April 2020


CONTENT

CACEIS

EUROPEAN UNION

Benchmarks Regulation (BMR)

European Commission consults on Equivalence decision for a third country (Japan) under the Benchmarks regulation (BMR)

  • On 6 April 2020, the European Commission launched a consultation on the equivalence decision for a third country (Japan) under the Benchmarks regulation (BMR).

    For the purposes of Article 30 of Regulation (EU) 2016/1011, the legal and supervisory framework of Japan applicable to the Specified Administrators of financial benchmarks that are specified as Specified Financial Benchmarks in accordance with the FIEA, as published in the Official Gazette, shall be considered to be equivalent to the requirements laid down in Regulation (EU) 2016/1011 and to be subject to effective supervision and enforcement on an ongoing basis.

    This Decision is based on the assessment of the applicable legally binding requirements relating to benchmarks in Japan at the time of the adoption of this Decision. The Commission will continue to monitor, on a regular basis, the market developments, the evolution of the legal and supervisory framework for benchmarks and the effectiveness of supervisory cooperation in relation to the monitoring and enforcement of those requirements to ensure the on-going fulfilment of the requirements on the basis of which this Decision has been adopted.

  • ESMA signs MoU wit MAS on Singapore’s Financial Benchmarks

  • On 17 April 2020, the European Securities and Markets Authority (ESMA) and the Monetary Authority of Singapore (MAS) signed a Memorandum of Understanding (MoU), completing the process to allow the use of Singapore’s financial benchmarks in the EU. Under the MoU, ESMA and MAS will share information and supervisory activities on Singapore-regulated financial benchmarks. 

    The signing of the MoU follows the European Commission’s equivalence decision recognising Singapore’s regulatory framework on financial benchmarks as equivalent to the requirements under the EU’s Benchmarks Regulation. The MoU and the equivalence decision will allow financial institutions in the EU to continue using, as reference rates in their contracts, both SIBOR and the Singapore Dollar Swap Offer Rate (SOR), which are financial benchmarks regulated in Singapore.

  • Capital requirements / CRD / CRR / Basel III/IV

    EBA updates Guidelines on equivalence of non-EU authorities for participation in supervisory colleges

  • On 15 April 2020, the European Banking Authority (EBA) updated its Guidelines on the equivalence of confidentiality and professional secrecy regimes by adding the New York State Department of Financial Services (United States) to the current list of non-EU (third country) supervisory authorities whose confidentiality regimes can be regarded as equivalent. 

    The EBA Guidelines are designed to help EU authorities in their assessment of third country equivalence and to facilitate cooperation with third country supervisory authorities and their participation in supervisory colleges overseeing international banks.

  • Central Securities Depositary Regulation (CSDR)

    ESMA issues Guidelines on standardised procedures and messaging protocols under CSDR

  • On 6 April 2020, the European Securities and Markets Authority (ESMA) issued Guidelines on standardised procedures and messaging protocols under Article 6(2) of Regulation (EU) No 909/2014.

    These guidelines are based on Article 6(2) of Regulation (EU) No 909/2014. The objectives of these guidelines are to establish consistent, efficient and effective supervisory practices within the ESFS and to ensure the common, uniform and consistent application of the second subparagraph of Article 6(2) of Regulation (EU) No 909/2014 as supplemented by Article 2 of Commission Delegated Regulation (EU) 2018/1229.

    These guidelines therefore aim to clarify the scope of the requirement contained in Article 6(2) of Regulation (EU) No 909/2014 and provide guidance on the standardised procedures and messaging standards used for the purposes of compliance with such requirement.

  • COVID-19 Regulatory Measures

    Commission and European Investment Fund unlock €8 billion in finance for 100,000 small and medium-sized businesses

  • On 6 April 2020, the European Commission unlocked €1 billion from the European Fund for Strategic Investments (EFSI) that will serve as a guarantee to the European Investment Fund (EIF), part of the European Investment Bank Group. 

    This will allow the EIF to issue special guarantees to incentivise banks and other lenders to provide liquidity to at least 100,000 European SMEs and small mid-cap companies hit by the economic impact of the coronavirus pandemic, for an estimated available financing of €8 billion. 

    This announcement fulfils the commitment in the Commission Communication of 13 March to bring immediate relief to hard-hit SMEs, with money able to flow already in April. It is part of the package of measures announced by the EIB Group on 16 March designed to rapidly mobilise support for Europe's SMEs and mid-caps.

    The guarantees will be offered through the EIF to the market, via a call for expressions of interest to several hundred financial intermediaries, comprising banks and alternative lenders. Key features of these guarantees will be:

    • Simplified and quicker access to the EIF guarantee
    • A higher risk cover – up to 80% of potential losses on individual loans (as opposed to the standard 50%);
    • Focus on working capital loans across the EU;
    • Allowing for more flexible terms, including postponement, rescheduling or payment holidays.
  • European Union publishes Commission Implementing Regulation (EU) 2020/501 on the final date of submission of the single application, aid applications or payment claims

  • On 7 April 2020, Commission Implementing Regulation (EU) 2020/501 of 6 April 2020 derogating from Implementing Regulation (EU) No 809/2014 as regards the final date of submission of the single application, aid applications or payment claims, the final date for notification of amendments to the single application or payment claim and the final date for applications for allocation of payment entitlements or the increase of the value of payment entitlements under the basic payment scheme for the year 2020 was published in the Official Journal.

    The Regulation shall apply to applications and payment claims relating to the year 2020.

    By way of derogation, for the year 2020:

    • the final dates to be fixed by Member States by which the single application, aid applications or payment claims have to be submitted shall not be later than 15 June. However, for Estonia, Latvia, Lithuania, Finland and Sweden those dates shall not be later than 15 July;
    • Member States may decide that the amendments made to the single application or payment are to be notified to the competent authority by 30 June. However, Estonia, Latvia, Lithuania, Finland and Sweden may decide that those amendments are to be notified by 30 July;
    • the date to be fixed by Member States for the submission of applications for allocation of payment entitlements or the increase of the value of payment entitlements under the basic payment scheme shall not be later than 15 June. However, for Estonia, Latvia, Lithuania, Finland and Sweden that date shall not be later than 15 July.
  • ESMA sets out supervisory expectations on publication of investment funds periodic reports

  • On 9 April 2020, the European Securities and Markets Authority (ESMA) issued a public statement directed at Fund Managers concerning their obligations to publish yearly and half-yearly reports.

    The entities concerned are the following:

    • UCITS management companies,
    • self-managed UCITS investment companies,
    • authorised AIFMs,
    • non-EU AIFMs marketing AIFs pursuant to Article 42 of the AIFMD,
    • EuVECA managers, and
    • EuSEF managers

    ESMA is aware that the confinement measures taken by Member States to prevent COVID-19 contagion present significant difficulties and challenges for Fund Managers and auditors in preparing their periodic reports for a publication within the regulatory deadlines. While recognising the importance of periodic reports for timely and transparent disclosure, ESMA is of the view that the burdens on Fund Managers associated with the COVID-19 outbreak should be taken into account by National Competent Authorities (NCAs) in a coordinated way. In the current situation, ESMA expects NCAs to adopt a risk-based approach and not prioritise supervisory actions against these market participants in respect of the upcoming reporting deadlines.

    This public statement is without prejudice to obligations of Fund Managers stemming from national legislation and EU law.

  • ESMA promotes coordinated action regarding benchmarks external audit requirements

  • On 9 April 2020, the European Securities and Markets Authority (ESMA) issued a Public Statement to promote coordinated action by National Competent Authorities (NCAs) regarding the timeliness of fulfilling external audit requirements for interest rate benchmark administrators and contributors to interest rate benchmarks. 

    ESMA and NCAs are aware of the difficulties, due to the COVID-19 pandemic, encountered by interest rate benchmark administrators and contributors to interest rate benchmarks in fulfilling the external audit requirements set out in the Benchmarks Regulation (BMR).  

    ESMA therefore, in coordination with NCAs, expects NCAs not to prioritise supervisory actions against administrators and supervised contributors relating to the timeliness of fulfilling those audit requirements where the audits are carried out by 30 September 2020. In addition, ESMA encourages NCAs to generally apply a risk-based approach in the exercise of supervisory powers in their day-to-day enforcement of the BMR in a proportionate manner concerning the timeliness of fulfilling those audit requirements.

  • ESMA postpones publication dates for annual non-equity transparency calculations and quarterly SI data

  • On 9 April 2020, the European Securities and Markets Authority (ESMA) issued a Public Statement postponing the application of the annual non-equity transparency calculations and the calculations for the systematic internaliser test for derivatives, ETCs, ETNs, emission allowances and structured finance products (SFPs) under MiFID II. 

    ESMA believes that compliance with these obligations, originally scheduled for publication on 30 April and 1 May, could create unintended operational risks for market participants in the current market environment. ESMA is taking this approach in recognition of the difficulties for:

    • Transparency Calculations: The publication will be postponed from 30 April 2020 to 15 July 2020 and their application from 1 June 2020 to 15 September 2020. The transitional transparency calculations (TTC) will continue to apply until and including 14 September 2020.
    • Systematic Internalisers: ESMA will publish the data for the performance of the systematic internaliser test for derivatives, ETCs, ETNs, emission allowances and structured finance products by 1 August 2020 and the mandatory systematic internaliser regime for derivatives, ETCs, ETNs, emission allowances and structured finance products will apply from 15 September 2020.
    • Bonds: The publication and application of the annual transparency calculations for bonds remain unchanged and the new pre-trade and post-trade large in scale and size specific to the instrument thresholds will be applicable from 1 June 2020.
  • European Parliament publishes Briefing on Impact of the COVID-19 crisis on climate action and the European Green Deal

  • On 14 April 2020, the European Parliament published Briefing on Impact of the coronavirus crisis on climate action and the European Green Deal. The handling of the COVID-19 crisis had already led to an economic downturn, reduced tax receipts and increased government spending to support companies and citizens.

    Stimulus programs are considered necessary to relaunch the economy after the crisis. While some governments consider that ambitious programs like the European Green Deal will hinder economic recovery after the crisis, the European Commission and others maintain that the European Green Deal is the growth strategy that can help Europe's economic recovery while at the same time addressing the global climate emergency.

    The restrictions on travel and large-scale gatherings may also slow down legislative activity related to the European Green Deal, as EU institutions change their calendars, agendas and priorities.

  • Europe publishes decision on thresholds for reporting net short positions on OJ

  • On 15 April 2020, the European Securities and Markets Authority Decision (EU) 2020/525 of 16 March 2020 to require natural or legal persons who have net short positions to temporarily lower the notification thresholds of net short positions in relation to the issued shares capital of companies whose shares are admitted to trading on a regulated market above a certain threshold to notify the competent authorities in accordance with point (a) of Article 28(1) of Regulation (EU) No 236/2012 of the European Parliament and of the Council was published on the Official Journal of the European Union (OJ). This decision was already published on ESMA's website on 16 March 2020, and was effective from that date.

    The decision temporarily requires the holders of net short positions in shares traded on a European Union (EU) regulated market to notify the relevant national competent authority (NCA) if the position reaches or exceeds 0.1% of the issued share capital after the entry into force of the decision. 

    ESMA considers that lowering the reporting threshold is a precautionary action that, under the exceptional circumstances linked to the ongoing COVID-19 pandemic, is essential for authorities to monitor developments in markets. The measure can support more stringent action if required to ensure the orderly functioning of EU markets, financial stability and investor protection. 

    ESMA considers that the current circumstances constitute a serious threat to market confidence in the EU, and that the proposed measure is appropriate and proportionate to address the current threat level to EU financial markets. The measure applies immediately, requiring net short position holders to notify NCAs of their relevant positions as at the close of the trading session on Monday 16 March 2020. 

    The temporary transparency obligations apply to any natural or legal person, irrespective of their country of residence. They do not apply to shares admitted to trading on a regulated market where the principal venue for the trading of the shares is located in a third country, market making or stabilisation activities.

  • ESMA issues positive opinions on short selling bans by Austrian FMA, Belgian FSMA, French AMF, Greek HCMC and Spanish CNMV

  • On 15 April 2020, the European Securities and Markets Authority (ESMA) issued opinions agreeing to the renewal of the emergency restrictions on short selling and similar transactions by the Finanzmarktaufsicht(FMA) of Austria, the Financial Securities and Markets Authority(FSMA) of Belgium, the Autorité des Marchés Financiers(AMF) of France, the Hellenic Capital Market Commission(HCMC) of Greece and the Comisión Nacional del Mercado de Valores(CNMV) of Spain.

    The restrictions apply as follows:

    • all shares admitted to trading on the relevant trading venues for which the NCA is the relevant competent authority, as well as to all related instruments relevant for the calculation of the net short position;
    • the measures will enter into force on:
      • 16 April 2020 for FMA.
      • 17 April 2020 for AMF and FSMA;
      • 18 April 2020 for CNMV;
      • 25 April 2020 for HCMC; and
      • all are set to remain in place until 18 May 2020.
  • ESMA issues new Q&A on alternative performance measures in the context of COVID-19

  • On 17 April 2020, the European Securities and Markets Authority (ESMA) issued a Q&A to provide guidance to issuers on the application of the ESMA Guidelines on Alternative Performance Measures (APM Guidelines) in the context of the COVID-19 pandemic, which:

    • highlights the main principles of the APM Guidelines; 
    • encourages issuers to use caution when adjusting Alternative Performance Measures (APMs) and when including new APMs to address the impact of COVID-19;
    • invites issuers to provide:
      (i) narrative information regarding the modifications made, the assumptions used and the impact of COVID-19;
      (ii) information on measures taken or expected to be taken by issuers to address the impact that the COVID-19 outbreak may have in their operations and performance.

    The APM Guidelines address the information that issuers should publish when disclosing APMs (e.g. Operating Results, EBIT, EBITDA, Free Cash-flows) to the market in management reports, prospectuses and ad-hoc disclosures (such as Quarterly Earnings releases).

  • AFME publishes Joint letter to EC on DAC6 deferral

  • On 20 April 2020, the Association for Financial Markets in Europe (AFME) published a request to European Commission to recommend/endorse the deferral of EU DAC6 reporting obligations.

    The AFME asks to allow for the postponement of domestic reporting deadlines (i.e. deferral in the start date of 1 July 2020 and deferral in the retrospective reporting deadline of 31 August 2020) consistently across all member states and the UK, while considering that some member states may be more severely hit by the COVID-19 pandemic than others and may have identified that they would need a longer delay, the association would ask that the reporting deadlines be postponed until 2021, with a review at the end of September 2020 to see if a further extension is required.

  • European Commission adopts banking package to help facilitate bank lending to households and businesses and proposes amending Regulations (EU) No 575/2013 and (EU) 2019/876 as regards adjustments in response to the COVID-19 pandemic

  • On 28 April 2020, the European Commission adopted a banking package to help facilitate bank lending to households and businesses throughout the European Union, by the proposal for a regulation amending Regulations (EU) No 575/2013 and (EU) 2019/876 as regards adjustments in response to the COVID-19 pandemic. The European Commission also published:

    • An Interpretative Communication on the EU's accounting and prudential frameworks
    • Questions and answers: Supporting households and businesses in the EU

    The aim of this package is to ensure that banks can continue to lend money to support the economy and help mitigate the significant economic impact of the Coronavirus. The rules put in place following the financial crisis have provides that:

    • Banks in the EU are more resilient and better prepared to deal with shocks to the economy
    • EU rules to allow banks and their supervisors to act in a flexible, but responsible, manner during economic crises to support citizens and firms, particularly small and medium-sized companies. 
    • Some targeted changes will be implemented to maximise the capacity of credit institutions to lend and to absorb losses related to the Coronavirus pandemic, while still ensuring their continued resilience.
  • EFAMA calls for urgent completion of PRIIP KID review to protect retail investors and support economic recovery

  • On 28 April 2020, the European fund and Asset Management Association (EFAMA) informed that, together with European Commission, MEPs, and the three ESAs, EFAMA is calling upon legislators to examine the final report carefully. 

    The COVID-19 crisis is resulting in unprecedented economic uncertainty and EFAMA says the asset management industry stands ready to play its part in the long road to economic recovery. To achieve this, a PRIIP KID that provides retail investors with the right information is ever more crucial in helping them to make informed investment decisions.

     EFAMA's statement highlights a number of key points including:

    • Clear and relevant information on PRIIP KID will be essential for retail investors' participation in the post-COVID 19 recovery.
    • The current framework is misleading for retail investors and therefore damaging for the industry and the UCITS brand.
    • An urgent review of the current PRIIP KID is critical to protect retail investors interests, particularly in times of economic uncertainty. 

    EFAMA has identified three core areas for improvement, including: 

    • ?Comparability at any cost is not the right solution
    • Inclusion of past performance is paramount
    • Appropriate scenario planning.
  • EU Commission publishes Proposal for a Council Regulation on temporary measures concerning the general meetings of European companies (SE) and of European Cooperative Societies (SCE)

  • On 29 April 2020, the European Commission published Proposal for a Council Regulation on temporary measures concerning the general meetings of European companies (SE) and of European Cooperative Societies (SCE). The outbreak of the Covid-19 pandemic has a serious impact on companies and cooperative societies, including SEs and SCEs. In particular, due to the confinement and social distancing measures, as well as to the need to concentrate their efforts on managing the economic activity constraints, SEs and SCEs face considerable difficulties to respect the deadline to hold their general meeting referred to in Article 54 of their respective regulations. While Member States have put in place emergency measures in the area of company law to support and help companies to comply with the current exceptional circumstances, such measures do not address the SEs nor the SCEs, because, in both cases, their Statute is an EU Regulation. 

    Given that the exceptional circumstances due to Covid-19 are beyond the control of SEs, SCEs and Member States alike, this proposal sets at EU level a temporary derogation to the deadline provided for in Article 54 of the SE Regulation and Article 54 of the SCE Regulation. Such a temporary derogation should provide the flexibility for the SEs and the SCEs to hold their general meeting within 12 months of the end of the financial year, but in any case no later than 31 December 2020. This temporary derogation is necessary in order to allow the SEs and the SCEs to ensure the necessary preparations of the general meetings and to provide legal certainty as regards the fulfilment of the obligations laid down in the SE and SCE Regulations.

  • EU approves member states guarantee schemes to support the economy during the COVID-19 crisis

  • From 6 April 2020 to 24 April 2020, the European Commission approved several member states guarantee schemes and dunds to support and stabilize the economy in the context of the current health crisis.

    Below the different measures taken by the member states:

    6 April 2020
    : European Commission approves £50 billion UK “umbrella” scheme to support the economy in the coronavirus outbreak.

    On 6 April 2020, the European Commission has approved a £50 billion (approximately €57 billion) “umbrella” UK scheme to support small and medium-sized enterprises (SMEs) and large corporates in the United Kingdom affected by the coronavirus outbreak. The scheme was approved under the State aid Temporary Framework adopted by the Commission on 19 March 2020, as amended on 3 April 2020.
    The measure is a UK-wide National Temporary Framework for State aid, with an estimated budget of £50 billion, and allows for the provision of aid in the form of:
    a) Direct grants, equity injections, selective tax advantages and advance payments;
    b) State guarantees for loans subject to safeguards for banks to channel State aid to the real economy;
    c) Subsidised public loans to companies with favourable interest rates;
    d) Support for coronavirus related research and development (R&D);
    e) Support for the construction and upscaling of testing facilities to develop and test products useful to tackle the coronavirus outbreak;
    f) Support for the production of products relevant to tackle the coronavirus outbreak.

    8 April 2020
    : European Commission approves EUR5.4 billion Danish scheme to compensate companies particularly affected by the coronavirus outbreak.
    On 8 April 2020, the European Commission approved under EU State aid rules a DKK 40 billion (approximately 5.4 billion) Danish scheme that compensates companies particularly affected by the coronavirus outbreak, up to a maximum of DKK 60 million (approximately EUR 8 million) per company.
    Under the scheme, private companies registered in the Danish Central Business Register (CVR), which have a proven decline in revenues of more than 40 % because of the coronavirus outbreak in the period from 9 March to 9 June 2020, will be entitled to compensation for the damages suffered. In particular, they will be compensated in part or in full for the fixed costs that they continue to bear.
    The Commission considers that the coronavirus outbreak qualifies as an exceptional occurrence, as it is an extraordinary, unforeseeable event having a significant economic impact. As a result, exceptional interventions by the Member States to compensate for the damages linked to the outbreak are justified.

    11 April 2020
    : European Commission approves Belgian guarantee scheme mobilising €50 billion support for companies affected by coronavirus outbreak.
    On 11 April 2020, the European Commission approved a €50 billion Belgian loan guarantee scheme to support the Belgian economy in the context of the coronavirus outbreak.
    The support, in the form of State guarantees on new short-term loans, will be accessible to all companies, including small and medium-sized enterprises (SMEs) and self-employed traders. The aim of the scheme is to help businesses affected by the economic impact of the current crisis cover their liquidity needs, thus ensuring the continuation of their activities.

    12 April 2020
    : European Commission approves €10 billion French guarantee scheme to support domestic credit insurance market in coronavirus outbreak.
    On 12 April 2020, the European Commission approved, under EU State aid rules, a €10 billion French guarantee scheme to support the domestic credit insurance market in the context of the coronavirus outbreak.
    Trade credit insurance protects companies supplying goods and services against the risk of non-payment by their clients. Given the economic impact of the coronavirus outbreak, the risk of insurers not being willing to issue this insurance has become higher. The French scheme ensures that trade credit insurance continues to be available to all companies, avoiding the need for buyers of goods or services to pay in advance, therefore reducing their immediate liquidity needs.

    14 April 2020
    : European Commission approves Italian guarantee scheme to support the economy in coronavirus outbreak.
    On 14 April 2020, the European Commission approved an Italian aid scheme to support the economy in the context of the coronavirus outbreak.
    Italy notified to the Commission under the Temporary Framework a guarantee scheme for new working capital and investment loans granted by banks, to support companies affected by the coronavirus outbreak. The aid will be granted by State-owned SACE, through financial institutions, to companies affected by the coronavirus outbreak. The aim of the scheme is to limit the risks associated with issuing loans to companies that are severely affected by the economic impact of the coronavirus, helping businesses to cover their immediate working capital or investment needs, in order to ensure the continuation of their activities. The Italian authorities have communicated a total budget of up to €200 billion for the scheme.

