Worldwide: Financial Regulatory Developments (FReD) - May 15, 2015

HEADLINES

• EBA publishes early intervention guidelines
• ESMA warns of RTS delay
• ESMA consults on IRS clearing
• FCA publishes insurance premium finance review
• LSB publishes credit card pre-sale review

EU AND INTERNATIONAL

European Parliament (EP)

ECON reports on benchmarks: The Economic and Monetary Policy Committee (ECON) within EP has published its report on the proposed Benchmarks Regulation. (Source: ECON Reports on Benchmarks)

Contact: Rosali Pretorius or Tom Harkus

European Commission (Commission)

Commission welcomes CCP discussion: Jonathan Hill has met Timothy Massad of the Commodity Futures Trading Commission (CFTC) to continue discussions towards the EU recognising CFTC supervised central counterparties (CCPs) as equivalent to EU ones. (Source: Commission Welcomes CCP Discussion)

Contact: Rosali Pretorius or Luca Salerno

European Banking Authority (EBA)

EBA updates single rulebook Q&As: EBA has added seven new items to its single rulebook Q&As. (Source: Single Rulebook Q&As)

Contact: Rosali Pretorius or Michael Wainwright

EBA publishes early intervention guidelines: EBA has published its final guidelines on the triggers for the use of early intervention measures. The guidelines set out the triggers which should prompt regulators to decide to apply the Bank Recovery and Resolution Directive's (BRRD) early intervention measures. The triggers are largely based on the outcomes of the supervisory review and evaluation process (SREP), specifically the scores resulting from the regulatory assessment supervisors should carry out under EBA guidelines. The guidelines recognise that there might be triggers unconnected to SREP but do not provide any quantitative thresholds for indicators that could be perceived as new capital or liquidity requirements. (Source: EBA Publishes its Final Guidelines on Triggers for the Use of Early Intervention Measures)

Contact: Rosali Pretorius or Michael Wainwright

EBA publishes payment account guidelines: EBA has published guidelines on national provisional lists of the most representative services linked to a payment account and subject to a fee. The guidelines direct regulators as to:

• how to go about identifying services to be considered for the provisional lists;
• the exercise of judgement when establishing provisional lists;
• responding to the Commission and EBA with the provisional lists;
• the supporting evidence and data that should be included; and
• how to submit the provisional lists.

The guidelines will apply once published in the official languages of the EU. (Source: Guidelines on National Provisional Lists of the Most Representative Services Linked to a Payment Account and Subject to a Fee)

Contact: Nicholas Ralph or Michael Wainwright

EBA publishes retail product oversight responses: EBA has published the responses to its consultation paper on draft guidelines on product oversight and governance arrangements for retail banking products. It received 19 responses from a range of industry bodies, consumer groups and individual banks. (Source: Guidelines on Product Oversight and Governance Arrangements for Retail Banking Products)

Contact: Rosali Pretorius or Michael Wainwright

EBA updates reporting taxonomy: EBA has released an update to its taxonomy for supervisory reporting of funding plans and supervisory benchmarking. The update inserts corrections to funding plans and supervisory benchmarking structure. It also specifies how separate variants of the reports apply for remitting individual and consolidated data. The revised taxonomy will apply for reports on funding plans and supervisory benchmarking with reference dates from 31 December 2014 onwards. (Source: EBA Publishes Updated DPM and XBRL Taxonomy for Remittance of Supervisory Reporting of Funding Plans and Supervisory Benchmarking)

Contact: Rosali Pretorius or Michael Wainwright

EBA issues recovery indicators guidance: EBA has published its final guidelines on indicators for the recovery and resolution plans of EU credit institutions and investment firms as required by the BRRD. The guidelines set out the requirements institutions should follow when developing recovery plans. The minimum list of items that institutions should include in their plans includes both qualitative and quantitative indicators grouped into different categories such as capital, liquidity, profitability and asset quality. It notes where institutions should include macroeconomic and market-based indicators. EBA will use these indicators to identify the points at which appropriate recovery measures may be needed. In addition the guidelines include a list of extra possible indicators. The guidelines will enter into force on 31 July. (Source: EBA Issues Final Guidance on Recovery Indicators)

Contact: Rosali Pretorius or Michael Wainwright

EBA consults on derivatives valuation: EBA is consulting on regulatory technical standards (RTS) defining the valuation of derivative liabilities for the purpose of bail-in in resolution under the BRRD. It uses a statutory valuation methodology based on the costs or gains that would be incurred by the counterparty in replacing the contract. Derivative counterparties can provide evidence of commercially reasonable replacement trades and determine the close-out amount within a certain deadline; and, if they do not, then resolution authorities will apply their valuation based on mid-market prices and bid-offer spreads. The consultation covers timings of valuations and potential exemptions from the requirement. EBA also takes into account the position for centrally cleared contracts under the European Market Infrastructure Regulation (EMIR) and says resolution authorities will impose their own valuation only where CCPs do not deliver a close-out amount or do not apply default procedures within an agreed deadline. EBA asks for comments by 13 August. (Source: EBA Consults on Derivatives Valuation)

