EBA Opinion on Regulation of EU Lending-Based Crowdfunding

On February 26, 2015, the European Banking Authority (“EBA“) published an opinion on lending-based crowdfunding. The opinion notes that certain Member States (France, Italy, Spain and the UK) have created specific regulations to address risks arising from crowdfunding. Italy’s regulation only covers investment-based crowdfunding. In Spain, the draft law in the final approval stages. The EBA concludes that the convergence of practices across the EU for the supervision of crowdfunding is desirable in order to avoid regulatory arbitrage, create a level playing field, ensure that market participants can have confidence in crowdfunding, and contribute to the single European market.

The EBA considers that crowdfunding, whilst still at an early stage, should be regulated by existing legislation, the most relevant being the Payment Services Directive (the “Directive“), but acknowledges that the lending aspects of crowdfunding are not regulated by EU law.

The EBA also stated that the business models of lending-based crowdfunding platforms do not fall inside the perimeter of credit institutions with the result that funds provided by lenders to crowdfunding platforms would not qualify as deposits eligible for protection under a deposit guarantee scheme, representing a further risk to lenders.  Opinion.

ECB Publishes Eurosystem Oversight Report

On February 27, 2015, the European Central Bank (“ECB“) published its 2014 Eurosystem oversight report, the third such report, reviewing the oversight that the Eurosystem has performed in the period from 2011 to mid-2014.  The Eurosystem is the monetary authority of the Eurozone and consists of the European Central Bank and the central banks of each of the Eurozone member states.

The oversight report focuses on the Eurosystem’s oversight of financial market infrastructures, including payment systems, securities and derivatives clearing and settlement systems and trade repositories.

The oversight report also discusses future work priorities. The future work priorities state that the oversight priorities of the Eurosystem will still be driven by the implementation measures of the regulatory reform process and the need to avoid the emergence of systemic risks in the Eurozone. The Eurosystem will also conduct assessments of the design and operation of T2S, the securities settlement platform operated by the Eurosystem that is set to go live in June 2015. Finally the Eurosystem will continue to conduct regular analyses of correspondent banking activities and is currently reviewing its assessment guides for credit cards, direct debits and credit transfers.  Report.

European Commission Publishes Green Paper on Building a Capital Markets Union

On February 18, the European Commission published a green paper on building a Capital Markets Union.

The green paper identifies a number of key priorities to create a fully integrated single market for capital. The early action priorities include relaxing rules around securitization, reviewing the prospectus regime, widening the small and medium-sized investor base by ensuring comparable cross-border credit information and credit-scoring, developing private placement markets by introducing common market practices, principles and standardizes documentation and boosting long-term investment through the European Fund for Strategic Investment and the European Long-Term Investment Funds regulatory framework.

The Commission will publish an action plan later in 2015 to identify and remove barriers for the free movement of capital, and aims to have in place a fully functioning Capital Markets Union by 2019.  Green Paper.

 

ICMA Publishes a Guide to the Pan-European Private Placement Market

On February 11, the International Capital Market Association (ICMA) published a guide on common market standards and best practices for the development of Pan-European private placement (PEPP) transactions. The guide is intended to be a foundation for a truly pan-European private placement market.

The guide states the market characteristics of a PEPP transaction and includes a guide to negotiation and documentation, emphasizing the utility of the Loan Market Association’s standard documents which were issued in January 2015. The guide further explains the roles of the parties in a PEPP transaction and gives an indicative timetable.

ICMA states that the guide is intended as guidance only and that negotiation of the contractual terms for each document in a PEPP transaction is essential. The guide will be updated and supplemented as the PEPP market and corresponding practice develops throughout the Member States of the European Union.  Guide.

FMLC Publishes Letter to European Commission on Reporting and Transparency of Securities Financing Transactions

On February 10, the UK Financial Markets Law Committee (FMLC) published a letter to the Director-General for Financial Stability, Financial Services and Capital Markets Union of the European Commission.

The letter discusses the proposed Regulation on Reporting and Transparency of Securities Financing Transactions. The proposed regulation would introduce a transparency regime in the context of securities financing transactions (typically repurchase agreements (repos), securities lending activities, and sell/buy-back transactions) by requiring their reporting to trade repositories and disclosure to fund investors.

The FMLC is concerned that the proposed regulation fails adequately to reflect the difference between a title transfer financial collateral arrangement (TTFCA) and a security financial collateral arrangement (SFCA), pointing out that such failure adequately to differentiate had been flagged in comments by the ECB. To allay these concerns the FMLC recommends that the proposed regulation is amended to make it explicit that TTFCAs are excluded from Article 15 of the proposed regulation which states that counterparties shall have the right to rehypothecation only if the counterparty is informed in writing of the potential risks and has granted its prior express consent. Since a TTFCA (unlike a SFCA) involves the transfer to the receiving counterparty of the ownership of the assets in question, it is incongruous to say that the receiving counterparty has the right to use the assets transferred to him only if certain conditions are satisfied because the right to use them is a necessary incident of the ownership of the assets. Similarly, the FMLC points out that only assets transferred by means of a SFCA constitute “client assets” for the purposes of the receiving party as the transferor retains an equitable interest.  Letter.