    14 April 2020
    : European Commission approves German guarantee scheme to stabilise trade credit insurance market in coronavirus outbreak.
    On 14 April 2020, the European Commission approved, under EU State aid rules, a German guarantee scheme to support the trade credit insurance market in the face of the coronavirus outbreak.
    The German scheme ensures that trade credit insurance continues to be available to all companies, avoiding the need for buyers of goods or services to pay in advance, therefore reducing their immediate liquidity needs.
    The Commission found that the scheme notified by Germany is compatible with the principles set out in the EU Treaty and is well targeted to remedy a serious disturbance of the German economy. In particular,
    (i) the trade credit insurers have committed to Germany to maintain their current level of protection in spite of the economic difficulties faced by companies due to the coronavirus outbreak;
    (ii) the guarantee is limited to only cover trade credit originated until the end of this year;
    (iii) the scheme is open to all credit insurers in Germany, covering also trade credit to purchasers of goods and services in third countries;
    (iv) the guarantee mechanism ensures risk sharing between the insurers and the State, up to a volume of €5 billion, and provides an additional safety-net to cover up to €30 billion in total if required; and
    (v) the guarantee fee provides a sufficient remuneration for the German State.

    21 April 2020
    : European Commission approves €200 million Irish scheme to support companies affected by the coronavirus outbreak.
    On 21 April 2020, the European Commission approved a €200 million Irish scheme to support companies affected by the coronavirus outbreak.
    Ireland notified to the Commission under the Temporary Frameworka €200 million scheme to support undertakings operating in the manufacturing and internationally traded services sectors in Ireland affected by the coronavirus outbreak.
    The public support, which will take the form of direct grants, repayable advances, equity injections, and subsidised loans, aims at ensuring that companies have sufficient liquidity to maintain their activities during and after the outbreak. The scheme, which applies to the whole territory of Ireland, will be open to companies of all sizes.

    24 April 2020
    : European Commission approves €100 million Dutch subsidised loan scheme to support SMEs affected by coronavirus outbreak.
    On 24 April 2020, the European Commission approved a €100 million Dutch State aid scheme to support small and medium-sized companies (SMEs) in the context of the coronavirus outbreak.
    The public support, which will take the form of subsidised interest rates on loans, will be accessible to those SMEs whose main source of financing derives from external equity, venture capital or microcredit.
    The aim of the scheme is to help those companies which are experiencing difficulties in accessing liquidity due to the coronavirus outbreak cover their immediate working capital and investment needs, thus helping them to continue their activities during and after the outbreak.

  • Digital Single Market

    European Commission publishes consultation on a new digital finance strategy for Europe / FinTech action plan

  • On 3 April 2020, the European Commission published consultation on a new digital finance strategy for Europe / FinTech action plan. 

    As set out in the Commission work programme, given the broad and fundamental nature of the challenges ahead for the financial sector, the Commission will propose in Q3 2020 a new digital finance strategy / FinTech action plan that sets out a number of areas that public policy should focus on in the coming five years.

    This new strategy will build on the work carried out during the previous mandate, in particular in the context of the FinTech action plan. It will take into consideration all the recent market and technological developments that are likely to impact the financial sector in the near future.

    Responses to this consultation will inform forthcoming work on a digital finance strategy / FinTech action plan. The consultation period is open until 26 June 2020.

  • IFRS application in financial statements

    EU publishes Commission Regulation (EU) 2020/551 amending Regulation (EC) No 1126/2008 adopting certain international accounting standards

  • On 22 April 2020, the EU published Commission Regulation (EU) 2020/551 of 21 April 2020 amending Regulation (EC) No 1126/2008 adopting certain international accounting standards in accordance with Regulation (EC) No 1606/2002 of the European Parliament and of the Council as regards International Financial Reporting Standard 3  in the Official Journal.

    The International Accounting Standards Board (IASB) published Definition of a Business (Amendments to IFRS 3) in order to address the concerns highlighted by the post-implementation review of IFRS 3 Business Combinations about the challenges to apply the definition in practice. The objective of the amendments is to clarify the definition of a business with a view to facilitating its practical implementation.

    The Annex to Regulation (EC) No 1126/2008, International Financial Reporting Standard 3 Business Combinations, is amended. Each company shall apply the amendments at the latest, as from the commencement date of its first financial year starting on or after 1 January 2020.

  • Investment Funds / Collective Investment Schemes (CIS) / Asset Management

    ESMA publishes guidance on performance fees in UCITS and certain AIFS

  • On 3 April 2020, the European Securities and Markets Authority (ESMA) published its final guidance on performance fees in investment funds – applicable to Undertakings for the Collective Investment in Transferable Securities (UCITS) and certain types of Alternative Investment Funds (AIFs).

    The guidelines provide comprehensive guidance to fund managers when designing performance fee models for the funds they manage, including the assessment of the consistency between the performance fee model and the fund’s investment objective, policy and strategy, particularly when the fund is managed in reference to a benchmark.

    ESMA’s guidelines aim at harmonising the way fund managers charge performance fees to retail investors, as well as the circumstances in which performance fees can be paid. The common requirements will allow convergence in how NCAs supervise performance fees models and disclosure across the European Union (EU). The guidelines are applicable to both UCITS and certain types of AIFs, in order to ensure a level playing field and a consistent level of protection to retail investors.

  • Macro-prudential framework

    ESRB publishes risk dashboard, April 2020 (Issue 31)

  • On 9 April 2020, the EU Systemic Risk Board (ESRB) published ESRB risk dashboard - Issue 31 regarding:

    • Systemic risk indicators and financial market conditions: Market-based indicators of systemic stress in the European Union (EU) have increased sharply after the outbreak of the coronavirus (COVID-19). 
    • Credit risk: Credit to the private sector continued to grow robustly in many EU Member States until the outbreak of the coronavirus crisis. 
    • Banks: Banks’ profitability in the European Union decreased in the fourth quarter of 2019. Banking sector capitalisation stood broadly unchanged and the reduction of non-performing loans improved slightly. 
    • Insurance: The median solvency ratio of the EU insurance sector deteriorated by around 10 percentage points to roughly 185%. Regarding the EU insurers’ asset allocation, there were no significant changes in the credit quality characteristics of EU insurers’ bond portfolio, but the liquidity profile of assets deteriorated slightly for some insurers. 
    • Investment funds and other financial institutions: Total assets held in the EU investment funds and other financial institutions (OFIs) continued to grow in the third quarter of 2019. Continued increases in asset valuations in the third quarter of 2019 resulted in an increase in assets under management across fund types. 
    • CCPs: The overall picture drawn from the CCP indicators until the third quarter of 2019 remained broadly stable, notwithstanding the differences between the CCPs. Systemic dynamics, like interoperability and concertation of clearing activity, remained meaningful but stable. 
  • Markets in financial instruments Directive and Regulation (MiFID II / MiFIR)

    ESMA publishes annual bond transparency calculations, systematic internalisers calculations and new bond liquidity data

  • On 30 April 2020, the European Securities and Markets Authority (ESMA) made available, under the Markets in Financial Instruments Directive (MiFID II) and Regulation (MiFIR):

    • the annual transparency calculations of the large in scale (LIS) and size specific to the instruments (SSTI) thresholds for bonds;
    • systematic internaliser calculations for equity, equity-like instruments and bonds; and
    • new data for bonds subject to the pre- and post-trade requirements of MiFID II and MiFIR.
  • Packaged Retail and Insurance-based Investment Products (PRIIPs)

    EFAMA publishes statement on the revised PRIIP KID in April 2020

  • On 24 April 2020, the European fund and Asset Management Association (EFAMA) published statement on the revised PRIIP KID in April 2020. EFAMA would emphasise that the current PRIIP KIDs are flawed and are providing retail investors with misleading information. A review addressing these flaws is essential. 

    The European Commission has not completed its review of the Level 1 PRIIPs framework and, according to EFAMA, it will not be completed in the foreseeable future. EFAMA remains confident that most issues can be successfully addressed through Level 2 changes.

  • Regulation on Short Selling and certain aspects of Credit Default Swaps

    ESMA published updated list of market makers and authorized primary dealers who are using the exemption under the Regulation on short selling and credit default swaps

  • On the 17 April 2020, the European Securities and Markets Authority (ESMA) published an updated list of  of market makers and authorized primary dealers who are using the exemption under the Regulation on short selling and credit default swaps.

  • Retail financial services

    ESMA issues second annual statistical report on the cost and performance of retail investment products in the EU

  • On 6 April 2020, the European Securities and Markets Authority (ESMA) issues second annual  statistical report on the cost and performance of retail investment products in the European Union.

    The analysis contained in this report complements ESMA’s risk assessment and supervisory convergence work within its investor protection mandate, and contributes to the European Commission’s project on cost and performance of investment products under the Capital Markets Union Action Plan.

    The key findings in the report are the following:

    • Volatile returns: Average fund performance amounted to no more than +0.2% in 2018, while they were +8.3% in gross terms for a one-year investment in 2017. Currently, as the COVID-19 pandemic affects securities markets, fund investors should be prepared to see significant negative impacts on their portfolios;
    • Fund costs: Costs, on the other hand, remained broadly stable and only marginally declined over time: for one-year investments they were 1.5% in 2018 compared to 1.6% in 2017. In cases of low gross annual performance, the cost impact on retail investors’ final returns is stronger;
    • Retail investors: Costs continue to have a significant impact on the final value of an investment, with retail clients paying around 40% more than institutional investors on average across asset classes. A hypothetical ten-year retail investment of EUR 10,000 in equity, bond and mixed funds provided a net return of around EUR 16,160 for the period 2009-2018, with costs amounting to around EUR 2,800;
    • Risks: Higher risk exposures entail higher costs irrespective of the asset class;
    • Active and passive funds:  Although actively managed UCITS funds saw gross outperformance over passive and ETFs UCITS funds, the difference was not high enough to compensate the higher costs charged by active UCITS funds. Costs were higher than 1.5% in the case of active equity UCITS while they hovered around 0.6% for passive and ETFs UCITS, on average; and
    • There is limited comparability across Member States. Heterogeneity and data availability issues persist, also in relation to lack of harmonisation in national regulation and differences in investor preferences.

    For retail alternative investment funds (AIFs), the current report provides information on gross performance, while data on costs continued to be unavailable. Gross returns were negative for the types of AIFs with large retail investor shares: -2.1% for funds of funds and - 3.3% for the category Other. This reflects the poor performance observed across asset classes, especially at the end of 2018.

  • Sustainable Finance / Green Finance

    Council of the EU adopts a unified EU classification system on Sustainable finance

  • On 15 April 2020, the Council of the EU adopted a regulation setting out an EU-wide classification system, or "taxonomy", which will provide businesses and investors with a common language to identify those economic activities which are considered environmentally sustainable.

    The taxonomy will enable investors to refocus their investments on more sustainable technologies and businesses. It will be key to enabling the EU to become climate neutral by 2050 and achieve the Paris agreement's 2030 targets. These include a 40% cut in greenhouse gas emissions, for which the Commission estimates that the EU has to fill an investment gap of about 180 billion EUR per year.

    The future framework will be based on six EU environmental objectives:

    1. climate change mitigation;
    2. climate change adaptation;
    3. sustainable use and protection of water and marine resources;
    4. transition to a circular economy;
    5. pollution prevention and control;
    6. protection and restauration of biodiversity and ecosystems.

    The taxonomy for climate change mitigation and climate change adaptation should be established by the end of 2020 in order to ensure its full application by end of 2021. For the four other objectives, the taxonomy should be established by the end of 2021 for application by the end of 2022.

    The decision was adopted by written procedure. It means that the Council has adopted its position at first reading. The regulation needs to be adopted by the European Parliament at second reading before it can be published in the Official Journal and enter into force.

  • European Commission launches several consultations on Sustainable Finance

  • This month of April, the European Commission launched several consultations on Sustainable Finance and welcomed authorities and industry comments.
    European Commission launches consultation on Renewed Sustainable Finance Strategy

    On 8 April 2020, the European Commission launched a consultation on its Renewed Sustainable Finance Strategy. This is an integral part of the European Green Deal and the Commission's overall efforts to ensure a sustainable and resilient economic recovery following the coronavirus outbreak.
    The aim of this consultation is to collect as many views as possible to feed into the Commission's work to help mobilise private investment in sustainable projects. The ongoing coronavirus outbreak highlights the critical need to strengthen the sustainability and resilience of our economies in the future.
    This renewed strategy will build on previous initiatives and reports, such as the Commission's 2018 Action Plan on Financing Sustainable Growth and the reports of the Technical Expert Group on Sustainable Finance (TEG).
    Within the broader context of the European Green Deal Investment Plan, the renewed strategy will aim to: 

    • create a strong basis to enable sustainable investment; 
    • increase opportunities for citizens, financial institutions and corporates to have a positive impact on society and the environment; and 
    • fully manage and integrate climate and environmental risks into the financial system.

    The consultation will be open until 15 July 2020.
    European Commission launches consultation on Sustainable finance – ESG criteria for benchmarks

    On 8 April 2020, the European Commission launched consultation on Sustainable finance – ESG criteria for benchmarks.
    This initiative requires companies that publish financial benchmarks to explain clearly how environmental, social and governance criteria are reflected for each benchmark/family of benchmarks.
    Benchmarks help traders and investors assess how a company’s sustainability and ethical practices affect its performance.
    The initiative also provides rules on:

    • the extent to which benchmark statements comply with the Paris Climate Agreement
    • the standard format for references to the 3 criteria.

    The objective of this Delegated Regulation is to set out the explanation that is to be included in the benchmark statement about how environmental, social and governance (ESG) factors are reflected in each benchmark or, where applicable, family of benchmarks provided and published.
    Due to their nature and specificities, benchmarks structured on derivative instruments for the transfer of credit risk that refer to price developments of complex structured products, such as credit default swaps, cannot reflect ESG factors. In addition, there are no known indices that are structured on financial contracts for difference or emission allowances. The requirement to explain how ESG factors are reflected in each benchmark or family of benchmarks provided and published should therefore not apply to those benchmarks.

    The consultation runs until 6 May 2020.
    European Commission launches consultation on Financial benchmarking – building in environmental, social & governance criteria
    On 8 April 2020, the European Commission launched consultation on Financial benchmarking – building in environmental, social & governance criteria.

    This initiative requires companies that publish financial benchmarks (‘benchmark administrators’) to provide information on how they build environmental, social and governance factors into their calculations. These criteria help traders and investors assess how a company’s sustainability and ethical practices impact its financial performance and operations.
    They are designed to make it easier to compare assets and make well-informed investment choices.
    The objective of this Delegated Regulation is to lay down the minimum content of the explanation of how the key elements of the benchmark methodology reflect environmental, social and governance (ESG) factors for each benchmark, with the exception of interest rate and foreign exchange benchmarks, as well as the standard format to be used.
    The consultation runs until 6 May 2020.
    European Commission launches consultation on Sustainable finance – minimum standards for climate benchmarks
    On 8 April 2020, the European Commission launched a consultation on Sustainable finance – minimum standards for climate benchmarks.

    This initiative introduces minimum standards to help benchmark administrators design the ‘EU climate transition’ and ‘EU Paris-aligned’ benchmarks. These are labels designed to help investors looking to adopt a low-carbon investment strategy.
    These low-carbon benchmarks aim to:

    • improve transparency and comparability
    • reallocate capital towards climate-friendly investments
    • prevent administrators from making misleading low-carbon claims (‘greenwashing’).

    The objective of this Delegated Regulation is to set out the minimum standards that EU Climate Transition and EU Paris-aligned Benchmarks should meet in order to be labelled as such, and lay down the transparency requirements on the methodology for both benchmarks.
    Feedbacks are open until 6 May 2020.
    ESAs publishes Joint Consultation Paper on ESG disclosures standards for financial market participants
    On 22 April 2020, the European Supervisory Authorities (ESAs) published a joint Consultation Paper on ESG disclosures standards for financial market participants.

    The draft RTS relate to several disclosure obligations under the Sustainable Finance Disclosure Regulation (SFDR) regarding the publication of :

    • the details of the presentation and content of the information in relation to the principle of ‘do not significantly harm’ as set out in Article 2(17) of the SFDR;
    • a statement on an entity’s website of a statement on the due diligence policy in respect of the adverse impact of investment decisions on sustainability factors in relation to climate and other environment-related impacts (Article 4(6)) and adverse impacts in the field of social and employee matters, respect for human rights, anti-corruption and anti-bribery matters (Article 4(7));
    • pre-contractual information;
    • Information on an entity’s website to describe the environmental or social characteristics of financial products or the sustainable investment;
    • Information in periodic reports according to sectorial legislation.

    The consultation is open until 1 September 2020.
    EFAMA publishes Feedback on the development of delegated regulation on climate change mitigation & adaptation
    On 27 April 2020, the European fund and Asset Management Association (EFAMA) published Feedback on the development of delegated regulation on climate change mitigation & adaptation.

    The EFAMA welcomes efforts by the Commission and the TEG to develop a European Taxonomy to provide clarity on what constitutes environmentally sustainable investments, enhance comparability for investors and prevent green washing. Only a well-balanced and clear taxonomy, which can be practically applied by market participants can deliver on the ambition of “shifting the trillions” towards environmentally sustainable investments.
    Many of EFAMA's  members need more time to fully comprehend and test the screening criteria for climate adaptation and mitigation, and DNSH as proposed in the final TEG report. They are also trying to understand how the different pieces of the regulatory puzzle fit together, especially in the context of preparing for the implementation of the Sustainability-Related Financial Disclosures Regulation, which in the meantime has already been amended by the EU Taxonomy Regulation. The timeline for application of different provisions and their respective sequencing is challenging.

  • EU Commission issues a communication on the establishment of a framework to facilitate sustainable investment and amending Regulation 2019/2088 on sustainability-related disclosures in the financial sector

  • On 23 April 2020, the Official Journal of the European Union (OJ) published communication from  the Commission to the European Parliament pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the position of the Council on the adoption of a Regulation of the European Parliament and of the Council on the establishment of a framework to facilitate sustainable investment 2018/0178 (COD), and amending Regulation 2019/2088 on sustainability-related disclosures in the financial services sector.

    The position of the Council reflects the political agreement reached between the European Parliament and the Council on 16 December 2019. The Commission supports this agreement. 

    The political agreement introduced several changes that deviate from the initial Commission proposal, including on the following points: 

    • Extension of the scope of the Regulation
    • Specification of the types of economic activities that can be considered for eligibility
    • Changes in provisions that relate to specific economic activities of interest
    • Extension of the minimum social safeguards 
    • Expansion of the membership and tasks of the Platform on Sustainable Finance 
    • Establishment of a Member State Expert Group 
    • Amendments to the Disclosure Regulation 

    The Commission supports the results of the interinstitutional negotiations and can therefore accept the Council's position at first reading.

  • BELGIUM

    COVID-19 Regulatory Measures

    The Royal decree approving the National Bank of Belgium regulation to reduce the Counter Cyclical Capital Buffer is published

  • On 1 April 2020, Belgium published the Royal decree approving the National Bank of Belgium regulation to reduce the Counter Cyclical Capital Buffer (CCyB), a time varying capital requirement applicable to banks and certain investment firms, in order to support the continued provision of credit by the Belgian banking system to households and businesses during the COVID-19 pandemic.

    The CCyB is reduced to 0% on 1 April 2020.

  • FSMA publishes information addressed to Undertakings for collective investment in the context of COVID-19

  • On 8 April 2020, the Financial Services and Markets Authority (FSMA) published a series of information addressed to Undertakings for collective investment in the context of COVID-19:

    • Despite the exceptional nature of the situation and the difficulties that it could cause for the entities subject to its control, the FSMA expects UCIs to continue to comply with all of the legal and regulatory provisions which apply to them .
    • However, the FSMA is prepared to show the necessary flexibility as far as possible in terms of the practical application of the rules.
    • The FSMA will refrain, in the coming weeks, from taking any initiative which could have the effect of making the UCIs subject to its supervision more burdensome.
    • Regulatory solutions are developed in order to be able to face potential operational risks that could arise, due to the Covid-19 pandemic, when calculating the NAV of UCIs.
    • The FSMA also highlights possible government measures that should be on the table in the coming weeks.
  • Belgium publishes Royal Decree in relation to the organisation of the general shareholders’ meeting

  • On 9 April 2020, Belgium published Royal Decree in relation to the organisation of the general shareholders’ meeting. The current confinement measures make it, in principle, impossible for shareholders and directors to convene physically.  

    Therefore, the Belgian Federal Government adopted a royal decree allowing 

    (i) all legal entities governed by the Belgian Companies and Associations’ Code (companies and associations)

    (ii) all legal entities that acquired legal personality through a specific law and (iii) contractual Institutions for Collective Investment to organise general meetings and board of directors’ meetings in more flexible ways.

    The Decree applies regardless of the rules contained in the articles of association.  It applies to meetings that should have been held or are to be held between 1 March 2020 and 3 May 2020, or in relation to which the convocation notice was or is to be sent or published between those dates.

    The legislator has provided two options:

    • On the one hand, the general meeting can be held without physical presence;
    • On the other hand, general meeting can be postponed to a later date. This applies not only to annual meetings, but also to special and extraordinary meetings.
  • FSMA sets up call center for questions about COVID-19 linked measures

  • On 15 April 2020, the Financial Services and Markets Authority (FSMA) opened a  call center for questions about COVID-19 linked measures. Various measures have been announced to help attenuate the impact of the COVID-19 crisis on consumers, the self-employed and companies. Such measures have been adopted both by the government and by the banking and insurance sector. Anyone who has questions about these can contact the call centre at the Financial Services and Markets Authority (FSMA).

    The FSMA call centre staff will primarily answer questions about the recent measures. As regards questions that are frequently put to the call centre, additional information will also be published on the FSMA website. On the basis of the questions received, regular consultations will be held with the competent ministers, the professional associations of the financial sector and with consumer organizations as regards the trends observed.

  • FSMA communicates on cybersecurity measures due to COVID-19

  • On 15 April 2020, the Financial Services and Markets Authority (FSMA) communicated on cybersecurity measures due to COVID-19. 

    The Covid-19 and government containment measures have forced companies to activate their business continuity plan and adopt new working methods such as homeworking. This development increases the vulnerability of the financial sector to cyber attacks.

    The FSMA draws the attention to the need for increased vigilance with regard to this type of risk due to the major repercussions they could have on operational continuity, already weakened by the Covid-19. The FSMA had already published in October 2019 a communication to help companies implement organizational measures and techniques to protect against cyber risks. This was done in collaboration with the Center for Cybersecurity Belgium and proposed a series of questions on which companies could rely to develop their protection plan against cyber threat.

    The FSMA invites financial sector participants to complete a "Cybersecurity" checklist.

  • FSMA announces a renewal of the prohibition of short selling and similar transaction

  • On 15 April 2020, the Financial Services and Markets Authority (FSMA) announced a renewal of the prohibition of short selling and similar transactions on the regulated market of Euronext Brussels, pursuant to Article 20 of the Regulation (EU) no. 236/2012 of the European Parliament (SSR).

    The renewal of the prohibition of entering into a short sale which might constitute or increase a net short position on stocks admitted to trading to Belgian trading venues, including any transaction which creates, or relates to, a financial instrument and where the effect or one of the effects of that transaction is to confer a financial advantage on the natural or legal person in the event of a decrease in the price or value of another financial instrument, in accordance with Article 20(2) a) and b), taking effect on April 17, 2020 at 00:00:01 AM to May 18, 2020 at 11:59 PM.

