Commission Summary of Contributions on EU Regulatory Framework

The European Commission has published a summary of contributions received to the ‘Call for Evidence’ on an EU regulatory framework for financial services. The consultation closed on January 31, 2016.

The summary reports who responded and gives an overview of the responses. Overall, the Commission claims that stakeholders did not dispute the reforms of recent years and many responses expressed support of the new rules. Many replies also related to unnecessary regulatory constraints on financing, proportionality, excessive compliance costs and complexity, reporting and disclosure obligations, and overlaps, duplications, and inconsistencies.

Permanent Representatives Committee Approves Delay to New Securities Market Rules

On May 18, 2016, the Permanent Representatives Committee approved, on behalf of the Council of the EU, an agreement with the European Parliament for a one-year delay to the dates of transposition and application of the MIFID II Directive (2014/65/EU) and the Markets in Financial Instruments Regulation (Regulation 600/2014) (“MIFIR”). This was announced in a press release of the Council of Europe.

Under the new approach the deadline for member states to transpose MIFID II into national legislation will be July 3, 2017, and the date of application of both MIFID II and MIFIR will be January 3, 2018.

EBA Publishes Decision on Unsolicited Credit Assessments

On May 17, 2016, the European Banking Authority published a decision confirming that the unsolicited credit assessments of certain external credit assessment institutions (“ECIAs”) do not differ in quality from their solicited credit assessments with regard to the Capital Requirements Regulation (Regulation 575/2013).

The published decision annexes 22 ECIAs and confirms that in respect of those listed, the quality of the unsolicited credit assessments does not differ from the solicited credit assessments.

The decision will enter into force 20 days after publication in the Official Journal of the EU.

ECB Publishes Public Consultation

The European Central Bank (“ECB”) has published a Public Consultation on a draft Addendum to the ECB Guide on options and discretions available in Union law.

The consultation document sets out the ECB’s approach to the exercise of options and discretions provided for in Regulation 575/2013 (on prudential requirements for credit institutions and investment firms) and Directive 2013/36/EU (on access to the activity of credit institutions and the prudential supervision of credit institutions and investments firms).

This publication is the second phase of the ECB’s project on options and discretions.

ESMA Publishes Final Report on Amendment of Draft RTS on Reporting Obligations under Article 26 of MiFIR

On May 4, 2016, The European Securities and Markets Authority (ESMA) published its final report requesting an amendment of ESMA draft regulatory technical standards (RTS) on transaction reporting under the Markets in Financial Instruments Regulation (MiFIR).

The draft RTS were submitted to the European Commission in September 2015. However, ESMA has since identified a need to amend Article 2 of RTS 22 as a result of an unintentional omission in the final stage of drafting.

The amendment relates to the list of instances that are not considered to be reportable transactions for the purposes of Article 26 of MiFIR. It resolves an unintended omission by adding acquisitions or disposals that are solely a result of a transfer of collateral to the list of exclusions from transaction reporting specified in Article 2(5) of RTS 22. It thus ensures that investment firms are not required to submit transaction reports for transfers of collateral, which ESMA concluded would be costly and bring no supervisory benefit. ESMA anticipates that the amendment will be taken into account in the context of the Commission’s endorsement of RTS 22.

EBA Publishes Discussion Paper on Use of Consumer Data by Financial Institutions

On May 4, 2016, the EBA published a discussion paper on innovative uses of consumer data by financial institutions, in line with its mandate to monitor financial innovation.  The EBA report notes that although general provisions apply to financial institutions regarding secrecy, conduct and data protection, which impose restrictions on the use of consumer data, EU legislation specific to the financial sector contains few requirements that address the use of consumer data by financial institutions.

In recent years, some financial institutions have started using consumer data in innovative ways across the EBA’s regulatory remit (that is, mortgages, personal loans, payment accounts, payment services, and electronic money). The paper identifies risks and benefits for consumers and financial institutions of such uses, as well as for financial integrity in general. Feedback received on this discussion paper will inform the EBA’s decision on which, if any, further actions may be required to mitigate the risks arising from this innovation, while also allowing market participants to harness its benefits.

European Parliament Adopts Final Text of Benchmark Regulation

On May 3, 2016, the Council of the EU published the text of the proposed Regulation on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds (Benchmark Regulation).  This follows adoption of the Benchmark Regulation by the European Parliament on April 28, 2016.

Next, the Benchmark Regulation must be formally adopted by the Council, after which it will be published in the Official Journal of the EU. It will then enter into force on the day after its publication.

EBA Amends Historical Look-Back Approach Method for Calculating Additional Collateral Outflows

On May 3, 2016, the European Banking Authority (EBA) issued an opinion to the European Commission supporting the Commission’s proposed amendment to the historical look-back approach (HLBA) methodology used in the draft Regulatory Technical Standards (RTS) on additional collateral outflows.

The amendment by the EBA followed a request by the European Commission that the draft RTS be amended so that the calculation of the additional collateral outflows was based on the HLBA for market valuation changes developed by the Basel Committee on Banking Supervision (BCBS). The BCBS’s HLBA focuses on the largest net difference in collateral posted instead of the largest gross difference which had been the focus of the EBA’s approach.  In December 2015, the Commission had raised concerns that the EBA’s HLBA approach could have a significant impact on credit institutions and international derivative markets.  Therefore, it decided not to adopt the draft RTS as it had been submitted by the EBA, but signalled it was open to endorsing an amended draft RTS based on the BCBS’s HLBA approach.

European Commission Issues Call for Advice on Own Fund Requirements for Market Risk

On April 22, 2016, the European Banking Authority published a call for advice it had received from the European Commission regarding revisions to the own fund requirement for market risk as part of the CRR review.

The call for advice sets out that the EC is undertaking a review of the Capital Requirements Regulation and is considering the impact of implementing the agreed Basel Committee on Banking Supervision framework detailed in the document “Minimum capital requirements for market risk.” The EC notes that to date there has been no EU-specific assessment of the convenience and impact of updating these rules in the ways proposed by the BCBS.

Insurance Europe Raises Concerns over Misunderstanding of Ultimate Forward Rate

On April 21, 2016, Insurance Europe, the European insurance and reinsurance federation, released a press releaseraising concerns over how Solvency II liabilities are currently calculated, including discount rates. This press release was published in response to the consultation carried out by the European Insurance and Occupational Pensions Authority and it discusses whether the Ultimate Forward Rate should be calculated by reference to the discount rate, or whether it may be adjusted to reflect changes in long-term expectations.