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Draft Markets in Financial Instruments, Benchmarks and Financial Promotions (Amendment) (EU Exit) Regulations 2021
HM Treasury has published a draft version of the Markets in Financial Instruments, Benchmarks and Financial Promotions (Amendment) (EU Exit) Regulations 2021, together with an explanatory memorandum. The draft Regulations:
- address deficiencies in retained EU law, including the UK Markets in Financial Instruments Regulation (UK MiFIR), in relation to the non-discriminatory access regime for exchange-traded derivatives (ETDs), which requires trading venues and central counterparties to grant each other non-discriminatory access;
- amend the low carbon benchmarks regime, which sets out requirements and voluntary standards for firms that administer benchmarks under the Benchmarks Regulation (UK BMR); and
- makes technical amendments to certain exemptions to the financial promotions regime for relevant markets to ensure that they apply to UK markets following the UK's departure from the EU.
Once made, the draft Regulations indicate that they will come into force on 13 October 2021.
UK FTA with Iceland, Norway and Liechtenstein
The Department for International Trade (DIT) has published the full text of the free trade agreement (FTA) between the UK and Iceland, Norway and Liechtenstein (EEA EFTA states). It is accompanied by supporting documents, including a joint declaration on financial services which affirms the intention of the parties to "support financial services market access through deference arrangements at each Party’s discretion", including, but not limited to, equivalence decisions.
The publication follows the announcement of the signing of the agreement on 8 July 2021.
UK financial services overseas framework: HM Treasury response to call for evidence
HM Treasury has published a response to its December 2020 call for evidence on the overseas framework. In the response, HM Treasury summarises the submissions received and outlines its views and proposed next steps.
The Treasury concludes that, working with the Financial Conduct Authority (FCA), the Prudential Regulation Authority (PRA) and the Bank of England (BoE), it will review the overseas regulatory perimeter. This review will seek to identify:
- whether the balance of the perimeter remains appropriate for the UK following its exit from the EU in order to ensure resilient and safe financial markets;
- whether there are elements of the perimeter that need updating to reflect modern working patterns and advancements in technology, such as the "in the UK" test; and
- areas of the perimeter that could be clarified to allow greater transparency and clarity for firms.
Following the review, HM Treasury will consult on potential changes to the regime in Q4 2021. In particular, it will consult on:
- any proposed changes to the regulatory perimeter;
- any proposed changes to the overseas persons exemption (OPE), including the option to remove the overlap between the OPE and the equivalence provisions under Title VIII of UK MiFIR;
- whether the current operation of the regime appropriately balances openness while mitigating risks to the resilience and safety of financial markets, the protection of consumers and market integrity, and the promotion of competition;
- whether further regulatory powers are needed for recognised overseas investment exchanges (ROIE) and the OPE; and
- options for amending exemptions in the Financial Promotion Order relating to insurance distribution with an overseas element.
UK AML/CTF regulatory and supervisory regime: HM Treasury call for evidence
HM Treasury has published a call for evidence on a review of the UK's anti-money laundering (AML) and counter terrorist financing (CTF) regulatory and supervisory regime.
The call for evidence supports the review which will aim to assess the UK's AML/CFT regulatory (Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (MLRs 2017) and Office for Professional Body Anti-Money Laundering Supervision (OPBAS) regulations) and supervisory regimes. A final report setting out the findings of the review and, where relevant, possible options for reform will be published no later than 26 June 2022. Further consultation may be conducted in response to the findings of this review.
The call for evidence covers three themes:
- the overall effectiveness of the regimes and their extent (i.e. the sectors in scope as relevant entities);
- whether key elements of the current regulations are operating as intended; and
- the structure of the supervisory regime including the work of OPBAS to improve effectiveness and consistency of supervision by professional body AML supervisors.
The government is keen to ensure that the UK's AML/CTF regime effectively deters money laundering and terrorist financing activity, while being proportionate and managing burdens on businesses.
The deadline for responses is 14 October 2021.