    The ban applies regardless of the place where the transaction is executed (i.e. on a trading venue or OTC).

    The measure applies to shares admitted to trading on a Belgian Trading Venue (Euronext Brussels, Euronext Growth Brussels) where the relevant competent authority is the FSMA under MiFID 2 provided that the principal venue for the trading of the shares is located within the EU, as well as to all related instruments relevant for the calculation of the net short position determined in Annex I, part 1, articles 5 and 6 of Commission Delegated Regulation EU Nº 918/2012.The ban applies to index-related instruments and baskets of financial instruments as far as the shares covered by the ban represent more than 50 % of the index or the basket weight.

  • FSMA publishes warning regarding the increased risk of fraud in the context of the COVID-19 pandemic

  • On 22 April 2020, the Financial Services and Markets Authority (FSMA) published warning regarding the increased risk of fraud in the context of the COVID-19 pandemic. The FSMA has concluded that fraudsters are not hesitating to exploit the COVID-19 pandemic to claim new victims and fraudulent investment offers are becoming ever more frequent and take on a variety of forms (emails, advertisements on the internet and social media, cold calling, etc.). The FSMA advises everyone to be even more vigilant when investing during this lockdown period. Moreover, the FSMA underlines that  questions relating to the COVID-19 pandemic, can be directed to its new call center.

  • Belgium publishes Royal Decree laying down specific measures to protect Undertakings for collective investment (UCI) with variable number of public shares against the consequences of the COVID-19 pandemic

  • On 22 April 2020, Belgium published Royal Decree laying down specific measures to protect Undertakings for collective investment (UCI) with variable number of public shares against the consequences of the COVID-19 pandemic.

    The temporary measures concern:

    • The modification of the frequency of calculating the Net Asset Value;
    • Measures aiming to safeguard the liquidity of Undertakings for collective investment (UCI);
    • Postponement of the publication date of the periodic reports.
  • FRANCE

    Alternative investment fund managers Directive (AIFMD)

    AMF evaluates AIFM reporting systems in its SPOT inspections / L'AMF évalue les systèmes de déclaration des gestionnaires de fonds alternatifs dans le cadre de ses inspections SPOT

  • On 24 April 2020, the Autorité des marchés financiers (AMF) evaluated AIFM reporting systems in its SPOT inspections.

    A new series of SPOT inspections (“Supervision des Pratiques Opérationnelle et Thématique”) was carried out in 2019, allowing an assessment of the AIFM reporting systems of five asset management companies, with the objective of checking the quality of the data reported to the regulator and of the internal control procedures in place.

    Through the SPOT inspections, the aim of the AMF was to check the quality of the data that is reported to it and the procedures and controls implemented by asset management companies within the framework of AIFM reporting over the 2017-2018 period.

    For the five companies that were inspected, the regulator examined:

    • the organisation and procedures relating to AIFM reporting, including the control systems for that reporting,
    • the quality and completeness of the data submitted,
    • the methodologies used to calculate leverage, manage liquidity and conduct stress tests,
    • the information provided to investors on leverage and liquidity.

    It is publishing its review of the good and poor practices it observed, also taking account of observations made in the course of three standard inspections conducted in 2019 on the themes of leverage and liquidity, analysis of the data collected by the AMF and its follow-up actions.

    The work revealed in particular that for the financial years 2017 and 2018, the number of reports submitted to the AMF was globally in line with the number of reports expected. However, some data was missing from the reports submitted, related to ISIN and/or LEI codes, management strategy, investor concentration, trading and netting mechanisms for counterparty risk , and the existence of special regimes.

    The asset management companies inspected all had specific AIFM reporting procedures or detailed procedures for calculating leverage, managing liquidity, reporting requirements and carrying out stress tests. However, in some instances, these procedures were not sufficiently operational because they did not provide a framework for the traceability of the data used, the methods used to calculate leverage and the scope of reporting. In some cases, they failed to define the assumptions used for liquidity management under normal market conditions and in times of stress, they did not take into account the time required for settlement of the funds’ assets when establishing their liquidity profile on the liabilities side.

    Regarding the liquidity risk management system, it was complete and operational for most of the entities. However, in some instances, some asset liquidity criteria were only justified by expert opinion, the portfolio distortion caused by liquidating assets was not taken into account, and the time required for securities settlement was not taken into account when estimating the liquidity of the funds. The stress tests carried out by the asset management companies, designed to simulate a crisis situation, were not sufficiently operational.

    In addition, three of the five entities in this SPOT inspection campaign carried out permanent and periodic checks on AIFM reporting. Finally, although asset managers are required to disclose to investors the risks and leverage levels associated with the AIFs they manage, two out of five entities did not provide clear and accurate information on this in the funds’ prospectuses and annual reports.

    As a general rule, the AMF draws the attention of asset management companies to the fact that AIFM reporting should be integrated, as far as possible, into their management processes and internal management tools, in particular with regard to risk management. It should not be viewed as an administrative exercise to be carried out independently and with a different level of requirements from their day-to-day management activities.

    Version française

    Le 24 avril 2020, l'Autorité des marchés financiers (AMF) a évalué les systèmes de déclaration des gestionnaires de fonds alternatifs dans le cadre de ses inspections SPOT.

    Une nouvelle série de contrôles SPOT ("Supervision des Pratiques Opérationnelle et Thématique") a été réalisée en 2019, permettant d'évaluer les systèmes de reporting des gestionnaires de cinq sociétés de gestion, avec pour objectif de vérifier la qualité des données déclarées au régulateur et des procédures de contrôle interne en place.

    A travers les inspections SPOT, l'objectif de l'AMF était de vérifier la qualité des données qui lui sont communiquées et les procédures et contrôles mis en place par les sociétés de gestion d'actifs dans le cadre du reporting des gestionnaires sur la période 2017-2018.

    Pour les cinq sociétés contrôlées, le régulateur a procédé à un examen :

    • l'organisation et les procédures relatives au reporting des gestionnaires, y compris les systèmes de contrôle de ce reporting,
    • la qualité et l'exhaustivité des données soumises,
    • les méthodologies utilisées pour calculer l'effet de levier, gérer la liquidité et effectuer des tests de résistance,
    • les informations fournies aux investisseurs sur l'effet de levier et la liquidité.

    Elle publie son bilan des bonnes et mauvaises pratiques qu'elle a constatées, en tenant compte également des observations faites au cours de trois contrôles standards menés en 2019 sur les thèmes de l'effet de levier et de la liquidité, de l'analyse des données recueillies par l'AMF et de ses suites.

    Les travaux ont notamment révélé que pour les exercices 2017 et 2018, le nombre de rapports soumis à l'AMF était globalement conforme au nombre de rapports attendus. Toutefois, certaines données manquaient dans les rapports présentés, concernant les codes ISIN et/ou LEI, la stratégie de gestion, la concentration des investisseurs, les mécanismes de négociation et de compensation du risque de contrepartie et l'existence de régimes spéciaux.

    Les sociétés de gestion d'actifs inspectées avaient toutes des procédures de déclaration spécifiques aux gestionnaires ou des procédures détaillées pour le calcul du levier, la gestion des liquidités, les exigences de déclaration et la réalisation de simulations de crise. Toutefois, dans certains cas, ces procédures n'étaient pas suffisamment opérationnelles car elles ne fournissaient pas de cadre pour la traçabilité des données utilisées, les méthodes de calcul de l'effet de levier et le champ d'application des rapports. Dans certains cas, elles ne définissaient pas les hypothèses utilisées pour la gestion de la liquidité dans des conditions normales de marché et, en période de tensions, elles ne tenaient pas compte du délai nécessaire au règlement des actifs des fonds lors de l'établissement de leur profil de liquidité au passif.

    En ce qui concerne le système de gestion du risque de liquidité, il était complet et opérationnel pour la plupart des entités. Toutefois, dans certains cas, certains critères de liquidité des actifs n'étaient justifiés que par des avis d'experts, la distorsion du portefeuille causée par la liquidation des actifs n'était pas prise en compte et le délai nécessaire au règlement des titres n'était pas pris en compte lors de l'estimation de la liquidité des fonds. Les tests de stress effectués par les sociétés de gestion d'actifs, destinés à simuler une situation de crise, n'étaient pas suffisamment opérationnels.

    En outre, trois des cinq entités de cette campagne d'inspection SPOT ont procédé à des contrôles permanents et périodiques des déclarations des gestionnaires de fonds alternatifs. Enfin, bien que les gestionnaires d'actifs soient tenus de divulguer aux investisseurs les risques et les niveaux d'endettement associés aux fonds alternatifs qu'ils gèrent, deux des cinq entités n'ont pas fourni d'informations claires et précises à ce sujet dans les prospectus et les rapports annuels des fonds.

    En règle générale, l'AMF attire l'attention des sociétés de gestion sur le fait que le reporting des gestionnaires devrait être intégré, dans la mesure du possible, dans leurs processus de gestion et leurs outils de gestion interne, notamment en ce qui concerne la gestion des risques. Il ne doit pas être considéré comme un exercice administratif à réaliser de manière indépendante et avec un niveau d'exigence différent de celui de leurs activités de gestion quotidienne.

  • Bank Recovery and Resolution Directive (BRRD)

    France publishes Decision No. 2020-CR-03 setting the target for contributions to the National Resolution Fund for 2020 / La France publie la Décision no 2020-CR-03 portant fixation de la cible des contributions au Fonds de résolution national pour 2020

  • On 18 April 2020, Decision No. 2020-CR-03 of  15 April 2020 setting the target for contributions to the National Resolution Fund for 2020 was published in the Official Journal.

    The amount of contributions to the national financing scheme of the resolution for 2020 is set at EUR 9.8 million.

    This amount shall be allocated to the following institutions subject to the national financing scheme of the resolution:

    • credit institutions referred to in Article L. 511-1 of the French Monetary and Financial Code, whose registered office is located in Wallis-et-Futuna, French Polynesia, New Caledonia, Saint-Pierre-et-Miquelon or Saint-Barthélemy;
    • branches of credit institutions of third countries other than Monaco referred to in I of Article L. 511-10 of that code;
    • investment firms and branches of third-country enterprises referred to in point 2 of I of Article L. 613-34 of that Code subject to a share capital requirement;
    • which fall within the definition set out in point a or b of paragraph 1 of Article 96 of Regulation (EU) No 575/2013 referred to above or, 18 April 2020 OFFICIAL JOURNAL OF THE FRENCH REPUBLIC Text 43 on 61
    • which operate a multilateral trading system within the meaning of Article L. 421-1 of the French Monetary and Financial Code but which does not carry out trading activities for own account, underwriting or guaranteed investment; 
    • credit institutions authorized in Monaco.

    Version française

    Le 18 avril 2020, la Décision no 2020-CR-03 du 15 avril 2020 portant fixation de la cible des contributions au Fonds de résolution national pour 2020 a été publiée au Journal officiel.

    Le montant des contributions au régime de financement national de la résolution pour 2020 est fixé à 9,8 millions d'euros.

    Ce montant est alloué aux institutions suivantes soumises au régime de financement national de la résolution :

    • les établissements de crédit visés à l'article L. 511-1 du code monétaire et financier français, dont le siège social est situé à Wallis-et-Futuna, en Polynésie française, en Nouvelle-Calédonie, à Saint-Pierre-et-Miquelon ou à Saint-Barthélemy ;
    • des succursales d'établissements de crédit de pays tiers autres que Monaco visées au I de l'article L. 511-10 dudit code ;
    • les entreprises d'investissement et les succursales d'entreprises de pays tiers visées au Ier point 2 de l'article L. 613-34 dudit code soumises à une obligation de capital social ;
    • qui répondent à la définition figurant à l'article 96, paragraphe 1, point a ou b, du règlement (UE) n° 575/2013 précité ou, le 18 avril 2020 JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE Texte 43 le 61
    • qui exploitent un système commercial multilatéral au sens de l'article L. 421-1 du code monétaire et financier français mais qui n'exercent pas d'activité de négociation pour compte propre, de prise ferme ou de placement garanti ; 
    • les établissements de crédit agréés à Monaco.
  • COVID-19 Regulatory Measures

    France publishes Decree No. 2020-394 of 2 April 2020 on the solidarity fund for enterprises affected by COVID-19 / La France publie le Décret no 2020-394 du 2 avril 2020 relatif au fonds de solidarité pour les entreprises touchées par le COVID-19

  • On 3 April 2020, Decree No 2020-394 of 2 April 2020 amending Decree No 2020-371 of 30 March 2020 on the solidarity fund for enterprises particularly affected by the economic, financial and social consequences of the spread of the COVID-19 epidemic and the measures taken to limit that spread was published in the Official Journal.
    This Decree amends Decree No 2020-371 of 30 March 2020 on the solidarity fund for undertakings particularly affected by the economic, financial and social consequences of the spread of the COVID-19 epidemic and the measures taken to limit that spread, to open up the benefit of the fund to undertakings which have suffered a loss of turnover in excess of 50% during the month of March, instead of 70% previously, and to specify the exchanges of data necessary for the examination of supplementary applications.

    Version française

    Le 3 avril 2020, le Décret n° 2020-394 du 2 avril 2020 modifiant le décret n° 2020-371 du 30 mars 2020 relatif au fonds de solidarité à destination des entreprises particulièrement touchées par les conséquences économiques, financières et sociales de la propagation de l’épidémie de COVID-19 et des mesures prises pour limiter cette propagation a été publié au Journal officiel.
    Ce décret modifie le décret n° 2020-371 du 30 mars 2020 relatif au fonds de solidarité en faveur des entreprises particulièrement touchées par les conséquences économiques, financières et sociales de la propagation de l'épidémie de COVID-19 et aux mesures prises pour limiter cette propagation, afin d'ouvrir le bénéfice du fonds aux entreprises ayant subi une perte de chiffre d'affaires supérieure à 50 % au cours du mois de mars, au lieu de 70 % précédemment, et de préciser les échanges de données nécessaires à l'examen des demandes complémentaires.

  • ANC publishes COVID-19 impact on the financial statements prepared in accordance with French GAAP at December 31, 2019 / L'ANC publie l'impact de COVID-19 sur les comptes établis selon les normes françaises GAAP au 31 décembre 2019

  • On 8 April 2020, the Autorité des normes comptables (ANC) published COVID-19 impact on the annual and consolidated financial statements prepared in accordance with French GAAP at December 31, 2019.
    In France, government measures led to the closure of some businesses and a state of health emergency came into effect on 24 March 2020. The conditions relating to the closure of accounts after January 1, 2020 will be specified in a subsequent communication from the ANC. 

    • Appropriate disclosure must be made in the notes to the financial statements for the year ended December 31, 2019 in respect of events after the balance sheet date,
    • Continuity of activities must be ensured,
    • Taking into account the COVID-19 event for accounts closed as of January 1, 2020.

    Version française

    Le 8 avril 2020, l'Autorité des normes comptables (ANC) a publié l'impact de COVID-19 sur les comptes annuels et consolidés établis selon les normes françaises GAAP au 31 décembre 2019.
    En France, des mesures gouvernementales ont conduit à la fermeture de certaines entreprises et l'état d'urgence sanitaire est entré en vigueur le 24 mars 2020.

    Les conditions relatives à la fermeture des comptes après le 1er janvier 2020 seront précisées dans une communication ultérieure de l'ANC. 

    • Une divulgation appropriée doit être faite dans les notes aux états financiers pour l'exercice clos le 31 décembre 2019 en ce qui concerne les événements postérieurs à la date de clôture
    • La continuité des activités doit être assurée
    • Prise en compte de l'événement COVID-19 pour les comptes clôturés au 1er janvier 2020.
  • ACPR announces flexibility of terms and conditions for the submission of reporting statements for the banking sector / L’ACPR annonce la flexibilité des termes et conditions pour la soumission des déclarations pour le secteur bancaire

  • On 9 April 2020, the Autorité de contrôle prudentiel et de résolution (ACPR) announced a flexibility of terms and conditions for the submission of reporting statements for the banking sector.
    In the light of the Covid 19 pandemic, the EBA invited national authorities in its communiqué issued on 31 March 2020 to show flexibility in the deadlines and modalities for the submission of reporting statements to the supervisory authorities and for the resolution for the deadlines from March to May 2020.
    As regards the reporting statements which submission dates are set by French regulations, it should be noted that they are covered by Ordinance No 2020-306 of 25 March 2020 on the extension of due dates and the adaptation of procedures during the health emergency period.In accordance with the provisions of this Ordinance, the deadlines for regulatory remittances falling due between 12 March and the end of the state of public health emergency (plus one month) are extended to the end of this period, up to a maximum limit of two months. 
    This deferral applies to all prudential and financial remittances (known as "SURFI") - with the exception of SURFI statements meeting the monetary, financial and balance of payments statistics requirements set out in European regulations, as well as to narrative documents and reports, such as the report on internal control, due from all banking sector institutions supervised by ACPR.
    With regard to the prudential (COREP) and accounting (FINREP) statements submitted by Less Significant Institutions (LSIs) within the meaning of the Single Supervision Mechanism Regulation and by certain investment firms, ACPR has decided to be flexible with regard to the deadlines for submission by accepting delays of up to one month, except for those statements whose timely receipt is deemed essential in the context of the current crisis. These are :

    • monthly statements relating to the calculation of liquidity requirements, and 
    • the reports necessary for the development and/or updating of the most important resolution plans.

    Version française

    Le 9 avril 2020, l'Autorité de contrôle prudentiel et de résolution (ACPR) a annoncé un assouplissement des modalités de remise des déclarations pour le secteur bancaire.
    À la lumière de la pandémie Covid 19, l'ACPR a invité les autorités nationales, dans son communiqué publié le 31 mars 2020, à faire preuve de flexibilité dans les délais et les modalités de soumission des déclarations aux autorités de contrôle et de résolution pour les échéances de mars à mai 2020.
    En ce qui concerne les déclarations dont les dates de soumission sont fixées par la réglementation française, il convient de noter qu'elles sont couvertes par l'ordonnance n° 2020-306 du 25 mars 2020 relative à la prolongation des échéances et à l'adaptation des procédures pendant la période d'urgence sanitaire.
    Conformément aux dispositions de cette ordonnance, les délais des remises réglementaires dont l'échéance se situe entre le 12 mars et la fin de l'état d'urgence sanitaire (plus un mois) sont prorogés jusqu'à la fin de cette période, dans la limite de deux mois. Ce report s'applique à tous les transferts prudentiels et financiers (appelés "SURFI") - à l'exception des états SURFI répondant aux exigences des règlements européens en matière de statistiques monétaires, financières et de balance des paiements, ainsi que des documents et rapports narratifs, tels que le rapport sur le contrôle interne, dus par toutes les institutions du secteur bancaire contrôlées par l’ACPR.
    En ce qui concerne les états prudentiels (COREP) et comptables (FINREP) présentés par les institutions de moindre importance (ISL) au sens du règlement relatif au mécanisme de surveillance unique et par certaines entreprises d'investissement, l’ACPR a décidé de faire preuve de souplesse en ce qui concerne les délais de présentation en acceptant des retards pouvant aller jusqu'à un mois, sauf pour les états dont la réception en temps voulu est jugée essentielle dans le contexte de la crise actuelle. Il s'agit des déclarations :

    • les relevés mensuels relatifs au calcul des besoins de liquidités, et 
    • les rapports nécessaires à l'élaboration et/ou à la mise à jour des plans de résolution les plus importants.
  • France publishes Decree No.2020-418 adapting the rules of meeting of assemblies and governing bodies / La France publie le Décret N°2020-418 du 10 avril 2020 adaptant les règles de réunion des assemblées et organes dirigeants

  • On 11 April 2020, Decree No. 2020-418 of 10 April 2020 adapting the rules of meeting and deliberation of assemblies and governing bodies of legal persons and entities without legal personality under private law as a result of the COVID epidemic-19 was published in the Official Journal.
    The decree lays down implementing measures for Decree No. 2020-321 of 25 March 2020 and provides for all legal persons and entities without legal personality under private law: the conditions that the delegation provided for in Article 4 of this decree must satisfy, in particular the requirement of a written document, whatever the mean (paper or electronic in particular) and provided that the body competent to convene the meeting or its delegate decides so, the possibility of sending voting instructions in the context of postal voting, as well as mandates, by electronic message to the electronic address indicated for this purpose in the notice of meeting; and certain references to the minutes of meetings held.
    In addition, in order to facilitate their holding in the context of the COVID-19 epidemic, the decree adapts the regulatory provisions relating to meetings of limited liability companies, certain joint stock companies and holders of certain types of securities, as applicable, concerning : 

    • the possibility of voting by electronic means of telecommunication, open without the need for a clause in the articles of association to this effect; 
    • the exercise of mandates (other than mandates without the appointment of a proxy holder); 
    • the choice by shareholders of how they wish to participate in the general meeting; 
    • and the composition of the officers of the general meeting when the meeting is held without the shareholders attending in person or by telephone or audiovisual conference. 

    It also adapts, for the same purposes, certain regulatory provisions of the Insurance Code relating to meetings and collegial administrative, governance or management bodies.

    Version française

    Le 11 avril 2020, le Décret no 2020-418 du 10 avril 2020 portant adaptation des règles de réunion et de délibération des assemblées et organes dirigeants des personnes morales et entités dépourvues de personnalité morale de droit privé en raison de l’épidémie de COVID-19 a été publié au Journal Officiel.
    Le décret porte mesures d’application de l’ordonnance no 2020-321 du 25 mars 2020 et prévoit, pour l’ensemble des personnes morales et entités dépourvues de personnalité morale de droit privé : les conditions que la délégation prévue à l’article 4 de cette ordonnance doit satisfaire, en particulier l’exigence d’un écrit, quel qu’en soit le support (papier ou électronique notamment) ; à condition que l’organe compétent pour convoquer l’assemblée ou son délégataire le décide ait la possibilité d’adresser les instructions de vote dans le cadre du vote par correspondance, ainsi que les mandats, par voie de message électronique à l’adresse électronique indiquée à cet effet dans la convocation ; et certaines mentions du procès-verbal des assemblées tenues.
    Par ailleurs, afin de faciliter leur tenue dans le contexte de l’épidémie de COVID-19, le décret adapte les dispositions réglementaires relatives aux assemblées des sociétés à responsabilité limitée, de certaines sociétés par actions et des porteurs de certains types de valeurs mobilières, selon le cas, concernant :

    • la possibilité de voter par des moyens électroniques de télécommunication, ouverte sans qu’une clause des statuts ne soit nécessaire à cet effet
    • l’exercice des mandats (autres que les mandats sans désignation de mandataire)
    • le choix par les actionnaires de leur mode de participation à l’assemblée générale
    • et la composition du bureau de l’assemblée générale lorsque celle-ci se tient sans que les actionnaires n’y assistent physiquement ou par conférence téléphonique ou audiovisuelle.
  • AMF updates FAQs on net short positions in equities (version: 15 April 2020) / L'AMF met à jour les FAQ sur les positions courtes nettes (version : 15 avril 2020)

  • On 15 April 2020, the Autorité des marchés financiers (AMF) updated its FAQs on net short positions in equities (version: 15 April 2020).
    This prohibition applies from March 18, 2020 at 12 a.m. until May 18, 2020 at 11:59 p.m.
    The new questions are the following: 

    • To which financial instruments does the prohibition apply?
    • What about investors holding a mixed position through a portfolio of equities and through derivatives?
    • If a fund manager acts on behalf of multiple funds, should the calculation of the net short position be made at the fund-specific or manager level or both?
    • For entities belonging to a group, should the calculation of the net short position be made at the entity level or group level or both?

