Key Regulatory Topics: Weekly Update 16-22 June 2023
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Publications: 23 February 2024
Publications: 16 February 2024
News: 05 February 2024
Financial Crime and Sanctions
MoU between SFO and FCA published
On 22 June, a memorandum of understanding (MoU) was published between the FCA and the Serious Fraud Office (SFO). It replaces the joint protocol entered into by the FCA and SFO in May 2014. The MoU sets out some high-level ‘Principles of Co-operation’ which are intended to promote and facilitate the sharing of information between the FCA and SFO to better deliver the objectives of both organisations in these spaces. Senior leaders from both the SFO and the FCA’s Enforcement and Market Oversight Division, will meet on a regular basis, along with others from their respective organisations, to discuss matters of key importance to both organisations relating to strategy, policy and on-going collaboration generally. In addition, they will discuss the status of any on-going investigations being conducted by the SFO and the FCA as appropriate, including, but not limited to, cases of mutual interest cases where one organisation is assisting the other or any relevant high-profile cases. The SFO and FCA will seek to ensure: (i) the effective and consistent discharge of their functions through cooperation and co-ordinated enforcement action to the extent permitted by law; (ii) that any enforcement action is proportionate, consistent and targeted; (iii) the approach to working together is consistent and co-ordinated in relation to relevant investigations and enforcement actions; and (iv) decisions about taking enforcement action and by whom are made as early as possible having regard to expertise, knowledge, priorities, powers and the extent of the misconduct.
EBA report on ML/TF risks associated with payment institutions
On 16 June, the EBA published a report on the money laundering and terrorist financing (ML/TF) risks associated with payment institutions. In 2022, the EBA carried out an assessment of ML/TF risks in the payment institutions sector, with the objective of better understanding: (i) the scale and nature of the ML/TF risk associated with the payment institutions sector; and (ii) the extent to which payment institutions’ AML/CFT systems and controls are adequate and effective in tackling those risks. The EBA’s findings suggest that generally institutions in the sector do not manage ML/TF risk adequately, and that AML/CFT internal controls in payment institutions are often insufficient to prevent ML/TF. The EBA’s findings also suggest that not all competent authorities are currently doing enough to supervise the sector effectively, which can result in payment institutions with weak AML/CFT controls being able to operate in the EU, and establishing themselves in Member States where the authorisation process is perceived as less stringent to passport their activities cross-border afterwards. The EBA highlights that a more robust implementation by supervisors and institutions of the EBA guidelines is needed to mitigate some of these risks and to reduce the sector’s exposure to ML/TF risks. Legislative changes may also be required to combat some of the issues discovered, such as establishing a more consistent approach to assessing the AML/CFT component of the authorisation of payment institutions, the consideration of ML/TF risks in the process of passporting notifications, and the treatment by Member States of agents of payment institutions in the cross-border context.
In our most recent ‘Beyond the Hype: the Future of Digital Assets’ podcast series, our digital assets experts focus on the latest law and regulation of institutional/wholesale digital assets products and services, including topics such as custody of digital assets, tokenisation and derivative trends. They discuss the key issues and areas where market participants will need to be aware of the evolving design of the relevant regimes.
In the first edition of our ‘MiCAR under the microscope’ bulletin series, we provide an overview of MiCAR’s key provisions, and how (and when) they will affect market participants. Over the coming months, we will be looking at MiCAR in more detail, including its scope, the licensing requirements of CASPs, the issuance and marketing of crypto-assets, and the market abuse and AML regimes applicable to crypto-assets.