A consultation on amendments to the MLRs 2017 is being run in parallel to this call for evidence (see below).
UK MLRs 2017: HM Treasury consultation
HM Treasury is consulting on potential amendments to the MLRs 2017. Any which are adopted subject to this or subject to further internal consideration will be taken forwards through focused secondary legislation due to be laid in Spring 2022. The consultation looks at potential changes in five areas:
- changes in scope to reflect latest risk assessments;
- clarificatory changes to strengthen supervision;
- expanded requirements to strengthen the regime;
- information sharing and gathering; and
- transfers of cryptoassets.
The consultation closes on 14 October 2021.
Greensill Capital inquiry: Treasury Committee report
The House of Commons Treasury Committee has published its Sixth Report of Session 2021-22 which focuses on the lessons learnt following its inquiry into Greensill Capital. Among other things, the Committee noted:
- the FCA and HM Treasury should seriously consider revising the definition of "securitisation" within the Securitisation Regulation, given that it appears to have been too narrow;
- the FCA and HM Treasury should consider reforms to the appointed representative regime, with a view to limiting its scope and reducing opportunities for abuse of the system;
- the failure of Greensill has highlighted risks around the growth of the non-bank sector and the expansion of non-banks into areas of financial intermediation traditionally dominated by banks. The Committee welcomes the BoE's focus on the importance of enhancing data on the non-bank financial sector. In addition to international work to intensify global cooperation and data-sharing on non-bank finance, HM Treasury should work with the BoE and the FCA to consider which domestic data gaps could be addressed; and
- as a matter of urgency, there should be reform of the change in control process that regulates who can acquire the ownership of an already existing bank. This should ensure that the PRA has the powers necessary to ensure that existing banks do not fall into the hands of owners who would not be granted a banking licence in their own right.
Net zero and green finance: responses to Treasury Committee recommendations
On 15 July 2021, the House of Commons Treasury Committee published its First Special Report of Session 2021-22, which contains responses from the FCA, the BoE and HM Treasury to its April 2021 report on net zero and the future of green finance. Points of interest in the responses include:
- the market for ESG and sustainable investment products is currently the fastest growing segment of the investment market. Reflecting this, the FCA has seen a significant increase in applications for authorisation of funds with an ESG focus. As applications are received, the FCA reviews the strategy, investor documentation and model portfolios of applications to ensure that they meet expectations. The FCA requires changes to the way information is presented to consumers if it is concerned that they are not clear, or if there is a risk that consumers may be misled;
- the FCA is finalising a set of principles on the design, delivery and disclosure of ESG and sustainable investment products, and will publish them in summer 2021. One of the findings of the FCA's consumer behavioural research is that clear, objective fund labels are important. The FCA is working with industry associations and the British Standards Institution to develop a sustainable investment label;
- the BoE is of the view that the regulatory capital framework should not be used as a tool for internalising the external cost of emissions nor for creating policy incentives for greening the economy. Fiscal and other government tools are better suited to this task; and
- the government is required to make technical screening criteria (TSC) via secondary legislation for climate change mitigation and climate change adaptation no later than 1 January 2023. HM Treasury confirms these TSC will be subject to consultation. In addition, the government will publish a roadmap setting out the approach to green finance regulation ahead of COP26 in November 2021.
UK digital markets: DCMS and BEIS consult on new pro-competition regime
On 20 July 2021, the Department for Digital, Culture, Media & Sport (DCMS) and Department for Business, Energy and Industrial Strategy (BEIS) published a consultation and impact assessment on a new pro-competition regime for digital markets and the establishment of the Digital Markets Unit (DMU). This digital competition consultation is the latest step towards the establishment of a new regulatory regime for digital markets. The government's proposed approach builds on recommendations by the Digital Competition Expert Panel, chaired by Professor Jason Furman, and is informed by advice from the Digital Markets Taskforce.