    Version française

    Le 15 avril 2020, l'Autorité des marchés financiers (AMF) a mis à jour ses FAQ sur les positions courtes nettes en actions (version : 15 avril 2020).
    Cette interdiction s'applique du 18 mars 2020 à 12 heures au 18 mai 2020 à 23h59.
    Les nouvelles questions sont les suivantes : 

    • À quels instruments financiers l'interdiction s'applique-t-elle ?
    • Qu'en est-il des investisseurs détenant une position mixte par le biais d'un portefeuille d'actions et par les produits dérivés ?
    • Si un gestionnaire de fonds agit pour le compte de plusieurs fonds, le calcul de la position courte nette doit-il être effectué au niveau du fonds ou du gestionnaire, ou des deux ?
    • Pour les entités appartenant à un groupe, le calcul de la position courte nette doit-il être effectué au niveau de l'entité ou du groupe, ou les deux ?
  • AMF announces the extension of the net short position ban until 18 May 2020 / L'AMF annonce la prolongation de l'interdiction des positions courtes nettes jusqu'au 18 mai 2020

  • On 15 April 2020, the Autorité des marchés financiers (AMF) announced the extension of the net short position ban until 18 May 2020.
    Given that the current exceptional circumstances still represent a serious threat to market confidence, the AMF Board has decided to renew the ban until 18 May 2020, a decision initially taken on 17 March 2020, pursuant to Article L 421-16 II of the code monétaire et financier and Article 20 of the European Short Selling Regulation.
    This decision has been forwarded to the European Securities and Markets Authority (ESMA). It will be the subject of an opinion from ESMA, which will be published on its website.
    This ban to create all net short positions or increase of all net short positions applies to persons established or resident in France or abroad when the position involves a share admitted to trading on a trading venue in France and the share falls under the jurisdiction where the AMF is the relevant competent authority. The ban is applicable from 18 March 2020 at 00:00 hours until 18 May 2020 at 23:59 pm.
    The AMF reminds market participants that the ban does not concern market making activities carried out by persons who are exempted under article 17 of the Short Selling Regulation.

    Version française

    Le 15 avril 2020, l'Autorité des marchés financiers (AMF) a annoncé la prolongation de l'interdiction des positions courtes nettes jusqu'au 18 mai 2020.
    Étant donné que les circonstances exceptionnelles actuelles représentent toujours une menace sérieuse pour la confiance des marchés, le Collège de l'AMF a décidé de renouveler l'interdiction jusqu'au 18 mai 2020, décision initialement prise le 17 mars 2020, en application de l'article L 421-16 II du code monétaire et financier et de l'article 20 du règlement européen sur les ventes à découvert.
    Cette décision a été transmise à l'Autorité européenne des marchés financiers (AEMF). Elle fera l'objet d'un avis de l'AEMF, qui sera publié sur son site internet.
    L'interdiction de créer toute position courte nette ou d'augmenter toute position courte nette s'applique aux personnes établies ou résidant en France ou à l'étranger lorsque la position porte sur une action admise à la négociation sur une place de marché en France et que l'action relève de la compétence de l'Autorité des marchés financiers. L'interdiction est applicable du 18 mars 2020 à 00h00 au 18 mai 2020 à 23h59.
    L'AMF rappelle aux acteurs du marché que l'interdiction ne concerne pas les activités de tenue de marché exercées par des personnes bénéficiant d'une dérogation au titre de l'article 17 du règlement sur les ventes à découvert.

  • France publishes Ordinance No.2020-427 on provisions relating to time limits for dealing with the COVID-19 / La France publie l'Ordonnance n° 2020-427 du 15 avril 2020 portant des dispositions sur les délais pour faire face au COVID-19

  • On 16 April 2020, Ordinance No. 2020-427 of 15 April 2020 on various provisions relating to time limits for dealing with the COVID-19 epidemic was published in the Official Journal as well as the report to the President of the Republic concerning the above mentioned ordinance.

    The date for the completion of the derogative system is only provisional. It will need to be reviewed in the context of the legislative measures to prepare for and accompany the end of containment. It was announced in the allocation of 13 April 2020 that the end of containment should be organised from 11 May 2020.

    This Ordinance amends the general provisions on the extension of the deadlines. The text completes the list of time limits, measures and obligations excluded from the scope of Title I of Decree No 2020-306 of 25 March 2020 on the extension of time limits during the period of public health emergency and the adaptation of procedures during that period.

    The purpose of the exemptions provided is, with regard to measures concerning the fight against money laundering and terrorist financing, to ensure the immediate implementation by the entities subject to the asset freezing measures to combat terrorist financing and proliferation decided by the Treasury Directorate General, in accordance with international and European obligations, and to enable the Tracfin national intelligence service to be informed, which is necessary for its intelligence activities, which are essential to the fight against money laundering and terrorist financing, but also to the fight against financial crime in general.

    The derogations also concern the reporting obligations to the Organisme pour le registre unique des intermédiaires en assurance, banque et finance (ORIAS) for intermediaries in insurance and reinsurance as well as in banking and payment services operations on their principals, on insurance undertakings with which these intermediaries have taken out a contract in respect of their professional civil liability and on credit institutions or finance companies with which they have taken out a financial guarantee in order to ensure that the information concerning them is kept up to date for private individuals as well as for insurance undertakings and credit institutions wishing to ensure the regular distribution of the products and services offered.

    It is necessary to ensure the continuity of market supervision, of the operations carried out by issuers and players such as portfolio management companies, custodians, financial investment advisers, non-trading property investment companies, asset managers, intermediaries in banking operations and payment services in times of crisis, as well as the continuity of systems.

    Version française

    Le 16 avril 2020, l'Ordonnance n° 2020-427 du 15 avril 2020 portant diverses dispositions en matière de délais pour faire face à l’épidémie de COVID-19 a été publié au Journal Officiel ainsi que le rapport au Président de la République concernant l'ordonnance susmentionnée.
    La date d'achèvement du régime dérogatoire n'est que provisoire. Elle devra être revue dans le cadre des mesures législatives visant à préparer et à accompagner la fin du confinement. Il a été annoncé dans l'allocation du 13 avril 2020 que la fin du confinement devrait être organisée à partir du 11 mai 2020.
    Cette ordonnance modifie les dispositions générales relatives à la prolongation des délais. Le texte complète la liste des délais, mesures et obligations exclus du champ d'application du titre I du décret n° 2020-306 du 25 mars 2020 relatif à la prolongation des délais pendant la période d'urgence sanitaire et à l'adaptation des procédures pendant cette période.
    Les exemptions prévues ont pour objet, en ce qui concerne les mesures relatives à la lutte contre le blanchiment de capitaux et le financement du terrorisme, d'assurer la mise en œuvre immédiate par les entités soumises aux mesures de gel des avoirs pour lutter contre le financement du terrorisme et la prolifération décidées par la Direction générale du Trésor, conformément aux obligations internationales et européennes, et de permettre l'information du service national de renseignement Tracfin, nécessaire à ses activités de renseignement, essentielles à la lutte contre le blanchiment de capitaux et le financement du terrorisme, mais aussi à la lutte contre la criminalité financière en général.
    Les dérogations concernent également les obligations de déclaration à l'Organisme pour le registre unique des intermédiaires en assurance, banque et finance (ORIAS) pour les intermédiaires en assurance et réassurance ainsi qu'en opérations bancaires et de paiement sur leurs commettants, sur les entreprises d'assurance avec lesquelles ces intermédiaires ont conclu un contrat relatif à leur responsabilité civile professionnelle et sur les établissements de crédit ou les sociétés financières avec lesquels ils ont souscrit une garantie financière afin d'assurer la mise à jour des informations les concernant pour les particuliers ainsi que pour les entreprises d'assurance et les établissements de crédit souhaitant assurer la distribution régulière des produits et services offerts.
    Il est nécessaire d'assurer la continuité de la surveillance du marché, des opérations effectuées par les émetteurs et les acteurs tels que les sociétés de gestion de portefeuille, les dépositaires, les conseillers en investissements financiers, les sociétés d'investissement immobilier non commerciales, les gestionnaires d'actifs, les intermédiaires dans les opérations bancaires et les services de paiement en temps de crise, ainsi que la continuité des systèmes.

  • AMF informs shareholders and listed companies of the measures taken to organize general meetings during COVID-19 / L'AMF informe les actionnaires et les sociétés cotées des mesures prises pour organiser les assemblées générales pendant le COVID-19

  • On 16 April 2020, the Autorité des marchés financiers (AMF) informed shareholders and listed companies of the exceptional measures taken to organize general meetings during COVID-19 pandemic.
    The AMF draws the attention of savers to the specific terms of participation in the 2020 general meetings in this exceptional and difficult context of health crisis. It recommends that listed companies follow certain good practices, where possible.
    In application of the emergency law of March 23, 2020 to deal with the covid-19 epidemic, the government has made by ordinance (dated March 25) several measures to simplify and adapt the rules for convening, information, meeting and deliberation of general meetings. 
    The temporary derogations are applicable to meetings held from March 12, 2020 and until July 31, 2020, unless the deadline is extended until a date fixed by decree of the Council of State and no later than November 30, 2020.
    In accordance with its previous recommendations, the AMF strongly encourages shareholders to exercise their voting rights, a fundamental shareholder prerogative, essential for the proper functioning and sound governance of issuers.

    • An exclusively remote vote in the event of a general meeting behind closed doors, and except in special cases, to be expressed before the general assembly;
    • Good practices for issuers: when an issuer decides to take advantage of the provisions allowing it to organize a general meeting behind closed doors and that all or part of the convening formalities have been completed prior to the date of this decision, the shareholders are informed as soon as possible by press release, the effective and full distribution of which is ensured by the company. If the convening formalities have not been completed by this date, the shareholders are informed of this decision via the convening documents, but the publication of a press release which the company ensures is effectively and fully distributed is also encouraged;
    • The possibility of postponing general meetings: Some listed companies have announced their decision to postpone their general meeting for several weeks. The AMF reminds issuers that they can, if they consider it appropriate in this exceptional context of health crisis, postpone the date of their general meeting, in particular under the conditions provided for by ordinance No. 2020-318 of 25 March 2020;
    • Companies that would modify their dividend proposal, its date or its payment terms, must communicate it as soon as the decision is made.

    Version française

    Le 16 avril 2020, l'Autorité des marchés financiers (AMF) a informé les actionnaires et les sociétés cotées des mesures exceptionnelles prises pour organiser les assemblées générales lors de la pandémie COVID-19.
    L'AMF attire l'attention des épargnants sur les modalités spécifiques de participation aux assemblées générales 2020 dans ce contexte exceptionnel et difficile de crise sanitaire. Elle recommande aux sociétés cotées de suivre, dans la mesure du possible, certaines bonnes pratiques.
    En application de la loi d'urgence du 23 mars 2020 pour faire face à l'épidémie de COVID-19, le gouvernement a pris par ordonnance (en date du 25 mars) plusieurs mesures visant à simplifier et à adapter les règles de convocation, d'information, de réunion et de délibération des assemblées générales. 
    Les dérogations temporaires sont applicables aux réunions tenues à partir du 12 mars 2020 et jusqu'au 31 juillet 2020, sauf prolongation du délai jusqu'à une date fixée par décret en Conseil d'État et au plus tard le 30 novembre 2020.
    Conformément à ses précédentes recommandations, l'AMF encourage vivement les actionnaires à exercer leur droit de vote, prérogative fondamentale des actionnaires, indispensable au bon fonctionnement et à la bonne gouvernance des émetteurs.

    • Un vote exclusivement à distance en cas d'assemblée générale à huis clos, et sauf cas particuliers, à exprimer devant l'assemblée générale ;
    • Bonnes pratiques pour les émetteurs : lorsqu'un émetteur décide de se prévaloir des dispositions lui permettant d'organiser une assemblée générale à huis clos et que tout ou partie des formalités de convocation ont été accomplies avant la date de cette décision, les actionnaires sont informés dans les meilleurs délais par un communiqué de presse dont la diffusion effective et intégrale est assurée par la société. Si les formalités de convocation n'ont pas été accomplies à cette date, les actionnaires sont informés de cette décision par le biais des documents de convocation, mais la publication d'un communiqué de presse dont la société assure la diffusion effective et intégrale est également encouragée ;
    • La possibilité de reporter les assemblées générales : certaines sociétés cotées ont annoncé leur décision de reporter leur assemblée générale de plusieurs semaines. L'AMF rappelle aux émetteurs qu'ils peuvent, s'ils le jugent opportun dans ce contexte exceptionnel de crise sanitaire, reporter la date de leur assemblée générale, notamment dans les conditions prévues par l'ordonnance n° 2020-318 du 25 mars 2020 ;
    • Les sociétés qui modifieraient leur proposition de dividende, sa date ou ses modalités de paiement, doivent le communiquer dès que la décision est prise.
  • AMF publishes clarifications on information to publish for listed companies in the quarter in the COVID-19 context / L'AMF publie des précisions sur l'information à publier pour les sociétés cotées au cours du trimestre dans le cadre du COVID-19

  • On 17 April 2020, the Autorité des marchés financiers (AMF) published clarifications on information to publish for listed companies communicating in the quarter in the COVID-19 context.
    The AMF, aware of the great difficulties encountered by companies under current conditions, wishes to recall a few principles in order to support issuers in the preparation of their quarterly communications.
    The AMF reminds that the publication of quarterly information is not required by regulation but that it is recommended to adopt a clear and stable course of action over time on this subject. In the current specific context, some issuers may be unable to publish reliable quarterly information, or may be forced to change the usual format.
    However, the absence of financial communication for a long period is not favorable to the proper functioning of the market and Article 17 of Regulation No 596/2014 also provides that the issuer "make public, as soon as possible, inside information concerning him ”. 
    The AMF therefore invites issuers, who have reliable data, to continue to publish quarterly information. 
    For issuers encountering difficulties in respecting the publication dates on which they had previously communicated, they may be forced to delay publication. The AMF invites the companies concerned to communicate their new publication calendar to the market as soon as possible and to approach the AMF.

    Version française

    Le 17 avril 2020, l’ Autorité des marchés financiers (AMF) a publié des précisions sur l'information à publier pour les sociétés cotées communiquant au trimestre dans le cadre du COVID-19.
    L'AMF, consciente des grandes difficultés rencontrées par les sociétés dans les conditions actuelles, souhaite rappeler quelques principes afin d'accompagner les émetteurs dans la préparation de leur communication trimestrielle.
    L'AMF rappelle que la publication de l'information trimestrielle n'est pas imposée par la réglementation mais qu'il est recommandé d'adopter une ligne de conduite claire et stable dans le temps sur ce sujet. Dans le contexte spécifique actuel, certains émetteurs peuvent ne pas être en mesure de publier une information trimestrielle fiable, ou peuvent être contraints de modifier le format habituel.
    Cependant, l'absence de communication financière pendant une longue période n'est pas favorable au bon fonctionnement du marché et l'article 17 du règlement n° 596/2014 prévoit également que l'émetteur "rend publiques, dans les meilleurs délais, les informations privilégiées le concernant". 
    L'AMF invite donc les émetteurs, qui disposent de données fiables, à continuer à publier une information trimestrielle. 
    Pour les émetteurs qui rencontrent des difficultés à respecter les dates de publication qu'ils avaient précédemment communiquées, ils peuvent être contraints de retarder la publication. L'AMF invite les sociétés concernées à communiquer au marché leur nouveau calendrier de publication dans les meilleurs délais et à se rapprocher de l'AMF.

  • AMF updates information on measures taken to organize general meetings for shareholders in the context of COVID-19 / L'AMF met à jour l'information sur les mesures prises pour organiser les assemblées générales des actionnaires dans le cadre de COVID-19

  • On 17 April 2020, the Autorité des marchés financiers (AMF) informed shareholders and listed companies of the exceptional measures taken to organize general meetings in the context of COVID-19.
    The AMF draws the attention of savers to the specific terms of participation in the 2020 general meetings in this exceptional and difficult context of health crisis. It recommends that listed companies follow certain good practices, where possible.
    In application of the emergency law of March 23, 2020 to deal with the COVID-19 epidemic, the government has adopted by ordinance (dated March 25) several measures to simplify and adapt the rules for convening, information, meeting and deliberation of general meetings. Their objective: " to face the consequences of the spread of COVID-19 and the measures taken to limit this spread  ".
    As indicated in the Report to the President of the Republic relating to the aforementioned ordinance, “  the application of this exceptional device is subject to one condition: the assembly must be convened in an affected place, on the date of the convocation ( understood in the broad sense, which includes, in listed companies, the notice of meeting) or that of the meeting, by an administrative measure limiting or prohibiting collective gatherings for health reasons  ”.
    These temporary derogations, applicable to meetings held from March 12, 2020 and until July 31, 2020, unless the deadline is extended until a date fixed by decree of the Council of State and no later than November 30, 2020.
    In accordance with its previous recommendations, the AMF strongly encourages shareholders to exercise their voting rights, a fundamental shareholder prerogative, essential for the proper functioning and sound governance of issuers.

    • An exclusively remote vote in the event of a general meeting behind closed doors, and except in special cases, to be expressed before the GA
    • Good practices for issuers
    • The possibility of postponing general meetings.

    Version française

    Le 17 avril 2020, l'Autorité des marchés financiers (AMF) a informé les actionnaires et les sociétés cotées des mesures exceptionnelles prises pour organiser les assemblées générales dans le cadre de COVID-19.
    L'AMF attire l'attention des épargnants sur les modalités spécifiques de participation aux assemblées générales 2020 dans ce contexte exceptionnel et difficile de crise sanitaire. Elle recommande aux sociétés cotées de suivre, dans la mesure du possible, certaines bonnes pratiques.
    En application de la loi d'urgence du 23 mars 2020 pour faire face à l'épidémie de COVID-19, le gouvernement a adopté par ordonnance (en date du 25 mars) plusieurs mesures visant à simplifier et à adapter les règles de convocation, d'information, de réunion et de délibération des assemblées générales. Leur objectif : "faire face aux conséquences de la propagation de la COVID-19 et aux mesures prises pour limiter cette propagation".
    Comme indiqué dans le Rapport au Président de la République relatif à l'ordonnance précitée, " l'application de ce dispositif exceptionnel est soumise à une condition : l'assemblée doit être convoquée dans un lieu concerné, à la date de la convocation (entendue au sens large, ce qui inclut, dans les sociétés cotées, la convocation) ou à celle de l'assemblée, par une mesure administrative limitant ou interdisant les rassemblements collectifs pour des raisons de santé ".
    Ces dérogations temporaires, applicables aux assemblées tenues à partir du 12 mars 2020 et jusqu'au 31 juillet 2020, sauf prolongation du délai jusqu'à une date fixée par décret en Conseil d'Etat et au plus tard le 30 novembre 2020.
    Conformément à ses précédentes recommandations, l'AMF encourage vivement les actionnaires à exercer leur droit de vote, prérogative fondamentale de l'actionnaire, indispensable au bon fonctionnement et à la bonne gouvernance des émetteurs.

    • Un vote exclusivement à distance en cas d'assemblée générale à huis clos, et sauf cas particuliers, à exprimer devant l'AG
    • Bonnes pratiques pour les émetteurs
    • La possibilité de reporter les assemblées générales.
  • CSCA publishes communication from authorities and insurance companies concerning COVID-19 exceptional measures / Le CSCA publie une communication des autorités et des compagnies d'assurance concernant les mesures exceptionnelles COVID-19

  • On 20 April 2020, the Courtage d'Assurances (CSCA) published communications from authorities and insurance companies concerning COVID-19 exceptional measures.
    At a time when the insurance sector as a whole is going to have a major role to play in meeting the immediate, material and financial needs of its clients, natural persons (in particular for health care costs) and legal persons, it is essential that adjustment measures be taken as soon as possible to help the citizens and to enable economic activity to continue.
    The insurance companies respond in more or less detail to this situation, via a set of individual initiatives that PLANETE CSCA makes available.

    Version française

    Le 20 avril 2020, la Cour d'assurances (CSCA) a publié une communication des autorités et des compagnies d'assurance concernant les mesures exceptionnelles COVID-19.
    A l'heure où le secteur des assurances dans son ensemble va avoir un rôle majeur à jouer pour répondre aux besoins immédiats, matériels et financiers de ses clients, personnes physiques (notamment pour les frais de santé) et personnes morales, il est essentiel que des mesures d'adaptation soient prises dans les meilleurs délais pour aider les citoyens et permettre la poursuite de l'activité économique.
    Les compagnies d'assurance répondent de manière plus ou moins détaillée à cette situation, par un ensemble d'initiatives individuelles que PLANETE CSCA met à disposition.

  • Financial market infrastructure

    AMF publishes Annual Report 2019 / L'AMF publie son rapport annuel 2019

  • On 29 April 2020, the Autorité des marchés financiers (AMF) published its Annual Report 2019.
    The year 2019 was marked by the following themes: 

    • Brexit
    • Sustainable finance with the actions launched by the AMF and support for professionals for transparent information
    • The implementation of the Pacte law and its numerous implications and the entry into force of the Prospectus directive. 

    Version française

    Le 29 avril 2020, l'Autorité des marchés financiers (AMF) a publié son rapport annuel 2019.
    L'année 2019 a été marquée par les thèmes suivants : 

    • Brexit
    • La finance durable avec les actions lancées par l'AMF et le soutien aux professionnels pour une information transparente
    • La mise en œuvre de la loi Pacte et ses nombreuses implications et l'entrée en vigueur de la directive Prospectus.
  • Financial supervision

    AMF approves new trading rules on Euronext / L'AMF approuve les nouvelles règles de négociation sur Euronext

  • On 2 April 2020, the Autorité des marchés financiers (AMF) issued Decision of February 18, 2020 on the amendments to the operating rules of the Euronext Access relating to the Warrants and Certificates market segment.
    The amendments to the operating rules of the Euronext Access NMS as annexed to this Decision are approved. They shall enter into force on the date determined by Euronext Paris S.A.

