Allen & Overy's weekly update on Key Regulatory Topics - 15 June - 21 June 2018

Allen & Overy LLP

Allen & Overy LLP


TheCityUK paper on continuity of cross-border financial contracts post-Brexit

On 20 June, TheCityUK published a paper on the continuity of cross-border financial contracts post-Brexit. In the paper, TheCityUK highlights the problems facing UK and EEA financial institutions that will no longer be able to service cross-border financial contracts once passporting rights relating to UK firms and the UK markets cease to apply. This is a particular concern for insurance contracts, pension schemes and derivative contracts. TheCityUK calls for a co-ordinated solution at the UK-EU level as soon as possible on the grandfathering of cross-border financial contracts. This grandfathering could apply for a time-limited period or potentially until maturity. It suggests that this could be achieved through: (i) a bilateral agreement between the UK and EU, supported by regulatory co-operation; (ii) separate regulatory action or legislation in each jurisdiction, consistent with the approach agreed between the UK and EU; and (iii) provisions in the Withdrawal Agreement. Regulators will need to provide support for this approach to provide certainty for providers and customers until the Withdrawal Agreement is ratified. TheCityUK warns that for certain contracts official grandfathering will be the only available solution even in the long term. These include contracts relating to assets and liabilities that cannot be separated into UK and EU27 components or contracts that are not commercially viable to service by establishing a new subsidiary. It considers the work currently being taken by firms to mitigate the impact on customers. It argues that, in practice, market participants will not be able to address the issue fully without regulatory support by March 2019 because of the scale of the task and the need for third party co-operation. TheCityUK also calls for UK and EU regulators to issue commitments about the future treatment of cross-border contracts to act as a regulatory back stop if there is no transitional period. There should also be ongoing supervisory co-operation between UK and EU regulators to underpin any solution on grandfathering.

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ICE Benchmark Administration finalises issue 5 of LIBOR code of conduct

On 19 June, IBA published issue 5 of the LIBOR code of conduct. The code sets out the framework within which contributing banks should operate. It also aims to assist users in deciding whether LIBOR is an appropriate benchmark to use in contracts. It reflects the requirement in Article 15 of the BMR that administrators of benchmarks should develop a code of conduct for each benchmark. The code covers issues including input data requirements, governance, compliance and audit, and record-keeping. The IBA has also published: (i) ICE LIBOR methodology, which sets out the applicable requirements that a contributor bank should follow when formulating its LIBOR submissions; and (ii) LIBOR evolution – error and reportable items policy, which sets out requirements for contributor banks to report errors identified in post-submission reviews. Issue 5 of the code supersedes issue 4 of the code, which the IBA published in March 2017. The IBA published a draft version of issue 5 for consultation in April. The code has been extensively revised to reflect the requirements of the BMR and the RTS specifying the elements of codes of conduct required under Article 15 of the BMR. 

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HM Treasury response to call for evidence on problem debt

On 18 June, HM Treasury published its response following its call for evidence relating to relieving the burden of problem debt for individuals, which was published in October 2017. The government issued the call for evidence to gain further insight from the debt advice sector and creditors about how best to design, implement, administer and monitor a six-week breathing space scheme and statutory debt management plan. The response summarises the submissions received to the call for evidence. It sets these out in chapter 3 under themes including the following: (i) how an individual would access a breathing space and protections offered during a breathing space; (ii) how to administer a breathing space; (iii) how an individual could access a SDRP and the protections offered by an SDRP; and (iv) the benefits and challenges of a breathing space and an SDRP. The response states that the next stage is for the government to consult on a policy proposal later on in the summer. As outlined during the passage of the Financial Guidance and Claims Act 2018, the government then intends to lay regulations to establish the scheme during 2019.

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SFO speech on corporate criminal liability, AI and DPAs

On 21 June, Camilla de Silva, the SFO’s Joint Head of Bribery and Corruption, spoke at a conference on corporate criminal liability, AI and DPAs. Her speech covers the following issues: (i) the announcement of the new Director; (ii) the SFO views on corporate criminal liability; (iii) DPAs and the use of Compliance Monitors; (iv) the use of artificial intelligence and technology; and (v) legal professional privilege.

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Select Committee call for evidence on functioning of Bribery Act 2010

On 20 June, the House of Lords Select Committee on the Bribery Act 2010 issued its call for evidence. Although the Committee is keen to receive submissions on any issues relating to the operation of the Act, it particularly welcomes submissions on the nine questions set out in the call. In general terms those questions include: (i) whether the Act is deterring bribery in the UK and abroad and being adequately enforced without unintended consequences; (ii) whether the statutory guidance on the Act sufficient, clear and well-understood by all those who have to deal with it and whether alternative approaches should be considered; and (iii) whether the introduction of DPAs has been a positive development in relation to offences under the Act and whether they have been used appropriately and consistently, reducing the likelihood that culpable individuals will be prosecuted for offences under the Act. As well as the above issues, the call for evidence also seeks submission on whether lessons could be learned from anti-corruption legislation in other countries and the particular impact of the Act on small and medium enterprises. The House of Lords Select Committee on the Bribery Act 2010 was established on 17 May as part of the post legislative scrutiny of the Act and must report by 31 March 2019. The deadline for submission in response to the call for evidence is Tuesday 31 July.

