Key Regulatory Topics: Weekly Update - 24 November 2017 – 30 November 2017

by Allen & Overy LLP

Allen & Overy LLP


European Commission legislative proposal for Regulation on relocation of EBA

On 29 November, the EC adopted a legislative proposal for a Regulation containing amendments to the EBA Regulation (Regulation 1093/2010) relating to the relocation of the EBA to Paris (COM(2017) 73). The proposed Regulation amends Article 7 of the EBA Regulation to state that the EBA will have its seat in Paris. It will apply from the date on which the EU treaties cease to apply to the UK or from 30 March 2019, whichever is the earlier. The Council of the EU and the EP will now consider the legislative proposal. According to the EC’s webpage on the initiative for the proposed Regulation, the Commission is seeking feedback on the proposal. The initial deadline for responses is 24 January 2018

London Market Group proposals for post-Brexit UK-EU trading relationship

On 29 November, LMG published a paper with proposals for a future trading relationship between the EU and the UK. The main elements of the LMG's proposals relate to: (i) a free trade agreement (FTA). The LMG calls for a bespoke mutual recognition agreement that allows for mutual market access and the recognition of prudential regimes. The FTA would contain a Solvency II equivalence outcome and supervisory co-operation based on a regulatory alignment model for the prudential regulation of (re)insurers and brokers. It would also contain mechanisms allowing for future developments for the EU and UK prudential regimes and recognise local market practices concerning conduct of business; (ii) a transition period. There should be agreement on a transition period that permits the London insurance market to operate as if EU status is preserved until such time as the FTA is agreed and with sufficient time for the market to prepare for the FTA outcomes. The LMG calls for agreement on the transition to be agreed by the end of 2017 and at least 12 months before Brexit; and (iii) the withdrawal agreement. The withdrawal agreement should contain a provision that there will be no legal barriers in the UK or the EU to the fulfillment of (re)insurance contracts entered into before the UK leaves the EU.


Council of EU Presidency compromise proposal on proposed Regulation amending EMIR

On 28 November, the Council of the EU published a Presidency compromise proposal (14973/17) on the proposed Regulation amending EMIR as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for OTC derivatives contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories. The cover note for the compromise proposal states that, with respect to the second compromise proposal, the new text is marked in underlined bold and deletions are indicated in strikethrough.

ECB issues terms of reference for working group on euro risk-free rates

On 29 November, the ECB published the terms of reference for the working group on euro RFRs. According to these, the working group's deliverables are to: (i) Identify alternative euro RFRs. It will consider alternative euro interest rates consistent with the IOSCO principles for financial benchmarks and compliant with the BMR; (ii) Identify best practices for contract robustness. It will consider best practices for contract design that ensure that new contracts are robust and resilient to the possible cessation or material alteration of the underlying benchmark; and (iii) Develop an adoption plan and, if necessary, create a transition plan for legacy contracts referencing existing benchmarks.

BoE and FCA give new SONIA transition mandate to working group on sterling risk-free reference rates

On 29 November, the BoE and the FCA published a press release on the BoE working group on sterling risk-free reference rates (RFRs). In the press release, the BoE and the FCA announce that, from January 2018, the working group will have a new mandate to catalyse a broad-based transition over the next four years to the SONIA interest rate benchmarks across sterling bond, loan and derivative markets. The aim is to establish SONIA as the primary sterling interest rate benchmark by the end of 2021. In April 2017, the working group recommended SONIA as its preferred RFR for use in sterling derivatives and other financial contracts as an alternative to LIBOR.

First ECB consultation on new euro unsecured overnight interest rate

On 28 November, the ECB published its first consultation paper on a new euro unsecured overnight interest rate. The ECB announced in September that it intends to start providing a euro unsecured overnight interest rate based on data already available to the Eurosystem (that is, the rate will be calculated entirely on transactions in euro that are reported by banks in the ECB's money market statistical reporting). The ECB aims to produce the new rate before 2020 and for it to be consistent with the principles on financial benchmarks developed by IOSCO. The consultation closes to responses on 12 January 2018. The ECB intends to publish "later in the process" a second consultation paper relating to the methodology of the new rate.