    Version française

    Le 2 avril 2020, l'Autorité des marchés financiers (AMF) a publié une décision du 18 février 2020 relative aux modifications des règles de fonctionnement du SMN Euronext Access relative au segment de marché Warrants et Certificats.
    Les modifications des règles de fonctionnement du NMS Euronext Access telles qu'annexées à cette décision sont approuvées. Elles entrent en vigueur à la date déterminée par Euronext Paris S.A.

  • Investment Funds / Collective Investment Schemes (CIS) / Asset Management

    AFG publishes guide on Liquidity risk management tools in open-ended funds / L'AFG publie un guide sur les outils de gestion du risque de liquidité dans les fonds ouverts

  • On 6 April 2020, the Association Française de Gestion (AFG) published a guide on Liquidity risk management tools in open-ended funds.
    Liquidity risk management is a major concern for asset managers, particularly in the context of open-ended funds, in terms of ensuring the liquidity disclosed to investors in accordance with the fundamental principles of equal treatment of investors and market integrity.
    The proposal is to list in this guide the mechanisms currently available for French funds, whether UCITS or AIFs: swing pricing and anti dilution levies (ADLs), notice periods (either of mandatory or incentive type), redemption gates, in-kind redemptions, “side pockets” and temporary suspension of redemptions. 
    These techniques are often used in different situations depending on the degree of liquidity deterioration.

    Version française

    Le 6 avril 2020, l'Association française de gestion (AFG) a publié un guide sur les outils de gestion du risque de liquidité dans les fonds ouverts.
    La gestion du risque de liquidité est une préoccupation majeure des gestionnaires d'actifs, notamment dans le cadre des fonds ouverts, en termes de garantie de la liquidité divulguée aux investisseurs, conformément aux principes fondamentaux d'égalité de traitement des investisseurs et d'intégrité du marché.
    Il est proposé d'énumérer dans ce guide les mécanismes actuellement disponibles pour les fonds français, qu'il s'agisse d'OPCVM ou de fonds alternatifs : swing pricing et prélèvements anti-dilution, délais de préavis (de type obligatoire ou incitatif), échelles de rachat, rachats en nature, "side pockets" et suspension temporaire des rachats. Ces techniques sont souvent utilisées dans différentes situations en fonction du degré de détérioration des liquidités.

  • AFG comments on ESMA guidelines on UCITS and AIFs ' performance fees / L'AFG commente les lignes directrices de l'AEMF sur les commissions de performance des OPCVM et des fonds alternatifs

  • On 15 April 2020, the Association Française de Gestion (AFG) commented on ESMA guidelines on UCITS and AIFs ' performance fees.
    The AFG believes that most of the ESMA guidelines are useful indications to ensure that the models used in the various European countries meet the objective of aligning the interests of the fund and its investors.
    However, the ESMA guidelines go too far by imposing a single model based on a reference period of at least 5 years, without any real prior impact study at European level. Imposing such a time horizon without any distinction of asset class, strategy or recommended holding period is likely to jeopardise the virtuous models existing in other European countries, such as France, probably prompting their managers to abandon them in favour of higher fixed costs. 
    The association believes that one of the main objectives of the regulator's work should be to maintain a viable fee model that can be based on performance fees. This model would make it possible to strengthen the alignment of interests between investors and management companies by sharing profits when results are satisfactory or by charging lower fixed fees when results are not.
    In light of the above analysis, the AFG, exceptionally, is in favour of partial application of these guidelines, i.e. maintaining most of its provisions, but asks that the application of an observation period of at least five years be optional rather than mandatory.

    Version française

    Le 15 avril 2020, l'Association française de gestion (AFG) a commenté les lignes directrices de l'AEMF sur les commissions de performance des OPCVM et des fonds alternatifs.
    L'AFG estime que la plupart des lignes directrices de l'ESMA sont des indications utiles pour s'assurer que les modèles utilisés dans les différents pays européens répondent à l'objectif d'alignement des intérêts du fonds et de ses investisseurs.
    Cependant, les lignes directrices de l'ESMA vont trop loin en imposant un modèle unique basé sur une période de référence d'au moins 5 ans, sans véritable étude d'impact préalable au niveau européen. Imposer un tel horizon temporel sans distinction de classe d'actifs, de stratégie ou de période de détention recommandée risque de mettre en péril les modèles vertueux existant dans d'autres pays européens, comme la France, ce qui incitera probablement leurs gestionnaires à les abandonner au profit de coûts fixes plus élevés. 
    L'association estime que l'un des principaux objectifs du travail du régulateur devrait être de maintenir un modèle de frais viable qui puisse être basé sur des commissions de performance. Ce modèle permettrait de renforcer l'alignement des intérêts entre les investisseurs et les sociétés de gestion en partageant les bénéfices lorsque les résultats sont satisfaisants ou en facturant des frais fixes moins élevés lorsque les résultats ne le sont pas.Au vu de l'analyse qui précède, l'AFG est exceptionnellement favorable à une application partielle de ces lignes directrices, c'est-à-dire au maintien de la plupart de ses dispositions, mais demande que l'application d'une période d'observation d'au moins cinq ans soit facultative plutôt qu'obligatoire.

  • France publishes a Decree establishing the list of collective investments whose management is exempt from value added tax / La France publie un Décret fixant la liste des placements collectifs dont la gestion est exonérée de la taxe sur la valeur ajoutée

  • On 30 April 2020, Decree No. 2020-493 of 28 April 2020 establishing the list of collective investments whose management is exempt from value added tax pursuant to Article 33 of Law No. 2019-1479 of 28 December 2019 was published in the Official Journal.
    The decree lists collective investments whose management benefits from an exemption from value added tax in application of of 1° of article 261 C of the General Tax Code (CGI).

    Version française

    Le 30 avril 2020, le Décret n° 2020-493 du 28 avril 2020 fixant la liste des placements collectifs dont la gestion est exonérée de la taxe sur la valeur ajoutée en application de l’article 33 de la loi n° 2019-1479 du 28 décembre 2019 a été publié au Journal Officiel.
    Le décret énumère les placements collectifs dont la gestion bénéficie d'une exonération de la taxe sur la valeur ajoutée en application du 1° de l'article 261 C du Code général des impôts (CGI).

  • Shareholders' Rights Directive (SRD II)

    AMF publishes Guide on Voting in general meetings / L'AMF publie un guide sur le vote en assemblée générale

  • On 16 April 2020, the Autorité des marchés financiers (AMF) published a Guide on Voting in general meetings.
    This guide is mainly intended for individual shareholders of French companies listed in Paris. It identifies the resolutions most frequently presented at a general meeting, explains them and proposes criteria to be considered in determining the choice of vote. 
    It should help to participate fully in general meetings of companies in which individuals are shareholders. It lists the resolutions most frequently presented at General Meetings, explains them and proposes criteria to be considered in determining the choice of vote. 
    The choice of how to vote at a shareholders' meeting is up to each shareholder. The purpose of this guide is not to recommend one voting policy rather than another, but to provide shareholders with all the tools they need to make an informed decision. This guide presents the most frequent resolutions. Other resolutions may be submitted to a vote of the shareholders. The AMF invites shareholders to read all the legal documents published by listed companies before their general meeting.

    Version française

    Le 16 avril 2020, l'Autorité des marchés financiers (AMF) a publié un Guide sur le vote en assemblée générale.
    Ce guide est principalement destiné aux actionnaires individuels des sociétés françaises cotées à Paris. Il recense les résolutions les plus fréquemment présentées en assemblée générale, les explique et propose des critères à prendre en compte pour déterminer le choix du vote. 
    Il devrait aider à participer pleinement aux assemblées générales des sociétés dont les personnes physiques sont actionnaires. Il recense les résolutions les plus fréquemment présentées en assemblée générale, les explique et propose des critères à prendre en compte pour déterminer le choix du vote. 
    Le choix du mode de vote à une assemblée générale appartient à chaque actionnaire. L'objectif de ce guide n'est pas de recommander une politique de vote plutôt qu'une autre, mais de fournir aux actionnaires tous les outils dont ils ont besoin pour prendre une décision éclairée. Ce guide présente les résolutions les plus fréquentes. D'autres résolutions peuvent être soumises au vote des actionnaires. L'AMF invite les actionnaires à prendre connaissance de tous les documents juridiques publiés par les sociétés cotées avant leur assemblée générale.

  • AMF proposes several targeted measures concerning shareholder activism / L'AMF propose plusieurs mesures ciblées concernant l'activisme actionnarial

  • On 28 April 2020, the Autorité des marchés financiers (AMF) proposed several targeted measures concerning shareholder activism.
    France saw unprecedented debate in 2019 on the behaviour of "activist" funds and the need to govern such practices better. As regulator, and following on from the public reports on this subject, the AMF proposes a number of targeted measures to enhance transparency for the market and dialogue between issuers and shareholders.The active involvement of shareholders in the life of listed companies is a necessary condition for their proper functioning and sound governance. In this respect, the AMF considers that it should be encouraged. For the regulator, the challenge therefore is not how to prevent activism, but how to set limits and make sure that it is able to control excesses.
     The aim of the AMF proposals is to:

    • enhance transparency on stake-building and knowledge of the shareholder structure, by lowering the first legal notification threshold and making public any statutory threshold crossing reported to the company;
    • ensure better information for the market regarding investors’ financial exposure, by supplementing the reporting on net short positions by information on the debt instruments also held by the investor (bonds and credit default swaps, for example). The AMF will support such proposals on the European level;
    • foster an open, loyal dialogue between listed companies and their shareholders: the AMF will supplement its guide on ongoing information and management of inside information to include certain developments on shareholder dialogue. It will add to its policy to specify that, subject to compliance with the rules on market abuse, issuers may provide the market with any necessary information in reply to public statements concerning them, even during "quiet periods". It will also recommend that any shareholder who initiates a public campaign should immediately disclose to the issuer in question the material information that it would send to the other shareholders;
    • increase the analysis and response capabilities of the AMF to enable swift and appropriate answers when the circumstances so require: for example, via the introduction of a power to impose fines with regard to administrative injunctions and the possibility to order any investor, and no longer only an issuer, to make corrective or supplementary publications if errors or omissions have been identified in its public statements.

    Version française

    Le 28 avril 2020, l'Autorité des marchés financiers (AMF) a proposé plusieurs mesures ciblées concernant l'activisme actionnarial.
    La France a connu en 2019 un débat sans précédent sur le comportement des fonds "activistes" et la nécessité de mieux encadrer ces pratiques. En tant que régulateur, et dans le prolongement des rapports publics sur ce sujet, l'AMF propose un certain nombre de mesures ciblées pour renforcer la transparence du marché et le dialogue entre les émetteurs et les actionnaires.L'implication active des actionnaires dans la vie des sociétés cotées est une condition nécessaire à leur bon fonctionnement et à une bonne gouvernance. A cet égard, l'AMF considère qu'elle doit être encouragée. Pour le régulateur, l'enjeu n'est donc pas de prévenir l'activisme, mais de fixer des limites et de s'assurer qu'il est en mesure de contrôler les excès.
     L'objectif des propositions de l'AMF est de :

    • améliorer la transparence sur la prise de participation et la connaissance de la structure de l'actionnariat, en abaissant le premier seuil légal de notification et en rendant public tout franchissement de seuil statutaire déclaré à la société ;
    • assurer une meilleure information du marché sur l'exposition financière des investisseurs, en complétant la déclaration des positions courtes nettes par une information sur les titres de créance également détenus par l'investisseur (obligations et credit default swaps, par exemple). L'AMF soutiendra de telles propositions au niveau européen ;
    • favoriser un dialogue ouvert et loyal entre les sociétés cotées et leurs actionnaires : l'AMF complétera son guide sur l'information permanente et la gestion de l'information privilégiée par certains développements sur le dialogue avec les actionnaires. Elle complétera sa politique en précisant que, sous réserve du respect des règles relatives aux abus de marché, les émetteurs peuvent fournir au marché toute information nécessaire en réponse aux déclarations publiques les concernant, même pendant les "quiet periods". Elle recommandera également que tout actionnaire qui lance une campagne publique communique immédiatement à l'émetteur en question les informations importantes qu'il enverrait aux autres actionnaires ;
    • de renforcer les capacités d'analyse et de réaction de l'AMF pour permettre des réponses rapides et appropriées lorsque les circonstances l'exigent : par exemple, par l'introduction d'un pouvoir d'infliger des amendes en matière d'injonctions administratives et la possibilité d'ordonner à tout investisseur, et non plus seulement à un émetteur, de procéder à des publications correctives ou complémentaires si des erreurs ou des omissions ont été identifiées dans ses déclarations publiques.
  • GERMANY

    COVID-19 Regulatory Measures

    BaFin publishes statement on Market Abuse Regulation in the context of COVID-19

  • On 3 April 2020, the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) published statement on Market Abuse Regulation in the context of COVID-19. BaFin trusts that the parties subject to the reporting requirements under Article 16 (1) and (2) of the MAR (Market Abuse Regulation) have appropriate systems and procedures in place for monitoring market abuse in order for suspicious orders and transactions to be detected and reported to BaFin even in changed working and market conditions. The suspicious transaction and order reports (STORs) are to be made within a reasonable period of time, with account taken of both the impact from the coronavirus crisis as well as the circumstances underlying the case at hand.

  • Financial supervision

    BaFin publishes its Supervisory priorities for 2020

  • On 15 April 2020, the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) informed the general public and the financial institutions concerned about the supervisory priorities that BaFin sets as part of its strategic planning and legal mandate.
    BaFin has identified four overarching priority areas for 2020 that are of major significance for all of its Sectors:

    1. digitization, IT risk and cyber risk;
    2. the integrity of the financial system and the fight against financial crime;
    3. sustainable business models;
    4. sustainable finance.
  • Shareholders' Rights Directive (SRD II)

    BaFin issues a communication about implementation of SHRD II in Germany and clarifies definitions

  • On 29 April 2020, the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) issued a communication about implementation of SHRD II in Germany. The German Act Implementing the Second Shareholder Rights Directive (Gesetz zur Umsetzung der zweiten Aktionärsrechterichtlinie – ARUG II) is intended to improve shareholder engagement. In addition, new transparency and disclosure requirements have been put in place for institutional investors and asset managers supervised by BaFin. However, BaFin does not actively monitor compliance with these requirements. ARUG II has brought about key changes for life insurers and other companies under BaFin’s supervision that invest in the capital market. These key changes, which entered into force on 1 January 2020, concern the definitions of the terms “institutional investor” and “asset manager” as well as new transparency and disclosure requirements in the German Stock Corporation Act (Aktiengesetz – AktG). The Federal Office of Justice (Bundesamt für Justiz – BfJ) has been given responsibility for monitoring compliance with the transparency and disclosure requirements under sections 134b and 134c of the AktG. BaFin for its part does not actively monitor compliance with the provisions of the AktG but still takes account of violations of the requirements as part of its regular supervisory activities.

  • HONG KONG

    COVID-19 Regulatory Measures

    SFC publishes Joint Statement in relation to General Meetings in light of the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation

  • On 1 April 2020, the Securities and Futures Commission (SFC) published Joint Statement in relation to General Meetings in light of the Prevention and Control of Disease (Prohibition on Group Gathering) Regulation, which clarifies that:a) Annual general meetings as required under the Companies Ordinance (Cap. 622) and/or the Main Board Listing Rules or the GEM Listing Rules are in general exempted under Paragraph 11. (b) Extraordinary general meetings and special general meetings of Hong Kong-listed issuers are exempted under Paragraph 11 if the meeting must be held within the specified period in order to comply with:

    • any law or regulation in Hong Kong or overseas that is applicable to the listed issuer or a subsidiary of the listed issuer (as part of the listed issuer's business
    • any Main Board Listing Rules or GEM Listing Rules or The Codes on Takeovers and Mergers and Share Buy-backs;
    • the issuer's own memorandum or articles of association; or
    • other regulatory instrument.


    Notwithstanding Paragraph 11, listed issuers should also:

    • consider whether it is possible to adjourn or delay their general meetings for a reasonable period until after the specified period has ended.
    • take all practicable precautions to ensure the safety of attendees, if deciding to proceed with a physical general meeting during the specified period.
    • keep investors and other stakeholders informed, listed issuers that have called a general meeting during the specified period should, as soon as practicable, publish an announcement.
  • SFC publishes Circular to issuers of SFC-authorized paper gold schemes

  • On 20 April 2020, the Securities and Futures Commission (SFC) published Circular to issuers of SFC-authorized paper gold schemes.
    In view of the recent volatility in local and international markets caused by the COVID-19 outbreak, PGS Issuers are reminded to:

    (i) exercise due skill, care and diligence in the operations of the PGS;

    (ii) closely monitor the dealings by investors under the PGS;

    (iii) ensure that units of PGS are fairly and accurately valued in good faith and in the best interests of investors in accordance with the constitutive and offering documents of the PGS as well as applicable laws and regulations;

    (iv) ensure the continuous provision of material information and services to investors (including pricing and dealings of the units of PGS) in accordance with the constitutive and offering documents of the PGS; and

    (v) keep investors informed in a timely manner and immediately report to the Investment Products Division of the SFC (“IPD/SFC”) any untoward circumstances relating to their PGS (including any decision to suspend subscription and/or redemption) and potential impact on the PGS.

  • Derivative Financial Instruments (Derivatives)

    SFC cautions on crude oil futures - Circular to commodity futures brokers on Managing financial and operational risks under extreme market conditions

  • On 24 April 2020, the Securities and Futures Commission (SFC) published Circular to commodity futures brokers on Managing financial and operational risks under extreme market conditions. 
    The Securities and Futures Commission (SFC) required commodity futures brokers to take precautionary measures to manage the risks of trading crude oil futures contracts. Brokers were reminded not to open new positions for clients who do not fully understand these contracts or do not have the financial capability to bear the potential losses. They were also urged to collect sufficient margin from clients in light of the upcoming public holidays in Hong Kong.
    Commodity futures brokers are urged to control their exposures to clients, including by taking the following measures.

    (a) Monitor and address individual clients’ concentration risks in a timely manner.

    (b) Prudently set clients’ trading limits and position limits to ensure that they are commensurate with the client’s financial strength and settlement history, as well as the firm’s financial resources.

    (c) Prudently set margin requirements for clients.

    (d) Only open new positions for clients after collecting sufficient margins.

    (e) Promptly collect outstanding margin calls from clients.

  • Investment Funds / Collective Investment Schemes (CIS) / Asset Management

    SFC cautions on ETFs - Circular to management companies of SFC-authorized exchange traded funds and to intermediaries on Futures-based ETFs

  • On 24 April 2020, the Securities and Futures Commission (SFC) published Circular to management companies of SFC-authorized exchange traded funds and to intermediaries on Futures-based ETFs.

    The SFC reminded managers of SFC-authorised futures-based exchange-traded funds (ETFs) to remain vigilant so that in extreme market conditions the funds can be managed in the best interests of investors. In addition, firms were reminded to ensure compliance with the conduct requirements when providing trading services for futures-based ETFs.

    In particular, the Managers are reminded to:

    (i) ensure that the relevant margin obligations are and will be fulfilled in a timely manner for ETFs that invest in futures;

    (ii) closely monitor the market movements of the underlying investments of the ETFs and ensure that there are proper contingency plans in place to respond to extreme market movements;

    (iii) ensure that any actions taken or to be taken by the Managers must be permitted under the ETF’s constitutive documents, and comply with the applicable laws and regulatory requirements. The Managers should also consult the relevant trustee or custodian of the ETF before taking such actions;

    (iv) promptly and efficiently communicate these actions to investors of the ETF, taking into account any possible delay of communication due to the administrative arrangements and other requirements; and

    (v) give the SFC early alerts of any untoward circumstances relating to the ETFs under their management.

  • SFC publishes amended Mutual Recognition of Funds (MRF) between Switzerland and Hong Kong

  • On 24 April 2020, the Securities and Futures Commission (SFC) published amended version of the Mutual Recognition of Funds (MRF) between Switzerland and Hong Kong. The main amendments are as followings:

    • The Memorandum provides a recognition of asset managers as well as a framework for mutual recognition of publicly offered funds in both markets. “Public Offering” or “publicly offered” means:
      a. in Switzerland any offer of CIS to non-qualified investors which requires authorisation under the Swiss Federal Act on Collective Investment Schemes (CISA) and/or
      b. in Hong Kong any offer (including marketing, sales and distribution) of CIS to the public which requires authorization under the Securities and Futures Ordinance (Chapter 571 of the Laws of Hong Kong) (SFO).
    • Requirements on management companies:
      a. The Recognised Swiss Fund must be managed by a Swiss Fund Management Company that is authorised by FINMA to manage publicly offered securities funds pursuant to Swiss laws and regulations and in accordance with Article 32 f. FinIA.
      b. The Swiss Fund Management Company of a Recognised Swiss Fund may, provided that the provisions of Article 35 FinIA are met, delegate the investment management decisions to Swiss Asset Managers in accordance with Art. 2 para. 1 let c FinIA or any person authorized to manage collective investment schemes operating in one of the acceptable inspection regimes recognized under 5.1 of the UT Code.
  • IRELAND

    COVID-19 Regulatory Measures

    IF publishes Summary Note for Covid19 Webinar for Investment Management's Designated Persons (DP)

  • On 2 April 2020, the Irish Funds Industry Association (IF) published a Summary Note for Covid19 Webinar for Investment Management's Designated Persons (DP).
     The discussion covered various issues:

    • DPs for investment management should be aware that the industry is in unprecedented times, with no stress tests that could have foreseen the volatility and price declines in the market.  
    • DPs should consider what impact redemption have on the underlying portfolio if more liquid securities are being sold off and the impact / implications on the profile, make up and future behaviour of investors in a fund. 
    • If market moves continues for further weeks, boards are likely to have to consider difficult decisions regarding gating or suspensions to protect investors and this could impact the portfolio especially when deciding which assets to sell or to build liquidity back up within the portfolio. 
    • Sales teams may have some insight on investor behaviour, and they may have good connectivity with investors with valuable information on sentiment and future flows to assist with prediction and stress testing.  
    • Firms should have prep work done in terms of logistically and procedurally what needs to be done to implement gates etc., so decisions can be made quickly. 

    Any DP or firm that has or anticipates issues should raise these with the CBI, who have committed to provide prompt and pragmatic responses. 

  • ITALY

    Alternative investment fund managers Directive (AIFMD)

    Banca d'Italia and CONSOB launch a consultation on the supervision of SIMPLE INVESTMENT COMPANIES - SIS

  • On the 30th of April,  Banca d'Italia and CONSOB launched a consultation on the supervision of SIS. SiS can be defined as the Italian alternative investment fund (AIF) set up in the form of a SICAF which manages its assets and meets the following conditions: 

    • the net assets do not exceed 25 million euros;
    • the only object of the activity is represented by direct investment of the assets in SMEs not listed on regulated markets, that are in experimentation, establishment and start-up phase 
    • the SIS does not use leverage; and 
    • has a share capital at least equal to that indicated by the civil code for S.p.A.

