Worldwide: Financial Regulatory Developments (FReD) - July 3, 2015

HEADLINES

• Commission welcomes IDD agreement
• ESMA publishes first MiFID 2 RTS
• FCA updates on MiFID 2
• FCA publishes debt management review
• FATF updates advices
• PRA updates on CRD 4

EUROPEAN UNION AND INTERNATIONAL

Presidency of the Council of the EU (Presidency)

Luxembourg takes over Presidency: Luxembourg has taken over the Presidency, and its focus in the next six months will include capital markets union and banking structural reform. (Source: Luxembourg Takes Over Presidency)

Contact: Emma Radmore or Juan Jose Manchado

Council of the EU (Council)

Council and EP agree SFT provisions: Council and the European Parliament (EP) have agreed measures to improve the transparency of securities lending and repurchase transactions under the Securities Financing Transactions Regulation (SFT Regulation). The SFT Regulation focuses on:

• monitoring of build-up of systemic risks in the financial system related to securities financing transactions;
• disclosure of information on such transactions to investors; and
• reuse by banks or brokers for their own purposes of collateral provided by their clients.

Once formally approved by EP and adopted by the Council, the SFT Regulation will be published in the Official Journal of the EU. (Source: Council and EP Agree SFT Provisions)

Contact: Rosali Pretorius or Matthew Sapte

European Commission (Commission)

Commission welcomes IDD agreement: The Commission welcomed the political agreement between EP and the Council on the final form of the Insurance Distribution Directive (IDD), which will replace the Insurance Mediation Directive. The IDD will create rules for distribution and sale of insurance products which will apply regardless of whether the insurers or brokers sell the products. It will introduce transparency and disclosure rules and a professional indemnity insurance requirement. It will permit advised or non-advised sales, and will put in place rules on promoting packages of products. The next stage for the IDD is approval in plenary vote in EP. (Source: Commission Welcomes IDD Agreement)

Contact: Michael Wainwright or Juan Jose Manchado

European Banking Authority (EBA)

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

Contact: Rosali Pretorius or Michael Wainwright

European Insurance and Occupational Pensions Authority (EIOPA)

EIOPA publishes annual report: EIOPA has published its annual report. It focuses on EIOPA's increased workload and stretched resources, featuring mainly its work on Solvency 2 and initiatives with the other European Supervisory Authorities. (Source: EIOPA Publishes Annual Report)

Contact: Michael Wainwright or Juan Jose Manchado

European Securities and Markets Authority (ESMA)

ESMA publishes first MiFID 2 RTS: ESMA has published the first set of Regulatory and Implementing Technical Standards (RTS and ITS) due under the MiFID 2 packages (revised Markets in Financial Instruments Directive (MiFID 2) and Markets in Financial Instruments Regulation (MiFIR)). The standards cover:

• RTS and ITS on applications for authorisation;
• RTS and ITS on notifications for passporting by way of service or branch of investment services or activities by investment firms or credit institutions; and
• RTS on information third-country firms applying for registration with ESMA must provide and what they must tell their EU clients.

The Commission now has three months to approve the standards. ESMA had previously written to the Commission suggesting the remaining RTS and ITS due on 3 July would be unlikely to be finished before September. The press release accompanying these documents suggests they may not be published until the end of the year. (Source: ESMA Publishes First MiFID 2 RTS)

Contact: Rosali Pretorius or Emma Radmore

ESMA publishes FAQs on AML risks in investment-based crowdfunding: ESMA has issued a set of questions and answers on money laundering and terrorist finance risks in investment-based crowdfunding. ESMA's main purpose was to analyse the risks of platforms that fall outside the scope of the current Money Laundering Directive (MLD3). It notes particularly the risks of models that carry out no due diligence, and those that take money for swift onwards transmission. Further, it notes that some platforms which fall outside the current MiFID and are also exempt from the Payment Services Directive do nevertheless fall under MLD3. It also notes that Member States should include within domestic anti-money laundering (AML) legislation other businesses that carry a high risk of terrorist finance and says some regulators may wish to reconsider their position on investment-based crowdfunding platforms. In theory, it says, all platforms should carry out similar levels of due diligence. (Source: ESMA Publishes FAQs on AML Risks in Investment-Based Crowdfunding)

