Key Regulatory Topics: Weekly Update - 4 August - 10 August 2017

Allen & Overy LLP

Allen & Overy LLP


Brexit – PRA letter to HoC Treasury Committee on firms' contingency planning

On 9 August, the HoC Treasury Committee published a letter (dated 2 August) from Sam Woods, BoE Deputy Governor, Prudential Regulation, and Chief Executive Officer of the PRA, to Nicky Morgan, Treasury Committee chair, in which Mr Woods provides details of the PRA's findings from questions it had put to PRA-regulated firms relating to their Brexit contingency plans. The PRA's letter is in response to a letter (dated 24 July) from Ms Morgan to Mr Woods requesting certain information about the firms' responses to the PRA's questions. Mr Woods reported that the PRA had received 401 responses from firms to its questions. It is looking at both the individual plans to make sure firms are preparing sufficiently, and at firms' plans collectively to identify whether any broader financial stability risks could arise from their collective execution. The PRC and FPC will consider the PRA's analysis. The committees are expected to reach a view on the firms' submissions in autumn 2017. Mr Woods warns that the issues the PRA has identified pose a material risk to the PRA's objectives to promote safety and soundness and policyholder protection, and that its work on them is a top priority. He recognises that it is incumbent on the PRA to manage this burden, but acknowledges that it may have to make some difficult prioritisation decisions to accommodate it.

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Capital markets and market infrastructure  

FMIs – BoE consultation on new funding structure 

On 4 August, the BoE published a consultation paper on its proposal to introduce a new funding structure for the supervision of FMI. The BoE has certain legal powers to levy fees on FMIs under the Banking Act 2009 but, to date, has not exercised these. It currently supervises 11 FMIs (as set out in Annex 1 to the consultation paper). In the consultation paper, the BoE: puts forward an over‐arching fee‐levying model. The BoE proposes to levy fees for its FMI supervisory activity and policy activity that supports this. This includes the costs of FMI supervision staff together with relevant policy support, specialist resources and corporate services, and other costs associated with the work of the FMI Directorate; explains the drivers for the proposal; notes the powers that it intends to utilise; and highlights key aspects regarding the implementation of the approach. These include FMIs subject to multiple regimes, the timing of the levy period and changes in the FMI population. To support FMIs budget planning, the BoE also provides an indication of what the fees would have been for the planned work in the 2017/18 financial year. If the BoE decides to implement a fee levy for FMI supervision, it will consult in due course on the detail of any fee‐levying arrangements, with a view to any new arrangements commencing in 2018. The deadline for comments is 6 October.

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Financial crime

Insurance fraud – HMT report on implementation of IFT’s recommendations 

On 9 August, HMT published a report relating to the Insurance Fraud Taskforce's (IFT) recommendations. The IFT was set up in January 2015 to investigate the causes of fraudulent behaviour and recommend solutions to reduce the level of insurance fraud. 26 recommendations were set out in the IFT's final report, which was published in January 2016. The report published by HMT sets out the progress made, during 2016, on implementing the recommendations. The report was discussed at a roundtable meeting hosted by HMT and the MoJ, in November 2016 and was completed in February. Progress to date on implementing the recommendations has involved work by the FCA, the ABI, the BIBA, the CII, the IFB, and the ICO, among others.

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MLD5 – EC inception impact assessment on access to centralised bank account registries 

On 9 August, the EC published an inception impact assessment (Ares(2017)3971182) on access to centralised bank account registries. In the inception impact assessment (also called a roadmap), the EC explains that the proposed MLD5 includes provisions that would require member states to establish automated centralised mechanisms, such as central registries or central electronic data retrieval systems, of bank and payment accounts. Member states would be required to grant access to these registries to FIUs and NCAs to prevent money laundering and terrorist financing. The registries are intelligence tools, not data warehouses. They do not contain any information on the balance of the account or transaction details. The minimum data that would be contained in the registries would include information on the identification of the account holder, of any person acting on their behalf, of the beneficial owners, the IBAN account number (which would also identify the bank), the account opening date and, where applicable, the closing date. The EC explains that the scope of MLD5 is limited to the prevention of money laundering and terrorist financing. As a result, under MLD5, access to the registries can only be granted to FIUs and NCAs, but not to other law enforcement agencies. In some member states, a broader range of law enforcement agencies will be able to consult the registries. This means there will be differences among member states, which could be exploited by criminals and organised crime groups. The assessment therefore sets out a roadmap to deal with these issues. The deadline for comments is 6 September.

