Please see our Markets and Markets Infrastructure section for product specific updates relating to Brexit.
FCA Brexit FAQs – firms preparing for the end of the transition period
On 9 December, the FCA published a Brexit FAQs in respect of firms preparing for the end of the transition period, covering: (i) the TPR; (ii) passporting –who will be affected when passporting ends and what firms need to do; (iii) operating and the TTP – noting, amongst other things, how EU law has been onshored; and (iv) planning for reporting changes – specifically, what impact the end of the transition period will have on transaction reporting (in regard to EMIR, MiFIR and the Financial Instruments Reference Data System (FIRDS)).
EBA informs customers of UK financial institutions about the end of the Brexit transition period
On 8 December, the EBA published a statement regarding Brexit for the benefit of consumers across the EU. The EBA states, amongst other things, that: (i) to continue to provide financial services in the EU, UK financial institutions will need to ensure that they offer these services through entities that are duly authorised in the EU; (ii) where the UK financial institutions have chosen to cease their activities in the EU, they are required to finish off-boarding of the affected customers by the end of the transition period without causing detriment to consumers; (iii) after the end of the transition period, EU-based payment service providers will need to provide more information regarding the payer for cross-border payments and direct debits from the EU to the UK, compared to intra-EU transfers, which is how payments to the UK have so far been treated; (iv) under EU law, after the end of the transition period, consumers in the EU may maintain their existing bank accounts held with UK financial institutions, subject to the relevant UK legal requirements [A&O comment: and, of course, the relevant EU 27 national legal requirements] – however, consumers need to consider specific factors, such as whether their bank accounts are held with a UK financial institution authorised in the UK, or with an EU-based branch of a UK financial institution; and (v) all financial institutions affected by Brexit, and in particular UK financial institutions offering financial services to consumers in the EU, should adequately and timely inform consumers regarding the availability and continuity of the services they currently provide.
European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020
On 4 December, the European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020 were made. The explanatory memorandum states that the purpose of this instrument is to ensure that the UK statute book works coherently and effectively following the end of the transition period. Specifically, the instrument: (i) clarifies how certain terms, including EU-related definitions, should be interpreted in domestic legislation on or after IP completion day; (ii) makes technical repeals to redundant provisions within primary legislation arising from the European Union (Withdrawal) Act 2018 (EUWA) – these are primarily repeals of amending provisions, in particular relating to the European Communities Act 1972 (the ECA), where EUWA has already provided for the repeal of the amended provisions; (iii) amends the Interpretation Act 1978 (and the devolved equivalents) in relation to the interpretation of references to relevant separation agreement law; (iv) amends EUWA to provide for how existing references to EU instruments that form part of relevant separation agreement law and how existing non-ambulatory references to direct EU legislation should be read; (v) makes consequential amendments to the European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) (EU Exit) Regulations 2019 (the 2019 Regulations); and (vi) makes new interpretation provisions in light of the European Union (Withdrawal Agreement) Act 2020 (WAA), to remove uncertainty about which version of an EU instrument applies, whether the retained version or the version applied by the Withdrawal Agreement.
European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020
Please see our Brexit section for an update on the EBA informing customers of UK financial institutions about the end of the Brexit transition period.
Please see our Markets and Markets Infrastructure section for an update on the FCA’s policy statement on high-risk investments – marketing speculative illiquid securities (including speculative mini-bonds) to retail investors.
FCA delays policy statement on revised complaints scheme consultation
On 8 December, the FCA updated its webpage on its consultation for proposals to amend the complaints scheme. The FCA notes that following closure of the consultation, the regulators are currently analysing the responses received so that they can take further decisions about the proposals. The FCA confirms that the PS on the consultation will not be published until towards the end of Q2 2021. In respect of transposition of the updated BRRD II, the FCA is consulting on the introduction of the requirements in Article 44a (which addresses the sale of subordinated eligible liabilities to retail clients and which will be introduced via Handbook rules).
FCA consults on proposed guidance for firms on use of Pay as You Grow (PAYG) options
On 4 December, the FCA published a consultation on proposed guidance for firms that will be providing PAYG options under the Government’s Bounce Back Loan Scheme (BBLS). The FCA wants firms that provide PAYG options under BBLS to understand the FCA’s expectations in advance of starting to collect debts from their customers. The FCA states that the proposed guidance aims to help firms understand how they can use and offer PAYG options in a manner compliant with Chapter 7 of Consumer Credit Sourcebook (CONC). The proposed guidance applies to: (i) firms providing Bounce Back Loans (including P2P platforms); and (ii) debt collection firms working on behalf of lenders collecting and recovering BBLs. The deadline for comments is 18 December.
Directive on representative actions for the protection of the collective interests of consumers published in OJ
On 4 December, Directive (EU) 2020/1828 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC was published in the OJ. Member states will have to transpose the Directive into their national laws by 25 December 2022 and apply those measures from 25 June 2023. The Directive: (i) lists out monitoring information on the application of the Directive that member states must submit to the EC from 26 June 2027 and annually thereafter; (ii) states that no sooner than 26 June 2028, the EC shall carry out an evaluation of the Directive and present a report on the main findings to the EP, the Council and the European Economic and Social Committee (EESC); and (iii) states that by 26 June 2028, the EC shall carry out an evaluation of whether cross-border representative actions could be best addressed at Union level by establishing a European ombudsman for representative actions for injunctive measures and redress measures, and shall present a report on its main findings to the EP, the Council and the EESC – if appropriate, this will be accompanied by a legislative proposal. The Directive will enter into force on 24 December (this being 20 days following its publication in the OJ).
Please see the other sections for product specific updates relating to Covid-19.
Please see our Payments Services and Payments Systems section for an update on UK Finance announcing an extension of interim funding for Authorised Push Payment (APP) scam victim compensation to continue to 30 June 2021.