Contact: Emma Radmore or Tom Harkus

ESMA consults on CSDR RTS: ESMA is consulting on limited specific aspects of the RTS due under the Central Securities Depository Regulation (CSDR). Most of the RTS are delayed, but ESMA now seeks views by 6 August on the provisions on buy-in. ESMA has identified three options and produced draft RTS for each of them. The options are:

• Option 1 – Trading level execution
• Option 2 – Trading level with fall-back option execution
• Option 3 – CSD participant level execution

ESMA will use the responses to the consultation when it produces the final RTS in September. (Source: ESMA Consults on CSDR RTS)

Contact: Rosali Pretorius or Tom Harkus

ESMA fines CRA for compliance failures: ESMA has fined DBRS Ratings Limited €30,000 for failure to comply with a number of requirements in the Credit Rating Agencies (CRA) Regulation. ESMA found failings around corporate governance, compliance and record-keeping requirements and decided to impose the first fine under the CRA Regulation. (Source: ESMA Fines CRA for Compliance Failures)

Contact: Edward Hickman or Iain Walker

ESMA agrees Greek short-selling ban: ESMA has agreed to a seven-day emergency short-selling prohibition proposed by the Hellenic Capital Market Commission under the Short Selling Regulation. The ban, lasting a week from 30 June, will temporarily prohibit transactions in any financial instrument that creates, or increases, a net short position on any of the shares admitted to trading on the Athens Exchange and Multilateral Trading Facility "EN.A". (Source: ESMA Agrees Greek Short-Selling Ban)

Contact: Matthew Sapte or Tom Harkus

European Systemic Risk Board (ESRB)

ESRB updates risk dashboard: ESRB has updated its systemic risk dashboard. (Source: ESRB Risk Dashboard Update Overview)

Contact: Rosali Pretorius or Michael Wainwright

UK GOVERNMENT AND PARLIAMENT

Bank of England (BoE)

BoE publishes Financial Stability Report: The latest Financial Stability Report identifies the main risks facing the financial system in the UK as: the global environment; the reduction in market liquidity in some markets; the UK's current account deficit; the UK housing market; consequences of misconduct in the financial system; and cyber attack. Some risks, particularly around Greece and emerging market economies, have increased since December. Some other risks have declined, including those associated with low growth in advanced economies. Generally, the report found market resilience has strengthened, and is not recommending any immediate change to regulation. However, the BoE's Financial Policy Committee (FPC) has concerns over market liquidity and plans to undertake a regular deep analysis of a range of activities, starting with the investment activity of investment funds and hedge funds, the investment and non-traditional, non-insurance activities of insurance companies, and securities financing and derivatives transactions. Alongside the report, BoE has published the results of its 2015 H1 survey on systemic risk, and FPC Policy Statement on its powers over leverage ratio tools and housing tools. (Source: BoE Published Financial Stability Report)

Contact: Rosali Pretorius or Michael Wainwright

HM Treasury (Treasury)

Treasury updates sanctions: Treasury has updated the sanctions lists in relation to Iran. (Source: Treasury Updates Sanctions)

Contact: Emma Radmore or Nicholas Ralph

UK FINANCIAL SERVICES AND MARKETS REGULATORS

Financial Conduct Authority (FCA)

FCA updates on MiFID 2: FCA has published the notes from a round table it held on UK implementation of the second Markets in Financial Instruments Directive (MiFID 2), where it met key trade associations. FCA plans to continue its monthly meetings with the associations and to consult in December on all the changes it will need to make to its Handbook, although it thinks the timetable is challenging. It will divide the consultation into conduct and wholesale issues. The nature of its approach will vary – sometimes it will include links to EU material, and sometimes it will copy out. FCA noted that for conduct issues a challenge is that it will wish to apply MiFID 2 provisions to non-MiFID business. It confirmed it was working with Treasury and, in response to a concern that the timescales did not leave much time for FCA to respond to issues raised in the consultation, it said it hoped it had already gathered views as a result of its earlier discussion paper. (Source: FCA Updates on MiFID 2)

Contact: Rosali Pretorius or Michael Wainwright

FCA publishes debt management review: FCA has published the findings from its thematic review of the fee-charging and free-to-customer debt management sector, conducted between June 2014 and May 2015. FCA found:

• firms that failed to adequately assess customers' financial circumstances before recommending a course of action;
• firms not making clear the type of service they provide and that free advice is available;
• firms encouraging vulnerable customers to buy products and services which were not suitable and impeded their ability to repay their debts;
• failures and inaccuracies in the information provided by advisers signing people up to debt management plans with their firm;
• firms failing to properly consider alternative options to debt management plans.