Proposals in the consultation include:
- the criteria and mechanisms that will identify which firms fall within scope of the regime;
- the objectives for the Digital Markets Unit and how it will work with other regulators, such as Ofcom, the Information Commissioner's Office and the FCA;
- a new code of conduct to promote open choices, fair trading and trust and transparency;
- "pro-competition interventions";
- the powers that the Digital Markets Unit will need to ensure the regime is effective; and
- the changes being considered for a distinct merger regime for firms within scope of the regime.
The BEIS has also published two research reports related to this consultation: Retailer's experience of using digital platforms and Competition and innovation in digital markets.
The consultation closes on 1 October 2021.
UK consumer protection law: BEIS consults on reforms
BEIS has published proposals for reforms to consumer law. Included are proposed changes to:
- protect consumers from subscription traps, for example by requiring that auto-renewal should always be an opt-in choice, and from fake reviews, by introducing relevant new practices which are always unfair under the Consumer Protection from Unfair Trading Regulations 2008 (CPUT);
- prevent negative behavioural nudges (sludges) in particular by changes to CPUT to address drip pricing and undisclosed paid-for advertising and to protect consumers from losing advance payments on trader insolvency, including by secondary legislation under the Consumer Rights Act 2015;
- reform the CMA's civil consumer enforcement powers under Part 8 of the Enterprise Act 2002 enabling the CMA to take action without going to court and to change the way undertakings given to the CMA are enforced;
- introduce fines for failing to cooperate with a CMA investigation or comply with an undertaking and for infringements of consumer protection law. For infringements fines could be up to 10% of global turnover; and
- strengthen consumer alternative dispute resolution (ADR) and widen its scope, including by halving the period regulated businesses have to resolve complaints before a consumer can request ADR, requiring that all ADR providers be accredited and making the use of ADR compulsory in the motor vehicle and home improvement sectors.
The government also asks whether it should change the UK's collective redress regime to make it easier to gather many individual claims together into a single lawsuit, how it can improve business awareness of consumer protection law and how Local Authority Trading Standards can better work with the national trading standards bodies. Suggestions for how to remove red tape for businesses while maintaining consumer protection are also sought.
The consultation closes on 1 October 2021.
PRA approach to supervising international banks: PS19/21
Following its consultation in CP2/21, the PRA has published feedback and its final policy statement on its approach to branch and subsidiary supervision of international banks (PS19/21). Appendix 1 to PS19/21 also contains the PRA’s final supervisory statement, "SS5/21 - International banks: The PRA's approach to branch and subsidiary supervision", which is now in force and replaced "SS1/18 - International banks: the Prudential Regulation Authority's approach to branch authorisation and supervision" from 26 July 2021.
PS19/21 is relevant to all existing or prospective PRA-authorised banks and designated investment firms that are headquartered outside the UK or are part of a group based outside of the UK.
Material Risk Takers: PRA PS18/21, updated templates and modification by consent
On 21 July 2021, the PRA published a policy statement, PS18/21, correcting an error in the definition of "higher paid material risk taker" in the PRA Rulebook. In PS18/21, the PRA amends the definition, as set out in the Remuneration Part, so that it will apply to an individual either whose annual variable remuneration exceeds 33% of their total remuneration or whose total remuneration exceeds £500,000. Previously, the definition only applied to individuals that satisfy both of these conditions. The amendment came into effect on 23 July 2021 and corrects an error that was introduced from 29 December 2020 following the PRA's final rules on the implementation of the Capital Requirements Directive (CRD) V.
Firms are not required to apply the corrected definition to remuneration that has been paid, vested, or is subject to an obligation to pay or vest created before 23 July 2021 in respect of the first performance year beginning on or after 29 December 2020.
On 23 July 2021, the PRA further published a direction for modification by consent concerning the Remuneration Part of the PRA Rulebook relating to the identification of individuals as Material Risk Takers (MRTs). It has also published guidelines on the modification and updated its webpage on waivers and modifications. The modification is relevant to all CRR firms seeking to exclude employees from identification as MRTs under Article 7 of the MRT Regulation (the draft regulatory technical standards (RTS) published by the European Banking Authority (EBA) in June 2020 on criteria to define categories of staff whose professional activities have a material impact on an institution's risk profile).