Responses to EC inception impact assessment on legislative proposal for EU framework on crowdfunding

On 28 November, the EC published the responses received to its consultation on an inception impact assessment for a legislative proposal for an EU framework on crowd and peer-to-peer finance.
The impact assessment outlines a potential initiative relating to crowdfunding published by the EC for comment in October. The EC received 41 responses, including one from HMT setting out the UK's response, namely that the UK: (i) encourages the EC to engage with the FCA as it develops its proposals; (ii) expresses concern that the distinction between P2P and investment-based crowdfunding has not been adequately addressed in the way the proposals have been presented and encourages the EC to be mindful of this distinction when drafting any proposed regulatory framework, taking account of the fact that different business models require different regimes; and (iii) seeks more clarity on how any proposed framework would interact with existing EU directives that are used by some member states to regulate crowdfunding. HMT asks for more information on what services a cross-border framework could provide beyond what is already provided for in EU law. HMT’s view is that Article 31 of MiFID already permits crowdfunders to provide relevant services cross-border into another member state.

EMIR – ESAs announce review of variation margin requirements

On 24 November, the Joint Committee of ESAs published a press release announcing a review of variation margin requirements for physically settled FX forwards. The ESAs acknowledge that certain counterparties are facing challenges relating to the requirement to exchange variation margin for physically settled FX forwards by 3 January 2018. It appears that the challenges mainly relate to transactions with certain end-users. The ESAs explain that the requirement to exchange variation margin is part of a globally agreed framework in the form of international standards. However, it has now become apparent that the adoption of the international standards in other jurisdictions by way of supervisory guidance has led to a more limited scope of application than the scope proposed by the ESAs. Since any changes to the application of the EU rules would need to be implemented through EU legislation, the ESAs are undertaking a review of the RTS on risk mitigation techniques for OTC derivatives not cleared by a central counterparty and are developing draft amendments to these RTS to align the requirements with the supervisory guidance applicable in other key jurisdictions.

FMIs– ECB Eurosystem oversight report for 2016

On 24 November, the ECB published its 2016 Eurosystem oversight report. This is the fourth report on the oversight by the Eurosystem. The report flags the following oversight priorities for the immediate future: (i) T2S; (ii) CSDR; and (iii) cyber resilience.

LIBOR – FCA statement on LIBOR panel banks

On 24 November, the FCA published a statement on the panel banks for LIBOR. In the statement, the FCA announces that all 20 of the LIBOR panel banks have agreed to support the LIBOR benchmark and to remain as submitters until 2021. This should ensure the sustainability of LIBOR during the transition period. The FCA does not expect any further changes to the LIBOR panel and states that it now expects focus to turn towards developing alternative rates and working towards a transition that can be executed smoothly.


Goods Mortgages Bill – Law Commission report on final draft

On 24 November, the Law Commission published a report on its proposed Goods Mortgages Bill, together with a final draft. Only minor changes have been made to the previous draft of the Bill, published in September. The report provides detailed commentary on the Bill and the reasons for the Law Commission's proposals to repeal the Bills of Sale Acts. The Law Commission has presented the Bill to Parliament and hopes that it will be introduced in due course.


Please see the Brexit section for an update on LMG proposals. Please see the prudential regulation section for an update on Solvency II.