FCA reviewed the practices of eight firms, of varying sizes and business models. It has required some to review past cases and provide appropriate redress where customers have suffered harm. FCA noted that those firms who are now applying for authorisation will have to show that they meet the consumer credit rules, including treating customers fairly. FCA will also assess the level of fees charged by fee-charging debt management firms. (Source: FCA Releases Findings from Debt Management Thematic Review)

Contact: Nicholas Ralph or Emma Radmore

FCA to encourage smarter communications: FCA has published a discussion paper on "Smarter Consumer Communications". The paper challenges firms to consider introducing innovative ways to communicate and engage with consumers. This might include using videos or infographics. FCA's previous thematic work and market studies have revealed that the type of information consumers receive, when they receive it and the way it is delivered can drive consumer outcomes, whether good or bad. Clear and engaging information also helps to promote competition and deliver products and services that consumers want. Examples of smarter communications include using:

• plain language, short format, bullet points and clear graphics;
• interactive apps to help consumers understand and manage their product;
• infographics to explain complex information and concepts to consumers in an engaging way; and
• videos to help consumers engage with the essential terms and conditions of a product.

FCA is seeking feedback on the discussion paper by 25 September. (Source: FCA Discussion Paper Calls on Firms to Deliver Smarter, Effective Communications)

Contact: Nicholas Ralph or Emma Radmore

FCA updates on consumer credit permissions: FCA has published guidance explaining the most common misconceptions firms have about consumer credit permissions. Many of these arise in activities relating to exempt agreements, or secondary consumer credit activities. FCA also updated on numbers of applications it had received and their status as of the end of March. It said most firms that had achieved authorisation at that time were limited permission credit brokers. It noted a large number of firms who had withdrawn their application, often to become appointed representatives of other firms. It had refused 18 applications. (Source: FCA Updates on Consumer Credit Permissions)

Contact: Michael Wainwright or Nicholas Ralph

FCA gives high earner report guidance: FCA has published guidance for firms on completion of the forms for submitting high earner reports. (Source: FCA Gives High Earner Report Guidance)

Contact: Rosali Pretorius or Tom Harkus

Up next from FCA: During the third quarter of 2015, FCA plans:

• consultation on implementing UCITS V;
• consultation on fair, reasonable and non-discriminatory access to regulated benchmarks;
• a policy statement on the review of the client money rules for insurance intermediaries (this was due before the end of Q2);
• consultation on review of pensions rules and future plans;
• policy statements on complaints handling and redress, and changes relating to consumer credit (also due in June).

(Source: Policy Development Update 24)

Contact: Emma Radmore or Tom Harkus

FCA updates on pensions: FCA has updated on the impact of the new pensions flexibilities. It has also asked firms for information on barriers that consumers might face when trying to access their pensions savings. (Source: FCA Updates on Pensions)

Contact: Michael Wainwright or Juan Jose Manchado

Prudential Regulation Authority (PRA)

PRA updates on CRD4: PRA has confirmed firms must comply with EBA Guidelines on materiality, proprietary and confidentiality on disclosure frequency from 15 October 2015. (Source: PRA Updates on CRD4)

Contact: Rosali Pretorius or Michael Wainwright

PRA finalises fees: PRA has finalised its fees and levies for 2015/2016. It made no changes to its proposals, and its final policy statement sets out:

• fee rates to meet the Annual Funding Requirement;
• fee rates for the Special Project Fee (SPF) for Solvency 2;
• fee rates for the SPF for restructuring; and
• PRA's revised Financial Penalty Scheme.