ESMA speech on building safe digital financial markets
On 21 June, ESMA published a speech by Verena Ross, ESMA Chair, on building safe digital financial markets: a collective effort. Ms Ross begins her speech by addressing current market conditions, noting that while economic sentiment has become more positive in early 2023, there is certainly no room for complacency and that ESMA is keeping the overall risk assessment across its remit at the highest level. Ms Ross believes that finalisation of the Digital Finance Package represents a very positive step in terms of creating an adequate regulatory and supervisory framework in the EU for the use of new technologies in financial services. Ms Ross also discusses: (i) MiCAR - ESMA has established a phased consultation plan to manage over 50 mandates for developing level 2 and 3 measures. It will consult on the measures in three consultation packages in early July, in October and in early 2024. Ms Ross notes that creating a safe and inclusive financial marketplace is not solely the responsibility of regulators but should be a collective effort. ESMA therefore welcomes industry-led initiatives to facilitate the efficient and prudent adoption of new technologies through the development of harmonised standards and the promotion of coordinated practices within the industry. ESMA is also prioritising initiatives to promote convergent approaches to authorisation and supervision of cryptoasset service providers, by sharing experiences, learning lessons from each other and finding common approaches wherever possible; (ii) DLT Pilot Regime Regulation - the first two official applications have already been submitted and around 15 other potential applications are in the pipeline for the second half of this year and the beginning of 2024. Ms Ross highlights that any lessons learned from the DLT pilot may result in changes to the main sectoral legislation in the EU, such as MiFID II and the CSDR; and (iii) CSDR – ESMA intends to publish a report in 2024 on settlement efficiency in the EU, including the impact of cash penalties and a comparison between CSD settlement and settlement internalised at the level of custodians. ESMA believes that a key part of the work to improve settlement efficiency is to identify and address the root causes of settlement fails, by looking at the entire custody and settlement chain. In addition, ESMA will continue to monitor international developments on T+1 to understand the impact on EU market players.
EC speech on digital finance and payments
On 20 June, the EC published a speech by Mairead McGuinness, European Commissioner for Financial Stability, Financial Services and the Capital Markets Union, setting out the EC’s policy response at EU level to support digital finance as it evolves, and the progress made in implementing the retail payments strategy. Ms McGuinness explains that the EU is making the most of the opportunities but it is also conscious of the need to keep a handle on the risks. She explains that the EC is guided by the digital finance strategy and the retail payments strategy, having already reached agreement on three files: (i) DORA; (ii) MiCAR; and (iii) the DLT pilot. She then goes on to explain that the EC will adopt the new revisions to PSD2 next week. Ms McGuinness sets out the four main themes of this review: (a) reducing payment fraud – measures will include a check that the bank account number, the IBAN, matches the account name. This is already part of the instant payments proposal, so the EC is proposing to apply it to all credit transfers in the EU. There will be a stronger legal basis for banks to cooperate around fraud, and a targeted shift of liability from consumers to the payment service providers, under certain conditions, for some types of authorised fraud; (b) open banking - real improvements to how open banking data interfaces work will be introduced. Obstacles to data access will be explicitly prohibited. The EC does not plan to introduce charging for data access or to impose a single standard for data interfaces. An obligatory dashboard will give consumers an overview, so they will be able to better manage the permissions they give around their data; (c) elements to address some of the problems around accessing bank accounts or payment systems; and (d) elements to address implementation and enforcement. Building on open banking, next week the EC will also propose rules on open finance – the Financial Data Access framework. Ms McGuinness also considers the proposal to establish a digital Euro. She concludes by discussing the EU’s AI Act, which will classify some AI systems used in finance as high risk. While the co-legislators are still negotiating the AI Act, it does seem that both want to broaden the high-risk uses of AI to cover not only assessing creditworthiness, as proposed by the EC, but also private health and life insurance. The aim is to finalise the AI Act as soon as possible, so that it is adopted during this legislature.
ESAs consult on first set of RTS and ITS under DORA
On 19 June, the ESA’s launched four public consultations on the first batch of draft technical standards under DORA. These include: (i) RTS on ICT risk management framework and RTS on simplified ICT risk management framework; (ii) RTS on criteria for the classification of ICT-related incidents; (iii) ITS to establish the templates for the register of information; and (iv) RTS to specify the policy on ICT services performed by ICT third-party providers. The ECB also published an introductory note that sets out further information on the draft technical standards. The deadline for all comments is 11 September. A public hearing is due to be held on 13 July. The ESAs expect to submit the draft technical standards to the EC by 17 January 2024.
Please see the Fintech section for the ESAs consultation on the first set of RTS and ITS under DORA.