Solvency II – Implementing Regulations on ITS on reporting and disclosure published in OJ

On 25 November, the following two EC Implementing Regulations were published in the OJ: (i) EC Implementing Regulation (EU) 2017/2189 amending and correcting Implementing Regulation (EU) 2015/2450 laying down ITS with regard to the templates for the submission of information to the supervisory authorities under Solvency II; and (ii) EC Implementing Regulation (EU) 2017/2190 amending and correcting Implementing Regulation (EU) 2015/2452 laying down ITS with regard to the procedures, formats and templates of the solvency and financial condition report according to Solvency II. The Implementing Regulations were adopted by the EC on 24 November. They will enter into force on 15 December (that is, 20 days after their publication in the OJ).

ICPs – IAIS application paper on product oversight in inclusive insurance

On 24 November, IAIS published an application paper on product oversight in inclusive insurance. The purpose of the application paper is to provide guidance to supervisors, regulators and policymakers on how the IAIS' ICPs can be implemented and applied in ways that are relevant to product oversight in inclusive insurance. For the purposes of the paper, "inclusive insurance" refers to all insurance products aimed at the excluded or under-served market.

ICPs – IAIS extends deadline for consultations on ICPs 8, 15 and 16

On 24 November, IAIS published a press release announcing that it was extending its deadlines for its consultation paper on draft revisions to ICPs 8, 15 and 16. In the press release, the IAIS states that the deadlines for responses to the consultation are now: (i) 15 January 2018 for the proposals in the consultation on ICP 8 and additional ComFrame material integrated with ICP 8; and (ii) 31 January 2018 for the proposals in the consultation on ICPs 15 and 16, ComFrame material integrated with these two ICPs and the proposed definitions of enterprise risk management-related terms.


GLEIF publishes entity legal forms code list

On 30 November 2017, the GLEIF published the first iteration of the entity legal forms (ELF) code list (version 1.0). The list includes more than 1,600 ELFs (such as LLP, GmbH or SA) across more than 50 jurisdictions. The list assigns a unique alpha-numeric code of four characters from the basic Latin character set to each ELF.

ESMA final report on peer review of MiFID compliance function guidelines

On 29 November, ESMA published its final report (ESMA 42-111-4285) on its peer review on the guidelines on certain aspects of the compliance function requirements under MiFID. The aim of the peer review, which covered the period from 1 July 2014 to 30 June 2016, was to enhance supervisory convergence in the application of the guidelines and help NCAs to enhance their supervisory approach towards the compliance function. While the independent assessment group (AG) concluded that there is a high level of compliance with the guidelines among NCAs, it also found some diversity in the supervisory approaches applied by NCAs. The FCA was found to be compliant in all areas.
In summary, the AG found that: (i) the majority of NCAs check that firms have adequate policies and procedures in place and regularly perform a compliance risk assessment, as required by guideline 1; (ii) most NCAs check that investment firms' compliance procedures, organisation and control measures are effective and appropriate and that the compliance function performs verifications that are not limited to desk-based ones, both during the authorisation phase and as part of ongoing supervision, as required by guideline 2; and (iii) nearly all NCAs check that firms' senior management receives regular and ad hoc compliance reports from the compliance function and takes action when a failure or a weakness is identified, as required by guideline 3. Most NCAs also confirmed that they verify that the compliance function acts independently when reporting to senior management.

Delegated Regulation supplementing MiFIR on the treatment of package orders published in OJ

On 28 November, a Delegated Regulation ((EU) 2017/2194) supplementing MiFIR with regard to the treatment of package orders was published in the OJ. The Delegated Regulation was adopted by the European Commission on 14 August and enters into force on 18 December (that is, 20 days after its publication in the OJ). It applies from 3 January 2018.


Please see the capital markets and market infrastructure section for an update on the ECB Oversight report

Banking Act 2009 (Service Providers to Payment Systems) Order 2017 published

On 30 November 2017, the Banking Act 2009 (Service Providers to Payment Systems) Order 2017 (SI 2017/1167) was published. Among other things (i) Part 2 of the Order amends Part 5 of the Banking Act 2009, which provides for the Bank of England (BoE) to oversee certain service providers to systemically important payment systems. Part 2 also makes consequential amendments to related secondary legislation. (ii) Part 3 of the Order amends the Bank of England Act 1998 so that the BoE may disclose the information that it obtains under that Act to the PSR. (iii) Part 4 of the Order amends the Financial Services and Markets 2000 (Excluded Activities and Prohibitions) Order 2014 in consequence of amendments to the Banking Act 2009 made by the Digital Economy Act 2017. The Order comes into force on 30 November 2017, except for Part 3, which comes into force on 13 January 2018.