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MLD5 published in OJ

On 19 June, the text of MLD5 was published in the OJ. The Council of the EU adopted the Directive on 14 May, following adoption by the EP on 19 April. The Directive will enter into force on 9 July (that is, 20 days after publication in the OJ). Member states must bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 10 January 2020.

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EP non-objection to Delegated Regulation on investment requirements under MMF Regulation

On 19 June, the EP updated its procedure file on the Delegated Regulation on STS securitisations and ABCP, requirements for assets received as part of reverse repurchase agreements and credit quality assessment methodologies under the Regulation on money market funds (MMF Regulation) to reflect its non-objection to the Delegated Regulation. The next step is for the Council of the EU to consider the Delegated Regulation. If it does not object, it will enter into force twenty days after it is published in the OJ. It will apply from 21 July, with the exception of Article 1 which will apply from 1 January 2019. 

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COREPER invited to agree mandate on cross-border distribution of investment funds and authorise Council Presidency to enter into negotiations

On 15 June, the Council of the EU published an "I" item note (9910/18) from the COREPER regarding the EC’s legislative proposals on the cross-border distribution of investment funds. The note states that the proposals have been examined by the working party on financial services in four meetings during the Bulgarian Presidency of the Council. Following a subsequent silence procedure, held within the framework of the working party, which ended on 14 June, the latest compromise proposals for a negotiating mandate are now supported by all delegations. The latest compromise proposals are set out in two addenda to the note: (i) Compromise proposal (9910/18 ADD 1): proposal for a Directive on the cross-border distribution of collective investment funds (2018/0041 (COD)); and (ii) Compromise proposal (9910/18 ADD 2): proposal for a Regulation on facilitating cross-border distribution of collective investment funds (2018/0045 (COD)). COREPER is invited to agree on the negotiating mandate regarding the proposed Directive and Regulation, as set out in the addenda. It is also invited to authorise the Austrian Presidency of the Council to enter into negotiations with the EP on the basis of that mandate, with a view to reaching an agreement at first reading. The Council published the first two compromise proposals on 1 June.

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Insurance contract law reform: English and Scottish Law Commissions publish updated insurable interest draft Bill

On 20 June, the English and Scottish Law Commissions published an updated insurable interest draft bill, which focuses on life insurance and other insurances which relate to human life, such as accident and health cover. The draft bill intends to "pull the law of insurable interest into the 21st century" by broadening the concept of insurable interest for life-related insurance. The Law Commissions will conduct a short consultation on the detail of the new draft Bill and are inviting comments on the updated draft until 14 September. They have provided an optional response form for this purpose. The English and Scottish Law Commissions first consulted on the requirement for insurable interest in 2008 and 2011. In essence, this requirement means that, for an insurance contract to be valid, someone taking out insurance should gain a benefit from the preservation of the subject matter of the insurance or suffer a disadvantage should it be lost. However, definitions of insurable interest change according to the subject matter of the insurance. Moreover, the law on insurable interest differs depending on whether the contract is for non-indemnity insurance or indemnity insurance. In 2011, the Law Commissions took the view that the law of insurable interest was complex and uncertain, and queried whether insurable interest was required at all in relation to indemnity insurance. On the basis of responses to the relevant consultations, they decided that reforming this area of the law was not a priority, especially since courts tend to view allegations of lack of insurable interest as a technical defence and will make every effort to find an insurable interest where both parties have willingly entered into the insurance agreement. However, in 2014, they were approached by certain stakeholders who were under pressure to write policies that include cover for children and cohabitants, and to insure "key employees" for substantial amounts. The Law Commissions, therefore, revisited the law on insurable interest and in 2016 they consulted on a draft Bill designed to give effect to their updated proposals. Although most consultees agreed with the overall direction of the proposals, concerns were expressed over some of the details. It was also clear from those responses that there was little demand for reform in the area of indemnity and non-life insurance. The Law Commissions hope that the resulting Bill will be suitable for the special parliamentary procedure for uncontroversial Law Commission bills.