Misappropriation (Sanctions) (EU Exit) Regulations 2020
On 10 December, the Government published the Misappropriation (Sanctions) (EU Exit) Regulations 2020 together with an explanatory memorandum. The instrument is intended to ensure that the UK can operate an effective sanctions regime in relation to the misappropriation of State funds after the transition period ends. When this instrument comes into force it will replace, with a similar effect, the separate EU misappropriations sanctions regimes relating to Tunisia, Egypt and Ukraine. The Regulations come into force in accordance with regulations made under section 56 of the Sanctions and Anti-Money Laundering Act 2018.
Misappropriation (Sanctions) (EU Exit) Regulations 2020
EC adopts delegated regulation removing Mongolia from list of high-risk third countries under MLD4
On 7 December, the EC adopted a delegated regulation, amending the list of high-risk third countries with strategic anti-money laundering (AML) and counter-terrorist financing (CTF) deficiencies produced under Article 9(2) of Fourth Money Laundering Directive (MLD4). The delegated regulation amends the Annex to Delegated Regulation (EU) 2016/1675 by removing Mongolia from the list of third countries that have been identified as having strategic AML and CTF deficiencies. The EC has concluded that Mongolia no longer has strategic deficiencies in the AML and CFT framework and does not pose a significant threat to the financial system of the EU. If the Council or the EP do not object to the delegated regulation, it will be published in the OJ and will enter into force 20 days after its publication.
Global Legal Entity Identifier Foundation (GLEIF) to extend the Global Legal Entity Identifier (LEI) System
On 10 December, the GLEIF announced that it will extend the Global LEI System to create a fully digitized LEI service capable of enabling instant and automated identity verification between counterparties operating across all industry sectors, globally. The GLEIF invites stakeholders from across the digital economy to engage in a cross industry development program to create an ecosystem and credential governance framework, together with a technical supporting infrastructure, for a verifiable LEI (vLEI), a digitally verifiable credential containing the LEI. The GLEIF states that the vLEI will create a cryptographically secure chain of trust that replaces today’s manual processes required to access and confirm an entity’s LEI data. The vLEI will give government organizations, companies and other legal entities worldwide the capacity to use non-repudiable identification data pertaining to their legal status, ownership structure and authorized representatives in a growing number of digital business activities.
Please see our bulletin on the Alternative Investment Fund Managers Directive (AIFMD) review, specifically on the key areas of focus for depositaries.
Please see our Great Funds Insights briefing on ESG and SFDR regulatory developments for funds and asset managers.
ESMA updates reporting under the Money Market Fund Regulation (MMFR)
On 4 December, ESMA updated its validation rules regarding the MMFR. This relates to the requirements of Article 37 of the MMFR that require MMF managers to submit data to National Competent Authorities, who will then transmit this to ESMA. ESMA states that the changes: (i) provide clarifications on existing validation rules in order to fix inconsistencies or ease the understanding of the rules; and (ii) extend the Classification of Financial Instruments (CFI) codes for eligible assets. The amended documents are: (a) reporting instructions; (b) validations; and (c) schemas.
ESMA Press Release
ESMA Reporting Instructions
Please see our Sustainable Finance section for an update on the EC draft implementing decision determining the benchmarks values for free allocation in the period 2021-2025.
Islamic Financial Services Board (IFSB) Council adopts two new standards for the Islamic financial services industry
On 10 December, the IFSB Council announced that it adopted two new standards for the Islamic financial services industry: (i) IFSB-24 – Guiding Principles on Investor Protection in Islamic Capital Markets; and (ii) IFSB-25: Disclosures to Promote Transparency and Market Discipline for Tak?ful/Retak?ful Undertakings. The objectives of IFSB-24 are to: (a) identify the Islamic finance-specific issues that need to be considered within regulatory frameworks for investor protection; (b) define best practices for investor protection in relation to the specific features of the Islamic capital market; (c) support the development of robust investor protection frameworks for the Islamic capital market; and (d) increase harmonisation of regulatory practice, to support the development of international Islamic capital markets. The main objectives of the IFSB-25 are to: (1) facilitate access to relevant, reliable and timely information by tak?ful market players generally, and by tak?ful participants in particular, thereby enhancing their capacity to monitor and assess the performance of TUs/RTUs; (2) improve comparability and consistency of all disclosures made by tak?ful operators (TOs)/retak?ful operators; (3) support the protection of current and potential participants, by helping TOs to offer useful information disclosures on tak?ful products; and (4) enable market players to complement and support, through their actions in the market, the implementation of the IFSB standards.
Global Foreign Exchange Committee (GFXC) discusses progress on the FX Global Code review, FX benchmarks, and announces new Co-Vice Chair
On 10 December, the GFXC announced that it met to discuss the progress being made in its review of the FX Global Code, stating that it is on track to finalise the review in mid-2021. The GFXC discussed the feedback on papers received from the local foreign exchange committees (FXCs) – the papers and the proposed changes to the Code will be revised on the back of that feedback and then recirculated to the FXCs for another round of detailed feedback in March. A public ‘Request for Feedback’ on some of the proposals coming out of the review will be launched in April. The final proposals will be submitted for approval by the GFXC at their June 2021 meeting. The minutes of the meeting will be published in January.
FCA policy statement on high-risk investments – marketing speculative illiquid securities (including speculative mini-bonds) to retail investors
On 10 December, the FCA published a PS, confirming proposals to permanently ban the mass-marketing of speculative illiquid securities, including speculative mini-bonds, to retail investors. Following feedback received to its consultation (CP 20/8), the FCA has confirmed the rules as consulted on, subject to some minor changes and clarifications. The new rules include a small number of changes to the temporary ban – this includes bringing listed bonds with similar features to other speculative illiquid securities, and which are not regularly traded, within the scope of the ban. The FCA states that the final rules will: (i) prevent the mass-marketing of speculative illiquid securities (SISs) and improve disclosure of key risks and costs for retail investors who are still eligible to receive these promotions in the same way as the temporary product intervention (TPI), but subject to a small number of changes and clarifications; (ii) extend to listed bonds with similar features to other SISs which are not regularly traded; (iii) restrict retail investors’ access to financial promotions for SISs (including relevant listed bonds); and (iv) help the limited number of retail investors who are still eligible to receive promotions for these products to make better-informed investment decisions about whether to invest, and how much they want to risk. The made rules in Appendix 1 will come into force on 1 January 2021.