Contact: Rosali Pretorius or Tom Harkus

EBA consults on ECAIs' credit assessment ITS: EBA has launched a consultation on draft Implementing Technical Standards (ITS) on the mapping of External Credit Assessment Institutions' (ECAIs) credit assessments for securitisation positions. The draft ITS set out the mapping between credit ratings and credit quality steps that will determine the allocation of appropriate risk weights to credit ratings issued by the ECAIs on securitisations which use the standard approach or the internal ratings based approach. The consultation closes on 7 August. (Source: EBA Consults on Draft Technical Standards on the Mapping of ECAIs Credit Assessments for Securitisation Positions)

Contact: Rosali Pretorius or Michael Wainwright

EBA consults on lending exposures RTS: EBA is consulting on RTS on specialised lending exposures. The proposed RTS define four classes of specialised lending: project finance, real estate, object finance and commodities finance. For each the draft RTS list factors that institutions should consider and also propose two ways in which these factors could be combined to determine the risk weight assigned to the specialised lending exposure. The approach in these RTS is in line with the Basel framework. (Source: EBA Consults on Technical Standards on Specialised Lending Exposures)

Contact: Rosali Pretorius or Michael Wainwright

European Insurance and Occupational Pensions Authority (EIOPA)

EIOPA calls for more Solvency 2 resource: EIOPA has published a report on the staffing and resources it needs to accomplish the tasks Solvency 2 imposes on it. The report highlights a shortfall of 10 staff members and over two million euros. EIOPA notes the potential consequences of not addressing the gap. (Source: EIOPA Calls for More Solvency 2 Resource)

Contact: Michael Wainwright or Juan Jose Manchado

European Securities and Markets Authority (ESMA)

ESMA warns of RTS delay: ESMA has written to the Commission, suggesting there may be a delay in finalising several RTS under the revised Markets in Financial Instruments Directive (MiFID 2) and Regulation (MiFIR), and under the Market Abuse Regulation (MAR). The letter stresses ESMA could finalise all guidelines in time, but that, if it accommodates a proposed early review by the Commission staff, it may need a three-month extension to the end of September before it can publish some of the RTS. Jonathan Hill, on behalf of the Commission, agreed to the extension. (Source: ESMA Warns of RTS Delay)

Contact: Rosali Pretorius or Luca Salerno

ESMA consults on IRS clearing: ESMA is consulting on more RTS on the clearing obligation under EMIR for Interest Rate Swaps (IRS). It plans to extend the clearing obligation to several classes and denominations of IRS not previously included in RTS. The paper sets out:

• the clearing obligation procedure;
• structure of classes of instruments that will now be subject to the obligation;
• the determination of classes of instrument that will be subject to mandatory clearing;
• the approach for defining categories of counterparty and the dates from which the obligation will apply for each category; and
• the definition of minimum remaining maturities for applying frontloading.

ESMA asks for comment by 15 July. (Source: ESMA Consults on IRS Clearing)

Contact: Rosali Pretorius or Tom Harkus

ESMA updates on AIFMD FAQs: ESMA has updated its FAQs on application of the Alternative Investment Fund Managers Directive (AIFMD). There is a set of new questions and answers on reporting and a new question on calculation of leverage. (Source: ESMA Updates on AIFMD FAQ)

Contact: Rosali Pretorius or Kam Dhillon

ESMA speaks on CMU: Steven Maijoor, Chair of ESMA, has delivered a speech titled "Priorities of a Capital Markets Union (CMU)" at the Luxembourg Stock Exchange Day. In the speech he covered:

• the current state of the EU economy and how policy initiatives encouraging structural reforms, such as the development of a CMU, are essential to solving the economic problems facing the EU economy;
• the need to provide alternative sources of funding to the real economy - such as CMU, as well as securitisation and crowdfunding, both of which he commented on directly;
• the importance of ensuring sufficient investor participation in CMU by developing a high degree of investor protection; and
• the need to develop a Europe-wide comprehensive supervisory approach.