    Since SIS have limited dimensions, they fall within the scope of the simplified regime described in Directive 2011/61 / EU on alternative investment funds (AIFMD Directive).The matters covered by this consultation include: general organizational requirements, risk management systems and internal control systems, delegation of activities, insurance for professional responsibility, policies to reduce risk, criteria to evaluate the assets owned by the SIS, decisional processes, and circumstances in which the SIS owns more resources than allowed.

  • COVID-19 Regulatory Measures

    CONSOB suspends until May 15, 2020 the payment of fees from supervised entities

  • On the 7th of April 2020, CONSOB decided to extend the deadline for the payment of supervisory fees from supervised entities until May 15, 2020.

  • Banca d'Italia shares the module to be used to report on the implementation of financial measures following COVID-19 crisis

  • On the 15th of April 2020, Banca d'Italia shared information for citizens who would like to report after having encountered problems in using the financial support measures made available to deal with the COVID-19 crisis. 
    The initiative was launched because Banca d'Italia is part of a task force monitoring the correct application of measures launched by the government.

  • Banca d'Italia communicates the suspension of all administrative procedures and CONSOB publishes clarifications on the suspension of procedures

  • On 23 March 2020, Banca d'Italia communicated that all administrative procedures which were either pending or not started on the 23rd of February 2020 would be suspended. as decided based on the Decree published on the Gazzetta Ufficiale n. 70 of the 17th of March 2020. 

    Plus, on 25 March 2020, CONSOB published further information concerning the scope of suspension of procedures under its jurisdiction, following the introduction of art 103, paragraph 1, of the decree-law of the 17th of March 2020, no. 18, containing measures related to the epidemiological emergency from COVID-19. Such clarifications cover administrative procedures, precautionary and urgent measures, and communication with CONSOB itself.

  • Trading rules

    CONSOB publishes resolution no. 21318, describing market practices aiming to maintain liquidity on the market

  • On the 7th of April 2020 CONSOB published resolution no. 21318 delineating new trading rules aiming to maintain liquidity on the market. The practice described is based on  the (UE) regulation 2016/908 of the Commission, dated February 26th 2016. The practice allows an issuer to conclude a contract with an intermediary aiming to maintain / support liquidity on market. The purpose is to encourage smooth negotiations and avoid price movements not in line with market trends. This resolution is being published on the Gazzetta Ufficiale and will be official 30 days after publication on it.

  • LUXEMBOURG

    COVID-19 Regulatory Measures

    CSSF updates FAQ COVID-19 (2 April 2020)

  • On 2 April 2020, the Commission de Surveillance du secteur financier (CSSF) published an updated version of its FAQ COVID-19. The updated version includes one additional question:  Can the deadlines for the reports to be submitted by UCIs, SIFs, SICARs, investment fund managers, pension funds and securitisation undertakings be extended? 
    The deadlines for the submission of various documents may be extended provided that the CSSF is informed thereof. 

    • The annual reporting O 4.1./ O.4.2 (UCI) on the basis of Circular IML 97/136 to be submitted to the CSSF within four months (for UCITS)/six months (for non-UCITS) as from the reference date - this deadline may be extended until 30 June 2020; 
    • The monthly reporting O 1.2. (UCIs with formal guarantee) to be submitted to the CSSF within 10 days following the end of the month - this deadline may be extended until 30 June 2020;
    • The quarterly reporting G.2.1. (SIAG/FIAAG) on the basis of Circular CSSF 18/698 to be submitted to the CSSF within 20 calendar days following the end of the preceding month - this deadline may be extended until 31 August 2020; 
    • The quarterly reporting G.2.1. (management companies subject to Chapters 15 and 16, AIFMs) on the basis of Circular CSSF 15/633 to be submitted to the CSSF within 20 calendar days following the end of the preceding month - this deadline may be extended to 40 calendar days following the end of the preceding month;  
    • The management letter on the basis of Circular CSSF 02/81 to be submitted to the CSSF within four months (for UCITS)/six months (for non-UCITS) as from the reference date - an additional period of three months may be granted; 
    • The semi-annual reporting K3.1 (SICAR) on the basis of Circular CSSF 08/376 to be submitted within 45 calendar days following the reference date - this reporting may be suspended until further notice; 
    • The semi-annual reporting URR (UCITS Risk Reporting) to be submitted within 45 calendar days following the reference date - the CSSF will notify of a possible postponement in due time; 
    • The closing documents to be provided annually by IFMs pursuant to sub-points (3) to (15) of point (3) of Annex 2 to Circular CSSF 18/698 to be submitted within five months following the closing date of the IFM’s financial year - for the IFMs which closed their financial year on 31/12/2019, this deadline may be extended until 31/08/2020; for the IFMs whose financial year closed after 31/12/2019, this deadline may also be extended by three months; 
    • The management letter to be submitted by IFMs within the month following the ordinary general meeting that approved the annual accounts and at the latest seven months after the closing date of the IFM’s financial year - an additional period of one month may be granted; 
    • The quarterly reporting of authorised AIFMs with the list of managed AIFs - this deadline is extended until 30 June 2020; 
    • The quarterly reporting to be submitted by pension funds within 20 calendar days following the end of the preceding quarter - this deadline may be extended until 20 July 2020; 
    • The management letter to be submitted by pension funds within six months following the closing date of the financial year - this deadline is extended until 31 August 2020; 
    • The actuarial report to be submitted by pension funds within six months following the closing date of the financial year - this deadline may be extended until 30 September 2020; 
    • The management letter to be submitted by authorised securitisation undertakings within six months following the closing date of the financial year - an additional period of two months may be granted; 
    • The quarterly reporting VaR & Leverage (UCITS) - this reporting may be suspended until further notice;  
    • The monthly reporting Money Market Funds (UCITS/AIF) - this reporting may be suspended until further notice; 
    • The reporting Early Warning on large redemptions (UCITS) - this reporting may be suspended until further notice.
  • CRF publishes note on COVID-19 typologies

  • On 2 April 2020, the Cellule de renseignement financier (CRF) published note on COVID-19 typologies. 
    The purpose of this note is to:

    • Inform professionals subject to the amended law of 12 November 2004 on the fight against money laundering and the financing of terrorism on the existence of this documentation; 
    • Educate professionals about the schemes described in the document;
    • Share a first set of indicators related to fraud in connection with COVID-19, 
    • Obtain feedback, in order to complete this list of indicators.
  • Conseil d'Etat du Luxembourg comments on Draft Law extending certain disclosure and publication deadlines for annual and consolidated financial statements during the COVID-19 crisis

  • On 3 April 2020, the Conseil d'Etat du Luxembourg commented on the Draft Law extending certain disclosure and publication deadlines for annual and consolidated financial statements and related reports during the COVID-19 crisis situation.
    The draft law aims to extend by three months the deadlines for the filing and publication of annual accounts, consolidated accounts and related reports. 
    This text allows the bodies of all companies or other legal entities to hold their meetings, and in particular general meetings and boards of directors, without requiring the physical presence of their members.
    The Conseil d'État notes that the measures provided for in the draft law under review will result in deadlines that will fall outside the period during which the state of crisis will prevail, as set by the law of 24 March 2020 extending the state of crisis declared by the Grand Ducal regulation. These measures must therefore be adopted by the ordinary legislative procedure.
    The Conseil d'Etat notes that, owing to the very short deadlines within which it had to give its opinion because of the urgency imposed by the current crisis situation, it was not able to explore with the necessary rigour and completeness all the possible ins and outs of the bill under opinion.

  • CSSF updates FAQs on CCOVID-19 (version 7 April 2020)

  • On 7 April 2020, the Commission de Surveillance du Secteur Financier (CSSF) updated its FAQs on Covid-19  (version 7 April 2020) with the two following questions concerning  Swing Pricing.
    Question 4.b) Can UCIs increase the applied swing factor beyond the maximum swing factor laid down in the fund prospectus in the following situations: 

    • where the fund prospectus formally offers the possibility to the Board of Directors of the UCI or, if applicable, the Management Company to go beyond the maximum level under certain predefined conditions?
    • where the fund prospectus does not offer the possibility to the Board of Directors of the UCI or, if applicable, the Management Company to go beyond the maximum level laid down in the prospectus?

    Question 4.c) To what extent can a UCI increase the applied swing factor beyond the maximum swing factor disclosed in the fund prospectus?

  • CSSF updates FAQ on Swing Pricing Mechanism

  • On 20 March 2020, the Commission de Surveillance du secteur financier (CSSF) updated its FAQ on the use of swing pricing (applied similarly to dilution levy) by UCIs (UCITS, UCI Part II & SIFs), in the context of the financial market developments around the Coronavirus (COVID-19).

    1. Can UCIs (UCITS, UCI Part II & SIFs) increase the swing factor to be applied on the NAV up to the maximum level laid down in the prospectus?
      Answer: Yes, this can be done without prior notification to the CSSF.
    2. Can UCIs increase the applied swing factor beyond the maximum swing factor laid down in the fund prospectus in the following situations:
      2.1. where the fund prospectus formally offers the possibility to the Board of Directors of the UCI or, if applicable, the Management Company to go beyond the maximum level under certain predefined conditions?
      Answer: The Board of Directors of the UCI or, if applicable, the Management Company can decide to increase the swing factor in accordance with the provisions and conditions of the prospectus. The decision must be duly justified and take into account the best interest of the investors. 
      2.2. where the fund prospectus does not offer the possibility to the Board of Directors of the UCI  or, if applicable, the Management Company to go beyond the maximum level laid down in the prospectus? 
      Answer: The CSSF permits on a temporary basis the Board of Directors of the UCI or, if applicable, the Management Company, given the current exceptional market circumstances involved by the COVID-19, to increase the swing factor beyond the maximum level mentioned in the UCI prospectus. This decision must again be duly justified and take into account the best interest of the investors.
    3. To what extent can a UCIs increase the applied swing factor beyond the maximum swing factor disclosed in the fund prospectus?
      The maximum swing factor could be raised beyond the maximum level laid down in the UCI prospectus on a temporary basis provided the following minimum elements are observed:
      - the revised swing factors are the result of a robust internal governance process and are based on a robust methodology (including market / transaction data based analysis) that provides for an accurate NAV which is representative of prevailing market conditions;
      - an appropriate communication is made to investors through the usual communication channels, such as the ordinary notice to investors, through the fund’s internet website or other way as disclosed in the prospectus.
  • CSSF launches a new weekly questionnaire to investment fund managers - updates on financial data and governance arrangements

  • On 9 April 2020, the Commission de Surveillance du secteur financier (CSSF) informed on the launch of a new weekly questionnaire to investment fund managers - updates on financial data and governance arrangements.
    The objective of this questionnaire is to provide the CSSF with 

    • weekly updates on financial data (total net assets, subscriptions and redemptions) and 
    • an update on governance arrangements in relation to the activities performed by IFMs established in Luxembourg or in other European/non-European countries and managing at least one UCITS, AIF and/or any other UCI (not qualifying as AIF), 
    • in view of the specific circumstances and risks to which these companies are exposed to during the current period of market turbulence. 

    The CSSF asks for firms' cooperation to provide the questionnaire on a weekly basis by Wednesday close of business (COB) at the latest:

    • In order to allow sufficient time for IFMs to prepare in the current context, the first questionnaire, covering the week from 13 April 2020 to 17 April 2020, shall be submitted to the CSSF by 22 April 2020 close of business. 
    • The following questionnaire covering the week from 20 April 2020 to 24 April 2020 shall then be delivered to the CSSF, in accordance with the general principles outlined in the User Guide available in the eDesk portal, by Wednesday, 29 April 2020 close of business.
  • ChD publishes amendments to Draft Law 7541 on the extension of the time limits for filing and publishing annual reports, consolidated reports and related reports during the state of crisis

  • On 9 April 2020, the Chambre des députés - Luxembourg published the adopted amendments to Draft Law 7541 on the extension of the time limits for filing and publishing annual reports, consolidated reports and related reports during the state of crisis. The main key amendments are:

    • As the Luxembourg legislator has provided for a shorter publication deadline, i.e.7 months after the end of the financial year. this bill remains below the maximum of 12 months provided for by European law and therefore remains compliant, despite the 3-month extension bringing the maximum filing / publication deadline to 10 months in Luxembourg.
    • The annual general meeting of companies referred to in article 8 of the Code of trade may be convened on a date which is within a period of nine months after the end of the financial year.
  • ChD publishes amendments to Draft Law 7540 extending certain time limits provided for in sectoral laws of the financial sector during a state of crisis

  • On 9 April 2020, the Chambre des députés - Luxembourg published the adopted amendments to Draft Law 7540 extending certain time limits provided for in sectoral laws of the financial sector during a state of crisis, the main amendments are as followings:

    • Notwithstanding Article 71of the law of 17 June 1992 relating to the accounts of credit institutions, the deadline for publication of the annual reports and related reports to the Recueil Electronique des Sociétés et Associations (LBR) referred to in this article is extended for three months. 
    • Concerning article 87 of the coordinated law of 8 December 1994 on the annual reports and consolidated accounts of insurance and reinsurance companies, the deadline for publication of annual accounts and related reports in the LBR referred to in this article is extended for three months.
  • CSSF publishes Circular CSSF 20/740 on Financial crime and AML/CFT implications during the COVID-19 pandemic

  • On 10 April 2020, the Commission de Surveillance du secteur financier (CSSF) published Circular CSSF 20/740 on Financial crime and AML/CFT implications during the COVID-19 pandemic.
    The purpose of this Circular is to provide guidance to all professionals subject to anti-money laundering and counter-terrorism financing (AML/CFT) supervision of the CSSF in relation to the money laundering and terrorism financing (ML/TF) risks and AML/CFT implications of the COVID-19 pandemic. 
    The CSSF therefore requires that supervised professionals continue to put in place and maintain effective systems and controls to ensure that Luxembourg’s financial system is not abused for ML/TF purposes.


    Main key points of this guidance:

    1. Emerging ML/TF threats from COVID-19: Criminals around the world are taking advantage of the COVID-19 pandemic and are finding new ways to generate illicit funds. New and emerging ML/TF threats concern the most vulnerable in society as well as the general public at large. They include:

    • Those crimes that represent both a significant operational risk for financial institutions and a ML/TF threat – namely cybercrime and fraud;
    • Those crimes where the risk to financial institutions is primarily related to the laundering of illicit proceeds – namely bribery and corruption, trafficking in counterfeit goods, robbery or theft, and insider trading and market manipulation. 

    2. Emerging ML/TF vulnerabilities: The CSSF acknowledges that it is possible that specific areas in the Luxembourg financial sector could be exploited by emerging ML/TF threats and therefore encourages all professionals to remain vigilant. There are several vulnerabilities that may be particularly relevant. These include:

    • online payment services; 
    • clients in financial distress; 
    • mortgages and other forms of collateralised lending; 
    • credit backed by government guarantees; 
    • distressed investment products; and 
    • delivery of aid through non-profit organisations. 

    3. Mitigation of emerging ML/TF risks: In response to new and emerging risks, CSSF expects supervised professionals to continue to implement and maintain effective systems and controls to ensure that the financial system is not abused or misused for ML/TF purposes. In order to adapt to the changing nature of the ML/TF risk created by the pandemic, the CSSF stresses several areas that require particular focus for supervised professionals;

    • AML/CFT business continuity;
    • transaction monitoring; 
    • customer due diligence (CDD); 
    • ML/TF risk assessment; and 
    • cooperation with authorities. 

    CSSF also encourages professionals to consult the CRF’s recent guidance on COVID-19 typologies, which includes several indicators of suspicious activity.

    4. CSSF approach to AML/CFT supervision during COVID-19

    • The CSSF remains deeply committed to combatting ML/TF and ensuring that the risks arising from and within the Luxembourg financial sector are effectively managed and mitigated.
    • The CSSF remains fully operational and has implemented several measures to ensure it meets the operational challenges associated with AML/CFT supervision during this time. 
    • Whilst the priority of the CSSF is the health of its staff, the CSSF will continue AML/CFT supervisory activities during this period. 
    • The CSSF continues to communicate with supervised professionals in relation to AML/CFT throughout this period. 
    • The CSSF will also continue to cooperate closely and exchange information with other national authorities in order to maintain and further strengthen Luxembourg’s national AML/CFT regime. 
  • CSSF updates FAQs on COVID-19 (version 14 April 2020)

  • On 14 April 2020, the Commission de Surveillance du Secteur Financier (CSSF) updated its FAQs on COVID-19 with 2 new questions and a table for the scope of application for all of the existing questions.
    The 2 new Q&As are as followings:Q11, Applies to UCI, SIFs, SICARS, management companies, alternative investment fund managers: What is the CSSF’s position concerning the deadlines applicable under the UCITS Directive and under the AIFMD for annual and half-yearly reports? The CSSF intends to comply with the ESMA statement on 9 April 2020, meaning that:

    • The investment fund managers which anticipate that the annual and half-yearly reports will be published beyond the regulatory deadlines, must inform the CSSF promptly thereof, only by email and solely at the following address opc@cssf.lu, with an indication of the reasons for the delay and, to the extent possible, the estimated date of publication. 
    • They must also inform the investors as soon as practicable of this delay, the reasons for such a delay and, to the extent possible, the estimated date of publication.


    Q12, Applies to BanksWhat is the flexibility offered by IFRS 9 in order to mitigate volatility in the banks’ regulatory capital, financial statements and reporting of the banks regarding the COVID-19 pandemic? It reflects the statements and guidance issued by European and international bodies and covers two points:  

    1. “Procyclicality”; and 
    2. Transitional arrangements.  

    While banks are encouraged to use such flexibility when preparing their accounting and risk statements, they are required to continue to apply sound and prudent risk management, in particular with respect to the potential crystallisation of COVID-19 related risks. Sound and prudent risk management requires that the deterioration of borrowers’ creditworthiness is fully reflected in the financial situation and the risk and regulatory metrics of the banks. Furthermore, it cannot be excluded that exposures, which are given the short term flexible treatment outlined below, bring about losses beyond the short term horizon. Therefore, banks are required to monitor key financial statements (forbearance and non performing exposures, expected credit loss) and regulatory metrics (solvency) under the assumption that the flexible treatment for such exposures is no longer warranted. 

  • Luxembourg government informs on the Postponement FATF AML/CFT evaluation report on Luxembourg

  • On 14 April 2020, the Luxembourg government informed that following the Covid-19 crisis, the Financial Action Task Force (FATF) and FATF-Style Regional Bodies (FSRBs) have taken precautionary measures which will have an impact on the evaluation schedule. Therefore, the Luxembourg evaluation report will be discussed at the plenary in October 2021.

  • CSSF updates FAQs on COVID-19 (version 16 April 2020)

  • On 14 April 2020, the Commission de Surveillance du Secteur Financier (CSSF) updated its FAQs on Covid-19 with 4 new questions:

    • Question 15 applies to UCI, SIFs, SICARS, management companies, alternative investment fund managers:
      What is the CSSF’s position concerning the deadlines applicable under the UCITS Directive and under the AIFMD for annual and half-yearly reports?
    • Question 16 applies to UCITS
      a) Do passive investment breaches (i.e. a breach beyond the control of the UCITS) by a UCITS of the global exposure limit of article 42(3) of the 2010 Law (and more generally of investment restrictions applicable to UCI) have to be notified to the CSSF?
      b) Can breaches of the VaR limit (either the maximum limit laid down in regulation (20% for absolute VaR or 200% for relative VaR as the case may be) or any other more restrictive internal limit set below the above regulatory thresholds, as laid down in the sales prospectus) by UCITS as a result of the increase of volatility in financial markets (in the absence of any new positions increasing the risk of the portfolio) be considered as passive breaches?
      c) What are the expectations of the CSSF in case of a passive breach (i.e. beyond the control of the UCITS, e.g. increase of volatility in the financial markets) of the regulatory VaR limit or the internal VaR limit laid down in the prospectus?
      d) What information do UCITS have to communicate to the CSSF (opc.prud.sp@cssf.lu) in relation to an active breach of the VaR limit (whether the maximum limit laid down in regulation – 20% for absolute VaR or 200% for relative VaR - or the internal limit, below the above regulatory thresholds, as laid down in the sales prospectus)?
  • Luxembourg publishes Grand-ducal regulation of April 24, 2020 relating to the establishment of an additional certified emergency compensation in favor of certain micro-enterprises within the framework of the Covid-19 pandemic.

  • On 24 April 2020, the Grand-ducal regulation of April 24, 2020 having for object the establishment of an additional certified emergency compensation in favor of certain micro-enterprises within the framework of the Covid-19 pandemic was published on the Legilux (Journal Officiel du Grand-Duché de Luxembourg).
    Additional certified emergency compensation can be granted to companies which:

    • were forced to close their establishments or stop their activities in application of the modified Grand-Ducal regulation of March 18, 2020, and and have not not authorized to resume their activities on the date of entry into force of this Regulation
    • were forced to close their establishments or stop their activities in application of the amended Grand-Ducal Regulation of 18 March 2020 and were authorized to resume their activities on the date of entry into force of this Regulation, but which have suffered a loss of turnover of at least 50% during the period between April 15, 2020 and May 15, 2020.

    The compensation takes the form of a single lump sum capital grant of 5,000 euros per single company.
    A request for compensation must be submitted to the Ministre des Classes moyennes in writing, and contain all of the following information:

    • the name and size of the requesting company;
    • any relationships forming a single enterprise;
    • a certification of the absence of conviction;
    • a statement of any other de minimis aid the sole proprietorship has received in the previous two fiscal years and in the current fiscal year;
    • the reason for the request ;
    • an estimate of the amount of the loss in revenue when the company seeks compensation.
  • IRE updates technical guidance on COVID-19

  • On 29 April 2020, the Institut des réviseurs d'entreprises Luxembourg (IRE) updated its technical guidance on COVID-19.
    As COVID-19 crisis is unfolding and is becoming an economic emergency, the overall economic uncertainty can affect reporting entities wherever they are located. Reporting entities with end of 2019 and early 2020 year-ends must therefore consider how the COVID-19 measures affect their business and how the effects should be reported in the financial statements. The effects of the outbreak also have audit implications. IRE Council, in cooperation with IRE Technical Committee, issues technical notes on the impact of the Covid-19. 
    The update to Technical Guidance No. 3  provides useful information on:

    • Cut off date to consider the COVID-19 pandemic and adjusting rather than a non-adjusting event
    • Audit risk assessment and planning
    • Materiality in planning and performing an audit
    • Audit evidence - remote audit procedures
    • Auditing accounting estimates 
    • Economic Stabilisation Programme of the Luxembourg Government.
  • Chambre des députés publishes Draft law on the extension of the measures introduced by the Grand-ducal regulation of 20 March 2020 concerning the holding of meetings in companies and in other legal persons

  • On 21 April 2020, the Chambre des députés published Draft law on the extension of the measures introduced by the Grand-ducal regulation of 20 March 2020 concerning the holding of meetings in companies and in other legal persons .
    The main objective of this draft law is to extend the effects of the Grand-Ducal regulation of 20 March 2020 with regard to the holding of meetings in companies and in other legal persons to a date after the end of the state of crisis and whose convocations have been issued at the latest on the date of end of the state of crisis.