On 26 July 2021, the PRA also updated the remuneration section of its webpage on strengthening accountability with the publication of a number of amended remuneration policy statement templates for banking firms. The PRA advises firms to read the templates in the light of its May 2021 statement on updating requirements on the identification of MRTs. The PRA states that it will publish the remaining RPS templates in November 2021.
FCA statement on non-enforcement of financial promotion breaches concerning relevant UK markets
The FCA has published a statement on information for firms that use certain exemptions to the Financial Promotion Order 2005 (FPO). It explains that, following onshoring changes made to the FPO, the definition of "relevant market" inadvertently no longer includes relevant UK markets. This means that the exemptions under articles 37, 41, 67, 68 and 69 of the FPO do not cover financial promotions relating to relevant UK markets or investments traded on such markets. These exemptions will be restored by a statutory instrument (SI). However, until the SI comes into force, the FCA does not propose to take enforcement action against persons for breach of the financial promotion restriction if the breach only arises because the relevant exemption no longer applies on account of this omission.
The FCA reserves the right to pursue enforcement action where there is misconduct by an affected person that goes beyond a failure to meet the criteria for exemption.
IFPR: FCA PS21/9 second policy statement
The FCA has published its second policy statement, PS21/9, on the implementation of the Investment Firms Prudential Regime (IFPR). In PS21/9, the FCA sets out details of feedback that it received to its first April 2021 consultation paper on the IFPR (CP21/7) and its approach to the issues raised in feedback. PS21/9 covers aspects of the IFPR relating to, among other things:
- remuneration;
- own funds requirements;
- risk management and governance; and
- the basic liquid asset requirement.
The FCA intends to publish a third consultation paper in Q3 2021, which will be followed by a third policy statement in Q4. The IFPR is intended to come into force on 1 January 2022.
IFPR authorisation and permissions: FCA updates and new MIFIDPRU forms
The FCA has updated its webpage on authorisation for wholesale investment firms to add information on the IFPR. The FCA explains that the IFPR will come into force on 1 January 2022, impacting all UK investment firms authorised under MIFID. Any firm submitting a new authorisation or variation of permission application should consider the requirements that would arise, if approved, under this new regime.
During the application process, the FCA will expect applicants to demonstrate to it how they will meet their ongoing requirements under the current and new prudential regimes, as part of the FCA's threshold conditions assessment.
The FCA warns that it cannot guarantee that any application received at this stage will be concluded before the expected start date of IFPR. It reminds firms that the application of some of the transitional provisions in the IFPR will be determined by the prudential categorisation of a firm as of 31 December 2021. Firms should therefore consider the transitional provisions in the IFPR rules.
On its updated webpage on capital requirements permissions, the FCA states that, when the IFPR comes into force, the majority of existing waivers and modifications to prudential rules in the FCA Handbook will no longer apply. In addition, the majority of existing CRR permissions will no longer apply to FCA investment firms. The new IFPR rules contain transitional provisions that give some existing waivers and permissions status under the new regime; firms should consider these transitional provisions for more details. Firms will also need to consider applying for permissions, or rule waivers and modifications, of rules in the new sourcebook (that is, MIFIDPRU).
The FCA refers firms to its webpage on the IFPR for further information. This webpage has also been updated. The FCA has published a number of forms and added three new sections to the webpage:
- MIFIDPRU applications and notifications;
- changes to MiFID authorisation applications; and
- IFPR set-up questionnaire.
The FCA will make the remaining MIFIDPRU application forms and all notification forms available in autumn 2021. It advises firms to consult chapter 15 of its second consultation paper on the IFPR (CP21/7) for details of these forms. In its third consultation paper on the IFPR, due to be published in Q3 2021, the FCA will consult on three additional MIFIDPRU forms. Once these forms are finalised, they will also be made available on Connect later in 2021.