(Source: PRA Finalises Fees)

Contact: Rosali Pretorius or Juan Jose Manchado

PRA updates on skilled persons: PRA has commissioned four skilled persons reporting in the last quarter, three of which related to prudential issues for insurance companies. (Source: PRA Updates on Skilled Persons)

Contact: Michael Wainwright or Nicholas Ralph

PRA updates on stress testing: PRA has asked general insurance firms to contribute to a stress testing exercise. It needs them to respond by 1 October. (Source: PRA Updates on Stress Testing)

Contact: Michael Wainwright or Juan Jose Manchado

Office of the Complaints Commissioner (OCC)

OCC rejects FX investigation complaints: OCC has issued a final notice dealing with an appeal against a decision to reject a series of complaints in relation to the then FSA's handling of an investigation into fraudulent FX trading transactions. The Commissioner decided not to uphold the complaints:

• against FSA's actions in relation to the FX companies with which the complainant had placed their money. The Commissioner found the FX firm was unregulated and the complainant produced no evidence to suggest that it was involved in any regulated activity. The firm also went into administration in 2008. As such, FSA was unable to take any action against it. Accordingly the Commissioner found (in agreement with the provisional decision reached earlier) that FSA had taken all reasonable steps to investigate the complainant's claims;
• against FSA's actions in relation to the banks believed to have poorly administered client accounts held by the FX companies which enabled the companies to use client money for business expenses and allowed the accounts holding client money to become overdrawn. Considering all the information provided to FSA by the banks the Commissioner found FSA's response and conclusions were both rational and reasonable. As the issues raised were already historic, affected a small number of accounts and had been addressed by the banks in their responses to FSA's requests, no further action was justified; and
• relating to the way in which FSA engaged with the complainant and its representatives during the course of investigations. The Commissioner found that FSA's decisions to refuse a request for a case conference and to disclose confidential information to the complainant for use in litigation were neither unreasonable or illogical.

The Commissioner sympathised with the complainant's frustrations with various authorities beyond the FSA and FCA and the complainant's lack of redress for the loss suffered. The Commissioner also acknowledged the validity of concerns raised by the complainant and their representatives that the reliance upon confidentiality provisions to justify the lack of an explicit and detailed rationale for the regulator's decisions may enable banks and other regulated entities to mislead the regulator without challenge. The Commissioner assured the complainant that it would discuss with FCA as to whether there may be ways, in the future, of supplying some additional explanations to complainants without breaching the statutory requirements for confidentiality. (Source: Office of the Complaints Commissioner: Final Decision (FSA01525))

Contact: Felicity Ewing or Tom Harkus

Payment Systems Regulator (PSR)

PSR publishes final infrastructure ToR: PSR has published the final terms of reference (ToR) for its review into ownership structures of, and competition in, the provision of payment systems infrastructure. The review will look at whether competition is effective in the provision of infrastructure services related to interbank payment systems and, if not, why not. The review will focus on the supply of infrastructure services related to interbank payment systems for BACS, Faster Payments Scheme and LINK. It will report on a preliminary basis in early 2016, with a full report in the summer. (Source: PRA Publishes Final Infrastructure ToR)

Contact: Alex Haffner or Rebecca Owen-Howes

OTHER REGULATORS/AUTHORITIES/INDUSTRY ASSOCIATIONS

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

Basel Committee consults on CVA risk framework: The Basel Committee is consulting on measures to:

• ensure that all important drivers of credit valuation adjustment (CVA) risk and CVA hedges are covered in the Basel regulatory capital standard;
• align the capital standard with the fair value measurement of CVA employed under various accounting regimes; and
• ensure consistency with the proposed revisions to the market risk framework under the Basel Committee's Fundamental review of the trading book.

The paper suggests a CVA risk framework that takes into account the market risk exposure component of CVA along with its associated hedges. It would base the regulatory capital requirement for CVA risk on exposure models that banks also use to determine their accounting CVA. In principle, it suggests an internal models approach and a standardised approach for CVA risk adapted from the revised market risk framework under the fundamental review of the trading book. A basic approach would be available to banks it would suit better. The Basel Committee asks for comments by 1 October. (Source: Basel Committee Consults on CVA Risk Framework)

Contact: Rosali Pretorius or Michael Wainwright

European Payments Council (EPC)

EPC reports on SEPA instant payments: EPC has issued a report looking at the desirability and practicalities of an instant payment solution for euro. (Source: EPC Reports on SEPA Instant Payments)

Contact: Nicholas Ralph or Juan Jose Manchado

Financial Action Task Force (FATF)