Payment Systems and Services and Electronic Money (Miscellaneous Amendments) Regulations 2017 published

On 30 January 2017, the Payment Systems and Services and Electronic Money (Miscellaneous Amendments) Regulations 2017 (SI 2017/1173) were published. Among other things (i) Part 2 amends the Financial Markets and Insolvency (Settlement Finality) Regulations 1999 (SI 1999/2979) to extend protection from insolvency proceedings for transfers in systems that have been designated under those Regulations until those transfers have been settled, so that the protection applies to transfers originating from non-bank payment institutions. (ii) Part 3 amends the Payment Services Regulations 2017 (SI 2017/752), the Electronic Money Regulations 2011 (SI 2011/99) and other related instruments. The amendments enable funds safeguarded for customers of PSPs and electronic money issuers to be held in a single bank account, make provision for agents of registered account information service providers, make provision for electronic money issuing services in Gibraltar by UK firms and vice versa, and enable the FCA to continue to consider spent convictions when making decisions relating to PSPs. (iii) Part 4 amends the Banking Act 2009 (Inter-Bank Payment Systems) (Disclosure and Publication of Specified Information) Regulations 2010 (SI 2010/828) as a consequence of amendments to the Banking Act 2009 made by the Digital Economy Act 2017. The Regulations were made on 29 November 2017. Part 4 comes into force on 22 December 2017. Part 2 and Part 3 come into force on 13 January 2018 (except for certain regulations in Part 3, which come into force on 22 December 2017).

EC adopts Delegated Regulation on RTS for strong customer authentication and common and secure open standards of communication

On 27 November, the EC adopted a Delegated Regulation and Annex supplementing the PSD2 with regard to RTS for strong customer authentication and common and secure open standards of communication (C(2017) 7782 final). The next step is for the Council of the EU and the EP to consider the Delegated Regulation. If neither of them objects, it will enter into force on the day after it is published in the OJ. The Delegated Regulation will apply 18 months from the entry into force date, with the exception of Article 30(3) and (5) (certain of the general obligations for access interfaces), which will apply 12 months from the entry into force date.


European Parliament publish reports on CRR II and CRD V

On 30 November 2017, the European Parliament published in English reports on the European Commission's proposed CRRII and CRDV. The reports were originally produced in German by rapporteur Peter Simon.

European Parliament adopts transitional arrangements for mitigating impact of introduction of IFRS9

On 30 November 2017, the European Parliament voted to adopt the proposed Regulation amending the CRR as regards transitional arrangements for mitigating the impact of the introduction of IFRS9 on own funds and for the large exposures treatment of certain public sector exposures denominated in other than domestic currencies of Member States.

PRA updates Solvency II remuneration policy statement

On 30 November 2017, the PRA published an updated remuneration policy statement (RPS) reporting template for PRA category 1 and 2 Solvency II firms to use for the 2017 performance year. Firms that choose not to use the RPS template should ensure that they provide all the information that the PRA needs (as indicated by the template) in a clear and structured manner. Firms are required to submit with the RPS template the Solvency II staff list table (RPS Table 1: Solvency II identified staff), which should be completed to include all Solvency II staff identified at any part of the current performance year. The deadline for submission of the documents to the PRA is 31 January 2018.

Council of EU Presidency compromise proposals on CRR II and CRD V

On 30 November 2017, the Council of the EU published two first Presidency compromise proposals (both dated 27 November 2017 and in each case accompanied by a correcting note) on the European Commission's proposed revisions to the CRR and the CRD IV.

