Financial Services SpeedRead: 10 November 2020

1. Chancellor Rishi Sunak gives speech on UK financial services post-Brexit

On 9 November 2020, Chancellor of the Exchequer Rishi Sunak delivered a speech to the House of Commons on the "start of a new chapter for financial services" post-Brexit, and the Financial Services Bill which will "lay the foundations for this new chapter".

The speech emphasised the need for certainty on financial regulation following the end of the Brexit implementation period on 31 December 2020 (IP Completion Date). The Chancellor indicated that there are a number of areas where the EU are not prepared to assess the UK for equivalence, and stated that the government would therefore be taking unilateral action by publishing a set of equivalence decisions for the EU and EEA Member States, and as well as a detailed framework for the UK's approach to equivalence more generally. He also reiterated the focus on fintech and payment technologies, and announced the forthcoming publication of a consultation "to make sure new forms of privately issued currencies, known as stablecoins, meet the same high standards we expect of other payment methods".

The Chancellor also announced certain green finance initiatives, specifically the government's intention to mandate climate disclosures by large companies and financial institutions by 2025, and the issuance of the first-ever sovereign green bond in 2021 (subject to market conditions).

2. EBA reminds financial institutions of the need for readiness in view of the Brexit transition period ending

on 9 November 2020, the European Banking Authority (EBA) published a reminder to financial institutions affected by the approaching end of the Brexit implementation period on IP Completion Day of the need to finalise the full execution of their contingency plans prior to that date.

The EBA also reminds UK financial institutions of the need to ensure adequate communication regarding their preparations and possible changes to any affected EU customers and reminds payments service providers to include additional details regarding the payer and the payee for the transfer of funds between the EU and UK.

3. ESMA publishes updated Q&As on the Prospectus Regulation and Transparency Directive

On 9 November 2020, ESMA published updated Q&As on the Prospectus Regulation and Transparency Directive, which include Brexit-related Q&As concerning the choice of home Member State and the use of prospectuses approved by the UK once the transition period is concluded. The Q&As also contain general updates as part of ESMA's ongoing Q&A revision exercise, including on thresholds in the prospectus area and on the identification of profit forecasts.

4. FCA publishes details on the notification process for firms that wish to continue to rely on intragroup exemptions from margin between UK and non-EU group entities

On 30 October 2020, the FCA published details on the process for UK firms to continue to rely on intragroup exemptions from margin requirements with their third country (non-EU) group entities, where no equivalence has been granted.

The above intragroup exemption is on the basis of an EU derogation which expired on 4 January 2020 and which was never formally extended. The FCA had permitted these exemptions to continue on a supervisory forbearance basis, in anticipation of the publication of an EU Regulatory Technical Standard on margin, which would have legislated a formal extension to the derogation, to 21 December 2020. To date, this has not occurred. Therefore, in order to ensure the exemptions have proper legal foundation, UK firms will be required to re-apply for the (expired) intragroup exemptions pursuant to the Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (SI 2019/335) (EMIR SI), in accordance with the FCA statement above.

The FCA has published a formal instrument which sets out the process for notification. No additional information to what has already been received by the FCA is required to complete the notification unless:

• circumstances relevant to the satisfaction of exemption conditions have changed (and haven't already been communicated to the FCA); or
• the counterparty requires individual communication of the decision.

Where these two exceptions apply, firms should advise the FCA and the FCA will reply with its decision. Otherwise, firms may treat the formal communication on the FCA's webpage as confirmation of their exemption being granted from the end of the transition period. This will be on the same basis, and subject to the same limitations, as previously applied.This publication follows the announcement by HM Treasury on 15 October 2020 of amendments to the EMIR SI, which, among other things, confirmed that UK firms may continue to benefit from the above described intragroup exemption from 1 January 2021. You can read more about HM Treasury's announcement in the previous edition of our Financial Services SpeedRead.

5. FCA publishes updated webpage on market making exemptions under the Short Selling Regulation

On 28 October 2020, the FCA published a new webpage regarding use of the market making exemption after IP Completion Date. Firms wishing to use the exemption will be required to join a UK trading venue and notify the FCA in writing of their intention to use the exemption 30 days before the intended use.

6. New FCA webpage on reporting of net short positions under the Short Selling Regulation

On 28 October 2020, the FCA published a new webpage on net short positions reporting under the onshored short selling regulation (Onshored SSR). Following the end of the implementation period, position holders will be required to report their net short positions in shares at the 0.20% threshold. The reporting thresholds for UK sovereign debt and uncovered positions in UK sovereign credit default swaps will remain the same as under the EU short selling regulation.