He concluded by stressing the importance of non-bank financing in stimulating the economy. (Source: Steven Maijoor, Chair of ESMA: Priorities of a Capital Markets Union)

Contact: Emma Radmore or Josie Day

Joint Committee of European Supervisory Authorities (ESAs) (EBA/EIOPA/ESMA)

ESAs publish cross-selling responses: The ESAs have published the responses to the consultation on draft guidelines for cross-selling practices. There were 33 responses to the consultation from a variety of banks, insurers and consumer groups. (Source: Guidelines for Cross-selling Practices)

Contact: Rosali Pretorius or Michael Wainwright

ESAs publish securitisation recommendations: The ESAs have published a report of their findings and recommendations on disclosure requirements and obligations relating to due diligence, supervisory reporting and retention rules in existing EU law on Structured Finance Instruments (SFIs). The main recommendations are:

• due diligence requirements should be harmonised within the EU;
• standardised investor reports should reflect the dynamics of SFIs and be stored in a centralised public space;
• all type of investors should be empowered to effectively conduct their own stress tests; and
• harmonised due diligence and disclosure framework should go alongside a comprehensive regime for supervision and enforcement.

(Source: Joint Committee of ESAs Publishes its Recommendations on Securitisation)

Contact: Rosali Pretorius or Michael Wainwright

Official Journal of the European Union (OJEU)

Major holdings regulation published in OJEU: A delegated regulation with regard to RTS on major holdings has been published in the OJEU. (Source: Delegated Regulation with Regard to Certain Regulatory Technical Standards on Major Holdings)

Contact: Emma Radmore or Josie Day

UK GOVERNMENT AND PARLIAMENT

Bank of England (BoE)

BoE updates RCH rules: BoE has published its key resources for recognised clearing houses (RCH). The update includes, among other things, links to the consolidated rules for RCHs and the policy on financial penalties. BoE explains how different recognition requirements apply to RCHs that are CCPs and those that are not. (Source: BoE Updates RCH Rules)

Contact: Rosali Pretorius or Tom Harkus

BoE responds on CMU: BoE has responded to the Commission's paper on building the CMU. It strongly supports the initiative, and in its response it addresses the five themes which should drive CMU. It considers the impediments to union and how to address them. (Source: BoE Responds on CMU)

Contact: Rosali Pretorius or Juan Jose Manchado

HM Treasury (Treasury)

Treasury updates sanctions: Treasury has updated the sanctions lists in respect of designations on terrorism and terrorist financing. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Nicholas Ralph

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Financial Conduct Authority (FCA)

FCA publishes insurance premium finance review: FCA has published its thematic review of premium finance for general insurance. The review focused on online sales of car and home insurance and included insurers, intermediaries and comparison websites. The review found:

• that it is often hard for customers to see the price difference between paying up front and paying by instalments;
• that many firms did not provide the representative example including all the required details when they offered to provide regulated credit or acted as a credit broker;
• a wide range of APRs in the samples it reviewed, which emphasise the importance of customers needing to understand the difference between projections; and
• various other disclosure failings, including that credit brokers sometimes did not disclose the name of the provider or details of their fee.

FCA expects firms to consider their business in light of the report, and to review it for compliance with relevant FCA rules and the requirements of the Consumer Credit Act. It plans also direct engagement with some firms, which may lead to enforcement action. (Source: FCA Publishes Insurance Premium Finance Review)

Contact: Nicholas Ralph or Emma Radmore

Prudential Regulation Authority (PRA)

PRA publishes internal model guidance: PRA has issued guidance on formulating internal model change policy under Solvency 2. The PRA guidance covers:

• the scope of any internal model change policy;
• how firms might ensure they identify when a change to the internal model is necessary;
• how firms should go about meeting the requirement in EIOPA guidelines to classify major changes to their internal model;
• how a series of minor model changes might constitute a major internal model change;
• what governance structures should be in place to cover the internal model change policy of a firm;
• reporting of model changes to PRA; and
• the need to review the internal model change policy regularly.

(Source: PRA: Internal Model Change Policy)

Contact: Michael Wainwright or Juan Jose Manchado

PRA publishes H1 stress scenario details: PRA has updated firms subject to the fourth Capital Requirements Directive (CRD4) on how to use the H1 2015 stress scenario and concurrent scenario. Firms should use these as a starting point for building and calibrating their own scenario under Pillar 2. PRA wants to encourage:

• senior management engagement and awareness;
• firms not to forget the potential for "tail risks" to crystallise, when the economy is stable; and
• a system that will allow supervisors to benchmark results and approaches to stress testing.