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IAIS issues paper on index-based insurances

On 19 June, the IAIS published an issues paper on index-based insurance, particularly in inclusive insurance markets. An index-based insurance product is a contract where a claim is defined with reference to a pre-determined index. The relevant index often seeks to reflect losses arising from weather and catastrophic events. The nature of these products means that they are perceived as having reduced underwriting and claim assessment costs and as having a quicker and more objective claims settlement process. This may mean that they can provide improved access to insurance for excluded and under-served markets. In the paper, the IAIS considers: (i) the issue of legal certainty and whether index-based insurance products might not be considered to be insurance at all; (ii) Consumer protection issues. The IAIS notes that index-based insurances are usually more complex than most other retail insurance products, which leads to greater challenges in ensuring consumer protections and increases the risk of problems arising from misunderstandings. Among other things, the IAIS considers issues relating to product development, ex gratia payments and product security; and (iii) the development of pilot projects for index-based insurance schemes. The IAIS considers how supervisors might approach these projects to reflect a proportionate approach and to provide for innovation.

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EIOPA speech on key priorities

On 15 June, EIOPA published a speech (dated 5 June) by Gabriel Bernardino, EIOPA Chair, which sets out EIOPA's top three priorities in view of the changing environment, in particular the implementation of the Solvency II Directive (2009/138/EC) in 2016. EIOPA is focusing on: (i) further enhancing supervisory convergence. EIOPA is looking at conduct of business supervision in the light of the Insurance Distribution Directive ((EU) 2016/97) (IDD) and the PRIIPs Regulation (Regulation 1286/2014). It will put more focus on conduct of business supervision in view of the new rules on conflicts of interest, product oversight and governance and transparency. EIOPA expects national competent authorities to reinforce their market monitoring activities, deepen their knowledge about the products sold and effectively take measures to stop bad practices that potentially create consumer detriment. Conduct of business supervision needs to be taken more seriously and this requires a change in the culture of supervisors. Mr Bernardino also refers to EIOPA's recently published supervisory convergence plan; (ii) reinforcing consumer protection in an era of digital transformation. The growing use of new technologies, digitalisation, Big Data and machine learning have the potential to change significantly the insurance value chain, creating new opportunities to improve customer experience and generate lower costs, but also bringing up new risks. The three ESAs have decided that any legislative intervention at this point would be premature and existing legislation should mitigate many of the risks identified. The ESAs will continue to closely monitor any future developments in the area and call upon financial firms to develop and implement good practices on the use of big data; and (iii) maintaining financial stability in a changing environment. In the medium-term, Mr Bernardino states that it is fundamental, both for consumer protection and the proper functioning of the internal market, to build a minimum harmonised approach to insurance guarantee schemes in the EU. EIOPA is currently assessing the need and the possible elements of such a framework and intends to issue a discussion paper before summer 2018. Mr Bernardino concludes the speech by stating that he supports the proposals of the EC to reinforce integrated supervision in the EU, with the proposed stronger role of EIOPA on supervisory convergence.

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Working group on euro risk-free rates consults on assessment of candidate euro risk-free rates

On 21 June, the ECB published a consultation paper by the working group on euro risk-free rates (for which the ECB provides the secretariat), on the assessment of candidate euro risk-free rates. The new euro risk-free rate will replace the EONIA, which will no longer meet the criteria of the BMR as of 2020. The three candidate euro risk-free rates are: (i) ESTER, the new wholesale unsecured overnight bank borrowing rate, which the ECB will produce before 2020; (ii) GC Pooling Deferred, a one-day secured, centrally cleared, general collateral repo rate; and (iii) RepoFunds Rate, a one-day secured, centrally cleared, combined general and specific collateral repo rate. The consultation closes on 13 July. The ECB announced the launch of the working group in September 2017 and it held its first meeting in March.

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ESMA speech on MiFID II Implementation – Achievements and Current Priorities

On 21 June, ESMA published a speech by Steven Maijoor outlining ESMA’s assessment of the first months of MiFID II and identifies areas of focus over the up and coming months. The positive achievements highlighted includes: (i) transparency provisions do not appear to have disrupted financial markets and reduced available liquidity despite concerns from market participants; (ii) transactions in dark pools have significantly declined; (iii) G20 commitments continue to be met and greater transparency is achieved; and (iv) there has been a steady increase in the use of LEIs. There are some areas where improvements need to be made which includes: (i) Double Volume Cap Mechanism; (ii) the Systematic Internaliser Regime; (iii) bond liquidity assessment; (iv) market data issues; (v) the tick size regime and third country issues; and (vi) the need for a comprehensive regime for third countries and trading venues.