Council of EU progress report on CRR II, CRD V and BRRD II legislative proposals

On 29 November 2017, the Council of the EU published a report on the progress of the European Commission's legislative proposals for banking reforms. These proposals relate to amendments to CRR (proposed CRR II), CRD IV (proposed CRD V), BRRD (proposed BRRD II) and the SRM Regulation (proposed SRM II Regulation).

CRR – Delegated Regulation on waiver of own funds requirements for certain covered bonds published in OJ

On 25 November, EC Delegated Regulation ((EU) 2017/2188) amending the CRR as regards the waiver on own funds requirements for certain covered bonds was published in the OJ. The Delegated Regulation will enter into force on 15 December (that is, 20 days after its publication in the OJ). It will apply from 1 January 2018. The recitals to the Delegated Regulation note that the availability of the Article 496(1) waiver may have to be reassessed in the context of a future covered bonds framework.

CRR – EBA repeals guidelines on retail deposits subject to different outflows for liquidity reporting purposes

On 27 November, the EBA announced its decision to formally repeal its guidelines on retail deposits subject to different outflows for the purposes of liquidity reporting under the CRR. The EBA explains that it has repealed the guidelines because they have been superseded by EC Implementing Regulation ((EU) 2016/322) on supervisory reporting of the LCR under the CRR, which has applied since 10 September 2016.


Please see the prudential regulation section for an update on BRRDII proposals

FSB consults on guidance on implementation of aspects of its key attributes of effective resolution regimes for G-SIBs

On 30 November 2017, the FSB published two consultation papers proposing guidance on the implementation of particular aspects of its key attributes of effective resolution regimes for G-SIBs: (i) Consultation on principles on bail-in execution. The FSB proposes a set of principles to assist authorities in making G-SIB bail-in resolution strategies operational. (ii) Consultation on funding strategy elements of an implementable resolution plan. The FSB sets out draft guidance on the development of a plan for funding in resolution. It builds on the FSB's August 2016 guiding principles on funding to support orderly resolution of G-SIBs. It also builds on existing supervisory guidance on liquidity risk management and resolution planning. Both consultations close on 2 February 2018.

Council of EU Presidency compromise proposals on BRRD II and SRM II Regulation

On 30 November 2017, the Council of the EU published first Presidency compromise proposals on (i) the European Commission's proposed revisions to the BRRD and the implementation in the EU of the FSB’s TLAC standard (known collectively as BRRD II) (14894/17 dated 27 November 2017 and accompanied by a correcting note). (ii) the Commission's proposal for a Regulation to amend the Regulation for the Single Resolution Mechanism (proposed SRM II Regulation) (14895/17 dated 29 November 2017).

European Parliament adopts BRRD Insolvency Hierarchy Directive

On 30 November 2017, the European Parliament announced that it has voted in plenary to adopt the proposed Directive amending the BRRD as regards the ranking of unsecured debt instruments in insolvency hierarchy. The next step is for the Directive to be formally adopted by the Council.

BRRD – EC report on EBA powers to conduct binding mediation to take account of future developments

On 27 November, the EC published a report to the EP and the Council of the EU on the review of Articles 13, 18 and 45 of the BRRD as regards the EBA's powers to conduct binding mediation to take account of future developments in financial services law (COM(2017) 661 final). In the report the EC identifies three challenges for the effective application of the EBA’s mediation powers: (i) limits to the participation of resolution authorities in mediation panels; (ii) the EBA lacks the power to open a conciliation or a binding mediation on its own initiative; and (iii) the implications of the current BRRD provision (that is, Article 13(9)) on fiscal safeguards. The EC concludes that mediation is a key component of the resolution process and can be extremely useful in ensuring that decisions on complex issues regarding groups of entities, such as the adoption of a resolution plan, addressing impediments to resolution and the definition of MREL levels, are taken in the form of joint decisions. The Commission’s proposal on the ESAs review seeks to address some of the challenges identified in the report. The rest will be considered as appropriate and based on evidence gathered in the general review of BRRD.