Final compromise text for Regulation amending the Benchmarks Regulation (BMR) as regards the exemption of certain third-country foreign exchange (FX) benchmarks and the designation of replacement benchmarks for certain benchmarks in cessation
On 9 December, the Council of the EU published an “I” item note addressed to its Permanent Representatives Committee (COREPER), including the final compromise text for the Regulation amending the BMR as regards the exemption of certain third-country foreign exchange (FX) benchmarks and the designation of replacement benchmarks for certain benchmarks in cessation. In its press release, the Council notes that the agreed amendments are of key importance to avoid any systemic risks that might result from LIBOR cessation by the end of 2021 – the aim of the amendments to the Benchmark Regulation is to make sure that a statutory replacement benchmark can be established by the regulators by the time a systemically important benchmark is no longer in use, and thus protect financial stability on EU markets. The Council also states that the new rules give the EC the power to replace critical benchmarks and other relevant benchmarks if their termination would result in a significant disruption in the functioning of financial markets in the EU. The EC will also be able to replace third-country benchmarks if their cessation would result in a significant disruption in the functioning of financial markets or pose a systemic risk for the financial system in the EU. Thus, a statutory benchmark will replace benchmarks in financial instruments and contracts that contain either no contractual replacement (a fall-back provision) or a fall-back provision which is deemed unsuitable by regulators. The Council notes that a framework is also provided for the replacement of a benchmark through national legislation. The Council and the EP will adopt the amendments without further discussion as soon as possible.
Council “I” item note
Council Press Release
EP’s Economic and Monetary Affairs Committee (ECON) and Council of the EU political agreement on proposed Directive amending MiFID II – Covid-19
On 9 December, the EP announced that its ECON and the Council have reached a political agreement on the proposed Directive amending MiFID II, so that EU companies can access a diverse range of funding and support the post-Covid-19 recovery. The EP states that the agreement should facilitate economic recovery by removing unnecessary administrative burdens whilst maintaining a balance between protecting investors and keeping compliance costs low for firms. The changes apply mostly to professional clients and eligible counterparties such as insurers, pension funds, or public institutions. The changes agreed include: (i) professional clients will no longer receive information on costs and charges – they will, however, still receive information on investment advice and portfolio management; (ii) ex-post information on costs and charges should be supplied without delay and clients should be able to receive such information over the phone (or on paper if requested) – moreover, the client should be given a breakdown of the costs prior to concluding a transaction; (iii) retail clients will be able receive information in digital format instead of on paper, but should be given at least eight weeks’ notice and the choice to continue receiving information on paper or switch to a digital format; (iv) certain product governance requirements will no longer apply to corporate bonds with “make-whole clauses” which protect investors against losses when an issuer opts for early repayment, by guaranteeing them a payment equal to the net present value of the coupons – in addition, financial instruments distributed to eligible counterparties will be excluded; and (v) some changes to the position limits regime for commodity derivatives, including a new definition for agricultural commodity derivatives – this definition clarifies that agricultural commodity derivatives include fisheries as well as animal feed (for those agricultural commodities the current strict regime will still apply, while less sensitive contracts will enjoy a lighter regime). MEPs also ensured that the EC will present, if appropriate, a proposal for a review of both MiFID and MIFIR by 31 July 2021 at the latest.
BoE speech on firms preparing for LIBOR cessation
On 9 December, the BoE published a speech by its Executive Director for Markets, Andrew Hauser, on what businesses and lenders need to do to be ready for LIBOR cessation. Mr Hauser states that the first priority is to break the remaining grip of LIBOR on new lending and other business as soon as possible before the end of 2021. In regard to sterling swaps, Mr Hauser states that there is a need to see another jump if the market is to hit its target of ceasing all new LIBOR use by the end of March next year, and all new lending linked to sterling LIBOR is also due to be phased out on the same timeline, with the exception of very short loans maturing before end-2021. Moreover, it is emphasised in the speech that redirecting new business away from LIBOR is the critical step for securing the future, whilst also ensuring that LIBOR-linked business from the past is made safe. Mr Hauser states that if firms have not already done so, signing up to the ISDA protocol or discussing plans with trading counterparties should now be their top priority. Mr Hauser also states that it is encouraging to have big household names amongst the early adopters of derivative exposures – though, coverage needs to be expanded to much more of the investment community and to the non-financial corporates who use these markets, as well as completing sign up by banks. Furthermore, Mr Hauser notes that it is not only in derivatives where pre-existing fallback arrangements have been absent – until recently, few contracts in other markets envisaged the potential for a world without LIBOR either, leaving borrowers and lenders alike exposed to serious uncertainty and the risk of a disorderly outcome. It is stated in the speech that where those contracts are expected to remain outstanding, the best chance of avoiding those risks lies in active conversion to another rate before the end of 2021. Mr Hauser reminds firms that if they have not done so already, they should make a start on the assessment of LIBOR contracts extending beyond the end of 2021.
EC targeted consultation on the review of Regulation on improving securities settlement in the European Union and on central securities
On 8 December, the EC published a targeted consultation on the review of the Regulation on improving securities settlement in the European Union and on central securities. Under Article 75 of Regulation (EU) 909/2014 on central securities depositories (CSDR), the EC is required to review and prepare a general report on the CSDR and submit it to the EP and the Council – the report should consider a wide range of specific areas where targeted action may be necessary to ensure the fulfilment of the objectives of CSDR in a more proportionate, efficient and effective manner. Thus, the purpose of the consultation is to gather views and experiences in the implementation of the CSDR from stakeholders. The EC states that it expects to be able to assess if there has been any evolution in the provision of CSDR core services on a cross-border basis and whether the objective of improving this activity is being reached. The responses to the consultation will provide guidance to the EC in preparing the final report on the CSDR review. The deadline for comments is 2 February 2021.