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HMT memorandum on proposed Regulation amending BMR on low carbon benchmarks and positive carbon impact benchmarks

On 20 June, the UK government published an explanatory memorandum submitted by HMT on the EC's legislative proposal for a Regulation amending the BMR on low carbon benchmarks and positive carbon impact benchmarks (2018/0180 (COD)). In the memorandum, HMT sets out the UK government's position on the EC’s proposal: (i) the government is not convinced that the amendment to the BMR is necessary. It suggests that further consideration should be given to achieving the EC’s objectives through ESMA guidance, which would be more flexible and easier to update; (ii) the government is not convinced that the BMR is an appropriate tool for prescribing a methodology for calculating carbon emissions, given the wider implications beyond the financial sector. It comments that an overly prescriptive approach could hinder innovation and competition in sustainability benchmarks; and (iii) the government does not believe that the role of the BMR should be to redirect investment, although it supports the EC’s overall initiative on sustainable development. HMT expects that the amendments made by the proposed Regulation will come into force during the implementation period (that is, the transition period) under the EU-UK Withdrawal Agreement. The EC adopted the legislative proposal for the proposed Regulation in May as part of a package of reforms on sustainable finance. 

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ESMA statement on LEI requirements under MiFIR

On 20 June, ESMA published a statement about LEI requirements under MiFIR. ESMA published a statement in December 2017 that provided for trading venues to report their own LEI codes instead of LEI codes of non-EU issuers that do not have their own LEI codes for a six month period. Since the publication of the December 2017 statement, ESMA and NCAs have closely monitored the use of LEIs and have observed a significant increase in the LEI coverage for both issuers and clients. Based on these observations, ESMA and NCAs have concluded that there is no need to extend the initial six-month period granted. The period will last until 2 July (inclusive). As the application of the statement also required NCAs to temporarily amend a validation rule in their transaction reporting systems, this amendment will be reversed for transactions executed after the six-month period. However, reports for transactions executed between 3 January and 2 July will still be accepted even if the LEI issuance date is after the execution date. Investment firms are invited to contact their NCA directly for the specific details regarding this adjustment. To improve supervisory convergence and the full application of MIFIR, ESMA and NCAs are now co-ordinating the development of an appropriate and proportionate common supervisory action plan focused on compliance with the LEI reporting requirements under the respective MiFIR provisions. The FCA has also updated its MiFID II LEI update webpage to confirm that it will be implementing the LEI validation rule change from 3 July, as set out in the ESMA statement.

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House of Commons European Scrutiny Committee considers proposed Directive on credit servicers, credit purchasers and the recovery of collateral

On 19 June, the House of Commons European Scrutiny Committee published its thirty-first report of the 2017-19 parliamentary session, in which, among other things, it considers the proposed Directive on credit servicers, credit purchasers and the recovery of collateral. The EC adopted the legislative proposal in March. The report refers to a letter (dated 24 May) from John Glen, Economic Secretary to the Treasury, to the Committee in which he responded to concerns raised by the Committee about the cross-border passporting regime for debt administration firms (credit servicers). Mr Glen confirmed that the proposed Directive would, for the first time, allow debt administration firms who act on behalf of lenders to operate on a cross-border basis within the EU, without requiring local authorisation or a physical presence in another member state (after having obtained a licence in any EU country). While the UK remains part of the single market, this will also apply to the UK market. The Committee notes that this will mark a significant shift as any firm offering or providing debt administration services in the UK at present, from within the UK or on a cross-border basis, requires FCA authorisation. The Committee retains the proposal under scrutiny due to outstanding issues, which include the following: (i) due to Brexit, the overall impact the proposed Directive may have in the UK remains unclear; (ii) the situation after the transition is less clear-cut; (iii) it is unclear what a financial services agreement with the EU based on mutual recognition would, in practice, entail for the UK's debt recovery regulations; and (iv) the Committee is particularly concerned with regard to out-of-court collateral recovery and the new passporting regime for debt administration firms. In terms of the latter, the Committee remains to be convinced that it is in the interest of UK borrowers to have their loan agreement with a UK bank administered by a credit servicing firm that is not subject to FCA oversight, or embedded in the UK's regulatory culture for debt administration. 

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ECON and AFCO vote to adopt draft report on decision on increased regulatory powers for ECB over clearing systems

On 19 June, ECON and AFCO published a press release announcing that they had voted to adopt a joint draft report on a draft decision of the EP and of the Council amending Article 22 of the Statute of the European System of Central Banks and of the ECB (the Statute) (2017/0810 (COD)). The decision relates to the ECB's recommendation for the decision made in June 2017, in which it asked for a greater role in regulating clearing systems for financial instruments, including CCP, by amending Article 22 of the Statute. The amendment would enable the Eurosystem (that is, the ECB and the national central banks of member states in the eurozone) to monitor and assess risks posed by CCPs clearing significant amounts of euro-denominated transactions and enable the ECB to adopt additional requirements for those CCPs. ECON and AFCO published the draft report, which were prepared by Rapporteurs Gabriel Mato and Danuta Maria Hübner, in April. The next step will be for the EP to consider the motion for a resolution of the EP, as set out in the report, in a plenary session in July or September.

