8 May 2019

Key Regulatory Topics: Weekly Update 26 April - 2 May 2019

CONSUMER/RETAIL

FCA call for input on RDR and FAMR review

On 1 May, the FCA published a call for input on its plans to evaluate the Retail Distribution Review (RDR) and Financial Advice Markets Review (FAMR). The call for input marks the review's launch. The FCA states that, as the market has evolved considerably since the RDR and FAMR were introduced, it intends to use the review to consider market developments and whether advice and guidance services meet current consumer needs, and will continue to do so in the future. Annex 1 and Annex 3 to the call for input set out the published outcomes and indicators for both the RDR and FAMR, to measure their success. The FCA plans to assess the RDR and FAMR against these outcomes. It will conduct the FAMR assessment jointly with HMT. The deadline for comments is 3 June. The FCA intends to publish its findings in 2020.

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ESMA temporary restriction on CFDs applicable from 1 May published in OJ

On 30 April, ESMA Decision (EU) 2019/679 of 17 April renewing the temporary restriction on the marketing, distribution or sale of CFDs to retail clients was published in the OJ. It is renewing the restriction on the same terms as set out in Decision (EU) 20199/155 as ESMA considers that a significant investor protection concern relating to the offer of CFDs to retail clients continues to exist. The decision applies from 1 May for a period of three months.

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FCA delays publication of final rules for CFD products and CFD-like options

On 26 April, the FCA announced that it is delaying publication of final rules for CFD products and CFD-like options. In December 2018, the FCA published a consultation paper (CP18/38) which proposed making ESMA's temporary product intervention measures for CFDs permanent in the UK. The consultation closed on 7 February. The FCA is still considering feedback to the consultation and ESMA's temporary restrictions continue to apply to FCA-authorised firms (following the deferral of the UK’s exit from the EU). It plans to publish a policy statement and final handbook rules in the summer. The final rules for CFDs would apply from the date that ESMA's restrictions expire, if not earlier. Firms that sell, market, or distribute CFD-like options would be given at least two months to comply with new rules.

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FINTECH

BoE speech on embracing Fintech

On 30 April, the BoE published a speech given by Dave Ramsden, BoE Deputy Governor for Markets and Banking, on the priorities of the BoE's FinTech Hub. Mr Ramsden discussed three priorities for the FinTech Hub: (i) payments - the BoE is updating its infrastructure to provide a platform for private innovation to serve the digital economy, which means renewing its Real Time Gross Settlement service (RTGS) and opening it up to a broader range of firms and the movement of UK payment systems onto the ISO 20022 messaging standard; (ii) unbundling - Mr Ramsden flags that the unbundling of traditional financial services by emerging business models into individual core functions such as settling payments, performing maturity transformation and allocating capital might lead to a shifting of activities beyond the regulatory perimeter. The FinTech Hub and PRA will work together to analyse the potential impact of this on financial stability; and (iii) AI - Mr Ramsden notes that finance is amongst the first sectors to deploy AI at scale. The FinTech Hub and the FCA have just conducted the first survey of regulated firms' applications of AI with the aim of establishing a consistent picture of the state of deployment and readiness within financial services.

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FCA speech on innovation journey

On 29 April, the FCA published a speech by Christopher Woolard, FCA Executive Director for Strategy and Competition, evaluating the progress to date of the FCA's Innovate services and outlining the next steps in promoting innovation in financial services. Almost five years on from its launch, Mr Woolard reports that FCA Innovate is having a real impact. The FCA's evaluation paper on the impact and effectiveness of Innovate, also published on 29 April, shows that: (i) nearly 700 firms have received some kind of assistance from the FCA's innovation work; (ii) groups of firms that have gone through the Innovate programme have come to market 40% faster than equivalent financial services firms; and (iii) millions of consumers have a range of more efficient, better value or more convenient services available to them. Mr Woolard also states that the FCA will be holding a follow-up session in July to its TechSprint on financial crime, which last year brought together 260 participants from 16 countries to explore how innovative solutions could be applied.

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INSURANCE

EIOPA's 2018 Insurance Stress Test Recommendations

On 26 April, EIOPA published a set of recommendations on supervisory convergence and financial stability issues following its 2018 European-wide insurance sector stress test, the results of which were published in December 2018. EIOPA recommends that NCAs should: (i) strengthen supervision of groups identified as facing greater exposure to yield curve up or yield curve down scenarios; (ii) review and, where necessary, challenge the capital and risk management strategies of the affected groups; (iii) evaluate the potential management actions to be implemented by the affected groups; (iv) contribute to enhance the stress test process; and (v) enhance co-operation and information exchange with other relevant authorities.