After IP Completion Day, position holders will have to consult the FCA's Financial Instrument Reference Data System and the UK list of exempted shares, rather than the ESMA versions, in order to comply with their obligations under the Onshored SSR.

The FCA will publish the UK list of exempted shares on its website from 1 January 2021. This will comprise:

• the FCA's list of exempted shares containing all shares admitted to trading on UK trading venues where their principal trading venue is outside the UK; and
• ESMA's list of exempted shares as of the end of the implementation period. The shares on this list will remain exempt from some of the requirements in the Onshored SSR for 2 years, including reporting requirements under Articles 5 and 6 of the Onshored SSR.

The FCA's list of exempted shares will be updated periodically.

Financial Markets

7. Council of the EU publishes Commission Staff Working Document Evaluation of the Distance Marketing of Financial Services Directive

On 9 November 2020, the Council of the EU published a Commission Staff Working Document Evaluation of the Distance Marketing of Financial Services Directive (DMFSD). The document presents the results of an evaluation of the DMFSD carried out between 2019 and 2020 in light of "important changes that have affected the way financial services are sold at a distance and their impacts on consumers". The evaluation assesses whether the original objectives of the DMFSD have been achieved, how it works with other legislation affecting retail financial services, consumer and data protection, its costs and benefits per stakeholder, and whether it has potential for burden reduction and simplification. The evaluation concludes that, due to developments in the market, some consumer needs are no longer fully addressed by the DMFSD. It also highlights discrepancies in compliance levels across the DMFSD's provisions, which points to the need for increased enforcement.

8. ESMA publishes updated guidance on the annex to ESMA opinion determining third-country trading venues for the purpose of transparency under MiFIR

On 6 November 2020, ESMA published an update to its guidance on the annex to its opinion on transparency for third country trading venues under MiFIR. The annex sets out third country venues that meet the criteria outlined by ESMA, and in October 2020 ESMA announced that a number of UK venues had met the criteria and had been added to the annex. ESMA also confirmed that EU investment firms would not be required to make transactions public in the EU via an EU approved publication arrangement if they are executed on one of the UK trading venues added to the annex.

ESMA has updated its guidance on the annex to include cases where the market identifier codes (b) are not included. ESMA states that its goal is to ensure a majority of venues on the list are identified with a MIC, but that in the meantime stakeholders may identify the missing MIC by their own means and provide the MIC to ESMA.

9. ESMA publishes consultation on MiFID II/MiFIR obligations on market data

On 6 November 2020, ESMA published a Consultation Paper seeking feedback in relation to draft guidelines on the MiFID II/MiFIR obligations on market data. The proposed guidelines build on the recommendations from a 2019 ESMA report on market data, and provide guidance on the requirement to publish market data on a reasonable commercial basis and the requirement to make market data available free of charge 15 minutes after publication. The deadline for submissions is 11 January 2021, with ESMA expecting to publish its final report and guidelines by Q2 2021.

10. ESMA publishes new Q&A on the Benchmarks Regulation

On 6 November 2020, ESMA published an updated Q&A on the Benchmarks Regulation which provides, on the final page, clarification as to how long a critical benchmark can be used by supervised entities in the EU if the index provider has not been granted authorisation.

11. ESMA publishes new Q&A on product governance

On 6 November 2020, ESMA published an updated Q&A on the implementation of investor protection topics under MiFID II and MiFIR. This includes three new Q&As on how firms manufacturing financial instruments can ensure that:

• financial instruments' costs and charges are compatible with the needs, objectives and characteristics of the target market;
• costs and charges do not undermine the financial instrument's return expectations; and
• the charging structure of the financial instrument is appropriately transparent for the target market, ensuring that it does not disguise charges or is too complex to understand.

12. ESMA publishes reports on CSDR implementation

On 5 November 2020, ESMA published its first two reports on the implementation of the Central Securities Depositories Regulation (CSDR).

The first report covers central securities depositories' (CSDs) cross-border services and handling of applications, and sets out findings related to the provision of services by CSDs in other EU Member States. The report also considers the responses to the ESMA survey conducted in June and July 2020, and uses the data collected by ESMA to determine the substantial importance of a CSD for host Member States.

The second report on internalised settlement presents the findings related to the settlement activity which does not take place through a securities settlement system operated by a CSD in the EEA. It also considers the responses to the ESMA survey conducted in June and July 2020, and includes an analysis of the internalised settlement data provided by settlement internalisers under the CSDR.