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BoE and HMT finalise fees regime for FMI supervision

On 19 June, the BoE published a policy statement on the fees regime for the supervision of FMI. Section 4 of the policy statement contains the BoE's statement of policy on its final fee-levying regime for FMI (that is, CCPs, CSDs, RPSs and specified service providers to RPSs). It covers: (i) The BoE's fee-levying powers; (ii) Supervision fees, including the methodology and the process for levying supervision fees; and (iii) Application fees, including types of application fees and the process for paying these fees. The Banking Act 2009 (Fees) Regulations 2018 (SI 2018/734) have also been published on, together with an explanatory memorandum. The Regulations approve a scale of fees that may be charged by the BoE to operators of RPSs and to service providers to RPSs. The Regulations were made on 18 June and come into force on 10 July. The BoE states that the fee regime will come into force on 10 July, in line with the Regulations. Fees for 2018/19 will be a pro-rata amount for that fee year and the full annual process of levying fees will commence from the fee year 2019/2020. Details of the supervisory fees for the 2018/19 fee year are set out in the policy statement. The BoE and HM Treasury consulted on draft versions of the statement of policy and the Regulations in March. The policy statement and the explanatory memorandum contain details of the feedback received to the consultation.

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Working Group on Sterling Risk-Free Reference Rates agrees timeline with milestones for RFR transition in sterling markets

On 18 June, the Working Group on Sterling RFRWG published a provisional timeline setting out milestones for the transition to RFRs in sterling markets. The timeline sets out, at a high-level, the actions to be taken between the second half of 2018 and the end of 2021, when transition and fall-back plans will be in place and the production of the LIBOR will no longer be guaranteed by the FCA. 

The RFRWG will update the timeline on a regular basis with amendments and additional detail to reflect on-going progress on plans for benchmark transition. In the timeline, the RFRWG notes the following immediate steps that could be undertaken: (i) market participants should assess the SONIA interest rate referencing product offerings that may be available to meet their financing, investment and risk management needs; (ii) financial services firms should provide clients with clear and accessible information for SONIA referencing product offerings; and (iii) all firms should assess the benefits and risks of benchmark migration. With effect from January, the RFRWG was reconstituted by the BoE and FCA with a broader mandate and broader representation. The BoE published updated terms of reference for the RFRWG in February, reflecting its revised mandate, which includes raising awareness of transition issues and seeking input from a broad range of stakeholders. The aim is to establish SONIA as the primary sterling interest rate benchmark by the end of 2021.

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Council of EU Presidency revised proposal for compromise text on proposed Regulation amending EMIR supervisory regime for EU and third-country CCPs

On 15 June, the Council of the EU published a revised proposal (10164/18) (dated 14 June) for a consolidated Presidency compromise text on the proposed Regulation amending the ESMA Regulation (Regulation 1095/2010) and EMIR with regard to the procedures and authorities involved for the authorisation of CCPs and the recognition of third-country CCPs (2017/0136 (COD)). The revised proposal focuses on the provisions in the proposed Regulation relating to recognition and supervision of third-country CCPs. The cover note for the proposal states that text in underlined bold indicates new amendments to the last Bulgarian compromise (Working document #24). ECON published its report on the proposed Regulation in May. The EC published its legislative proposal to amend the supervisory regime for CCPs under EMIR (the Regulation on OTC derivatives, CCPs and trade repositories) (Regulation 648/2012) in June 2017. 

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PRA policy and supervisory statements on algorithmic trading

On 15 June, the PRA published a policy statement (PS12/18) and a supervisory statement (SS5/18) on algorithmic trading, following its consultation in February. Respondents were generally supportive of the proposals for the risk management and governance of algorithmic trading. The PRA's feedback to the responses, final decisions and rationale for related amendments to SS5/18 are set out in Chapter 2 of PS12/18. Following consideration of respondents' comments, the PRA has made the following changes to SS5/18: (i) Algorithm approval process. The PRA makes it clear that its expectation is for each function that has a role in the approval of algorithms (for example, front office, risk management and other systems and controls functions) should sign off on the risks relevant to them; (ii) Testing and deployment. The PRA clarifies that, when testing algorithms, firms are only expected to document material differences between the test environment and production environment rather than all differences; and (iii) Inventories and documentation. The expectation is that inventories and documentation will be available, rather than "immediately available", to all personnel who have responsibility for the oversight of algorithmic trading. SS5/18 will take effect from 30 June. The statements are relevant to firms that engage in algorithmic trading and are subject to the rules in the Algorithmic Trading Part of the PRA Rulebook and Commission Delegated Regulation (EU) 2017/589. SS5/18 applies to all algorithmic trading activities of a firm including in respect of unregulated financial instruments such as spot FX. 

Policy Statement

Supervisory Statement ​


FCA issues statement on EBA’s PSD2 Guidelines

On 21 June, the FCA issued a statement in response to EBA’s opinion and draft guidelines on the RTS on strong customer authentication and common and secure communication. The FCA will begin their consultation which will set out the process and level of information they require to make their exemption assessment. The FCA intends to consult on the changes during the summer.