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EIOPA Supervisory priorities for 2019

On 26 April, EIOPA published a report on its supervisory activities in 2018 and its priorities for 2019. The priorities for 2019 remain the same as 2018, although new areas have been identified in each priority area. It will focus on: (i) practical implementation of the key characteristics of the common supervisory culture and further development of supervisory tools; (ii) risks to the internal market and to the level playing field which may lead to supervisory arbitrage. EIOPA will perform comparative studies on the outcomes of internal models regarding underwriting risks (for main non-life lines of business) and credit and market risk, conduct a peer review of provisions of exchange of information regarding the authorisation, notification and supervision on a continuous basis and set up a network of authorisation officers to bring more convergence among supervisory authorities concerning authorisation practices; and (iii) supervision of emerging risks. EIOPA will assess the impact of the IBOR transition, conduct thematic review on big data analytics and promote awareness regarding the implementation of a cyber resilience framework. EIOPA will also continue to observe stability issues leading up to and following the UK's exit from the EU, including during any transitional period.

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MARKETS AND MARKETS INFRASTRUCTURE

EC Implementing Decision on equivalence of JFSA published in OJ

On 2 May, European Commission Implementing Decision (EU) 2019/684 on the recognition of the legal, supervisory and enforcement arrangements of Japan for derivatives transactions supervised by the Japan Financial Services Agency (JFSA) as equivalent to the valuation, dispute resolution and margin requirements of Article 11 of EMIR ((EU) 648/2012) was published in the OJ. The Implementing Decision states that the JFSA rules on dispute resolution and valuation for OTC derivatives not cleared by a CCP are equivalent to EMIR. The Implementing Decision will come into force 20 days after publication in the OJ, that is, 22 May.

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ESMA delays publication of SI regime data for equity, equity-like instruments and bonds

On 1 May, ESMA announced that it will delay publication of the SI regime data for equity, equity-like instruments and bonds due to a technical issue. The publication of the data for the SI calculations for derivatives and other instruments has been delayed until 2020 at the latest, as outlined in the updated plan announced by ESMA in January.

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ESMA makes new bond liquidity data available

On 1 May, ESMA announced that it has started to make available the third quarterly liquidity assessment for bonds that are available for trading on EU trading venues as at the end of December. ESMA’s liquidity assessment for bonds is based on a quarterly assessment of quantitative liquidity criteria, including the daily average trading activity (trades and notional amount) and percentage of days traded per quarter. The transparency requirements for bonds deemed liquid today will apply from 16 May to 15 August.

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ESMA agrees position limits under MiFID II

On 30 April, ESMA published five opinions on position limits in relation to commodity derivatives under MiFIR/MiFID II, specifically in relation to: (i) Belgian Power Baseload Futures; (ii) EEX Dutch Power Baseload Futures; (iii) Phelix DEAT OTF Base Futures; (iv) Phelix DE Power Peak Futures; and (v) Phelix DEAT Power Peak Futures. ESMA established that the proposed position limits are consistent with the objectives contained in MiFID II and with the methodology developed for setting those limits.

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ESMA guidelines on internalised settlement reporting under CSDR

On 30 April, ESMA published official translations of the guidelines on internalised settlement reporting under Article 9 of CSDR, the final version of which was published in March 2018. The guidelines apply to NCAs designated under Article 11 of the CSDR and to settlement internalisers as defined in Article 2(1)(11) of the CSDR. The guidelines apply from the date of publication of the official translations, that is, 30 April.

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Delegated Regulation amending RTS on clearing obligation under EMIR to extend deferred application until 21 December 2020 published in OJ

On 29 April, Delegated Regulation (EU) 2019/667 amending RTS on the clearing obligation under EMIR to extend the dates of deferred application of the clearing obligation for certain intragroup OTC derivatives contracts was published in the OJ. It amends Delegated Regulations (EU) 2015/2205, (EU) 2016/1178 and (EU) 2016/592 to extend the temporary exemptions in all three Commission Delegated Regulations until 21 December 2020. The amending Delegated Regulation enters into force on 30 April.