EC Targeted Consultation
EC Consultation Webpage
EC draft delegated regulations on rules of procedure for penalties imposed by ESMA on trade repositories (TRs) and third-country central counterparties (TC CCPs)
On 7 December, to adapt the existing rule of procedures to take into account changes introduced by EMIR REFIT, the EC published a draft delegated regulation amending Delegated Regulation 667/2014 on the rules of procedures for penalties imposed on TRs by ESMA . Specifically, in respect of the content of the file to be submitted by the investigation officer to ESMA, the right to be heard with regard to interim decisions and the lodging of fines and periodic penalty payments. Furthermore, the EC has published a draft delegated regulation supplementing EMIR with regard to rules of procedure for penalties imposed on TC CCPs or related third parties by ESMA. If the Council and the EP do not object to the delegated regulations, they will be published in the OJ and will enter into force the day after its publication. The deadline for comments for both of the draft delegated regulations is 4 January 2021.
EC Draft Delegated Regulation – TRs
EC Draft Delegated Regulation – TC CCPs
European Supervisory Authorities (ESAs) highlight change in status of Simple, Transparent and Standardised (STS) securitisation transactions at the end of the UK transition period
On 7 December, the ESAs published a communication to highlight the change in the status of STS securitisations transactions at the end of the UK transition period. The ESAs state that for a securitisation transaction to qualify as an STS securitisation, the Securitisation Regulation requires that the originator, sponsor and the securitisation special purpose vehicle (SSPE) be established in the Union – accordingly, those securitisation transactions currently labelled as STS securitisations will lose the STS status where one or all the securitisation parties (originator, sponsor and/or the SSPE) are established in the UK after the end of the transition period. The ESAs confirm that this will apply to STS asset-backed commercial paper (ABCP) securitisations and STS non-ABCP securitisations. ESMA is working with national competent authorities to ensure that ESMA’s STS securitisation public register is up to date on 1 January 2021. In addition, the ESAs note that the loss of the STS status implies that the preferential capital treatment available for investments in this type of securitisations will come to an end.
ICE Benchmark Administration (IBA) consults on its intention to cease publication of LIBOR settings
On 4 December, the IBA published a consultation paper on its intention to cease publication of all of the tenors of the following LIBOR settings on 31 December 2021: (i) EUR LIBOR; (ii) CHF LIBOR; (iii) JPY LIBOR; (iv) GBP LIBOR; and (v) USD LIBOR 1 Week and 2 Months rates. Furthermore, the IBA intends to cease the publication of USD LIBOR overnight and 1, 3, 6 and 12 month rates on 30 June 2023. This is subject to any rights of the FCA to compel IBA to continue publication. The deadline for comments is 25 January 2021.
FCA cutover plan for firms migrating to FCA Financial Instruments Reference Data System (FIRDS) and Financial Instruments Transparency System (FITRS) after the Brexit transition period
On 4 December, the FCA announced its cutover plan for firms migrating to FCA FIRDS and FITRS after the Brexit transition period. The FCA has provided details on how it is moving MiFID reference data and transparency systems away from ESMA as part of the MiFID onshoring process. Firms can currently use FIRDS and FITRS for testing, however, the FCA will be making both systems unavailable from 16 December until 2 January 2021 while it rebuilds its data. The FCA will then re-launch the systems with refreshed data in its production environments. The FCA has published a new webpage which summarises the timeline of each system’s availability and outages, and when the systems will be deployed in early January.
FCA Press Release
Please see our Brexit section for an update on the EBA informing customers of UK financial institutions about the end of the Brexit transition period.
Lending Standards Board (LSB) thematic review of effective warnings for contingent reimbursement model code for Authorised Push Payment (APP) scams
On 10 December, the LSB published a thematic review of provision SF1(2) in relation to effective warnings for its contingent reimbursement model code for APP scams. Key findings include that: (i) firms had approached the implementation of effective warnings as a key tool in efforts to prevent APP scams taking place; (ii) the proposed improvements and enhancements could lead to the design of warnings that would cause a customer to stop and think before proceeding with a payment which may be at risk of being a scam – to be truly effective, firms need to continually evolve warnings to take account of an ever-changing scams landscape; (iii) all firms have improved the level of consumer education information provided; and (iv) there is still work to be done to meet all the requirements of the Code and reach a situation where all firms are displaying warnings which are effective in making a customer stop to carefully consider whether the payment should be made. There are some key areas where the LSB believe improvements are necessary and indeed found instances where no, or insufficient, warnings were provided in payment journeys which resulted in breaches of the Code – the key areas for improvement fall within five areas: (a) effective warnings not provided; (b) assurance and oversight; (c) arbitrary thresholds; (d) formalisation of process; and (e) warning criteria.
UK Finance announces extension of interim funding for APP scam victim compensation to continue to 30 June 2021
On 9 December, UK Finance published a press release, announcing that interim funding for APP scam victim compensation will be extended to 30 June 2021. UK Finance states that to ensure customer reimbursement takes place whilst regulators and the government deliver a long-term, sustainable funding arrangement, seven payment service providers (PSPs) have provided interim funding since the voluntary APP Contingent Reimbursement Code was launched – they have agreed to extend the interim funding arrangements for a further six months until 30 June 2021. UK Finance notes that this is intended to provide further time for legislation to be agreed and implemented, placing the voluntary Code on a statutory footing.