Vote Reporting Group consults on ‘vote reporting template’ for asset managers
On 21 June, the Vote Reporting Group published a consultation on vote reporting. The consultation proposes a voluntary, standardised and comprehensive ‘vote reporting template’ for asset managers to communicate to asset owner clients on their voting activity. The aim of the consultation is to build industry consensus on a voluntary vote reporting template for asset managers in the UK. The proposals should provide asset owners with more consistent, up-to-date and comparable data, allowing asset owners to make timely and accurate decisions while increasing reporting efficiency for asset managers. The proposals are those of the Vote Reporting Group and not the FCA. The deadline for comments is 21 September.
EC requests technical advice from ESMA on review of Eligible Assets Directive
On 16 June, ESMA published a letter (dated 6 June) it received from the EC formally requesting technical advice on the review of the Eligible Assets Directive (EAD). The EC plans to review the EAD, to take stock of the market practices to ensure that the eligibility rules are implemented in a uniform manner in all Member States, also taking into account market and regulatory developments that have occurred over the last 16 years. Therefore, the EC has mandated ESMA to carry out an assessment of the implementation of the EAD in Member States, to analyse whether any divergences have arisen in this area and to provide the EC with a set of recommendations on how the EAD should be revised to keep it in line with market developments. In particular, the EC requests ESMA to: (i) propose clarifications on the key definitions and the criteria against which the eligibility of an asset is assessed; (ii) analyse whether and to what extent cross-references to other EU legal frameworks could improve legal clarity and, where appropriate, consistency between these frameworks; (iii) assess the risks and benefits of UCITS gaining exposures to asset classes that are not directly investable for UCITS; (iv) advise on possible legislative clarifications to address the shortcomings identified in the context of its supervisory convergence work; (v) conduct a data gathering exercise on the manner and the extent to which UCITS have gained direct and indirect exposures to certain asset categories that may give rise to divergent interpretations and/or risk for retail investors (e.g. structured/leveraged loans, catastrophe bonds, emission allowances, commodities, crypto assets, unlisted equities, and other relevant asset classes); and (vi) make a preliminary assessment of the impacts of the proposed regulatory adjustments, if any, taking into account the characteristics of the underlying market. The EC has requested that ESMA delivers its technical advice by 31 October 2024.
Markets and Markets Infrastructure
Please see the Fintech section for ESMA’s speech on building safe digital financial markets, and the ESAs consultation on the first set of RTS and ITS under DORA.
Please see the Sustainable Finance section for ESMA’s call for evidence on sustainability in suitability and product governance under MiFID II.
ECB speech on central clearing in turbulent times: frontiers in regulation and oversight
On 22 June, the ECB published a speech by Fabio Panetta, Member of the Executive Board of the ECB, on central clearing in turbulent times. Mr Panetta explains that in the current context of elevated economic and financial uncertainty, CCPs must adapt their risk management strategies. Public authorities, meanwhile, must consider how they can best adjust the regulatory and oversight framework for CCPs. Mr Panetta goes on to highlight three areas he believes require progress, in order to preserve the pivotal role of CCPs in safeguarding stability. These areas are: (i) challenges in cross-border supervision; (ii) better preparedness for extreme stress events; and (iii) reducing the procyclicality of margins. He concludes by stating that while the introduction of mandatory central clearing has served the market well in terms of enhancing counterparty risk management and market transparency, in today’s turbulent market environment, all stakeholders must adopt a more forward-looking mindset. Mr Panetta highlights that short-term cost considerations must be balanced against the longer-term benefits of a robust set-up in which CCPs remain a pillar of our financial system.
Council of the EU publishes progress report on proposed EMIR 3
On 20 June, the Council of the EU published a progress report to update the Permanent Representatives Council (COREPER) about the Swedish Presidency's work on the EC's EMIR 3 legislative proposal. The report sets out the view of the Presidency regarding the state of play of the work of the Council Working Party. It highlights the possible compromises it believes are within reach and illustrates the main positions and arguments of Member States in areas where further work is required. The Presidency: (i) believes that substantial progress has been made over the course of the first half of 2023 towards a Council agreement on the EMIR review; (ii) believes that the way forward is relatively clear in the area of supervisory processes and frameworks based on Member States’ comments so far; and (iii) intends to distribute a first draft partial compromise text to Member States before the end of June for written comments. On the issue of the active account requirement, the Council is split, with no option appearing to have the necessary majority at this stage. Therefore, further reflections will be required in order to find a solution that could constitute an acceptable compromise. With regard to the other topics mentioned in the report, although solutions seem within reach, certain further discussions will take place to ensure a technically sound and balanced compromise. The Spanish Presidency will now take the work forward towards a Council position.
