Europe

ESMA Publishes Consolidated Guidelines on the Application of the Endorsement Regime Under CRA Regulation

 

On March 20, the European Securities and Markets Authority (ESMA) published the official translations of its consolidated guidelines on the application of the endorsement regime under Article 4(3) of the Credit Rating Agencies Regulation (Regulation 1060/2009) (CRA Regulation) (ESMA33-9-282). READ MORE

Commission Publishes Delegated Regulation Supplementing MLD4

 

On May 14, a Delegated Regulation ((EU) 2019/758) supplementing the Fourth Money Laundering Directive ((EU) 2015/849) (MLD4) with regulatory technical standards (RTS) specifying the minimum action and the type of additional measures credit and financial institutions must take to mitigate money laundering and terrorist financing risk in certain third countries was published in the Official Journal of the EU (OJ). READ MORE

FCA Updates Paper on Price Discrimination in Cash Savings Market

 

On May 14, the Financial Conduct Authority (FCA) updated its webpage on its July 2018 discussion paper on price discrimination in the cash savings market (DP18/6).

The FCA states that it is considering the responses to the discussion paper in the context of its broader work on assessing the role and impact of Open Finance and the role of a duty of care in its future approach to regulation, as outlined in its 2019/20 business plan.

In DP18/6, the FCA set out a range of options to address issues faced by longstanding customers in the easy-access cash savings market and stated that it would publish a feedback statement in early 2019. It now intends to publish a consultation paper or feedback statement in the second half of 2019, which will outline the feedback received to the discussion paper and its next steps.

Shareholder Rights Directive: The Proxy Advisors Regulations 2019

 

On May 14, the Proxy Advisors (Shareholders’ Rights) Regulations 2019 (SI 2019/926) were published. The regulations transpose into UK law Article 3j (transparency of proxy advisors) of the Shareholder Rights Directive (as amended by the Shareholder Rights Directive II). The Regulations will enter into force on June 10. READ MORE

BCBS Publishes Progress Report on Implementation of Basel Regulatory Framework

 

On May 7, the Basel Committee on Banking Supervision (BCBS) published its sixteenth progress report on BCBS members’ implementation of Basel III. The report can be found here.

The report, which looks at implementation as of the end of March 2019, focuses on the status of adoption of the Basel III standards to ensure they are transformed into national law or regulation in accordance with agreed timeframes. The Basel III standards reviewed include: risk-based capital standards, the leverage ratio, the standards for global and domestic systemically important banks and interest rate risk in the banking book, the net stable funding ratio (NSFR), the large exposures framework and the disclosure requirements.

The report states that since BCBS’s previous report, published in October 2018, member jurisdictions have made progress in implementing standards for which deadlines have already passed, including those relating to the revised securitization framework. However, progress has been limited in the implementation of other standards which have yet to be finalized and put into effect in a number of jurisdictions, including the NSFR, which took effect on January 1, 2018, but only 11 jurisdictions have final rules in place.

FSB Publishes Report on Third Thematic Review of Resolution Regimes

 

As part of a review launched in June 2018, the Financial Stability Board (FSB) published a report (which can be found here) on its third thematic peer review of resolution regimes. The findings of the first and second peer reviews of resolution regimes were published in April 2013 and March 2016 respectively. The reviews are designed to support the timely and consistent implementation by FSB jurisdictions of the FSB’s key attributes of effective resolution regimes for financial institutions.

Bank resolution planning frameworks have been adopted in most FSB jurisdictions, with planning most advanced for global systemically important banks in jurisdictions that are home to them. The report recommends further work to be done to ensure that bank resolution plans can be put fully into effect:

  • FSB jurisdictions take further steps to adopt and operationalize their resolution planning framework, including: adopt resolution planning frameworks, adopt resolvability assessment frameworks and provide powers to require banks to take measures to improve resolvability and participate in cross-border coordinating arrangements. By June 2020, jurisdictions identified as not having a resolution planning framework will need to report to the FSB.
  • FSB undertake work to support member authorities’ resolution planning for banks other than G-SIBs that could be systemic in failure.
  • FSB work with relevant authorities and other bodies, to promote the sharing of bank resolution planning experiences and practices in enhancing cooperation and information-sharing arrangements.

EBA Publishes Consultation Paper on RTS on Standardized Approach for Counterparty Credit Risk

 

On May 2, the European Banking Authority (EBA) published a consultation paper on four draft regulatory technical standards (RTS) on the standardized approach for counterparty credit risk under Article 277(5) and Article 279a(3) of the proposed Regulation mending the Capital Requirements Regulation (575/2013) (CRR II). These proposals build on the proposals included in the discussion paper published in December 2017 (which can be found here) and include specifying methods for the mapping of derivative transactions to risk categories, a formula for the calculation of the supervisory delta of options mapped to the interest rate risk category and a method for determining whether derivative transactions are long or short in their risk drivers.