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PSR sets out measures for push payment scam protection

On 21 June, PSR published a document summarising the initiatives that it is working on to increase consumer protection from APP scams. The initiatives, which are mainly led by UK Finance and the NPSO, include: (i) enhancing quality of sanctions data; (ii) enabling customers to verify they are paying the person they intend to before transferring any money; (iii) best practice standards for banks to follow when a victim reports an APP scam; and (iv) more effective data sharing between PSPs to make it harder for criminals to open or take over bank accounts used to perpetrate scams, banking fraud and money laundering. The PSR announced developments in its proposal to introduce a CRM relating to APP scams in February.

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ECB revised assessment methodology for payment systems

On 15 June, the ECB published a revised assessment methodology for payment systems. In June 2013, the PFMIs developed by the CPMI and the Technical Committee of IOSCO were adopted as a basis for the conduct of Eurosystem oversight in relation to all types of FMIs. For payment systems, the PFMIs are implemented through the ECB Regulation on oversight requirements for systemically important payment systems (SIPS Regulation) and the revised oversight framework for retail payment systems. The updated version of the assessment methodology covers the requirements introduced by the Revised SIPS Regulation, which entered into force in December 2017. It also references the Eurosystem's cyber resilience oversight expectations, which are based on the CPMI-IOSCO guidance on cyber resilience for financial market infrastructures published in June 2016. The ECB previously updated the assessment methodology in February 2016.

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COREPER invited to agree mandate on PEPP Regulation and authorise Council Presidency to enter into negotiations

On 19 June, the Council of the EU published a note dated 15 June from its Presidency to its COREPER regarding the proposed Regulation on a pan-European PEPP. The note states that the proposal has been examined by the working party on financial services in 13 meetings. Following a subsequent silence procedure (which was broken), the latest compromise proposal for a negotiating mandate is now supported by the majority of delegations. The most controversial issue is about the scope of potential PEPP providers and whether IORPs should be allowed to provide PEPPs. As a solution, the Presidency has tabled a proposal that only those IORPs which, pursuant to national law, are authorised and supervised to provide personal pension products and whose assets and liabilities corresponding to PEPP provision business are ring-fenced would be allowed to provide PEPPs. The latest compromise proposal is set out in an annex to the note. COREPER is invited to agree on the negotiating mandate regarding the PEPP Regulation, as set out in the annex. It is also invited to authorise the Austrian Presidency of the Council to enter into negotiations with the EP on the basis of that mandate, with a view to reaching an agreement at first reading.

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Government final response to Law Commission report on pension funds and social investment: financial services aspects

On 18 June, the government published its final response to the Law Commission's report on pension funds and social investment. The Commission published its report in June 2017. The government published an interim response in December 2017. The Commission made recommendations concerning matters including contract-based pension schemes. Recommendations relating to these include the following: (i) COBS 19.5 should be amended to require IGCs to report on the firm's policies in relation to evaluating risks to an investment in the long term, and considering and responding to members' ethical and other concerns. The FCA generally agrees with the Commission's findings. It intends to consult on a broader rule change to that proposed by the Commission. It will also consult on a rule change requiring IGCs to report on their firm's policy on how they take member concerns into account. In addition, the FCA has wider work underway that may result in changes to the remit of IGCs; (ii) COBS 19.5 should be amended to require IGCs to report on the firm's policy (if any) on stewardship. The FCA considers that a broad requirement that IGCs must report on their firm's policy (if any) on stewardship, as proposed by the Law Commission, would promote transparency and encourage providers to engage with fund managers and investee companies on these issues; and (iii) the FCA should issue guidance for contract-based pension providers on financial and non-financial factors. The FCA considers that explicit guidance on financial and non-financial factors would be helpful to providers of workplace personal pension schemes as its existing rules are high level. The FCA intends to consult on a single package of rule changes relating to the above in the first quarter of 2019. It is also considering possible rule changes (or guidance) relating to the permitted links rules with regard to how pension schemes can manage some element of illiquid investment within their funds, and how they can produce unit prices for illiquid assets. The FCA will progress this work in the second half of 2018.

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ECB revises asset quality review manual

On 20 June, the ECB published a revised version of its manual on the methodology for phase 2 of its AQR as part of the assessment of relevant banks under the SSM. The AQR manual contains the methodology applied in the execution phase of AQRs on supervised entities in the SSM. Supervisors carry out AQRs to review the valuation of banks' assets from a prudential perspective, to increase transparency on the condition of their balance sheets and to assess the adequacy of their capital levels. The ECB originally published the manual in March 2014. The ECB states that it has updated the manual to: (i) reflect the entry into force of the International Financial Reporting Standard 9 (IFRS 9) on 1 January. The changes are intended to ensure alignment with IFRS 9, particularly relating to new approaches to determining impairments and classifying financial instruments; and (ii) the increasing importance of bank business models focused on investment services, particularly in the context of Brexit. Among other things, the ECB has broadened the scope of the fair value exposures review and added a review of conduct risk related to investment services. The updated methodology set out in the revised manual will be applied in future AQR exercises, but will not affect past AQR exercises.