EC speech on Interchange Fee Regulation (IFR) in a rapidly evolving payment landscape
On 7 December, the EC published a speech by EVP Margrethe Vestager on the IFR, in the context of the rapidly evolving payment landscape. The speech covers the EU’s policy approach in respect of the increase in the use of cashless and contactless payments, as well as the path taken by the EU so far, specifically in respect of the IFR. Amongst other things, Ms Vestager states that: (i) more merchants are seeking acquiring services in another Member State – this is a sign that the Single Market for payments is growing stronger; (ii) part of the reason why the payments landscape is changing is because digital transition is changing all aspects of the economy – for example, big data can improve how markets work, by allowing for the targeting of products, better pricing decisions and enabling innovation; (iii) whilst it is beneficial for European consumers to develop faster and better technologies, the EU cannot allow platforms that already have scale to shut out new entrants by withholding or delaying access to the data that is necessary to provide relevant payment services; (iv) the European Payments Initiative (EPI) has real potential to lower costs and improve the payments experience for consumers – the EU’s support for the EPI is an example of its overall approach to digital transition; and (v) by staying proactive, the EU will help steer the transition in a way that safeguards the long-standing principles of a successful Single Market – in the payments market, this involves further assessment of the IFR and its impact on the market.
European Payments Council (EPC) 2020 payment threats and fraud trends report
On 7 December, the EPC published its payment threats and fraud trends report for this year. The report provides an overview of the most important threats and other “fraud enablers” in the payments landscape, including: (i) social engineering; (ii) malware; (iii) advanced persistent threats (APTs); (iv) (Distributed) denial of service ((D)DoS); (v) botnets; and (vi) monetisation channels. For each threat, an analysis is made on the impact and context, and suggested controls and mitigations are described.
HOC Public Accounts Committee (PAC) report on production and distribution of cash
On 4 December, the HOC PAC published a report on the production and distribution of cash. The report states, amongst other things, that: (i) the long-term decline in the use of cash is putting at risk the facilities that people and communities use to access cash – this trend could be accelerated by the impact of the Covid-19 pandemic on cash use and the impact of businesses declining to accept cash; (ii) the current oversight of the cash system by government is fragmented – as HMT, the FCA, the Payment Systems Regulator (PSR) and the BoE all currently play a role in oversight, PAC is concerned that responsibilities amongst the public bodies are currently unclear and there is a real risk that there is lack of urgent action taken; (iii) public bodies appear to be unclear on what they are trying to deliver for consumers and businesses, and do not appear to have grasped the full impact lack of access can have on communities, particularly in rural areas, or the real detriment caused to some groups and consumers; (iv) unless the Government acts quickly, there are clear dangers of hardship for some individuals and groups if there is a rapid move towards a cashless society; and (v) the BoE needs to be much more curious about what is driving the increase of demand for bank notes (as opposed to the use of coins declining) and work with HMRC and other public agencies to shed light on this.
PRA statement on capital distributions by large UK banks
On 10 December, the PRA published a statement on capital distributions by large UK banks. At the end of March, the PRA welcomed the decisions of the boards of the large UK banks to suspend dividends and buybacks on ordinary shares until the end of this year. At the PRA’s request, boards of the large banks also cancelled payments of any outstanding 2019 dividends and restricted cash bonus payments to senior staff. The PRA states that banks remain well capitalised and able to support the real economy through this period of disruption. Thus, although economic uncertainty as a result of the Covid-19 pandemic and the UK’s new relationship with the EU remains high, the PRA judges that an extension of the exceptional and precautionary action taken in March is not necessary and that there is scope for banks to recommence some distributions, within an appropriately prudent framework. Furthermore, the PRA states that with the removal of its request not to make shareholder distributions, it is for bank boards to determine the appropriate level of distributions. As a stepping stone back towards its standard approach to capital-setting and shareholder distributions, the PRA asks boards, when making their decisions for 2020 distributions, to operate within a framework of temporary guardrails – the PRA is publishing that framework to give bank boards time to take it into account. The PRA will expect to be satisfied that any distributions would not create excess vulnerabilities to stress for a given bank or impede its ability or willingness to support households and businesses. The PRA states that if any firm wishes to make shareholder distributions in excess of these guardrails, it should engage with its supervisors and expect a high bar for justifying any exceptions. The PRA is also updating its expectations on the payment by large UK banks of cash bonuses to senior staff, including all material risk takers– it expects firms to exercise a high degree of caution and prudence in determining the size of any cash bonuses granted to senior staff given the uncertain outlook and the need for banks to deploy capital to support the wider economy. The PRA intends to transition back to its standard approach to capital-setting and shareholder distributions through 2021. The Prudential Regulation Committee (PRC) and Financial Policy Committee (FPC) intend to undertake a full system-wide stress test in mid-2021 and to publish bank-by-bank results at end-2021. In the meantime, for 2021 dividends the PRA is content for appropriately prudent dividends to be accrued but not paid out and aims to provide a further update ahead of the 2021 half-year results of large UK banks.
BIS Basel Committee results on Basel III monitoring based on end-December 2019 data
On 10 December, the Basel Committee published the results of its latest Basel III monitoring exercise, based on data as of 31 December 2019. The report sets out the impact of the Basel III framework that was initially agreed in 2010 as well as the effects of the Committee’s December 2017 finalisation of the Basel III reforms and the finalisation of the market risk framework published in January 2019. Given the December 2019 reporting date, the results do not reflect the economic impact of Covid-19 on participating banks. Nevertheless, the Committee believes that the information contained in the report will provide relevant stakeholders with a useful benchmark for analysis. The final Basel III minimum requirements will be implemented by 1 January 2023 and fully phased in by 1 January 2028. The average impact of the fully phased-in final Basel III framework on the Tier 1 minimum required capital (MRC) of Group 1 banks is lower (+1.8%) when compared with the 2.5% increase at end-June 2019 – for this calculation, for three global systemically important banks (G-SIBs) that are outliers due to overly conservative assumptions under the revised market risk framework, zero change from the revised market risk framework has been assumed for the calculation of 31 December 2019 results. If these three banks are included with their conservative market risk numbers, there is a 2.1% increase. The capital shortfalls at the end-December 2019 reporting date are €10.7 billion for Group 1 banks at the target level, in comparison with €16.6 billion at end-June 2019. The weighted average Liquidity Coverage Ratio (LCR) increased to 138% for the Group 1 bank sample and to 186% for Group 2 banks. All but one bank in the sample reported an LCR that met or exceeded 100%. The weighted average Net Stable Funding Ratio (NSFR) increased slightly to 117% for the Group 1 bank sample and to 122% for the Group 2 bank sample. As of December 2019, around 96% of the banks in the NSFR sample reported a ratio that met or exceeded 100%, while all Group 1 banks reported an NSFR at or above 90%. BIS has also published a: (i) Tableau-style dashboard that presents the results of the liquidity section of the Basel III monitoring report using an interactive tool to visualise the data; and (ii) statistical annex.