Platforms: FCA portfolio letter on supervision approach
The FCA has published a portfolio strategy letter setting out its concerns, expectations and strategy for supervising platforms over the coming months. Areas of concern elaborated on in the letter fall under the following headings:
- technology and operational resilience – unavailability of services;
- SUP 15 notification requirements;
- transfer times;
- Brexit; and
- diversity and inclusion.
The FCA also confirms that all the key areas of harm identified in its February 2020 platforms portfolio letter remain relevant and it continues to review progress in mitigating them.
Fair treatment of vulnerable consumers: FCA FAQs
The FCA published a set of frequently asked questions (FAQs) on the fair treatment of vulnerable consumers. The FAQs reflect the questions the FCA was asked following a webinar it held in May 2021 (now available on demand) to help firms understand their role in treating vulnerable customers fairly and other external engagement. They are grouped by theme and the FCA's answers link to key chapters and paragraphs in its finalised guidance on the fair treatment of vulnerable customers (FG21/1), its feedback statement (FS21/4) and other relevant documents, including its recent consultation on a new consumer duty (CP21/13).
COVID-19: FCA update on workstreams delayed due to pandemic
The FCA has published an update on four key workstreams that were delayed due to the COVID-19 pandemic: Assessing suitability review; Diagnostic review of business models; Rules extending SME access to Financial Ombudsman Service (FOS); and De-anchoring remedy for credit cards.
FCA regulated fees and levies for 2021/22: FCA updates PS21/7
The FCA has published a revised version of its policy statement, PS21/7, on regulated fees and levies rates for 2021/22 to correct errors relating to the 2021/22 levy rate for the Money and Pensions Service pensions guidance levy.
PRIIPs: FCA CP21/23 on changes to disclosure regime
The FCA has published a consultation paper, CP21/23, on proposed targeted amendments to address concerns with the Packaged Retail and Insurance based Investment Products (PRIIPs) disclosure regime. Specifically, the FCA is proposing amendments to address the lack of clarity on the PRIIPs scope, misleading performance scenarios and summary risk indicators, and to address concerns with elements of the transaction costs calculation methodology.
The proposals on clarifying the scope of the regime and on performance information follow enabling legislative changes made under the Financial Services Act 2021. The other proposals exercise the FCA's pre-existing power to amend technical standards following the UK's exit from the EU.
The consultation closes on 30 September 2021. The FCA plans to make the final rules and amend the PRIIPs RTS by the end of 2021, with any changes made coming into effect on 1 January 2022.
FCA Handbook Notice 90
The FCA has published Handbook Notice 90, which sets out changes to the FCA Handbook made by the FCA board on 24 June 2021 and 22 July 2021 and by the board of the Financial Ombudsman Service (FOS) on 22 June 2021. The Handbook Notice reflects changes made to the Handbook by the following instruments:
FOS periodic independent review
The FOS has announced that its board has commissioned a periodic independent review of the FOS. The review will focus on ensuring that the FOS can continue to meet the needs of its customers, both consumers and business. The review is being conducted during summer 2021. The FOS will publish the results of the review in autumn 2021.
FOS Ombudsman News 163
The FOS has published issue 163 of its Ombudsman News. Among other things, this issue includes an overview of the FOS' general approach to complaints about flood damage and an update on complaints about business interruption insurance following the FCA's test case.
SFDR: European Commission confirms delay to application date of RTS
On 23 July 2021, the European Commission published a letter (dated 8 July 2021) to the European Economic and Financial Affairs Council (ECOFIN) and the Council of the EU, which confirms that the date of application of RTS under the Sustainable Finance Disclosure Regulation (SFDR) has been delayed until 1 July 2022. The letter also confirms that the Commission intends to use a single delegated act for these RTS, and other RTS being prepared by the European Supervisory Authorities (ESAs) that focus on the content and presentation of sustainability disclosures under Articles 8(4), 9(6) and 11(5) of the SFDR.
The delay follows a January 2021 letter from the Joint Committee of the ESAs raising concerns about the application of the SFDR.
