully impactful, AFME believes it must be sufficiently flexible.                                                                                                                                                                                                                                                                                                                                                                                                                   

Dates for your diary

 

Date

 

SubjectEvent
January 2019Consumer credit

The FCA will aim to publish a policy statement and finalised rules in relation to ‘CP18/33: Regular premium PPI complaints and recurring non-disclosure of commission —feedback on CP18/18, final guidance, and consultation on proposed mailing requirements’ in January 2019.

 

January 2019Financial crime

The FCA will publish feedback and its proposed rules from ‘CP18/32: Recovering the costs of the Office for Professional Body Anti-Money-laundering Supervision (OPBAS): proposed fee rates for 2018/19’ in January 2019.

 

January 2019Payment Services

The FCA will publish a policy statement on its proposed general standards and communication rules for the payment services and e-money sectors (CP18/21), which is expected in January 2019.

 

January 2019

Investment funds

As confirmed by the BoE’s Money Markets Committee, EU Money Market Fund Reform will come into effect for existing money market funds in January 2019.

 

January 2019Brexit

The FCA is expected to launch a consultation on recovering the costs of regulating securitisation repositories after the UK leaves the European Union, in January 2019.

 

11 January 2019Sustainable finance

The FCA launched the Green FintechChallenge to support innovation and growth in the green finance sector as part of the government's Green GB Week. The FCA encourages firms that require specific regulatory support, and meet the criteria, to apply to join the Green Fintech Challenge cohort. Firms developing broader ethical, social impact or ESG products and services are welcome to apply, on the condition that there is a link with, or associated benefit to, the green finance agenda. The deadline for applications is 11 January 2019.

 

11 January 2019Markets and trading

ESMA published a call for evidence on periodic auctions for equity instruments. ESMA aims to gather information to help it develop its understanding of frequent batch auction trading systems, to assess whether and to what extent they can be used to circumvent the MiFID II transparency requirements and, should this be the case, to develop appropriate policy measures. The deadline for feedback is 11 January 2019.

 

13 January 2019Insurance and pensions

The new IORP II Directive, is due to be transposed into national law by EU Member States by 13 January 2019.

 

14 January 2019Legal Entity Identifier Regulatory Oversight Committee

The deadline for responses to the Legal Entity Identifier Regulatory Oversight Committee’s (LEI ROC) second consultation document on fund relationships in the global LEI system is 14 January 2019.

 

14 January 2019FCA

The deadline for feedback to FCA CP18/34: Regulatory fees and levies: policy proposals for 2019/20 is 14 January 2019.

 

15 January 2019Sustainable finance

Deadline for responses to PRA CP23/18, on a draft SS on banks’ and insurers’ approaches to managing the financial risks from climate change is on this date.

 

15 January 2019Insurance

The International Association Insurance Supervisors (IAIS) will host a stakeholder event on the Holistic Framework for Systemic Risk in the Insurance Sector on 15 January 2019.

 

15 January 2019Regulation of capital markets

The FCA’s and PRA’s directionsetting out how all UK established originators, sponsors and securitisation special purpose entities should make information regarding 'private' securitisations available to their UK competent authorities under the Securitisation Regulation applies from 15 January 2019.

 

16 January 2019Markets and trading

The Basel Committee on Banking Supervision (BCBS) is consulting on whether a targeted and limited revision of the leverage ratio's treatment of client cleared derivatives may be warranted. The consultative document 'Leverage ratio of client cleared derivatives' follows BCBS's findings of a review of the impact of the leverage ratio on banks' provision of client clearing services. The Committee welcomes comments from the public on all aspects of the consultative document by filling out an online form by 16 January 2019.

 

17 January 2019Consumer credit

Feedback to FCA CP18/35: ‘Rent-to-own and alternatives to high-cost credit—feedback on CP18/12 and consultation on a price cap’ is due on 17 January 2019.

 

17 January 2019

Investment funds

The FCA announced that it will be hosting an event on 17 January 2019 about patient capital, in particular about how its rules on permitted links and authorised funds can support investment in patient capital in ways that benefit investors.

 

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