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EBA consults on draft RTS on conditions to allow institutions to calculate KIRB in accordance with the purchased receivables approach

On 19 June, the EBA published a consultation paper (EBA/CP/2018/10) on draft regulatory technical standards (RTS) on the conditions to allow institutions to calculate KIRB in relation to the securitised exposures in accordance with the purchased receivables approach under Article 255 of CRR, as amended. Regulation (EU) 2017/2401 makes amendments to the CRR relating to the Basel securitisation framework that will apply from 1 January 2019. Among other things, it specifies that an institution should use its own calculation of regulatory capital requirements where it has permission to apply the internal ratings based approach (the IRB approach) in relation to exposures of the same type as those underlying the securitisation and is able to calculate regulatory capital requirements in relation to the underlying exposures as if these had not been securitised in each case subject to certain pre-defined inputs. This approach is referred to as the securitisation IRB approach (SEC-IRBA) and the capital requirement on the securitised exposures, including expected loss, is called KIRB. Article 255(10) of the CRR requires the EBA to develop draft RTS to further specify the conditions to allow institutions to calculate KIRB for the pools of underlying exposures in accordance with Article 255(4). The draft RTS specify the conditions under which institutions may use the provisions on purchased receivables to make them fully workable in the context of securitisation transactions. The deadline for responses is 19 September. The CRR mandates the EBA to submit the draft RTS to the EC by 18 January 2019.

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ECON votes to adopt draft reports on CRR II and CRD V

On 19 June, ECON published a press release announcing that it had voted to adopt draft reports on the CRR II (2016/0360(COD)) and the CRD V (2016/0364(COD)). The EC's legislative proposals for the CRR II and the CRD V contain revisions to the CRR and the CRD IV (2013/36/EU) respectively. In the press release, ECON highlights the changes that it has made to the proposals, including: (i) inserting a definition of a "small and non-complex institution" that would be subject to simplified requirements relating to recovery and resolution planning and reduced reporting frequency; (ii) agreeing to a binding 3% leverage ratio and an additional 50% buffer for G-SIIs; (iii) specifying that a fixed list of banks exempted from prudential requirements can be extended only on the basis of clear criteria. Member states will be required to ensure the publication of a list of excluded entities, together with information on deposit protection; and (iv) stipulating that the amount of own funds waived should not exceed 25% of the minimum own funds requirement. ECON published the draft reports, which were prepared by Rapporteur Peter Simon, in December 2017. The next step will be for the EP to consider the motion for a resolution of the EP, as set out in the reports, in its plenary session to be held from 2 July to 5 July. The EP states that it will then be ready for trialogues with the Council of the EU and the EC. The Council agreed its general approach on the proposals in May. 

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FSB guidance on bail-in execution and resolution funding plans for G-SIBs

On 21 June, the FSB published two guidance documents on the implementation of particular aspects of its key attributes of effective resolution regimes for global systemically important banks (G-SIBs): (i) principles on bail-in execution. The principles are designed to assist authorities in making G-SIB bail-in resolution strategies operational; and (ii) funding strategy elements of an implementable resolution plan. This covers the development of resolution funding plans for G-SIBs. The FSB consulted on the two guidance papers in November 2017. 

Principles on bail-in execution 

Funding strategy elements of an implementable resolution plan

ECON votes to adopt draft reports on BRRD II and SRM II Regulation

On 19 June, ECON published a press release announcing that it had voted to adopt draft reports on the BRRD II (2016/0362 (COD)) and the SRM II Regulation (2016/0361 (COD)). The EC's legislative proposals for the BRRD II and the SRM II Regulation contain revisions to the BRRD and the Regulation establishing the SRM respectively. In the press release, ECON highlights the changes that it has made to the proposals, including: (i) amending eligibility criteria for the instruments and items that could count towards compliance with MREL rules, aligning them closely with the eligibility criteria provided in the TLAC standard for the TLAC minimum requirement while introducing grandfathering for existing liabilities; (ii) defining the level of liabilities that could be required to be met by subordinated debt to be bailed in before other liabilities; (iii) approving provisions intended to ensure that a bank that holds more capital is not punished in the calculation methodology; and (iv) amending the provisions relating to the moratorium tool, which allows for the suspension of certain contractual obligations for a short period of time in resolution and in the early intervention phase. ECON published the draft reports, which were prepared by Rapporteur Gunnar Hökmark, in September 2017. The next step will be for the EP to consider the motion for a resolution of the EP, as set out in the reports, in its plenary session to be held from 2 July to 5 July. The EP states that it will then be ready for trialogues with the Council of the EU and the EC. The Council agreed its general approach on the proposals in May.