Council of the EU Endorses Agreement with the European Parliament Regarding the MLD4

On February 10, the Council of the European Union published a press release stating that agreement had been reached with the European Parliament regarding the Fourth Money Laundering Directive (MLD4) and the proposed revised Wire Transfer Regulation (WTR).

MLD4 has an extended scope and introduces due diligence requirements for a greater number of traders by lowering the threshold required for anti-money laundering steps from €15,000 to €10,000.

The agreement between the Council and the European Parliament means that MLD4 and WTR will go to second reading and can now be adopted. Member States will have two years to transpose the Directive into national law; the Regulation will be directly applicable.  Press Release.

ESMA Publishes an Opinion on Draft RTS on Clearing of Interest Rate Swaps under EMIR

Article 5(2) of Regulation (EU) No 648/2012 (EMIR) requires the European Securities and Markets Authority (ESMA) to develop draft regulatory technical standards specifying, inter alia, the class of OTC derivatives that should be subject to the clearing obligation, the date or dates from which the clearing obligation takes effect, including any phase in and the categories of counterparties to which the obligation applies.

In October 2014, ESMA submitted a draft regulatory technical standard (RTS) on the clearing obligation in respect of interest rate swaps to the European Commission. On 18 December 2014, the Commission submitted to ESMA a modified version of the RTS (the “modified RTS”) introducing, among others, (1) amendments to the date on which the frontloading obligation starts to apply and (2) a new provision on the treatment of non-EU intragroup transactions. In the modified RTS, the Commission proposed that for a period of maximum three years, any third country shall be deemed equivalent within the meaning of Article 13(2) of EMIR. The effect would be to allow, for a period of three years, financial counterparties to apply for the intra-group exemption in respect of their transactions with any third-country entity in the absence of decisions on equivalence.

On January 29, ESMA published an opinion on the modified RTS stating that ESMA considers that the Commission’s proposal in relation to non-EU intra group transactions is not appropriate from a legal perspective. ESMA noted that (i) the adoption by the Commission of implementing acts on equivalence under Article 13 is the only procedure envisaged under EMIR to establish whether third-countries can be considered as having legal, supervisory and enforcement frameworks equivalent to EMIR; and (ii)any provision that has an effect equivalent to that of an implementing act on equivalence under Article 13, although limited in time and scope, but without the examination procedure referred to in Article 13(2), may have unintended consequences and therefore requires a very careful review. ESMA will explore, in coordination with the Commission, a different manner to incorporate that provision.  Opinion.

ECON Votes in Favor of the MIF Regulation

On January 27, the Economic and Monetary Affairs Committee (“ECON”) released a press release stating that it had voted in favour of the proposed Regulation on multilateral interchange fees (“MIF Regulation”). This vote confirms an informal deal struck with the Council of Europe in December and will enforce a cap on the fees that banks can charge retailers for processing shoppers’ payments.

The European Parliament as a whole is expected to vote on the deal at the second plenary session in April.  Press Release.

The ECB Published a Recommendation on Dividend Distribution Policies

On January 28, the European Central Bank (“ECB”) published a recommendation to establish dividend policies using conservative and prudent assumptions in order, after any distribution, to satisfy the applicable capital requirements.

The ECB has published recommendations with regard to Category 1, Category 2 and Category 3 credit institutions. Category 1 credit institutions should only distribute their net profits in dividends in a conservative manner to enable them to continue to fulfil all the Pillar 1 requirements. Category 2 credit institutions should not only distribute their net profits in dividends in a conservative manner but should also only pay out dividends to the extent which is consistent, at a minimum, with a linear path towards the fully loaded ratios required by the Common Equity Tier 1 capital ratio. Category 3 credit institutions which under the 2014 comprehensive assessment have a capital shortfall should, in principle, not distribute any dividend.  Recommendation.

Capital Requirements (Capital Buffers and Macro-prudential Measures) (Amendment) Regulations 2015 Published

On January 13, 2015, the Capital Requirements (Capital Buffers and Macro-prudential Measures) (Amendment) Regulations 2015 were published.

The Regulations amend the Capital Requirements (Capital Buffers and Macro-prudential Measures) Regulations 2014 to introduce a systemic risk buffer (SRB) that will apply to ring-fenced banks (RFBs) and certain large building societies. This measure implements Articles 133 and 134 of the Capital Requirements Directive IV (CRD IV).

The Financial Policy Committee (FPC) will be responsible for setting out the framework for determining which institutions should hold the buffer and, if so, how large the buffer should be. It will need to publish this methodology by May 31, 2016. The Prudential Regulation Authority (PRA) will be responsible for applying the framework and will have ultimate discretion over which firms must hold the buffer and its size.

The Regulations were made on January 12, 2015 and come into force, unless otherwise stated, on May 31, 2016. The systemic risk buffer is applicable from January 1, 2019.  Regulations.