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PRUDENTIAL REGULATION

EBA consultation on RTS on standardised approach for counterparty credit risk under CRR II

On 2 May, the EBA published a consultation paper on draft RTS on the standardised approach for counterparty credit risk under Article 277(5) and Article 279a(3) of the proposed Regulation amending the CRR (CRR II). The EBA has developed the draft RTS based on the proposed legislative text for CRR II. The EBA proposes a three-pronged approach for the assignment of a derivative transaction to a risk category: (i) a qualitative approach, which identifies derivative transactions that clearly have only one material risk driver; (i) qualitative and quantitative approach, that requires a more detailed assessment of those derivative transactions for which mapping cannot immediately be done; and (iii) a fallback approach, in case the assessment performed in accordance with the second approach does not determine which of the risk drivers are material. The deadline for comments is 2 August.

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PRA sets systemic risk buffer rates for ring-fenced banks and large building societies

On 1 May, the PRA published the systemic risk buffer (SRB) rates for ring-fenced banks (RFBs) and large building societies (together, SRB institutions) that will be applied from 1 August. The PRA has applied the FPC's framework to the total assets of the SRB institutions as of end-December 2018, assessed on a sub-consolidated basis for RFBs, and on a consolidated basis for building societies. Going forward, the PRA intends to publish the SRB rates by 15 December of each year, with application by 1 January of the second year following the calendar year when the rates are published.

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ESRB review of macro-prudential policy in EU in 2018

On 30 April, the ESRB published a report setting out its review of macro-prudential policy in the EU in 2018. The report provides an overview of changes in policy frameworks and details of national macro-prudential measures that were adopted in EEA member states in 2018. The ESRB found that most member states adopted macro-prudential measures in 2018 and that more measures were taken in 2018 than in 2017. The report also contains special features on: (i) use of national flexibility measures under Article 458 of the CRR; (ii) development of the concept of a macroprudential stance; and (iii) upcoming changes to the macroprudential provisions in the CRR and CRD IV, made by the banking reform package (CRR II and CRD V).

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RECOVERY AND RESOLUTION

Please refer to the Other Developments section for the FSB’s report on April plenary meeting.

PRA ensures operational continuity in resolution: reporting requirements

On 30 April, the PRA updated its website to confirm that PRA 109 ‘operational continuity’ data would be collected via Excel.   An Excel template and related instructions are available.  Firms to which the Operational Continuity Part of the PRA Rulebook applies are required to submit the template to their PRA supervisor 45 business days after the first reporting period ending 31 December.

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EC report on application and review of BRRD and SRM Regulation

On 30 April, the EC published a report on the application and review of BRRD and the SRM Regulation. Issues identified for further assessment include: (i) precautionary capitalisation - there may be a need for further clarification of the conditions and the procedure to grant precautionary recapitalisation.  The EC has developed best practices on certain aspects of the procedure, including the role of the stress tests and their interaction with an asset quality review and it will continue working in this direction; (ii) early intervention measures - The EC suggest that the interaction between, and potential overlap of, early intervention powers conferred to competent authorities on the basis of national laws implementing the BRRD and the supervisory powers which they can exercise based on the CRD and the Single Supervisory Mechanism Regulation could merit further analysis; (iii) common backstop to the SRF and the Intergovernmental Agreement - the common backstop to the SRF will be established at the latest by the end of the transitional period for the mutualisation of the means in the SRF; (iv) liquidity in resolution - Acknowledging Article 73 SRMR, and the fact that in Member States outside the Banking Union as well as third country jurisdictions, the provision of liquidity support in resolution is foreseen either with no limits or with limits well above those possible within the Banking Union, often with the possibility of increases, the EC strongly supports the ongoing reflections on other sources and solutions for the provision of liquidity support in resolution and calls for these to be agreed upon and implemented in the course of 2019; (v) simplified obligations – the EC may reflect on the need for improvements of the framework, taking into account the outcome of the monitoring of simplified obligations by the EBA; and (vi) possible further harmonisation of liquidation - the EC can already identify some elements of bank insolvency laws for failing banks, which may deserve further reflection. These include an assessment on the applicable ranking of claims in national insolvency in different Member States, also with a view to determine whether further alignment between the ranking in insolvency and resolution is desirable.  More clarity could be needed on the procedures available at national level for the liquidation or wind up of banks which are declared failing or likely to fail but for which there is no public interest in taking resolution action.  The EC launched a study (with a tender in September 2018) to get a better understanding of these issues.