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FINTECH – EBA discussion paper on approach to FinTech 

On 4 August, the EBA published a discussion paper (EBA/DP/2017/02) on its approach to FinTech. To enable the EBA to gain a better insight into the financial services offered and financial innovations applied by FinTech firms in the EU, and their regulatory treatment, it undertook a FinTech mapping exercise in spring 2017. Competent authorities in 22 member states and two EEA states provided estimates on the current number and expected growth of FinTech firms established in their respective jurisdictions. They also provided detailed information on a sample of FinTech firms, including information on main financial innovations applied, main financial services provided, regulatory status and target end-users. Based on the mapping exercise, work done by other intergovernmental and EU bodies related to FinTech and previous work that the EBA has conducted on specific innovations, the EBA believes that there is merit in it carrying out follow-up work in a number of areas. The deadline for comments is 6 November. There will be public hearing on 4 October. The EBA will assess the responses with a view to deciding what further steps to take during 2018.

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Fund regulation  

MMF Regulation – responses to ESMA's consultation on draft technical advice, ITS and guidelines 

On 8 August, ESMA published on its website responses to its May consultation on draft technical advice, draft ITS and draft guidelines under the MMF Regulation. Respondents include EFAMA and the GLEIF.

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Please see the Financial Crime and Taxes/Levies sections for updates on insurance fraud and changes to fees and levies for insurers. 

Solvency II – Implementing Regulation on technical information for calculation of technical provisions and basic own funds for Q3 2017 reporting under Solvency II published in OJ 

On 5 August, EC Implementing Regulation (EU) 2017/1421 laying down technical information for calculation of technical provisions and basic own funds for reporting with reference dates from 30 June to 29 September under the Solvency II was published in the OJ. The EC adopted the Implementing Regulation on 2 August. It entered into force on 6 August but applies from 30 June, being the first reporting reference date to which the Implementing Regulation applies.

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MiFID II – FCA updates webpage on applications and notifications 

On 8 August, the FCA updated its webpage on applications and notifications under MiFID II. The updated content relates to the FCA's MiFID II application and notification user guide, which it published in January. The FCA explains that paragraph 3.42 and table 1 in the user guide state that firms are required to notify the FCA if they want to act as a general clearing member. As MiFID II does not explicitly require this, after further consideration, the FCA has decided that it will not require firms to inform it if they act as a general clearing member.

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MiFID and MiFIR – ESMA updates guidelines on transaction reporting 

On 8 August, ESMA published an updated version of its guidelines (ESMA/2016/1452) (dated 7 August) on transaction reporting, order record keeping and clock synchronisation under the MiFID II and MiFIR. In a related press release, ESMA explains that changes made to the guidelines correct some unintended factual mistakes, typos and inconsistencies in the technical part of the guidelines. However, ESMA goes on to advise that none of the corrections aim to alter the substance or policy provisions of the guidelines. Also, it advises that the updated guidelines will not have an impact on the timeline for completion of the "comply and explain" procedure by member states.

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MiFID II – FCA Q&As on commodity derivatives 

On 9 August, the FCA published a set of Q&As containing information on position limits and position reporting for commodity derivatives under MiFID II. The purpose of the Q&As is to assist relevant firms with their preparations for MiFID II implementation. The FCA confirms that the Q&As reflect the content of its July policy statement on MiFID II (PS17/14).

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MiFID II – FCA updates webpage on commodity derivatives position limits and reporting 

On 4 August, the FCA updated its webpage on the introduction of a position limits and reporting regime for commodity derivatives under MiFID II. The new information is: from 3 January 2018, trading venues must notify the FCA by email when the total open interest of any commodity derivative reaches any of the amounts of lots or number of securities in issue as required by Article 15(1) of EC Delegated Regulation (EU) 2017/591 (RTS 21), over a consecutive three month period. From 1 August, the FCA expects the following notifications: MTFs and applicants for OTF authorisation inform of any new commodity contracts prior to launch; RIEs continuing notification of any new commodity contracts prior to their launch; and all trading venues should share the contract specifications, specifically the commodity derivative name, market identifier code, venue product code and the relevant unit of measurement. The position limit exemptions application will be available from the beginning of October on Connect. The exemptions application will be an uncapped exemption based on an assessment of the application. However, the FCA will monitor the reported positions against the information provided in the application form. If there is a significant change in the nature or value of the non-financial entity’s commercial or trading activities they should submit a new application. Firms that have a reporting obligation but have not yet started the MDP onboarding process should complete the relevant documentation as soon as possible to be able to begin testing in the week commencing 11 September. The position limits and reporting regime for commodity derivatives comes into force on 3 January 2018.