13. ESMA publishes first Q&A on reporting under the SFTR

On 5 November 2020, ESMA published the first Q&A on reporting under the Securities Financing Transactions Regulation (SFTR). The Q&A includes clarification as to how certain business events should be reported, such as:

• reporting of fields related to time and applicable calendars;
• reporting of settlement legs;
• reporting of SFTs collateralised initially at transaction and then at net exposure level;
• reporting of SFTs concluded off venue and cleared on the same day; and
• reporting of zero collateral for margin loans.

14. ESMA publishes consultation on Article 8 of the Taxonomy Regulation

On 5 November 2020, ESMA published a Consultation Paper containing draft advice to the EU Commission on Article 8 of the Taxonomy Regulation. Article 8 specifies the content, methodology and presentation of key performance indicators (KPIs) that must be disclosed by non-financial undertakings and asset managers. The key draft proposals for consultation are as follows:

• on non-financial undertakings, the advice covers the content of the 'proportion of turnover' and 'capital and operating expenditure related to environmentally sustainable activities' KPIs which must be disclosed, and sets out considerations relating to their preparation and presentation; an
• on asset managers, the advice proposes a KPI calculation model based on eligible investments, along with advice on how this KPI should be calculated and presented.

The deadline for submissions is 4 December 2020, with ESMA scheduled to deliver its final advice to the EU Commission by 28 February 2021.

15. EBA launches consultation to incorporate ESG risks into the governance, risk management and supervision of credit institutions and investment firms

On 3 November 2020, the EBA published a Discussion Paper and related consultation on environmental, social and governance (ESG) risks management and supervision, with a view to collecting feedback for its final report on the subject. The Discussion Paper focuses on the risks to which institutions are exposed through the impact of ESG factors on their counterparties, and illustrates progress that has been achieved in this area in recent years. The deadline for submissions is 3 February 2021, with a public hearing set for 26 November 2020.

16. EU Commission publishes letter to the ESAs extending the deadline for draft RTS on sustainability-related disclosures

On 30 October 2020, the EU Commission published a letter from it to the chairs of the European Supervisory Authorities (ESAs) regarding the application of Regulation (EU) 2019/2088 on sustainability-related disclosures in the financial services sector (commonly referred to as the Disclosure Regulations). The letter acknowledges the "ambitious timeframe" initially proposed for joint development by the ESAs of draft regulatory technical standards (30 December 2020), but indicates that an extension to that deadline is now required due to the disruption caused by the coronavirus pandemic.

However, the letter emphasises that the application of, and compliance with, the Disclosure Regulation is not conditional on the adoption of regulatory technical standards. Therefore there are no impediments to market participants and advisers complying with the Level 1 requirements in the Disclosure Regulation from 10 March 2021.

17. ESMA publishes final report on MAR amendments for the promotion of the use of SME Growth Markets

On 29 October 2020, ESMA published its final report on proposed amendments to the Market Abuse Regulation (MAR) in relation to liquidity contracts and insider list obligations. The amendments to MAR are to be made as a result of the EU SME Growth Markets Regulation.

The EU SME Growth Markets Regulation amends MAR to introduce a regime enabling issuers of financial instruments admitted to trading on SME growth markets to enter into a liquidity contract with a liquidity provider in the absence of an accepted market practice established at national level. A person entering into a liquidity contract with a liquidity provider would, accordingly, not be deemed to be engaging in market manipulation. The SME Growth Markets also permits issuers with financial instruments on an SME Growth Market to draw up and maintain slightly less detailed insider lists.

ESMA is required to submit draft Regulatory Technical Standards (RTS) in relation to liquidity contracts and draft Implementing Technical Standards (ITS) specifying the format of the insider lists. ESMA is submitting the proposed RTS and the proposed ITS for endorsement in the form of Commission Delegated Regulations, but considers it unlikely that the RTS and ITS will be adopted before 1 January 2021.

Banking and Prudential

18. EBA publishes second report on the application of the guidelines on Product Oversight and Governance Arrangements

On 3 November 2020, the EBA published its second report on industry implementation of its guidelines on Product Oversight and Governance (POG) Arrangements for retail banking products. The guidelines, which have applied since January 2017 to financial services firms, aim to encourage manufacturers and distributors to consider the needs of their customers when designing products and to develop products with consumers' interests, objectives and characteristics in mind. The report sets out key findings in relation to:

•  the scope of the EBA POG guidelines and general governance;
• the identification of the target market;
• testing;
• monitoring and remedial actions; and
• distribution.

The report sets out good practices and encourages financial institutions to use them, and concludes that many financial institutions are not sufficiently focused on ensuring that consumers' needs are met in line with the guidelines.