FATF updates advices: At FATF's plenary meeting in Brisbane, it:

• confirmed Iran and North Korea remain subject to countermeasures;
• named Algeria and Myanmar as jurisdictions with significant deficiencies that have not made enough progress in addressing them;
• noted Afghanistan, Angola, Bosnia and Herzegovina, Ecuador, Guyana, Iraq (which it notes as making insufficient progress), Laos, Panama, Papua New Guinea, Sudan, Syria, Uganda and Yemen as countries it is closely monitoring; and
• named Indonesia as a country that has now made sufficient progress for FATF to remove it from the monitoring list;
• looked at the causes of derisking. It will carry out further work, but has noted specifically the need to address how its standards on correspondent banking can work alongside its standards on due diligence;
• published guidance on a risk-based approach to virtual currencies; and
• updated on recent evaluations, new members and ongoing work.

Korea has now taken over the Presidency of FATF. (Source: FATF Updates Advices)

Contact: Emma Radmore or Nicholas Ralph

International Association of Insurance Supervisors (IAIS)

IAIS consults on HLA for GSIIs: IAIS is consulting on higher loss absorbency (HLA) for global systemically important insurers (GSIIs). IAIS is seeking feedback until 21 August on several options to further support and inform the design, development and calibration of the HLA. (Source: Public Consultation Begins on HLA Requirement for GSIIs)

Contact: Michael Wainwright or Juan Jose Manchado

IAIS consults on conduct risk: IAIS is consulting on conduct of business risk and its management. The paper assesses the sources and impact of conduct of business risk and its place within risk management frameworks, and the mitigation of conduct of business risk by the entity concerned and its supervisor. It looks at potential broader consequences of inadequate management of conduct of business issues and the linkages between conduct of business risk and risks to financial soundness. The paper goes on to look at the scope of, and approaches to, conduct of business-risk management that IAIS Members may wish to consider when implementing ICP 19 (Conduct of Business), ICP 18 (Intermediaries) and ICP 9 (Supervisory Review and Reporting). IAIS asks for comment by 14 August. (Source: IAIS Consults on Conduct Risk)

Contact: Michael Wainwright or Juan Jose Manchado

IAIS consults on captives: IAIS is consulting on regulation and supervision of captive insurers. It updates guidance to supervisors and seeks comments by 3 August. (Source: IAIS Consults on Captives)

Contact: Michael Wainwright or Juan Jose Manchado

International Organisation of Securities Commissions (IOSCO)

IOSCO consults on fees and expenses: IOSCO is consulting on international standards on fees and expenses of investment funds. The consultation proposes an updated set of common international standards of best practice for the operators of Collective Investment Schemes (CIS) and regulators to consider. IOSCO invites comments until 23 September. (Source: IOSCO Consults on International Standards on Fees and Expenses of Investment Funds)

Contact: Rosali Pretorius or Tom Harkus

IOSCO issues second CRA questionnaire: IOSCO has issued its second questionnaire on CRA products. This questionnaire aims to help it understand how issuers, investors and users of defined CRA products understand and use them. IOSCO seeks views by 31 July. (Source: IOSCO Issues Second CRA Questionnaire)

Contact: Edward Hickman or Iain Walker

Lloyds Market Association (LMA)

LMA publishes SIMR guidance: LMA has published guidance to help clarify the Senior Insurance Managers Regime (SIMR) for its members. (Source: LMA Publishes SIMR Guidance)

Contact: Katharine Harle or Nicholas Ralph

Payments UK

Payments UK launches: Payments UK has launched itself and its new website. It is the successor to the Payments Council and will work to provide support to the payments industry through conferences and other initiatives. (Source: Payments UK Launches)

Contact: Nicholas Ralph or Josie Day

UK Regulatory Network (UKRN)

UKRN publishes work plan: UKRN has published its workplan. The group, which includes FCA, PSR and Ofgem will focus on:

• cross-sector infrastructure investment;
• consumer engagement and switching;
• understanding affordability across sectors;
• cross-sector resilience;
• evolving independent regulation;
• business improvement;
• market returns and the cost of capital; and
• regulating for quality.

(Source: UKRN Plan for 2015-2016)

Contact: Rosali Pretorius or Luca Salerno

To read this Newsletter in full, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.