Remuneration levels – FCA letter to proportionality level 1 firms on 2017/18 remuneration round

On 24 November, the FCA published the letter (dated 31 August) it has sent to firms in proportionality level 1 (that is, all UK banks, building societies and investment firms with relevant total assets exceeding £50 billion) setting out its approach to the supervision of remuneration for 2017/18. The FCA's supervisory teams will engage with firms throughout the year to be satisfied that the FCA can issue a non-objection to the paying out of awards. This means that supervisory teams will assess and discuss with firms the remuneration impact of issues as they arise throughout the year. They will also monitor how conduct is embedded in firms' remuneration policies and practices in a manner proportionate to their concerns. The FCA states that the PRA has not changed its approach to firms' remuneration reviews. Firms will receive a joint letter from the FCA and the PRA setting out their decisions in respect of non-objection and highlighting areas of joint interest to the FCA and the PRA.


Council of EU progress report on strengthening the banking union

On 29 November 2017, the Council of the EU published a report on the progress of the European Commission's initiatives to strengthen the banking union, including the proposed Regulation establishing the European deposit insurance scheme (EDIS) (14932/1/17). The report refers to a progress report from the Presidency of the Council on the progress of the EDIS Regulation (14808/17). This report highlights a number of issues under discussion within the Council, including: (i) The methodology for calculating risk-based contributions; (ii) Alternative measures to prevent the failure of credit institutions that EDIS could use its financial means to deploy; (iii) The scope of EDIS and the potential inclusion of branches of third-country credit institutions established in a member state and of non-CRD IV deposit-taking entities that are covered by existing deposit guarantee schemes (DGSs); (iv) Non-compliance by DGSs and the procedure for the disqualification of a DGS; (v) The design of EDIS, including the merits of the full insurance and reinsurance models.
The report considers progress on NPLs. The report also provides an overview of the progress of the Commission's banking reform legislative package.

FCA board considers Delivering Effective Supervision review

On 28 November, the FCA published the minutes from its board meeting on 18 and 19 October, which include a summary of the FCA's approach for the 2017 firm categorisation review and the proposed changes as a result of the Delivering Effective Supervision (DES) project. The minutes record that the FCA board approved the firm categorisation and the criteria used in the review. Other points of interest include: (i) the vision for DES was for supervision to be pre-emptive and collaborative using proven project methodology including milestones and deadlines, as well as a higher degree of consistency; and (ii) a single watch list will sit alongside the specific firm categorisation, to be used for direct intervention and enhanced supervision of any type of firm where required. This will replace the existing watch and enhanced supervision lists. A formal decision will need to be taken before a firm is added to the list, including milestones to be met before they can be removed from the list. The FCA is expected to publish an Approach to Supervision document in early 2018.

BoE financial stability report no 42 and results of 2017 banking stress test

On 28 November, the BoE published issue number 42 of its financial stability report. Part A of the report sets out the FPC’s analysis of the major risks, and the actions it is taking in the light of the risks. Part B summarises the FPC's analysis of the resilience of the financial system. Alongside the report, the BoE has published the results of the 2017 stress test. The stress test shows that the UK banking system is resilient to deep simultaneous recessions in the UK and global economies, large falls in asset prices and a separate stress of misconduct costs.

Credit unions – Credit Unions Act 1979 (Locality Common Bond Conditions) Order 2017 published

On 27 November, the Credit Unions Act 1979 (Locality Common Bond Conditions) Order 2017 (SI 2017/1144) was published. The Order makes a change to section 1B(3)(a) of the Credit Unions Act 1979 to increase the number of potential members of a credit union for the locality common bond from 2 million to 3 million. The Order comes into force on 6 April 2018.


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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