19. EBA publishes report on the monitoring of TLAC-/MREL-eligible liabilities instruments of EU

On 29 October 2020, the EBA published a report on the monitoring of the minimum requirement for eligible liabilities (MREL) and the FSB's total loss-absorbing capacity (TLAC) standard. The EU Banking Package, which came into force in 2019, made a number of amendments to the existing MREL framework and introduced the TLAC standard into EU law. Under the updated framework, the EBA is required to monitor the quality of own funds and eligible liabilities issued by institutions. The report, which contains analysis of 27 transactions, summarises the result of the monitoring exercise on TLAC and MREL instruments. It covers five main areas of assessment relevant to determining the quality of the TLAC/MREL instruments, namely: availability, subordination, capacity for loss absorption, maturity and other aspects including governing law, tax and regulatory calls, and tax gross-up clauses.

20. PRA and BoE publish consultations on resolution policy

On 28 October 2020, the PRA and BoE published several consultations on a package of proposals relating to resolution policy. The PRA published the following:

• Consultation Paper (CP18/20) on proposals relating to the contractual recognition of bail-in (CROB) and stay in resolution rules. This is relevant to Bank Recovery and Resolution Directive undertakings to which the CROB and Stay in Resolution Parts of the PRA Rulebook apply. The deadline for responses is 30 November 2020;
• Consultation Paper (CP19/20) on its proposal to extend, by one year, the dates by which firms are first required to submit a report of their assessment of their preparation for resolution and publish a summary of that report. This is relevant to UK banks and building societies with £50 billion or more in retail deposits on an individual or consolidated basis, as at the date of their most recent annual accounts. The deadline for responses is 31 January 2020; and
• Consultation Paper (CP20/20) on its proposal to revise its operational continuity in resolution policy. This is relevant to PRA-authorised UK banks, building societies, and PRA-designated UK investment firms currently in scope of, or likely to come into scope of, the operational continuity Part of the PRA Rulebook. The deadline for responses is 31 January 2020.

The BoE also published a Consultation Paper which relates to CP19/20 and CP20/20 above. This is relevant to firms for which: (a) the BoE, as home resolution authority, has notified that their preferred resolution strategy is bail-in or partial-transfer; or (b) the BoE has notified, as host resolution authority, that they are a 'material subsidiary' of an overseas-based banking group for the purposes of setting internal minimum requirements for own funds and eligible liabilities. The deadline for responses is 31 January 2020.

Funds Management

21. ESMA publishes translations for guidelines on performance fees in UCITS and certain types of AIFs

On 5 November 2020, ESMA published official translations of its guidelines on performance fees in UCITS and certain types of AIFs, including the English version. This follows ESMA's publication of its final report on the guidance on 3 April 2020. The guidelines begin to apply two months after the date of their publication on ESMA's website in all EU official languages (that is, 5 January 2021).

The guidelines apply to both fund managers and EU national competent authorities (NCAs). Specifically, the guidelines relate to performance fees in relation to UCITS and to those AIFs which are marketed to retail investors in accordance with article 43 of the AIFMD (other than close-ended AIFs and open-ended AIFs that are EuVECAs (or other types of venture capital AIFs), EuSEFs, private equity AIFs or real estate AIFs).

The guidelines aim to establish a common standard in relation to the disclosure of performance fees to investors. There are five guidelines, covering:

•  the calculation method for the performance fee;
• consistency between the performance fee model and the fund's investment objectives, strategy and policy;
• frequency for the crystallisation of the performance fee;
• negative performance (loss) recovery; and
• disclosure of the performance fee model.

Managers of any new funds created after the date of application of the guidelines with a performance fee, or any funds existing before the date of application that introduce a performance fee for the first time after that date, should comply with the guidelines immediately in respect of those funds. Managers of funds with a performance fee existing before the date of application of the guidelines should apply the guidelines in respect of those funds by the beginning of the financial year following six months from the application date of the guidelines.

Senior Managers and Governance

22. FCA and PRA publish statements on new coronavirus measures and senior manager expectations

On 9 November 2020, the FCA and PRA published updated guidance in light of the new restrictions put in place to combat the coronavirus pandemic. Both regulators state that firms should continue to follow relevant government guidance, including in relation to working from home.

In particular, both regulators recommend that, for financial services firms, the Chief Executive Officer Senior Management Function (SMF1) be accountable for ensuring that there is an adequate process in place for following and adhering to the government's guidance. For firms that do not have an SMF1 Chief Executive Officer, the regulators state this will be the most relevant member of the senior management team.