Payment Services and Payment Systems
Please see the Financial Crime and Sanctions section for the EBA report on ML/TF risks associated with payment institutions.
Please see the Fintech section for ESMA’s speech on digital finance and payments, and the ESAs consultation on the first set of RTS and ITS under DORA.
PSR response to HMT and BoE digital pound consultation
On 21 June, the PSR published its response to HMT and the BoE’s joint consultation on the digital pound. The PSR is committed to supporting the UK government and the BoE in the ongoing work they are doing to explore the digital pound and the opportunities it presents. The PSR believes that a digital pound could ensure that the payments ecosystem retains access to public money, even as cash usage declines, supporting the UK’s financial stability in a rapidly evolving payments landscape. It also notes that there are also opportunities to address some of the risks it sees emerging as cash is replaced by digital payments, notably in respect of facilitating offline transactions. In the Annex to the PSR’s response, the PSR sets out its specific remarks on the consultation paper. The PSR also identifies five key areas that it has found to be essential to ensuring a digital payment system delivers good outcomes for its users and trust between participants: (i) a digital payment system should have clear and appropriate user protections; (ii) all the roles required in a payment system should be clear, with responsibilities assigned appropriately, and liability assigned to drive good outcomes; (iv) providers should have both a commercially viable model, and the right incentives to deliver in users’ best interests; and (v) the functionalities of the digital pound should be appropriate for its intended use and may need to adapt over time.
BoE response to Treasury Committee on introducing mandatory reimbursement for APP fraud within CHAPS
On 21 June, the Treasury Committee published a follow-up response (dated 8 June) it received from the BoE on its plans to introduce mandatory reimbursement for APP fraud within the CHAPS payment system (CHAPS). In the letter, the BoE intends to implement measures for the reimbursement for victims of APP fraud comparable to those that the PSR has proposed for Faster Payments (FPS). When considering its approach, the BoE started from the principle that consumers should receive comparable protection regardless of the payment system they use. The model will follow the approach the PSR has proposed for FPS, the main features being: (i) CHAPS Direct Participants when settling consumer payments would be directed to implement mandatory reimbursement via a direction by the PSR to comply with rules to that effect in the CHAPS rulebook. The PSR would also require indirect participants to implement mandatory reimbursement; (ii) the sending payment service provider (PSP) will be required to reimburse the victim within a stipulated timeframe, separately seeking to recover the appropriate proportion of the cost of reimbursement from the receiving PSP; (iii) PSPs will report on reimbursement outcomes and the PSR will consider whether to take action, including where appropriate, enforcement for unsatisfactory performance under the PSR’s original direction. The BoE intends for mandatory reimbursement to be in operation for relevant CHAPS Direct Participants with retail traffic by Q1 2024, and with additional engagement with CHAPS Direct Participants on any change to the CHAPS rulebook in late 2023.
FSB consults on toolkit for enhancing third-party risk management and oversight
On 22 June, the FSB published a consultative document on a toolkit for financial institutions and financial authorities, as well as service providers, for enhancing their third-party risk management and oversight. The FSB explains that the toolkit has been developed against a backdrop of digitalisation of the financial services sector and growing reliance of financial institutions on third-party service providers for a range of services, some of which support their critical operations. The toolkit aims to: (i) reduce fragmentation in regulatory and supervisory approaches to financial institutions’ third-party risk management across jurisdictions and different areas of the financial services sector; (ii) strengthen financial institutions’ ability to manage third-party risks and financial authorities’ ability to monitor and strengthen the resilience of the financial system; and (iii) facilitate coordination among relevant stakeholders. The toolkit includes: (i) a list of common terms and definitions as a foundation to improve clarity and consistency; (ii) a summary of the toolkit's approach, including its focus on critical services, its holistic approach to third-party risk management and the application of the principle of proportionality risk; (iii) tools to help financial institutions identify critical services and manage potential risks throughout the lifecycle of a third-party service relationship; and (iv) tools for supervising how financial institutions manage third-party risks, and for identifying, monitoring and managing systemic third-party dependencies and potential systemic risks. The deadline for comments is 22 August.