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Payment systems – PSR consultation on proposals to improve switching of Facilities Management providers 

On 4 August, the PSR published a consultation (CP17/1) on proposals to change the Direct Debit rules relating to the switching of Facilities Management providers. In this consultation paper, the PSR discuss concerns that have been raised about Direct Debit Facilities Management services and the options for customers that want to change their Facilities Management provider. A Facilities Management provider is an organisation that collects and/or administers Direct Debits on behalf of other organisations (who are its clients). A Facilities Management provider, GoCardless Ltd, asked the PSR to consider using its powers to change the Bacs scheme rules to remove a potential impediment to switching. As a result, the PSR surveyed providers to determine the extent and impact of the issues raised on competition and service users. The PSR sets out proposals for changing the Direct Debit scheme rules to address the concerns. The paper also discusses some potential implementation approaches. The deadline for comments is 15 September.

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Prudential regulation  

Please see the Insurance section for an update on Solvency II. 


FSCS levies and fees – PRA consultation on changes to PRA and FSCS fees and levies for insurers and designated investment firms 

On 8 August, the PRA published a consultation paper on proposals relating to periodic fees for DIFs, periodic fees and FSCS levies for insurers, and fees relating to models (CP16/17). In the proposals set out in CP16/17, the PRA aims to ensure that the methodologies for determining PRA fees for DIFs and insurers are appropriate to the risks these firms pose to its objectives. In the case of PRA fees and FCSC levies for insurers, the proposals reflect the introduction of the Solvency II (2009/138/EC). Other proposed changes set out in CP16/17 are intended to ensure that model application fees are appropriately calibrated for different fee payers, and that PRA costs associated with reviewing and maintaining firms' models and model changes are appropriately targeted at relevant firms. The proposed implementation dates are: for the changes to the periodic fees and the regulatory transaction fees for model approaches (excluding the change to CRR thresholds based on minimum eligible liabilities): 1 March 2018; for the change to CRR thresholds based on minimum eligible liabilities: 6 December 2017; for the changes to FSCS levies, which include the revised tariff base: 1 April 2018; and for the FSCS levy rules relating to reporting dates: 6 December. The deadline for comments is 24 October.

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Corporate governance – BoE report on its approach to identifying and managing conflicts of interest

On 9 August, the BoE published a report on its approach to identifying and managing conflicts of interest. The report sets out the findings of a review commissioned by the BoE Court in March, following the resignation, on 14 March, of Charlotte Hogg, BoE Deputy Governor for Markets and Banking and Chief Operating Officer. The review was undertaken by the NEDs of the Court, with support from the BoE's Independent Evaluation Office. The NEDs also engaged Herbert Smith Freehills LLP to provide external advice, including assurance, as needed, to the appropriateness and effectiveness of the review. The terms of reference for the review, which required the NEDs to consider certain aspects of the BoE's approach to managing conflicts, are set out in Annex 1 to the report. Generally, the NEDs consider that the BoE has made considerable progress in recent years in modernising and strengthening the infrastructure and processes underpinning its work, including in the area of conflict management. Among other things, they noted that a number of improvements to the BoE's conflicts policies and procedures have already been put in place since Ms Hogg's resignation (outlined in box 5 in section 3 of the report). However, they consider that the BoE needs to go further in this area. Recurring themes identified are the risk of "inadvertent non-disclosure" posed by ambiguities in some elements of the BoE policies, and shortcomings in some processes and systems. The report sets out ten recommendations.

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Cyber security – DCMS consultation on implementing Cyber Security Directive 

On 8 August, the DCMS published a consultation paper on implementing the Cyber-security Directive ((EU) 2016/1148). The DCMS explains that the Cyber-security Directive will compel essential service operators to make sure they are taking the necessary action to protect their IT systems. In particular, operators will be required to develop a strategy and policies to understand and manage their risk, to implement security measures to prevent attacks or system failures, to report incidents as soon as they happen, and to have systems in place to ensure they can recover quickly after any event. The paper seeks views on: the essential services covered by the Cyber-security Directive; penalties for non-compliance; the competent authorities to regulate and audit specific sectors; the proposed security measures that will be imposed. (Section 6 of the consultation paper includes the proposed timeframe for publishing the high-level security principles and related guidance); timelines for incident reporting; and how digital service providers (that is, search engines, cloud computing services and online marketplaces) are affected. The deadline for comments is 30 September. The DCMS intends to issue a formal response to the consultation within ten weeks of the closing date.

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Financial sanctions – OFSI updates financial sanctions guidance: aspects of interest to financial services practitioners

On 8 August, the OFSI published an updated version of its guidance on financial sanctions. Among other things, OFSI has amended the guidance to clarify its existing position on organisations owned or controlled by those subject to financial sanctions, as well as the process for obtaining a licence. OFSI has advised that it will continue to work with industry bodies to develop its guidance so that it is responsive to what businesses, and the public and charitable sectors, need.

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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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JD Supra Privacy Policy

Updated: May 25, 2018:

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