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FSB publishes third thematic review on resolution regimes

On 29 April, the FSB published a report on its third thematic peer review of resolution regimes. The FSB launched the review in June 2018 in order to evaluate implementation by FSB jurisdictions of the resolution planning standard set out in the FSB's key attributes of effective resolution regimes for financial institutions and in associated guidance in relation to banks. The peer review finds that resolution planning frameworks have been adopted in most, but not all, FSB jurisdictions, with resolution planning most advanced in home jurisdictions of G-SIBs. The peer review has identified implementation issues and weaknesses and therefore sets out the following recommendations: (i) further adoption and operationalisation of resolution planning frameworks. This includes, among other things, adopting resolvability assessment frameworks to inform resolution planning, developing playbooks for executing resolution strategies and providing powers to require banks to take measures to improve resolvability, and developing proportionate resolution-related cooperation and information sharing arrangements with host authorities; (ii) work to support resolution planning for banks other than G-SIBs, which may include targeted work on topics such as the development of resolution strategies; and (iii) enhancing cross-border cooperation and information sharing for resolution planning purposes.

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STRUCTURAL REFORM

Please refer to the Prudential Regulation for an update on the PRA’s systemic risk buffer rates for ring-fenced banks and large building societies.

TAXES AND LEVIES

ECB decision on total annual supervisory fees for 2019

On 30 April, the ECB published a decision (dated 18 April) on the total amount of annual supervisory fees under the SSM for 2019. The ECB confirms that the total amount of annual supervisory fees for 2019 at EUR576 million. This comprises EUR559 million that will be spent on the prudential supervision of banks, a EUR15.3 million deficit carried over from 2018 and adjustments to individual fees amounting to EUR1.7 million resulting from changes in banking structures. Banks that are directly supervised by the ECB will pay 91% of the fees. The ECB states that the increase in the estimated costs is predominantly due to Brexit. Banks will receive their individual fees notices in October 2019. The decision will enter into force 20 days after its publication in the OJ.

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FSCS confirms final 2019/20 levy

On 30 April, the FSCS announced its final levy for 2019/20. The FSCS will levy firms £532 million, which includes management expenses of £74.6 million. This is £16 million more than it forecast in its Plan and Budget 2019/20 released in January. One of the main reasons for the increase between the forecast and the final levy is an uplift in the number of claims expected against SIPP operators.

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OTHER DEVELOPMENTS

FSB designates UPI service provider

On 2 May, the FSB announced that it has designated The Derivatives Service Bureau Ltd (DSB) as the service provider for the future unique product identifier (UPI) system, which is a key step in completing the UPI governance framework. DBS will be the sole issuer of UPI codes and will also perform the function of operator of the UPI reference data library. A UPI will be assigned to an OTC derivatives product and used for identifying the product in transaction reporting data. This will enable authorities to aggregate data on OTC derivatives transactions by product or by any UPI reference data element.

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FCA Handbook Notice 65

On 26 April, the FCA has published Handbook Notice 65, which sets out changes made to the FCA Handbook, BTS and other material made by the FCA board on 28 March and 9 April, and by the FCA Executive Regulation and Policy Committee on 16 April. The Handbook Notice reflects changes to made to the Handbook by the following instruments: (i) Conduct of Business (Binary Options) Instrument 2019; (ii) Supervision Manual (Supervisory Principles Amendment) Instrument 2019; and (iii) BTS instruments relating to Brexit.

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FSB reports on April plenary meeting

On 26 April, the FSB issued a press release following its plenary meeting in New York. Key points discussed include: (i) current vulnerabilities in the global financial system - potential vulnerabilities in the financial system persist, despite the core of the financial system being considerably more resilient than it was a decade ago, including the extent of financial institutions' exposures to riskier credit instruments, including leveraged loans, directly and through collateralised loan obligations; (ii) surveillance framework - a new FSB framework is being developed that will support the comprehensive and disciplined review of potential vulnerabilities, and help the FSB identify and address new and emerging risks to financial stability; (iii) TLAC standard - a report will be published in June on the implementation of the TLAC standard; (iv) cyber incidents - a progress report will be published in June, as part of the FSB's development of a toolkit of effective cyber incident practices; (v) addressing the decline in correspondent banking relationships - the FSB noted that the reduction in correspondent banking relationships has had an impact on remittance service providers' ability to access banking services; (vi) market fragmentation – the FSB discussed a draft report that looked at financial activities where supervisory practices and regulatory policies may give rise to market fragmentation potential trade-offs between the benefits of increased cross-border activity and a need to tailor domestic regulatory frameworks to local conditions and mandates; and (vii) evaluating the effects of financial reforms – the plenary approved terms of reference for the evaluation of the effects of too-big-to-fail reforms (TBTF). The evaluation will assess whether the implemented reforms are reducing the systemic risks associated with systemically important banks and will examine the broader effects of the reforms to address TBTF for systemically important banks on the overall functioning of the financial system.

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