The update notes also the relevance of the tests to insurers. (Source: PRA Publishes H1 Stress Scenario Details)

Contact: Michael Wainwright or Juan Jose Manchado

Upper Tribunal (Tribunal)

Tribunal backs FCA on extension application: The Tribunal has refused Mohammed Miah's application for an extension of time for making a reference in respect of a decision of the then Financial Services Authority (FSA) from 2008. Following an investigation into activities of Mr Miah's then employer and another investment adviser at the firm, FSA fined the firm and banned the other adviser. Mr Miah signed a settlement agreement with FSA which, among other things, imposed a fine and a ban on him, and FSA published the final notice in February 2008. In 2010, Mr Miah's advisers sought clarification on the terms of the ban, and FSA responded that it covered all functions in relation to any regulated activity. In 2012, Mr Miah was convicted of several offences and imprisoned. He was released in late 2014. He had still not paid FSA's fine so FCA started bankruptcy proceedings, which led to Mr Miah applying to the Tribunal for making a reference out of time. He alleged FSA had not applied its powers fairly between him, the firm and the other individual. He made several other allegations with the aim of undermining the settlement agreement. The Tribunal found none of them undermined the terms of the agreement or gave any reason to allow the extension in time. (Source: Tribunal Backs FCA on Extension Application)

Contact: Michael Wainwright or Nicholas Ralph

Lloyd's

Lloyd's clarifies terrorism reimbursement position: Lloyd's has published a Market Bulletin focusing on the amendments to the Terrorism Act that the Counter-Terrorism and Security Act 2015 will introduce. The law will clarify that insurers and reinsurers cannot reimburse ransom payments made to terrorists. It notes that kidnap and ransom insurance can still pay out on non-terrorism related criminality. Lloyd's says it understands the industry knows the law anyway, but asks all managing agents to ensure their compliance frameworks will prevent any illegal payments being made. (Source: Lloyd's Clarifies Terrorism Reimbursement Position)

Contact: Emma Radmore or Nicholas Ralph

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

International Organisation of Securities Commissions (IOSCO)

IOSCO consults on credit risk sound practices: IOSCO has published a report titled "Sound Practices at Large Intermediaries: Alternatives to the Use of Credit Ratings to Assess Creditworthiness". The report sets out 14 proposed "sound practices" that large market intermediary firms should take into consideration when implementing their internal credit assessment policies and procedures. IOSCO's aim is to reduce the overreliance of large credit intermediaries on credit rating agencies. It says this would increase investor protection and contribute to market integrity and financial stability. (Source: IOSCO Consults on Sound Practices at Large Intermediaries for Assessing Credit Risk)

Contact: Rosali Pretorius or Michael Wainwright

Lending Standards Board (LSB)

LSB publishes credit card pre-sale review: LSB has published a review of pre-sale credit card information provision. In the course of the review LSB conducted mystery shopping exercises in branch, over the telephone and online. It also reviewed the summary boxes and terms and conditions documentation given to customers pre-sale. The review found that:

• 82% of shoppers rated the online channel as good or excellent, 78% felt the same about the in-branch services but only 58% held this view of the telephone channel;
• only four branch shops were rated poor or very poor while 25 telephone shops were rated this way; and
• on this basis LSB found that the in-branch and online channels were satisfactory overall while there was significant room for improvement of the telephone channel.

LSB recommended that the UK Cards Association should assess how customers can receive key product features information in a clear and concise way so that they can make the right choice of product. It also says the findings in the branch and telephone channels point to a need for additional training in some cases to equip staff members to communicate information more clearly to customers; have a better knowledge of some of the key product features; and maintain customer engagement. (Source: Review Of Credit Card Pre-sale – Information Provision)

Contact: Nicholas Ralph or Josie Day

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

BIS welcomes FX best practices: BIS has issued a statement welcoming initiatives of the foreign exchange (FX) committees designed to strengthen code of conduct standards and principles in FX markets. The BIS governors agreed to set up a working group under the auspices of the Markets Committee to take the issues forward. The working group will aim to facilitate the establishment of a single global code of conduct standards and principles, promote greater adherence to these standards and principles, and provide input into the wider official effort on market conduct coordinated by FSB. (Source: Economic Consultative Committee Statement on FX Market Best Practices)

Contact: Rosali Pretorius or Michael Wainwright

British Insurance Brokers' Association (BIBA)

BIBA launches code of conduct: In a speech at the BIBA conference in Manchester, Steve White, Chief Executive of BIBA, launched a voluntary code of conduct for BIBA members. The code has four principles:

• abide by all relevant laws, principles and regulations;
• act with integrity and honesty;
• act in the best interests of each client; and
• act with skill, care and diligence.

Martin Wheatley praised the code, noting its similarity to FCA's own Principles for Business and the role both sets of rules can play in raising industry standards and ensuring positive consumer outcomes. Steve White also announced that discussions have opened with the Insurance Brokers' Standards Council (IBSC) to explore how the two bodies can join forces to create a single voluntary code of conduct and guidance for insurance brokers. (Source: BIBA Launches Code of Conduct and Begins Discussions to Join Forces with IBSC)

Contact: Michael Wainwright or Juan Jose Manchado

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