  • Cryptoasset / Cryptocurrency / Virtual Currency

    ALFI responds to the EU commission consultation on EU framework for markets in crypto-assets

  • On 6 April 2020, the Association of the Luxembourg Fund Industry (ALFI) responded to the EU commission consultation on EU framework for markets in crypto-assets.
    In order to promote digital finance in Europe, while adequately regulating its risks, in light of the mission letter of executive vice president Dombrovskis the commission services are working towards a new digital finance strategy for the EU. 
    Key areas of reflection include deepening the single market for digital financial services, promoting a data-driven financial sector in the EU while addressing its risks and ensuring a true level playing field, making the EU financial services regulatory framework more innovation-friendly, and enhancing the digital operational resilience of the financial system.
    This public consultation, and the parallel consultation on digital operational resilience published, are first steps to prepare potential initiatives which the commission is considering in that context. The commission may consult further on other issues in this area in the coming months.

  • DAC 6

    Luxembourg publishes practical information regarding DAC 6 Law

  • On 10 April 2020, the Luxembourg Tax Authority publishes practical information regarding DAC 6 Law transposing Directive (EU) 2018/822 amending Directive 2011/16/EU as regards mandatory automatic exchange of information in the field of taxation in relation to reportable cross-border arrangements) into Luxembourg domestic law.
    The intermediaries or taxpayers concerned are obliged to transmit certain information relating to cross-border arrangements to be declared to the Administration des contributions directs (ACD). This information is automatically exchanged with the other member states of the European Union.
    The information must be transmitted to the ACD by electronic filing on the secure state platform, MyGuichet. There will be two possibilities for filing information with the ACD using:

    • The specific approach on MyGuichet which will be available in English, French and German. The availability of this approach is scheduled for 1 July 2020; or
    • The drag and drop a specific XML that will be available under "Practical Provisions, consult documents and other useful links.

    There will be further precise information on these two possibilities for filing information and the specific MyGuichet approach.

  • FinTech / RegTech / BigTech / SupTech / Digital Economy

    ALFI responds to the EU commission consultation on digital operational resilience framework for financial services

  • On 6 April 2020, the Association of the Luxembourg Fund Industry (ALFI) responded to the EU commission consultation on digital operational resilience framework for financial services.
    Over the recent years, cyber-attacks to the financial sector have increased in number, sophistication and severity. The increasing digitalisation of finance is set to accelerate this trend. 
    In April 2019, the European supervisory authorities advised the commission to propose targeted improvements to the EU financial regulatory framework to develop a single regulatory and supervisory rulebook for ICT operational resilience in the financial sector.
    Through this consultation, the commission services aim to gather stakeholders’ views on the need for legislative improvements within the financial services acquis with a view to harmonise rules across the EU in a proportionate way to make the financial sector more secure and resilient while alleviating compliance and administrative burdens. 
    In particular, the Commission services would welcome stakeholders’ input in four main areas: 

    • requirements on ICT and security risk management in the legislative acquis applicable to the financial sector
    • incident reporting requirements 
    • digital operational resilience testing framework 
    • oversight of ICT third party providers to the financial institutions.
  • Insurance Distribution Directive (IDD)

    CAA publishes Circular Letter 20/9 regarding EIOPA guidelines under the IDD for complex insurance-based investment products

  • On 7 April 2020, the Commissariat aux Assurances (CAA) publishes Circular Letter 20/9 regarding EIOPA guidelines under the IDD for insurance-based investment products incorporating a structure that makes the risk involved difficult to understand for the client.
    This circular letter is addressed only to distributors who market or intend to market insurance-based investment products (IBIP) under the execution-only regime.
    The IDD has left it to EIOPA to develop guidance for the assessment of insurance-based investment products incorporating a structure that makes the risk involved difficult for the client to understand. Supervisors are required to indicate whether they intend to comply with EIOPA's guidance (the so-called "comply or explain" mechanism). 
    The CAA has informed EIOPA that it will fully apply the guidance with the exception of guidance 5 and 8 since, in the CAA's view, the characteristics of the beneficiary of the insurance benefit are not an appropriate means of determining the complexity of an insurance contract.
    Intermediaries and insurance undertakings are invited to take all necessary measures to comply with EIOPA Guidelines 1 to 4, 6 and 7 under the IDD for insurance-based investment products incorporating a structure that makes the risk incurred difficult for the client to understand, in particular by disseminating them within their services, incorporating them into their internal procedures and ensuring their monitoring.

  • Investment Funds / Collective Investment Schemes (CIS) / Asset Management

    CSSF updates identification form RC of a supervised investment fund

  • On 2 April 2020, the Commission de Surveillance du Secteur Financier (CSSF) updated the Identification form for the AML/CFT compliance officer (“Responsable du contrôle“ or “RC”) of an investment fund which is supervised by the CSSF.

  • CSSF updates Commitment letter to be signed by the RC in relation to AML/CFT requirements

  • On 2 April 2020, the Commission de Surveillance du Secteur Financier (CSSF) updated the Commitment letter to be signed by the person responsible for compliance with the professional obligations as regards the fight against money laundering and terrorist financing.

  • ABBL publishes joint guidelines on Look-Through and Control

  • On 3 April 2020, the Association des Banques et Banquiers, Luxembourg (ABBL) inform on the new ABBL publishes joint guidelines on Look-Through and Control. The guidelines are only available to ABBL members.
    Based on this initial assessment and in light of market practices in Luxembourg when it comes to the application of the look-through principle in different control situations, the new ABBL/ALFI guidelines aim at providing, in a first part, an overview of the various control situations that depositaries may encounter in their day-to-day business, while focusing, in the second part, on the ensuing consequences when applying the look-through principle anchored in the AIFMD framework. The annexes and appendices provided as part of these guidelines finally present the practical application of the principles discussed in the guidelines along with a model recommendation on how to structure the look-through assessment, as well as a basic list of information that should be provided by the AIF (or the AIFM acting on behalf of the AIF) for the depositary to be able to conduct its assessment.
    The look-through principle dealt with in these guidelines refers to the look-through controls that a depositary is or is not required to conduct in the context of its safekeeping duties, including ownership verification and record-keeping. Insofar, it needs to be differentiated from look-through controls that are conducted as part of the depositary’s investment compliance process, which is not dealt with in the current guidelines.

  • CSSF updates Application questionnaire for additional sub-fund(s) - 10.04.2020

  • On 10 April 2020, the Commission de Surveillance du secteur financier (CSSF) updated Application questionnaire for additional sub-fund(s) which applies to:

    • UCITS - Part I Law 17.12.2010, or
    • UCI - Part II Law 17.12.2010, or
    • SIF - Law 13.02.2007.
  • Markets in financial instruments Directive and Regulation (MiFID II / MiFIR)

    CSSF updates Q&A on MiFID II/MiFIR (Version of 14 April 2020)

  • On 14 April 2020, the Commission de Surveillance du Secteur Financier (CSSF) updated its Q&A on MiFID II/MiFIR. It was updated only on the structure of the Q&A, in particular, to move the section "Questions relating to transaction reporting data samples" from a separate section (section 6), to be a sub-section of section 2: Questions relating to data reporting.

  • Money Market Funds Regulation (MMFR)

    CSSF confirms postponement of the reporting under Art. 37 of the Money Market Funds Regulation

  • On 2 April 2020, the Commission de Surveillance du secteur financier (CSSF) confirmed the postponement of the reporting under Article 37 of the Money Market Funds Regulation.
    As announced by ESMA in a statement dated 31 March 2020, the submission of reporting files to National Competent Authorities (NCAs) under Article 37 of the Money Market Funds Regulation has been postponed to September 2020. ESMA will publish shortly an amended XML schema (version 1.1) and reporting instructions on its website. The reference period for the first reporting remains however Q1 2020. 
    Based on this statement and by way of derogation from Circular CSSF 20/736, managers of Luxembourg domiciled MMFs may therefore postpone the submission of the quarterly reportings for Q1 and Q2 2020 to September 2020. 
    Nevertheless, as the CSSF will implement the amended XML schema as soon as possible, submission of the reportings before the September deadline is encouraged. The CSSF will issue a separate communication once reporting entities may use the amended XML schema to provide the reporting files. 

  • Securities Financing Transactions Regulation (SFTR)

    CSSF publishes Circular CSSF 20/739 on application of the ESMA Guidelines on the Reporting under Articles 4 and 12 SFTR

  • On 9 April 2020, the Commission de Surveillance du secteur financier (CSSF) published Circular CSSF 20/739 on application of the “Guidelines on the Reporting under Articles 4 and 12 SFTR1 (Ref. ESMA-70-151-2838)” published on 6 January 2020 by the European Securities and Markets Authority (ESMA), which:

    • informs that the CSSF has integrated those guidelines into its administrative practice and regulatory approach with a view to promote supervisory convergence in this field at European level. Hence, all persons and/or supervised entities falling into the scope of those Guidelines shall duly comply with them. This circular also provides some additional guidance on such guidelines. 
    • draws attention to the statement published by ESMA on 26 March 2020 on coordinated supervisory actions on the application of SFTR: considering the situation of  COVID-19 pandemic, the CSSF decided that it will not prioritise its supervisory actions towards counterparties, entities responsible for reporting and investment firms in respect of their reporting obligations pursuant to SFTR or MiFIR, regarding
      (i) SFTs concluded between 13 April 2020 and 13 July 2020, and (ii) SFTs subject to backloading under SFTR. 

    The present circular is addressed to (i) all entities subject to the supervision of the CSSF as well as to (ii) non-financial counterparties as defined in Article 3(4) of SFTR as soon as the entities mentioned under points (i) and (ii) enter into a securities financing transaction (SFT) as defined in Article 3(11) of SFTR.


    Given the fact that certain of the starting dates fall on a non-working day in Luxembourg, the reporting shall effectively start on the following dates: 

    • Tuesday, 14 April 2020 for entities referred to under Article 33(2)(a)(i) of SFTR;  
    • Monday, 13 July 2020 for entities referred to under Article 33(2)(a)(ii) of SFTR; 
    • Monday, 12 October 2020 for entities referred to under Article 33(2)(a)(iii) of SFTR; and 
    • Monday, 11 January 2021 for entities referred to under Article 33(2)(a)(iv) of SFTR.
    • More
    • CSSF Circular CSSF 20/739 on Reporting under Articles 4 and 12 SFTR/LINK>
  • Sustainable Finance / Green Finance

    ALFI responds to the European Commission consultation on the renewed sustainable finance strategy

  • On 9 April 2020, the Association of the Luxembourg Fund Industry (ALFI) published its response to the European Commission consultation on the renewed sustainable finance strategy, in particular:

    • ALFI actively supports this initiative of the European Commission
    • Working on a framework that helps sustainable products flourish will remain a top priority for ALFI. 
    • ALFI will continue to strive for choice and transparency for investors while aiming to make sure that new legislation remains flexible enough to meet investor demand and encourage innovation.
  • NETHERLANDS

    Anti-money laundering / Combating the financing of terrorism (AML / CFT)

    AFM announces improved risk management at surveyed investment institutions and companies

  • On 3 April 2020, the Autoriteit Financiële Markten (AFM) announced improved risk management at surveyed investment institutions and companies.
    After investigating 15 investment institutions and companies, the AFM found these have improved their processes to reduce integrity risks (such as money laundering and terrorist financing).
    After an amendment to the Money Laundering and Terrorist Financing (Prevention) Act (Wwft) in July 2018, investment institutions and companies have been required to determine and assess their risks of money laundering and terrorist financing. They must also have procedures and measures in place to limit the risks and manage them effectively.

    • The vast majority indicate that they have set up procedures
    • The policy and systematic integrity risk analysis (SIRA) in 14 of the 15 investigated institutions were not yet fully organized.

    The AFM expects all investment institutions and companies to put their procedures and measures in order with regard to risk assessment and the policy to counter the risks. 
    They can do this by reading through information from the AFM Wwft Guideline, putting it into practice and applying the following principles.

    • The risk is not too general and focuses on the nature and size of the institution; 
    • The risk assessment addresses all risk factors related to:
      * the type of client (for example retail / business / politically exposed persons (PEP) / high net worth / non-resident / working in cash intensive sector;
      * product, service, transactions (for example cash / real estate / raw materials / high-risk country);
      * delivery channel (e.g. direct / non-face-to-face / introduced / intermediaries);
      * countries or geographic areas (e.g. sanctioned countries / high-risk countries, Financial Action Task Force (FATF) list / offshore / tax ports);
    • The risks are realistically estimated by the company and not standard, without motivation, estimated as 'low'. 
    • The policy is elaborated in clear, easily accessible procedures for, for example, client risk classification, continuous monitoring and checks with regard to PEPs and sanctions regulations;
    • The policies and procedures contain a clear description and assignment of tasks, powers and responsibilities within the company.

    During the corona crisis, the AFM calls on financial companies to continue to pay extra attention to procedures against (new forms of) money laundering and terrorist financing. We are therefore in line with a statement from the European Banking Authority (EBA). Our Wwft inquiries also continue to run.

  • Dutch Parliament calls for amendment of Money Laundering and Terrorist Financing Prevention Act and the Trust Office Supervision Act 2018

  • On 21 April 2020, the Dutch Parliament called for an amendment of the Money Laundering and Terrorist Financing Prevention Act and the Trust Office Supervision Act 2018 implementing Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018.
    In order to maintain Dutch employment in the innovative Dutch blockchain and crypto sector, it is essential to relieve SMEs as far as possible of unnecessary and unnecessary administrative practices that hamper innovation.
    Dutch supervisory rules are in conflict with the European directives and do not find any legal basis, leading to excessively costly supervision by DNB and indirectly to the loss of high-quality employment in the Netherlands.
    The Parliament therefore calls on the government, before the Act enters into force, to enter into consultation with the regulator DNB and the sector to ensure in advance that the direct costs of supervision and compliance are proportionate and to ensure that actual enforcement under the Act is limited to what is strictly necessary on the basis of the European Directive.

  • Financial supervision

    AFM publishes 2019 annual report

  • On 16 April 2020, the Dutch Authority for the Financial Markets (AFM) published its 2019 annual report, giving account of its activities and the results thereof. The supervisor also considers the impact of the corona crisis on the financial markets and consumers.
    Focus on the impact of the corona crisis on consumers Large groups of consumers are facing substantial financial setbacks. Financial institutions have a responsibility to come up with adequate solutions. The duty of care remains as important as ever, the customer’s interests must still be kept in mind and any new and unreliable credit providers must be kept out of the market. The AFM is monitoring whether credit providers are able to manage the flood of questions and requests for postponements effectively.
    Robust market infrastructureThe capital markets are so far operating well, despite the impact of the crisis. The AFM is monitoring developments and conduct in the markets especially closely. The AFM understands that listed companies may not be able to publish their annual reports by 30 April, as long as all the requirements for the timely disclosure of price-sensitive information are met.
    Delay and continuing uncertainty regarding BrexitReaching an agreement between the European Union and the United Kingdom by the end of this year is now especially challenging due to the corona crisis. There is still a real risk of a no-deal Brexit. But even if the transition period is extended, the uncertainty regarding the effects of Brexit will continue to hang over the market. This means that it is still unclear how many parties will actually relocate their operations to the Netherlands, and when this will happen. The AFM issued over 50 licences last year.
    Guarding against complexity in the new pensions systemWork is currently progressing on the details of the pension agreement concluded between the government and employer and employee organisations last June. This presents an opportunity to simplify the pensions system. If the underlying system is overcomplicated, it is difficult to provide clear communication. Complexity also weakens public support for the Dutch pensions system and creates problems for administration. A recent review by the AFM shows that the complexity of the current system causes mistakes to be made in communication to participants. 
    Expansion of the AFM’s supervision of audit firmsIn his response to the recommendations of the Committee on the Future of the Audit Sector (Commissie Toekomst Accountancysector, or CTA), the Minister has chosen to introduce a broad package of measures to improve the quality of statutory audits. All the links in the reporting and auditing chain will be called upon to fulfil their roles and responsibilities. Since effective supervision stands or falls with adequate enforcement powers and financial resources, the AFM welcomes the Minister’s commitment to strengthen the enforcement instruments at its disposal. It is important that audit firms can be held directly responsible for the quality of audits. The decision to make the AFM also responsible for supervision of all non-PIE audit firms means a substantial increase in its duties.

  • COVID-19 Regulatory Measures

    NVB responses to DNB consultation regarding specific provisions of CRD and CRR 2019 in the context of the COVID-19 pandemic and publishes Corona Monitor and Overview of schemes for entrepreneurs

  • On 7 April 2020, the Dutch Banking Association (Nederlandse Vereniging van Banken, NVB) responded to DNB consultation on specific provisions of CRD and CRR 2019  in the context of the COVID-19 pandemic.
    The coronavirus outbreak has far-reaching consequences for the Dutch economy and for the financial sector. The measures taken to contain the health risk have a major impact. Banks are ready to do what is possible for their customers in this uncertain time. 
    Against this background, the Dutch Banking Association (NVB) considers the temporary reduction of the systemic risk buffer requirement proposed by De Nederlandsche Bank to be positive. This allows the banks to deploy additional capital to support their customers.
    On 16 April 2020, the Dutch Banking Association (Nederlandse Vereniging van Banken, NVB) published a Covid-19 Monitoring and Overview of schemes for entrepreneurs during the covid crisis.
    Since the outbreak of the corona crisis in March, banks in the Netherlands have temporarily given 105,000 entrepreneurs and more than 17,000 consumers more financial support in addition to the government's support package. The postponement of repayments and the provision of loans or more credit space to companies now amount to 5.4 billion euros.
    In addition, it is expected that, through the extended SME Loan Guarantee (BMKB-C) , banks have provided additional credit to approximately 800 to 1,000 companies this week, which otherwise could not be financed through the banks. This provision will involve an amount of 250-350 million euros. The number of loans in this segment is expected to rise by several thousand in the coming weeks.
    Unlike the deferral of repayments, this is a new loan for business customers. Entrepreneurs must provide financial information about how the company is doing and how turnover and cash flow develop, which often takes time. After submitting an application to the bank, the average turnaround time is ten to fourteen days, largely for obtaining the necessary information from the customer. Banks must make an individual credit assessment for each application to determine whether the additional loan is justified. Businesses should be fundamentally healthy and should be able to repay a new loan after the crisis. 

  • DNB informs on data reporting during COVID-19 crisis

  • DNB updates on submission period for supervisory reportsOn 16 April 2020, the De Nederlandsche Bank (DNB) provided for updates on submission period for supervisory reports.
    In addition to the previously published EBA statement and ECB Statement , DNB wants to inform the banks about the submission periods for supervisory reports.The submission deadlines for the regular supervisory reports (following from the ITS on supervisory reporting, the ITS on supervisory benchmarking and the ECB FINREP Regulation) - with the exception of the LCR and ALMM - are postponed by one month for the submission period between March and the end of May 2020. 
    The data point model v2.9 changes in the supervisory reports must be implemented in accordance with previously communicated planning. The deferral and changes apply to both significant and less significant institutions.
    The postponement for submission also applies to interest rate risk reporting and country risk reporting. The submission period for these reports will also be postponed by one month. Furthermore, for the significant institutions, the submission period of the 2020 Q1 STE templates is postponed by one month and the Funding Plans (following from the Guidelines on Funding Plans) by two months. Any changes in the submission deadlines for the ad hoc inquiries are communicated via the ad hoc inquiries overview.
    In these times of the COVID-19 outbreak, the flexibility in submission deadlines should somewhat ease the reporting burden on banks, without compromising data quality.

    DNB extends ECB guidance on IFRS 9 in the context of the COVID-19 pandemic to LSIs
    On 24 April 2020, the De Nederlandsche Bank (DNB) extended ECB guidance on IFRS 9 in the context of the COVID-19 pandemic to LSIs.
    Recently the ECB wrote to all significant institutions providing them with further guidance and references to the use of forecasts to avoid excessively procyclical assumptions in their expected credit loss (ECL) estimations during the COVID-19 pandemic. DNB hereby extends the guidance provided to all Dutch less significant institutions which make use of IFRS 9 and urges them to consider the guidance provided.
    DNB agrees with the ECB’s statement that while each institution should make its own assumptions and take its own decisions on the level of provisions required in line with IFRS 9, it is expected that institutions consider the guidance provided when estimating the ECL given the current context of heightened uncertainty and very limited availability of reasonable and supportable forward-looking information on the impact of COVID-19.

  • Dutch Governement issues Regulation amending some provisions of CRD and CRR 2019 on systemic risk buffer and Amendments to the Ministry of Finance budget statement about COVID-19 linked measures

  • On 16 April 2020, three amendments of the budget statement of the Ministry of Finance (IXB) for the year 2020 (Second incidental supplementary budget regarding COVID-19 crisis measure reinsurance supplier credits) were published in the Official Journal.