BIS Statistical Annex
EBA updates impact of the Basel III reforms on EU banks’ capital
On 10 December, the EBA published a report on the impact of implementing the final Basel III reforms in the EU. The report: (i) is based on December 2019 data and provides an assessment of the impact of the full implementation of final Basel III reforms on EU banks; and (ii) shows the evolution of the Common Equity Tier 1 (CET1), Tier 1 (T1) and additional T1 minimum required capital impact. The EBA states that the full Basel III implementation, in 2028, would result in an average increase of 15.4% on the current Tier 1 minimum required capital of EU banks. The results do not reflect the economic impact of the Covid-19 pandemic on participating banks as the reference date of this impact assessment is December 2019. The EBA will also publish a more detailed report, which will respond to the EC’s call for advice on Basel III, on 15 December. The EBA also published a visualisation page for the official figures and conclusions presented in the Basel III monitoring exercise, based on the December 2019 data.
EBA Visualisation Page
HMT letter on the Financial Services Bill – Committee debate
On 9 December, Parliament published a letter (dated 26 November) from HMT to the HOC on the Financial Services Bill, in respect of the Committee session on the Financial Services Bill on 24 November. Firstly, the letter addresses answers to questions that the HOC raised in respect of credit rating agencies (CRAs). HMT states that concerns about potential conflicts of interest in the provision of credit ratings were a key reason the Credit Rating Agencies Regulation (CRAR) was proposed following the 2008 financial crisis, given the issuer-pays model (i.e. where the entity requiring a rating is the one that pays for this rating) – although this model is not directly prohibited, the Regulation addresses these concerns by imposing requirements for avoiding conflicts of interests in such circumstances. HMT also confirms how Clause 6 of the Financial Services Bill will change the CRAR, stating that some amendments are required to ensure that the CRAR is consistent with the latest Basel standards; Clause 6 will enable HMT to amend the CRAR while having regard to the Basel standards – HMT intends to use this power to make only those amendments needed to update this Regulation in line with the latest Basel standards. Secondly, the letter provides detail on risk weightings (and the scope of the Basel 3.1 measure). HMT confirms that the purpose of Clause 3 is to enable implementation of the outstanding Basel standards – it will enable HMT to delete sections of the CRR related to the matters listed in Clause (3)(2), allowing the PRA to then fill the space made by these deletions with their rules, reflecting the latest Basel standards; the list also acts as a constraint on the actions of HMT and the PRA to only use these powers to allow for the implementation of the remaining Basel standards. Finally, the letter covers leverage ratios, explaining why Government Amendment 32 has removed a temporary time limit of 27 June 2021 attached to a derogation from the calculation of the leverage ratio applying to all firms subject to the CRR. The reason behind this removal is to prevent an approximately 6 month period from June 2021 to January 2022 where the UK CRR would revert to the old calculation, because the derogation would otherwise expire when relevant provisions in CRR II come into force (scheduled to be 1 January 2022).
PRA policy statement on Capital Requirements Directive V (CRD V)
On 9 December, the PRA published a PS on the CRD V. In its consultation (CP 12/20), the PRA proposed new CRD V requirements, covering Pillar 2, remuneration, intermediate parent undertakings (IPUs), governance, and third-country branch reporting. After considering responses that it received, and taking into account minor corrections to the proposed draft policy, the PRA has amended the following aspects of its draft policy: (i) supervisory statement (SS) 31/15 has been amended to include a clarification regarding group risk add-ons; (ii) the proposed rules in the Remuneration Part of the Rulebook and expectations set out in SS2/17 have been amended – these changes relate to the: (a) application of deferral and clawback to different categories of material risk takers (MRTs); (b) treatment of part-year MRTs; (c) approach to converting other currencies into sterling for the purposes of applying the UK remuneration regime; (d) definition of branch assets; (e) firm-wide application of risk adjustments; and (f) minor drafting changes to improve clarity in the near-final rules and SS2/17; (iii) SS34/15 has been amended to clarify how firms can comply with the recovery plan reporting requirement when a branch recovery plan is not available. Details are set out in the section covering third-country branch reporting below; and (iv) certain formatting issues and typographical errors have been amended, references updated, definitions clarified, and other consequential administrative corrections within the policy material contained in this PS. The PS lists out the links to the: (1) near-final rules instruments; (2) near-final updates to FSA079; (3) near-final statements of policy and supervisory statements; and (4) update to model requirements (Appendices 34 to 37).
PRA consults on designation of firms within certain consolidation groups
On 9 December, the PRA published a consultation paper, setting out its proposed approach to designating entities within certain banking UK consolidation groups as responsible for ensuring that consolidated prudential requirements are met during a transitional period. The PRA states that relevant holding companies will need to apply for approval or exemption in accordance with The Financial Holding Companies (Approval etc.) and Capital Requirements (Capital Buffers and Macro-prudential Measures) (Amendment) (EU Exit) Regulations 2020 (the SI). The proposals in this CP apply to the period between 28 December and the date on which the UK parent holding company’s application for approval or exemption is finally determined. The PRA proposes to create a new Part of the PRA Rulebook. The CP is relevant to banks and PRA-designated investment firms (firms) that are part of a UK consolidation group controlled by a UK parent financial holding company (FHC) or a UK parent mixed financial holding company (MFHC). The PRA notes that from 28 December, the Capital Requirements Regulation (CRR II) requires a UK consolidation group’s approved parent holding company, where it has one, to become responsible for ensuring that consolidated prudential requirements are met – the CRR II does not, however, specify the entity or entities responsible for ensuring compliance with consolidated prudential requirements for the period from 28 December until the date on which the UK parent financial holding company’s application for approval or exemption is finally determined. The PRA sets out proposals on how responsibility for meeting these consolidated requirements would be allocated during this period. The deadline for comments is 16 December.