ECB consults on revised guide to internal models
On 22 June, the ECB published a consultation on its revised guide to internal models. The revised guide clarifies how banks should go about including material climate-related and environmental risks in their models. It also provides clarifications for banks that wish to revert to the standardised approach for calculating their risk-weighted assets. Specifically on credit risk, the guide helps all banks to move towards a common definition of default and a consistent treatment of massive disposals. The update of the market risk chapter details how to measure default risk in trading book positions. The revised guide also provides clarifications regarding counterparty credit risk, which is the risk that the counterparty to a transaction could default. It also explains how the ECB understands the rules applicable to banks when they use internal models to calculate how much capital they need. The deadline for comments is 15 September. The ECB plans to publish the comments received, together with a feedback statement and the updated guide. The ECB has also published FAQs on the consultation.
EBA final report on amendments to ITS on supervisory disclosure under CRD IV
On 21 June, the EBA published a final report on draft ITS amending Implementing Regulation (EU) 650/2014 containing ITS with regard to the format, structure, contents list and annual publication date of the information to be disclosed by competent authorities in accordance with Article 143 (1) of CRD IV. The draft ITS reflect changes to the EU legal framework, in particular the changes related to supervisory reporting and investment firms made by CRD V and CRR II. The EBA believes that the draft ITS will enhance the quality and comparability of the reported data by supervisors and provide the market with more information, enhancing transparency in this regard. The draft ITS will now be submitted to the EC for endorsement before being published in the OJ. The first reference date for the application of the ITS is expected to be 31 December, with the first publication date being 30 June 2024.
BoE launches first system-wide exploratory scenario exercise
On 19 June, the BoE launched its first system-wide exploratory scenario (SWES) exercise. The SWES aims to: (i) enhance understanding of the risks to and from non-bank financial institutions (NBFIs), and the behaviour of NBFIs and banks in stress, including what drives that behaviour; and (ii) investigate how these behaviours and market dynamics can amplify shocks in markets and potentially bring about risks to UK financial stability. The BoE is working closely with the FCA, The Pensions Regulator and other regulators on this exercise. Participating firms will include large banks, insurers, CCPs and a variety of funds, which reflects the wide range of institutions engaged in UK financial markets. Participants will be asked to evaluate the impact of a severe but plausible stress to global financial markets, and consider what actions they would take in response to the scenario, with a focus on behaviours in UK financial markets. The BoE will then seek to understand the collective actions and responses of these firms, and how they might amplify the initial stress in UK financial markets. A full list of participants and details of the stress scenarios will be published later in the year. A final report will be published in 2024, which will include the system-wide findings, implications for the SWES markets of focus, and any conclusions for the BoE’s assessment of risks to UK financial stability.
Recovery and Resolution
Amendments of the Law (Resolution of Silicon Valley Bank UK Limited) (No. 2) Order 2023 published
On 22 June, the Amendments of the Law (Resolution of Silicon Valley Bank UK Limited) (No. 2) Order 2023 was published on legislation.gov.uk, together with an explanatory memorandum. The Order amends the Financial Services and Markets Act 2000 (Ring-fenced Bodies and Core Activities) Order 2014 (RBCAO) in connection with the application of ring-fencing rules. It provides an ongoing exemption for SVB UK from the ring-fencing regime beyond the existing four-year transition period set out in the ring-fencing regime, subject to certain conditions: (i) SVB UK remains below the core deposit level condition set out in Article 12 of the RBCAO; (ii) HSBC does not transfer its business to SVB UK (or any subsidiary undertakings it may have), other than “permitted business”; and (iii) SVB UK (or any subsidiary undertakings it may have) does not undertake any new business, other than “permitted business”. The Order comes into force on 23 June.
Delegated Regulations on RTS under CCPRRR published in OJ
On 21 June, two Delegated Regulations on RTS supplementing the CCP Recovery and Resolution Regulation (CCPRRR) were published in the OJ. The first Delegated Regulation (EU) 2023/1192 contains RTS specifying the content of the written arrangements and procedures for the functioning of the resolution colleges established under the CCPRRR. The second Delegated Regulation (EU) 2023/1193 contains RTS specifying the contents of the resolution plan. Both Delegated Regulations enter into force on 11 July, the twentieth day following their publication in the OJ.