A three-pronged approach is proposed for the assignment of a derivative transaction to a risk category:

  • Qualitative approach identifies derivative transactions that clearly have only one material risk driver.
  • Qualitative and quantitative approach requires a more detailed assessment of, and is applicable to, derivative transactions for which the mapping cannot immediately be done on the basis of the first approach.
  • Third approach identifyies all possible risk drivers of a transaction as material and allocating the transaction to all relevant risk-categories.

Comments can be made on the consultation paper until August 2. There will be a public hearing on June 17. The RTS are subject to change, as they are based on the proposed legislative text for CRR II and so will change to the extent the draft legislative text changes.

EIOPA Publishes Report on Thematic Review on Big Data Analytics

 

On May 8, the European Insurance and Occupational Pensions Authority (EIOPA) published a report setting out the findings of its EU-wide thematic review on the use of Big Data Analytics (BDA) in motor and health insurance. The aim of the review was to gather empirical evidence on the benefits and risks arising from BDA, including artificial intelligence, machine learning and cloud computing services.

The report found that there was a strong tendency towards increasingly data-driven business models throughout the insurance value train and that a majority of firms were either using, or contemplating using, BDA tools.

The report notes that there are still risks to be addressed, including ethical issues around the fairness of the use of BDA, as well as regarding the accuracy, transparency and auditability of BDA tools. It highlighted the biases inherent in data that being used could be reinforced through machine learning algorithms if firms do not have adequate governance arrangements in place. The EIOPA is going to undertake further work throughout 2019 in relation to these identified risks.

The report also sets out details of future BDA initiatives, including: the supervision of artificial intelligence and machine learning, ethics and fairness, outsourcing of cloud computing services by insurers and cyber insurance and cyber security.

European Commission Consults on Effectiveness of DMD

 

The European Commission has launched a consultation relating to its evaluation of the Distance Marketing of Financial Services Directive (2002/65/EC) (DMD).

The DMD provides details on the information that a consumer should receive about a financial service and the financial services provider before concluding a distance contract. Among other things, it also gives consumers a 14-day withdrawal period for certain financial services contracts, and bans services and communications from suppliers that a consumer has not solicited or consented to.

The European Commission published a new webpage announcing a consultation relating to its evaluation of the Distance Marketing of Financial Services Directive (2002/65/EC) (DMD). The Commission explains that, since the DMD came into force, the retail financial sector has gone increasingly digital, with new products and actors available on the market, and new sales channels being used. Also, several EU laws relating to financial services have been adopted or updated. As a result, the Commission has launched an evaluation of the DMD to assess whether it is still fit for purpose.

The aim of the consultation is to ensure that all relevant stakeholders have the opportunity to express their views on the relevance, effectiveness, pertinence and coherence of the DMD. The Commission particularly wants to hear from consumers, retail financial services providers and authorities responsible for supervising and enforcing compliance with the DMD’s provisions.

Responses to the consultation can be made by completing an online questionnaire, which is linked to from the consultation webpage. Comments can be made on the consultation until 2 July 2019. The Commission expects to publish the conclusions of the evaluation exercise by the end of 2019.

Financial Services Trade Associations Urge HM Treasury to Recognize EEA Derivatives Trading Venues in Event of No-deal Brexit

 

A number of key UK, EU and international financial services trade associations published a letter (dated April 5) to HM Treasury on the equivalence of European Economic Area (EEA) derivatives trading venues under the EU retained versions of European Market Infrastructure Regulation (EMIR) (648/2012) (UK EMIR) and the Markets in Financial Instruments Regulation (600/2014) (UK MiFIR) if there is a no-deal Brexit.

The trade associations highlight the disruptive impact on UK market participants and European derivatives markets arising from the absence of HM Treasury equivalence determinations:

  • Under Article 28(4) of UK MiFIR with respect to EEA multilateral trading facilities (MTFs) and organized trading facilities (OTFs). This will mean that UK financial counterparties (FCs) and UK non-financial counterparties (NFCs) over the clearing threshold would cease to be able to execute transactions in over-the-counter (OTC) derivatives subject to the trading obligation under UK MiFIR on those venues in a no-deal Brexit.
  • Under Article 2a of UK EMIR with respect to EEA regulated markets. This will mean that EEA exchange-traded derivatives (EEA ETDs) are considered OTC derivatives under UK EMIR in a no-deal Brexit.

The trade associations urge HM Treasury to prepare the necessary measures to recognise the equivalence of EEA derivative trading venues under UK EMIR and UK MiFIR, with a view to those measures taking effect on or very shortly after a no-deal Brexit. They suggest that HM Treasury could make an equivalence direction under the Equivalence Determinations for Financial Services and Miscellaneous Provisions (Amendment etc) (EU Exit) Regulations 2019 (SI 2019/541) or, alternatively, the FCA could grant transitional relief for this purpose using its temporary transitional powers under Part 7 of the Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (SI 2019/632). They urge HM Treasury and the FCA to indicate the approach that they intend to take as soon as possible.