PRA decision on Systemic Risk Buffer (SRB) rates
On 7 December, the PRA published a statement announcing its decision to maintain firms’ SRB rates at the rate set in December 2019 for a further year until December 2022, with no rate changes taking effect until January 2024. The PRA states that on 29 December, as part of the implementation of the Capital Requirements Directive V (CRD V), the CRD IV SRB will be replaced by the Other Systemically Important Institutions (O-SII) Buffer. The O-SII Buffer will be set at the same rate as firms’ current SRB buffer. The PRA will next reassess firms’ O-SII rates in December 2022, based on balance sheet positions at end-2021. The PRA notes that scheduling the next reassessment of O-SII buffer requirements for December 2022 at the earliest will aid firms in their capital planning by taking pressure off end-2020 balance sheets (upon which the December 2021 reassessment would have been based). In December 2022, the PRA expects to set an O-SII rate consistent with its statement of policy footnote and the FPC framework footnote – in doing so, the PRA will continue to take into consideration the evolution in firms’ balance sheets in response to Covid-19. Any decision on O-SII rates taken in December 2022 would take effect from January 2024. The PRA reiterates its expectation that all elements of banks’ capital and liquidity buffers can be drawn down as necessary to support the economy through the Covid-19 shock.
Recovery and regulations
Please see our Other Developments section for an update on the FCA’s 30th quarterly consultation.
FSB responds to questions on gathering information about continuity of access to FMIs for firms in resolution
On 9 December, the FSB published a note, providing an informal summary of the outreach meeting and responses to the questions posed by external stakeholders on the questionnaire for gathering information about continuity of access to Financial Market Infrastructures (FMIs) for firms in resolution. The Q&A covers; (i) scope and timeline; (ii) contents and format; (iii) publication and communication; (iv) supervisory process and expectation; and (v) substance, including the meaning of specific terms. The FSB hopes that FMIs will be able to finalise their questionnaire responses in December, and submit these to their authorities and FMI participants and publish either the responses themselves or a presumptive path summary. The FSB intends to evaluate the results of this exercise and the need for potential enhancements to the questionnaire and/or the industry engagement process in 2021. The FSB recommends that FMIs update their questionnaire responses going forward, whenever appropriate and at least annually.
FCA statement on preparing for transposition of the updated Bank Recovery and Resolution Directive (BRRD II)
On 9 December, the FCA updated its webpage on the Recovery and Resolution Directive (RRD) Handbook rules, providing a statement on preparing for the transposition of the updated BRRD II by 28 December. The FCA states that it has not identified any conflicts between its current requirements and those in the statutory instrument that will implement BRRD II. The FCA also states that firms should be aware that: (i) the FCA will not be addressing those new requirements in BRRD II that do not apply to FCA solo-regulated firms – firms should consult HMT’s and the PRA’s website for further information on these changes; (ii) Article 48(7) on the priority of debts in insolvency, as transposed by HMT, makes certain changes to the priority of debts in insolvency in the case of insolvency proceedings commenced during the 4-day period. In respect of Article 55 on the Contractual Recognition of Bail-in (‘CROB’), the FCA notes that it has requirements in place (in IPFRU 11.6) for firms to include terms in their contracts recognising that a liability may be ‘bailed in’ (eg the debt may be written-down or converted into equity) by the resolution authority – the additional requirements do not conflict with the FCA’s existing rules, and any notifications submitted under Art 55 BRRD II that have not already been acted upon will automatically lapse on 1 January 2021. The FCA reminds firms that it is consulting (in its 30th quarterly consultation) on the introduction of the requirements in Article 44a –the sale of subordinated eligible liabilities to retail clients. This will be introduced via Handbook rules (see “other developments” section).
Single Resolution Board (SRB) guidance on banks ensuring resolvability during mergers and acquisitions (M&As)
On 7 December, the SRB published a paper outlining its expectations for how banks engaging in M&As can ensure resolvability. The SRB states that such transactions, in addition to prudential and competition law implications, are highly likely to have consequences for banks’ resolvability – ultimately, well-designed and well-executed transactions may enhance banks’ resilience and profitability and strengthen their resolvability. The paper provides greater detail to banks on the information that the SRB may need, and it also gives insights into the potential effects on resolvability in selected areas: (i) loss-absorption and recapitalisation capacity; (ii) information systems; (iii) operational continuity; and (iv) access to financial market infrastructure (FMI) services and legal structure.
PRA policy statement on simplified obligations for recovery planning
On 7 December, the PRA published a PS on the application of simplified obligations for recovery planning for firms where their failure is not expected to have a ‘significant negative effect on financial markets, on other institutions, on funding conditions, or on the wider economy’, under its discretion provided for by Article 4 of the Bank Recovery and Resolution Directive (BRRD). The PS provides feedback to the PRA’s consultation (CP 10/20) and contains the final policy in the form of the updated Supervisory Statement (SS) 9/17 ‘Recovery planning’ (which should be read in conjunction with SS1/19 ‘Non-binding PRA materials: The PRA’s approach after the UK’s withdrawal from the EU’). In light of the responses received, the PRA has made additional changes to the draft amended SS9/17: (i) minor amendments to improve drafting; (ii) adding further detail explaining how the PRA’s recovery planning expectations vary according to the size of firms; and (iii) explaining that eligible firms are permitted to include a minimum of only two scenarios in their recovery plans, and that the two scenarios a firm includes should be sufficiently severe to test the recovery plan and are the most relevant to the firms’ business model – the PRA expects firms to include a combined capital and liquidity stress, as these scenarios are the most challenging. The changes took effect on 7 December.