SRB operational guidance for banks on the measurement and reporting of the liquidity situation in resolution
On 16 June, the SRB published its operational guidance for banks on the measurement and reporting of the liquidity situation in resolution. The guidance concerns banks within the SRB’s direct remit, for which the strategy is resolution, and targets the liquidity dimension of the SRB’s previously issued “Expectations for banks” (EfB) which aims to enhance banks’ resolvability and preparedness for a potential resolution. The guidance focuses on three objectives: (i) the expectation that banks’ internal frameworks, governance and management information systems are set up to meet the data expectations set out in the guidance, including the ability to forecast the net liquidity position across time periods and at short notice; (ii) the expectation that SRB banks have developed the capabilities to report a predefined set of data points on their liquidity situation; and (iii) the expectation that banks have put in place remedial actions to mitigate any deficiencies in their capabilities to provide these data points at the requested level of consolidation and at a high level of frequency. Banks are expected to build EfB capabilities for a steady state of resolution planning by 31 December. As such, banks are expected to fulfil the expectations under Principle 3.2 of the liquidity dimension during 2023.
Regulatory Reform Post Brexit
FSM Bill completes report stage and third reading in House of Lords
On 19 June, the FSM Bill completed its report stage and third reading in the House of Lords. A revised version of the FSM Bill was also published. It will now return to the House of Commons for the consideration of the Lords’ amendments. This is currently scheduled for 26 June.
ESMA call for evidence on sustainability in suitability and product governance under MiFID II
On 16 June, ESMA launched a call for evidence on integrating sustainability preferences into suitability assessment and product governance arrangements under MiFID II. The objective of this call for evidence is to gather industry feedback that will help better understand the evolution of the market and provide answers as to how firms apply the new MiFID rules on sustainability. In particular, ESMA wants to: (i) develop a better understanding of how MiFID II requirements are being implemented and applied by firms across the EU and the challenges firms face in their application; (ii) gain a better understanding of investor experience and reactions to the inclusion of sustainability factors in investment advice and portfolio management services; and (iii) collect information, views and data on main trends on aspects related to the provision of sustainable investment products and services to retail clients. The deadline for comments is 15 September. ESMA, together with the NCAs, will assess the responses and continue monitoring the application by firms of the MiFID II requirements on suitability and product governance, including the related ESMA Guidelines.
The ECB published its 2022 annual report on banking supervision (Annual Report) on 21 March, highlighting the main supervisory activities in the past year. The Annual Report also outlines the supervisory priorities for 2023-2025, which aim to ensure that banks are resilient, well governed, and prepared for emerging risks. In a recent blog post, we summarise the key topics and implications for banks, including on leveraged lending, IT and cyber risk, and climate risk. All of these themes will continue to be important during 2023 and beyond.
BoE speech on proposed changes to its approach to enforcement
On 21 June, the BoE published a speech by Oliver Dearie, Head of Enforcement and Litigation at the BoE, on the BoE’s proposed changes to its approach to enforcement. Mr Dearie explains the rationale behind the changes proposed in the BoE and PRA’s recent consultation paper on enforcement (CP9/23). He explains that the key changes have been influenced and shaped by the BoE’s strong enforcement record and five key principles: (i) transparency and clarity; (ii) willingness to learn lessons from past cases; (iii) maximising efficiency without compromising rigour or fairness; (iv) ensuring its policies remain aligned with its statutory objectives; and (v) the importance of individual accountability. Mr Dearie provides an overview of the key policy changes announced in CP9/23, which include: (a) creating a consolidated package of enforcement policies in the BoE’s proposed ‘Bank Approach to Enforcement’; (b) clarifying the approach and procedures the BoE would adopt in FMI enforcement investigations; (c) creating a new early account scheme (EAS) for appropriate cases; (d) incentivising early admissions by subjects through the introduction of an enhanced settlement discount in appropriate cases of up to 50%; (e) changing how the BoE calculates the financial penalty for PRA firms to provide more consistency; and (f) updating the serious financial hardship thresholds, considering a reduction in fines for individuals. Mr Dearie concludes by reminding everyone that the deadline for comments on CP9/23 is 4 August.