Firms should therefore consider whether an appropriate senior manager has oversight of the firm's compliance with relevant government guidance and to ensure the firm is acting in accordance with the FCA and PRA's expectations in relation to senior managers and coronavirus for solo-regulated and dual-regulated firms, as published earlier this year.

23. FCA issues bans for non-financial misconduct

On 5 November 2020, the FCA announced that it had banned three individuals from working in the financial services industry for non-financial misconduct. The bans make it clear that the line dividing conduct outside the workplace versus inside the workplace is disappearing. If you behave inappropriately privately, there are ramifications for your professional life. Regulatory expectations do not stop when you close the office door, which has become even more relevant while we are working remotely.

24. FCA finalises the extension of the implementation deadlines for the Certification Regime and Conduct Rules

On 28 October 2020, the FCA published a Policy Statement (PS20/12) setting out its final rules on extending the implementation deadlines for the Certification Regime and Conduct Rules in light of the coronavirus pandemic. Solo-regulated firms now have until 31 March 2021 to:

•  undertake the first assessment of the fitness and propriety of their certified staff;
• train staff on the Conduct Rules; and
• report Directory Person data.

Appointed Representatives are in scope of the extension to the reporting deadline for Directory Persons. The extensions do not apply to benchmark administrators.

Payments

25. EPC updates 2019 SEPA scheme rulebooks

On 30 October 2020, the European Payments Counsel (EPC) published a press release announcing the publication of updated versions of its 2019 Single European Payments Area (SEPA) scheme rulebooks, which will come into force on 1 December 2020 to 21 November 2021. The updated rulebooks are as follows:

• SEPA Credit Transfer Scheme rulebook version 1.2;
• SEPA Instant Credit Transfer rulebook version 1.2;
• SEPA Direct Debit Core Scheme rulebook version 1.2; and
• SDD Business-to-Business rulebook version 1.2.

Each updated rulebook includes an updated section 5.4 which sets out the authorisation and regulatory requirements for payment service providers from non-EU countries as set out in the EPC List of SEPA Scheme Countries, which now includes the UK as a Non-EEA SEPA Country.

26. BoE publishes revised approach to ISO 20022 migration and final schemas document

On 28 October 2020, the Bank of England (BoE) published the CHAPS and RTGS ISO 20022 migration revised approach and final schemas document. This follows the recent update to the BoE's webpage on ISO 20022, which you can read more about in the previous edition of our Financial Services SpeedRead.

27. EBA initiates public consultation on the draft Eurosystem oversight framework for electronic payment instruments, schemes and arrangements

On 27 October 2020, the EBA published:

• A consultation paper on the draft Eurosystem oversight framework for electronic payment instruments, schemes and arrangements (PISA) replacing the "Harmonised oversight approach and oversight standards for payment instruments" and all related oversight frameworks for cards, direct debits, credit transfers and the security objectives for e-money. EBA is consulting on extending the framework to cover 'transfer of value', which would include digital payment tokens, rather than just 'funds' which covers banknotes and coins, scriptural money and electronic money;

• A consultation paper on the draft Eurosystem assessment methodology; and
•  A consultation paper on the draft exemption policy for the PISA framework. The policy defines the payment schemes and arrangements overseen by the Eurosystem and those which are exempt.

The deadline for submissions to the consultation is 31 December 2020.

FinTech

28. HM Treasury publishes letter on EU legislation on crowdfunding service providers

On 3 November 2020, a letter from Economic Secretary to the Treasury, John Glen, was published clarifying the UK government's approach in relation to the EU Regulation on crowdfunding service providers and the accompanying Directive. This follows a letter from the House of Lords European Union Select Committee chair seeking clarification on the UK government's approach. The Regulation enters into force in November 2020 and applies in November 2021. The government confirms that it is not planning to implement the legislation in the UK. It refers to the UK's existing regime, in particular the FCA's rules on peer-to-peer lending and regulation of investment-based crowdfunding under MiFID II, and states that the wording of the EU legislation is similar to pre-existing UK provisions concerning crowdfunding.

29. FCA announces participation in GFIN cross-border testing of financial products and services

On 29 October 2020, the FCA announced that it will participate – alongside 23 other regulators globally – in the cross-border testing initiative organised by the Global financial Innovation Network (GFIN). GFIN is inviting firms to apply to test innovative financial products, services, business models and/or regulatory technology in a cross-jurisdiction setting. Firms interested should review their respective Regulatory Compendium and submit an application via the GFIN website before 31 December 2020. Firms can also contact the FCA about exploring cross-border testing at GFIN@fca.org.uk.

Authors: Emma Tran & Vidhi Mahajan