PRA PS 25/20
PRA Updated SS 9/17
On 8 December, the PRA announced that it hosted the fifth meeting of the CFRF in November with the FCA. The PRA states that the co-chairs welcomed one new member organisation, the Universities Superannuation Scheme (USS) and two new observers, The Pensions Regulator (TPR) and the Financial Reporting Council (FRC). The PRA notes that working group chairs, members and secretariats have been considering how they can further their respective topics of risk management, scenario analysis, disclosure and innovation. Furthermore, the PRA highlights that it was decided that data and metrics should be a thematic topic that is addressed by all Forum working groups in the next phase of work. There was a specific discussion on the extent to which plans cater for the needs of smaller financial firms and how engagement with these firms would be undertaken over the coming period. The Forum noted the importance of the 26th UN Climate Change Conference of the Parties (COP26), a major international climate summit being hosted by the UK in November 2021 – it was agreed that the CFRF should explore ways that it can support the COP26 aims. The next CFRF meeting will take place in Q1 2021 where a programme of deliverables will be agreed and next steps to engage with external stakeholders ahead of COP26 will be discussed.
Emission Allowance Trading: EC draft implementing decision determining the benchmarks values for free allocation in the period 2021-2025
On 7 December, the EC published a draft implementing decision determining revised benchmark values for free allocation of emission allowances for the period from 2021 to 2025 pursuant to Article 10a(2) of Directive 2003/87/EC (which establishes a system for greenhouse gas emission allowance trading within the EU and amends Council Directive 96/61/EC concerning integrated pollution prevention and control). The deadline for comments on the draft implementing decision is 4 January 2021.
UK-Singapore Free Trade Agreement and negotiations on a UK-Singapore Digital Economy Agreement (DEA)
On 10 December, the UK Government announced the signing of a free trade agreement with Singapore. The Government states that this is the latest step in the UK’s strategy to create a network of trade agreements with dynamic economies far beyond Europe, making the UK a hub for services and digital trade. Furthermore, the agreements bring the UK a step closer to joining the Trans-Pacific Partnership (CPTPP), a high-standards agreement of 11 Pacific nations. International Trade Secretary Liz Truss and Singaporean counterpart, Chan Chun Sing, Minister for Trade and Industry, also announced their intention to launch negotiations for a ground-breaking DEA – this would be the first DEA that Singapore has struck with a European country. The Government states that the DEA would enable the UK to become a hub for digital trade with strong connections to Asia, cutting red tape for UK businesses and setting global standards in key areas such as cyber-security and emerging technology. The International Trade Secretary is expected to conclude a separate trade agreement with Vietnam.
UK Government Press Release
UK and Singapore Joint Statement
International Regulatory Strategy Group (IRSG) report on how data localisation impacts the financial services sector
On 7 December, the IRSG published a report on how the trend towards data localisation is impacting the financial services sector. Key findings include: (i) security is often not increased by data localisation; (ii) regulatory oversight can also be hampered; (iii) contrary to a common rationale for data localisation, such measures may actually negatively impact local businesses and markets; and (iv) protection of data can be provided instead by use of equivalent standards. The report recommends policymakers to move as close as possible towards mutual recognition of core principles in order to achieve the protection of personal and non-personal data whilst ensuring the continuation of cross border trade and opportunities. It is proposed that regulators adopt a suggested approach to policy development based on the following principles: (a) a principles-based approach to data protection; (b) regulatory oversight concerns should be addressed by rules on access rather than location; (c) operational resilience should focus on the quality of the outsourcing solution, not its location; (d) increased co-operation at an international level; and (e) use of international trade agreements to remove barriers.
FCA consults on guidance for insolvency practitioners (IPs) on how to approach regulated firms
On 7 December, the FCA published a consultation on guidance for IPs on how to approach regulated firms. The FCA states that the guidance is aimed at helping IPs comply with its rules and guidance as well as
relevant legislation which aim to achieve better outcomes for consumers and market participants following a failure of a regulated firm – the proposed guidance is the FCA’s view of how an IP should ensure regulated firms meet their ongoing financial services regulatory obligations following appointment. In summary, the consultation: (i) explains the scope of the guidance and the FCA’s role in regulated firm failures; (ii) outlines considerations for IPs before a regulated firm’s entry into an insolvency procedure, such as obtaining consent for out-of court administration appointments and sharing court documentation with the FCA; (iii) explains the FCA’s expectations on IPs at the point of a regulated firm’s entry into an insolvency procedure and shortly thereafter, such as communications with clients and creditors; (iv) explains the FCA’s expectations on IPs during an insolvency procedure, such as treatment of client assets and treating customers fairly; (v) explains the FCA’s expectations when a regulated firm enters into a company voluntary arrangement, scheme of arrangement or restructuring plan; and (vi) summarises the key steps from the guidance that an IP will need to consider when appointed over a regulated firm. The deadline for comments is 18 January 2021.
FCA 30th quarterly consultation
On 4 December, the FCA published its 30th quarterly consultation paper, which proposes to clarify the FCA’s expectations through new rules and guidance in the FCA’s Handbook, as well as updated supervisory statements (SS) 28/15 and 35/15 (which relate to strengthening individual accountability in banking and insurance respectively). The deadline for comments on all but one of the chapters is 4 February 2021 – for the chapter on changes to the cancellation of permission application form in SUP 6 Annex 6, the deadline for comments is 4 January 2021.
FCA policy development update (PDU) – December
On 4 December, the FCA updated its PDU webpage, which sets out information on recent and future FCA publications. The FCA highlights proposed future publications, including a: (i) CP on exit fees in investment platforms and comparable firms, due for publication in 2021; (ii) PS to CP20/5 on open-ended investment companies and the proposals to facilitate standard listing, due for publication in Q4; and (iii) PS or feedback statement to CP20/1 on the single easy access rate (SEAR) due for publication in 2021.
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