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BCBS progress report on banks' implementation of principles for effective risk data aggregation and reporting: June

On 21 June, the BCBS published its fifth progress report (BCBS443) on banks' implementation of its principles for effective risk data aggregation and reporting. The principles aim to strengthen banks' risk data aggregation and risk reporting practices to improve their risk management practices, decision-making processes and resolvability. They are applicable to firms designated as G-SIBs. The progress report is based on the results of a self-assessment survey completed by authorities with supervisory responsibility for G-SIBs. The report reviews G-SIBs' progress in implementing the principles during 2017, and concludes that for most G-SIBs progress has been, at best, marginal. The BCBS believes that this is mainly due to the complexity and interdependence of IT improvement projects. As a result, the expected date of compliance has slipped back for many banks. In the light of these results, and to promote further compliance with the principles, the BCBS makes the following recommendations: (i) banks should continue to implement the principles according to the roadmaps agreed with their supervisors and consider how implementation would benefit other data-related initiatives and requirements; and (ii) supervisors should maintain their emphasis on ensuring that banks fully implement the principles. This includes meeting with banks' boards of directors and senior management in 2018 to receive updates on implementation progress. Supervisors should also continue to promote home-host co-operation to facilitate implementation of the principles by global banking groups. The BCBS will continue to monitor G-SIBs' progress in adopting the principles and plans to conduct the next assessment in 2019.

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Financial Relationship between HM Treasury and the Bank of England: memorandum of understanding

On 21 June, the BoE published a memorandum of understanding which: (i) describes the key responsibilities of the Bank of England in managing its Financial Framework; and (ii) documents current practical arrangements and the day-to-day working relationship with HM Treasury (‘the Treasury’) in its role as sole shareholder and customer. 

BoE memorandum of understanding

Letter from Mark Carney

Letter from Philip Hammond

HM Treasury: Annual Mansion House speech

On 21 June, Philip Hammond, Chancellor of the Exchequer, spoke at the annual Mansion House conference. His speech addressed, among other matters, ensuring that Britain continues to be a world leader in innovation and extends London’s position as the world’s number one international financial services centre.

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EBA revises recommendation on equivalence of confidentiality regimes of non-EU authorities

On 20 June, the EBA published a final report on recommendations on the equivalence of confidentiality regimes (EBA/REC/2018/01). In the report, the EBA makes amendments to its recommendation on the equivalence of confidentiality regimes (EBA/REC/2015/01), which was originally published in April 2015. The purpose of the recommendation is to provide guidance for competent authorities on the equivalence of the confidentiality regime applicable to a particular third-country supervisory authority, whose participation in a given college is to be determined under Article 116(6) of the CRD IV (2013/36/EU). The EBA has added the following third-country authorities to the recommendation, following assessments of the professional secrecy and confidentiality frameworks under which they operate: (i) Guernsey Financial Services Commission; (ii) Oriental Republic of Uruguay; and (iii) Bank of Korea. The recommendations made in the report apply from 21 June.

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EBA annual report for 2017

On 18 June, the EBA published its annual report 2017. In the report, the EBA provides a detailed account of the work undertaken and its achievements in 2017. The report also includes a section entitled "Key areas of focus for 2018” which refers to the following: (i) credit risk modelling; (ii) preparation for the full implementation of Basel III; (iii) further work on NPLs: guidelines on management of non-performing and forborne exposures; guidelines on banks' loan origination, monitoring and internal governance; and guidelines on enhanced disclosure requirements on asset quality and NPLs; (iv) 2018 EU-wide stress test; (v) 2018 EU-wide transparency exercise; (vi) pillar 2 roadmap and emerging risks: technical standards on interest rate in the banking book (IRRBB); development of SREP guidelines on proportionality; and guidelines on the management of ICT risk for institutions; (vii) Third country equivalence; (viii) establishing the EBA's online training platform; (ix) EUCLID; (x) FinTech roadmap: report on the impact of FinTech on business models; and risks and opportunities of FinTech for institutions; (xi) Implementing new rules on payment services; (xii) enhancing convergence in supervisory practices to protect consumers; and (xiii) engaging with resolution authorities.

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Revised version of Council of EU progress report on strengthening banking union

On 15 June, the Council of the EU published a revised version (dated 15 June) of its Presidency progress report on the EC’s initiatives to strengthen the banking union, including the proposed Regulation establishing the EDIS (9819/1/18 REV 1). The Council published the progress report (dated 12 June) on 14 June. The covering note for the revised version states that it has been updated following a meeting of COREPER on 14 June. However, it is not clear from the covering note how the report has been updated. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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