SFDR: European Commission adopts answers to ESAs' questions
On 26 July 2021, ESMA published an internal Commission Decision and annex containing a set of answers about the application of the SFDR, which the European Commission adopted on 6 July 2021. The answers respond to questions the ESAs forwarded to the Commission in January 2021. They cover the following areas of uncertainty relating to the application of the SFDR:
- the application of the SFDR to non-EU alternative investment fund managers (AIFMs) and registered AIFMs;
- the application of the 500-employee threshold for principal adverse impact reporting on parent undertakings of a large group;
- the meaning of "promotion" in the context of products promoting environmental or social characteristics;
- the application of Article 9 of the SFDR (transparency of sustainable investments in pre-contractual disclosures); and
- the application of SFDR product rules to portfolios and dedicated funds.
EU AML/CTF action plan: European Commission adopts package of measures
The European Commission has adopted a package of measures to implement its AML and CTF action plan adopted by the Commission in May 2020. The package includes the following legislative proposals which are intended to modernise the EU AML/CTF regime by establishing a new framework for the regulation of AML/CTF in the EU:
The consultation period on the legislative proposals closes on 17 September 2021.
Alongside the proposed legislation, the Commission has published an impact assessment on the package of measures, FAQs and a Factsheet: Stronger EU Rules to fight financial crime.
The legislative proposals will now be considered by the European Parliament and the Council of the EU. The full AML/CTF rulebook, including technical standards, is expected to be in place and apply by the end of 2025.
EU AML/CTF framework: European Commission consults on guidance on rules applicable to use of public-private partnerships
The European Commission has launched a consultation on guidance on the rules applicable to the use of public-private partnerships in the framework of preventing and fighting money laundering and terrorist financing. In an accompanying consultation strategy document, the Commission explains that public-private partnerships entail the sharing of information between competent authorities and the private sector and can take various forms. As a result of differences in the legal frameworks and practical arrangements across the EU, the Commission considers it essential to provide guidance and share good practices for public-private partnerships in relation to, in particular, antitrust rules, safeguards and limitations in relation to data protection and guarantees on fundamental rights.
The consultation closes on 2 November 2021. Responses will be made available on a dedicated webpage.
The Commission is also consulting on a roadmap relating to the guidance on the rules applicable to the use of public-private partnerships. The consultation for the roadmap closes on 20 August 2021.
CRD: EBA final report on monitoring threshold for establishing intermediate EU parent undertaking
Following its consultation in January 2021, the EBA has published a final report setting out guidelines on the monitoring of the threshold and other procedural aspects for establishing an intermediate EU parent undertaking (IPU) under Article 21b of the Capital Requirements Directive (CRD). The guidelines specify how third country groups should calculate and monitor the total value of their assets in the EU to ensure timely application of the IPU requirement.
The guidelines will apply two months after the translations of the guidelines have been published.
CRR: EBA consults on RTS on criteria for identifying shadow banking entities
The EBA is consulting on draft RTS on criteria for the identification of shadow banking entities under Article 394(4) of the Capital Requirements Regulation (CRR).
While developing the draft RTS, the EBA has relied as far as possible on the guidelines on limits on exposures to shadow banking, yet having due regard to international developments in shadow banking and taking into account the lack of third-country equivalence for institutions in certain jurisdictions.
The consultation closes on 26 October 2021. The EBA will hold a public hearing on 29 September 2021. Following this, it will submit the RTS to the Commission for endorsement, after which they will be subject to scrutiny by the European Parliament and the Council of the EU.
Proportionality assessment methodology: EBA discussion paper
The EBA has published a discussion paper on proportionality assessment methodology, with a view to gathering preliminary input on how to standardise the proportionality assessment methodology for credit institutions and investment firms. All market participants affected by the proportional treatment in the application of EBA regulatory products are invited to provide their input.
The consultation closes on 22 October 2021. The EBA will consider any feedback, following which it will finalise the document and make it a point of reference for proportionality assessments.
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Authored by Yvonne Clapham