    No. 5: Call on the Government, when concluding the reinsurance agreement, to make it a condition that the credit insurer refrains from paying dividends and bonuses at least for the duration of the agreement;

    No. 6: The Chamber notes that many companies were very profitable in 2019, including the credit insurers; believes that we must show solidarity and share the costs of this crisis fairly, with the strongest shoulders bearing the heaviest burden; calls on the government to ensure that the business community will bear the damage suffered as a result of the crisis measure reinsurance supplier credits, and to inform the Chamber of how this will be organised, and proceeds to the order of the day;

    No. 7: The government requests that, when concluding the reinsurance agreement, the Dutch branch of the credit insurer waives dividend and bonus payments at least for the duration of the agreement; and proceeds to the order of the day.
    On 17 April 2020, Regulation of De Nederlandsche Bank NV of 8 April 2020 amending the Regulation specific provisions CRD and CRR 2019 in connection with the amended determination of the systemic risk buffer was published in the Official Journal.
    The coronavirus outbreak has far-reaching consequences for the Dutch economy. The financial sector is also affected. In order to limit the economic damage as much as possible, it is crucial that the financial sector continues to function properly and that lending to businesses is not unnecessarily hampered. The Dutch Central Bank is doing everything in its power to continue to safeguard the stability of the financial sector. Against this background, DNB decided on 17 March to lower its systemic risk buffer requirement.
    DNB is of the opinion that offering this extra margin is appropriate in view of current developments. This is also possible because banks have built up many additional buffers in recent years. The explicit intention is that this extra capital should be used to support lending and not to pay dividends or repurchase own shares. The desired reduction of the system buffers does not currently fit in with the current CRD and CRR 2019 Specific Provisions Regulations, because these stipulate the existing percentage of 3%. DNB is therefore amending the current scheme to allow for the announced adjustment of the buffer requirement per bank.
    On Systemic Risk Buffer:

    1. A bank domiciled in the Netherlands as referred to in Section 3:62a(1) of the Financial Supervision Act (Wft) which, in the opinion of DNB, has a dominant position in the financial system of the Netherlands or is otherwise exposed to systemic risks as referred to in Section 133 of the CRD, has a systemic risk buffer as referred to in Section 105(1)(d) of the Bpr. 
    2. A decision of DNB shall be taken to determine whether the first paragraph applies to a bank and to determine the level of the systemic risk buffer to be maintained by that bank, expressed as a percentage of the total risk items calculated in accordance with Article 92(3) of the CRR. 
    3. A bank shall meet the obligation under paragraph 2 on the basis of its consolidated position in accordance with Section 2 of Part One of the CRR. The systemic risk buffer shall be maintained at the highest consolidated level in the Netherlands.
  • Sustainable Finance / Green Finance

    DNB publishes Q&A and Good Practice "Integration of climate-related risk considerations into banks' risk management"

  • On 1 April 2020, the De Nederlandsche Bank (DNB)  published Q&A and Good Practice  on 'Integration of climate-related risk considerations into banks' risk management'.
    Climate risks are more explicitly included in banks' risk management. In order to manage these risks properly, DNB has drawn up a Good Practice for banks with guidelines for integrating climate-related risks into the governance, risk management and reporting of banks. In these Q&As, the DNB gave its interpretation of how existing legislation applies to climate-related risk management.
    Banks can be vulnerable to the physical consequences of changing weather (physical risks) and to the consequences of a transition to a climate-neutral economy (transition risks). Given the potential impact of these climate-related risks, DNB expects banks to analyse and describe the impact of this on their risk profile. If there is a material risk, DNB expects banks to manage these risks - like any other conventional risk.

  • AFM publishes report on Sustainable Bonds in the Netherlands

  • On 23 April 2020, the Autoriteit Financiële Markten (AFM) published a report on Sustainable Bonds in the Netherlands.
    The market for sustainable bonds in Europe is growing rapidly. Especially in the Netherlands, where the amount of sustainable bonds issued doubled in 2019.
    In its ‘Sustainable Bonds in the Netherlands’ report, the AFM supports this positive development for the transition to a sustainable economy. However, the AFM also notes the importance of transparency in prospectuses, reporting of relevant non-financial information and standardization.
    The transition into a sustainable economy, the large investments needed and increasing demand for instruments such as green bonds are driving the growth in sustainable bonds. This is a market that the AFM expects to continue to grow rapidly in the coming years. The AFM is closely monitoring this development as part of its ongoing supervision of the capital markets. The aim of this report is to gain a better understanding of this growth market and to identify risks that could be taken into account by the AFM in its supervision. 
    One of the conclusions is that the sustainable bond market currently features a variety of standards. The AFM argues that greater standardisation is needed, and accordingly supports the proposals of the European Commission, for instance for an EU Green Bond Standard.
    With regard to prospectus supervision, the AFM is striving for more transparency concerning information such as the use of proceeds, allocation and impact reporting. Among other things, this could help to prevent ‘greenwashing’.
    Transparency is also needed in the reporting of relevant non-financial information. The AFM accordingly calls on issuers to be more specific and go into greater detail in their annual reporting. Transparency benefits all the parties involved and will have a positive effect on the market.

  • SWITZERLAND

    COVID-19 Regulatory Measures

    Swiss Federal Council announces temporary modification of the order on electronic signature

  • On 1 April 2020, the Swiss Federal Council announced a temporary modification of the order on electronic signature.
    On April 1, 2020, the Federal Council decided to temporarily modify the ordinance on electronic signature. This change is an additional measure to stem the spread of the coronavirus. It provides for a general possibility of identification by video when certificates are issued, which avoids travel and personal contact.
    With the spread of the coronavirus, the need to validly sign contracts electronically has become more pressing. Companies offering certificates for qualified electronic signatures are seeing an increase in requests. Today, however, applicants generally have to go personally to a registration service to be identified. However, this approach gives rise to travel and personal contacts, which the Federal Council wants to avoid by modifying the ordinance on the electronic signature (OSCSE). The ordinance in force already regulates identification by video. However, this possibility is currently limited to the financial sector; it is often used to open bank accounts, for example.
    According to a new article in the ordinance, a person requesting a regulated certificate can in principle be identified by means of audio-visual communication in real time. However, the identification must be carried out within the framework of a procedure respecting the requirements of the law on money laundering or of a procedure which has been assessed in a Member State of the European Union under the regulations EU n ° 910/2014.
    If the situation were to ease before the end of the six-month validity period, the Federal Council would repeal the provision sooner. The certificates concerned would then be revoked in advance. They could be extended or replaced by the ordinary route. Electronic signatures created during the validity period, however, remain unlimited.

  • SFAMA publishes Circular 03/2020 on Collective investment schemes in times of unusually high volatility and restricted liquidity

  • On 6 April 2020, the Swiss Funds & Asset Management Association (SFAMA) published Circular 03/2020: Collective investment schemes in times of unusually high volatility and restricted liquidity.
    In view of the impact COVID-19 is having on the markets, questions are increasingly being asked about the valuation of collective investment schemes and what can be done in the event of temporary liquidity shortages resulting from an upsurge in redemptions. Many members are thinking ahead and reviewing the mechanisms provided for by law and in the fund documents to deal with these topics. 
    The aim of this circular is to provide an overview of the options currently available to Swiss open-ended collective investment schemes and thus ensure that market participants have a shared understanding of what can be done.

  • FINMA publishes Guidance 03/2020 in the context of the COVID-19 crisis

  • On 7 April 2020, the Swiss Financial Market Supervisory Authority (FINMA) published further guidance with information for supervised institutions about exemptions and clarifications related to its supervisory practice in the context of the COVID-19 crisis.
    It its Guidance 03/2020 FINMA announces further exemptions in the context of the COVID-19 crisis. The exemptions concern certain identification requirements under anti-money laundering regulation and in the insurance area. FINMA is willing to approve requests from insurance companies for a temporary smoothing of the yield curves for various currencies, in order to reduce daily fluctuations of the Swiss Solvency Test (SST).
    In addition, FINMA is granting the insurance companies more time to submit their supervisory reporting to FINMA.

  • Federal Council intends to take measures to protect Swiss companies from bankruptcy due to the COVID-19 crisis

  • On 9 April 2020, the Federal Council announced it intention to take measures to protect Swiss companies from bankruptcy due to the coronavirus crisis. At its meeting on April 8, 2020, it instructed the Federal Department of Justice and Police (FDJP) to submit proposals in the following weeks. 
    The FDJP examines on behalf of the Federal Council in particular a provisional regulation allowing the companies threatened with over-indebtedness because of the coronavirus not to immediately notify the judge who will declare bankruptcy if there is reason to hope that the over-indebtedness can end crisis. 
    Another measure under consideration is the introduction of a limited-time stay, known as the "COVID-19 stay", for small and medium-sized businesses that have experienced financial difficulties during the pandemic. These measures will give companies now shaken by the crisis time to reorganize their activity and implement consolidation measures.

  • Switzerland amends COVID-19 Solidarity Guarantee Regulation

  • On 9 April 2020, Coronavirus Credit and Solidarity Guarantee Regulation (COVID-19 Solidarity Guarantee Regulation) amendment was published in the Swiss Official Journal.
    Annexes 2 and 3 of the COVID 19 Solidarity Guarantee Ordinance of 25 March 2020 will be amended in order to incorporate the annex of the current the decision.

  • FINMA publishes Guidance 04/2020 on exemptions for supervised institutions due to the COVID-19 crisis

  • On 14 April 2020, the Swiss Financial Market Supervisory Authority FINMA published further guidance in the context of the COVID-19 crisis. 
    The exemptions and clarifications related to its supervisory practice concern institutions authorised to apply the model approach to market risk as well as an extension of the timeframes for supervised institutions to introduce new rules for derivatives trading. 
    Firstly, FINMA is granting exemptions in the model approach to market risk intended to mitigate the volatility-induced pro-cyclicality. These exemptions concern the number of backtesting exceptions that are relevant to the calculation of capital adequacy and apply until 1 July 2020. 
    Secondly, FINMA is extending the timeframes in derivatives trading for the implementation of the margin requirements for non-centrally cleared OTC derivatives for certain counterparties by one year.

  • SFAMA publishes Circular 04/2020 on swinging single pricing and spreads in times of high price volatility and transaction costs

  • On 23 April 2020, the Swiss Funds & Asset Management Association (SFAMA) published Circular 04/2020 : Swinging single pricing and spreads in times of high price volatility and transaction costs.
    The economic uncertainty caused by COVID-19 has resulted in hefty market fluctuations over the past few weeks, bringing a number of challenges for the fund and asset management industry. In circular No. 03/2020, dated 6 April 2020, the SFAMA provided amongst others an overview of the options available to Swiss open-ended collective investment schemes in connection with valuation difficulties and deferred repayment. Another topic various institutions are discussing at present is how to handle swinging single pricing (SSP) and spreads amid high price volatility and the resulting high transaction costs. 
    The aim of this circular is to aid interpretation of the legal and practical options in this context.

  • Audit matter

    FINMA publishes different audit points clarifying work agendas

  • On 21 April 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) published different audit points clarifying work agendas.

    • Audit points relating to other risks arising from legal and litigation risks: applicable to audit periods beginning on or after 1 January 2020, as long as the institution applies the behavioural rules of the LSFin before the expiry of the transitional period (Art. 105 para. 2 OSFin).
    • Audit points relating to other risks in connection with compliance matters
    • Audit points relating to the internal organisation and the internal control system
    • Audit points relating to compliance with market conduct rules
    • Audit points relating to the confidentiality of client data
    • Audit points relating to the central control and risk mitigation functions
    • Audit points relating to information technology
    • Audit points relating to risks associated with indifferent transactions / rules of conduct towards customers (suitability).
  • Financial market infrastructure

    Swiss Federal Council aims to strengthen Swiss debt market through tax reform

  • On 3 April 2020, the Der Bundesrat / Le Conseil fédéral announced it aimed at strengthening Swiss debt market through tax reform.
    The debt market in Switzerland is to be strengthened by means of a tax reform. In addition, the Federal Council wants to close a loophole in the withholding tax system. During its meeting on 3 April 2020, the Federal Council initiated the consultation on amendments to the Withholding Tax Act.
    The Federal Council is proposing to exempt domestic legal entities and foreign investors from withholding tax on interest-bearing investments. This will enable corporate groups to issue their bonds in Switzerland without withholding tax hurdles. Technically speaking, this involves a partial switch to the paying agent principle. As a rule, banks would thus levy the new withholding tax in the future. As a complementary measure, the transfer stamp tax on domestic bonds is to be abolished.
    At the same time, the switch to the paying agent principle will also close a loophole with regard to individuals in Switzerland and make income from foreign interest-bearing investments subject to withholding tax.
    It is estimated that the new withholding tax will lead to a one-off reduction in receipts of CHF 750 million. However, this has no budgetary impact, as provisions have been set aside.

  • Financial reporting

    FINMA publishes FAQs on reporting delivery platform

  • On 23 April 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) published Frequently asked questions about the delivery platform.

    • What is the FINMA delivery platform? 
    • Where is the delivery platform? 
    • What is the benefit of the delivery platform? 
    • How is the delivery platform different to the survey and application platform? 
    • What is a qualified electronic signature? 
    • How is it possible to know whether a document has a qualified electronic signature? 
    • What software is required to add a qualified electronic signature to a document? 
    • Which file formats can be transmitted? 
    • What if a problem occurs?
  • Financial Services Act (LSFin)/ Financial Institutions Act (LEFin)

    FINMA publishes Approval form for representations of foreign financial institutions according to FINIG

  • On 15 April 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) published the Approval form for representations of foreign financial institutions according to FINIG.
    This document indicates all the information and documents necessary for the filing of a request, and must be completed electronically. 

  • FINMA publishes Form guarantee for representations of foreign financial institutions according to FINIG

  • On 15 April 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) published the Form guarantee for representations of foreign financial institutions according to FINIG.

    The form must be filled electronically. 

  • FINMA publishes audit LSFin (Suitability) rules of behavior

  • On 24 April 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) published audit LSFin (Suitability) rules of behavior.
    This document is a standard work programme. It covers the following topics: 

    • rules of conduct for the management of financial instruments (asset management), 
    • rules of conduct for investment advice for the portfolio, 
    • rules of conduct for investment advice for transactions and 
    • behavioural rules for the acquisition or disposal of financial instruments, reception and transmission of orders (execution only).

    It is the responsibility of the audit team to adapt the standard audit programme to the specific situation of each audited institution (size, business model, organisation, processes, risk exposure, etc.). If not all of the specified audit work is performed, a compelling justification must be provided in the working papers.
    Applicable to audit periods starting from January 1, 2020 or later, insofar as the establishment applies the behavior rules of the LSFin before the expiration of the transitional period (art. 105 al. 2 OSFin).

    • More
    • FINMA publishes audit LSFin (Suitability) rules of behaviorhttps://www.finma.ch/fr/~/media/finma/dokumente/dokumentencenter/myfinma/2ueberwachung/pruefwesen-kag/pruefprogramm-suitability-fidleg.docx?la=fr
  • Investment Funds / Collective Investment Schemes (CIS) / Asset Management

    FINMA updates list of Authorised foreign collective investment schemes for offer to non-qualified investors

  • On 1 April 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) updated the  list of Authorised foreign collective investment schemes for offer to non-qualified investors.

  • FINMA publishes Requirements for Approval of Recognized Hong Kong Funds

  • On 24 April 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) published Requirements (Appendix BI) Approval of Recognized Hong Kong Funds.
    The Swiss Financial Market Supervisory Authority FINMA and the Securities and Futures Commission (SFC) signed the Memorandum of Understanding concerning Mutual Recognition of Funds between Switzerland and Hong Kong (MoU). The MoU provides a recognition of asset managers as well as a framework for the mutual recognition of publicly offered funds in both markets.
    In general, funds seeking FINMA authorisation or which have received FINMA authorisation for Public Offering in Switzerland pursuant to Article 15 and Article 120 ff. of the Collective Investment Schemes Act (CISA) have to comply with the regulatory requirements under Swiss Law and with the additional requirements laid down in these FINMA Requirements. On the basis of the principles set out above, a Hong Kong fund complying with the relevant Hong Kong laws and regulations is generally deemed to have complied in substance with the relevant FINMA requirements and will benefit from a streamlined authorisation process for Public Offering in Switzerland.
    In view of the differences between the Swiss and the Hong Kong regulatory regimes and to ensure proper investor protection and consistency with existing Swiss FINMA-authorised funds, these FINMA Requirements sets out additional requirements a Hong Kong Fund has to comply with when applying for FINMA authorisation for Public Offering in Switzerland under the MRF, as well as other requirements a Recognised Hong Kong Fund (see definition in paragraph 5 below) has to observe after having obtained FINMA authorisation The SFC will issue separate rules regarding the approval of eligible Swiss funds for Public Offering in Hong Kong.

  • Markets in financial instruments Directive and Regulation (MiFID II / MiFIR)

    SBA responses to Draft technical standards on the provision of investment services and activities in the Union by third-country firms under MiFID II and MiFIR

  • On 29 April 2020, the Swiss Bankers Association (SBA) responded to Draft technical standards on the provision of investment services and activities in the Union by third-country firms under MiFID II and MiFIR.
    The SBA welcomes the chance to engage with ESMA on the issue of draft technical standards on the provision of investment services and activities in the Union by third-country firms under MiFID II and MiFIR and to present ESMA with our comments on the respective consultation paper. 
    The SBA sees this consultation as important step for the future efficient functioning of the EU equivalence regime. The association moreover thanks the ESMA for reconsidering the timeframe to respond to the consultation in light of the unfortunate situation around the Covid-19 outbreak. In general, SBA supports the European institutions' targeted efforts to eliminate some of the pitfalls of the existing equivalence regime while at the same time preserving fairness of treatment and level-playing-field between EU firms and third country firms. 
    SBA highlights the fact that some of the proposed additional information, as requested by the IFR, could and should be obtained by ESMA in a more efficient and reliable manner from third country regulators, rather than via reporting requirements upon individual third country firms.The future cooperation agreements based on MiFIR will prove helpful in this regard, as the industry thinks they will reflect the specific needs both of ESMA as well as the relevant third country authorities. In that context, it will be of great importance to consider systemic importance, size, nature and dimension of the concrete cross-border activities and the specific nature of each equivalence decision. SBA therefore calls for such pragmatic solutions instead of applying an “one-size-fits-all” approach. 
    Some of the proposed technical standards seem excessively detailed. Therefore, the SBA advocates for taking into account proportionality aspects when imposing information requirements on third-country firms. They also should have a distinct connection with the concrete activities carried out by such providers under the equivalence regime within the EU Single Market. Where possible, a materiality threshold should be applied by the competent authorities in this regard.

  • Solvency

    FINMA updates Swiss Solvency Test templates

  • On 2 April 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) updated Swiss Solvency Test  ("SST") templates.
    This document summarizes the deadlines for the regular update of the SST templates as well as the planned blank calculations and new features. It also describes any extraordinary updates.

  • Supervisory power

    FINMA publishes list of international agreements

  • On 30 April 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) published a list of international agreements. 
    The table contains an overview of the international agreements concluded by FINMA for information purposes. The List of Foreign Supervisory Authorities published in connection with FINMA Circular 2017/06 "Direct Transmission" may contain different information. The provisions and guarantees agreed in the FINMA agreements apply only between the authorities concerned and have no consequences for third parties.

  • UNITED KINGDOM

    Brexit

    FCA updates on Securitisation Repositories (SR)

  • On 20 April 2020, the Financial Conduct Authority (FCA) updated on Securitisation Repositories (SR). During the transition period, EU securitisation legislation continues to apply in the UK, and originators, sponsors or securitisation special purpose entities (SSPEs) will be required to report their public securitisations to an SR registered by ESMA, once ESMA has registered an SR.
    To ensure a smooth transition in the reporting of public securitisations, the FCA will shortly be publishing a draft application form which can be used by prospective UK SRs to submit a draft application for registration to the FCA before the end of the transition period. This should facilitate prospective UK SRs being registered by us and operational as soon as possible after the end of the transition period, provided they meet the conditions for registration under the UK Securitisation Regulation.

  • FCA updates on Temporary Transitional Power directions and Brexit policy statement

  • On 30 April 2020, the Financial Conduct Authority (FCA) updated on the Temporary Transitional Power (TTP) directions and Brexit policy statement.
    The FCA confirmed that, after the transition period, the FCA intends to apply the TTP on a broad basis and to the same areas previously communicated. The FCA intends to grant transitional relief from the end of the transition period until 31 March 2022.
    This means that regulatory obligations on firms will generally remain the same as they were before the end of the transition period for that temporary period. It also means that, generally, UK regulated firms will not need to complete preparations to implement changes in UK law arising from the end of the transition period by December 2020.
    There are specific areas where the FCA will not grant transitional relief. In these areas, the FCA continues to expect firms and other regulated entities to take reasonable steps to comply with the changes to their regulatory obligations by the end of the transition period. 
    Incoming European Economic Area (EEA) firms should note that the TTP does not apply to the temporary permissions regime.

  • BoE publishes joint Bank and PRA statement on the proposed use of temporary transitional powers at the end of the transition period

  • On 30 April 2020, the Bank of England (BoE) published joint Bank and PRA statement on the proposed use of temporary transitional powers at the end of the transition period. This joint Bank and PRA statement relates to HM Treasury’s publication of their intention to ‘shift’ the temporary transitional power so it will be available for up to two years after the end of the transition period.
    The Bank and PRA intend to use the TTP after the transition period as previously communicated in relation to exit day. This means that, in all but a few areas, PRA-regulated firms and Bank-regulated FMIs do not need to have completed preparations to implement changes in UK law arising from the end of the transition period by December 2020.
    They intend to grant general transitional relief on a broad basis, with key exceptions as previously identified, for a period of 15 months after the end of the transition period (ie ending on Thursday 31 March 2022). 

  • COVID-19 Regulatory Measures

    FCA urges savers to stay calm and not to rush financial decisions

  • On 1 April 2020, the Financial Conduct Authority (FCA) informed that regulators urge savers to keep calm and not rush to make any decisions about their pension in response to the coronavirus (Covid-19) pandemic.
    The Pensions Regulator (TPR) and the Financial Conduct Authority (FCA), supported by The Money and Pensions Service (MaPS), say fears over the impact of the pandemic on markets and personal finances may make savers more vulnerable to scams or making a decision that could damage their long-term interests.
    Throughout this period, TPR, the FCA, MaPS and government departments will be working together to tackle any additional risks arising from the current uncertainty.

  • PRA publishes joint statement on the delay to implementation of the Basel 3.1 standards

  • On 2 April 2020, the Prudential Regulation Authority (PRA) published a joint statement with the HM Treasury on the delay to implementation of the Basel 3.1 standards.
    Delaying the implementation of the Basel 3.1 standards by one year will provide operational capacity for banks and supervisors to respond to the immediate financial stability priorities from the impact of COVID-19.
    PRA and HM Treasury remain committed to the full, timely and consistent implementation of the Basel 3.1 standards, and will work together towards a UK implementation timetable that is consistent with the one year delay.

  • FCA updates on applications and annual returns of mutual societies

  • On 2 April 2020, the Financial Conduct Authority (FCA) provided an update for mutual societies on applications and annual returns. 
    The FCA continues to review the processes in light of the current coronavirus (Covid-19) outbreak. For all of the mutual society forms, the FCA advised the following:

    • applications submitted via either the Mutuals Society Portal or by email to mutual.societies@fca.org.uk (or to mutualsannrtns@fca.org.uk for annual returns) will allow the FCA to process the application significantly quicker than applications sent by post. 
    • the FCA accepts electronic signatures on all applications  – including on accounts.
    • for the time being, the FCA no longer requires statutory declaration forms (where requested) to be fully completed. The FCA does not require the form to be signed by a solicitor/commissioner for oaths/notary public or justice of the peace but still ask that an officer/secretary of the society completes the first half of the form. The FCA will accept an electronic signature.
  • PRA publishes statement on COVID-19 regulatory reporting and disclosure amendments

  • On 2 April 2020, the Prudential Regulation Authority (PRA) published a statement to outline its approach to regulatory reporting and Pillar 3 disclosures for UK banks, building societies, designated investment firms and credit unions in response to COVID-19 and the EBA’s statement on ‘Supervisory reporting and Pillar 3 disclosures in light of COVID-19’. The PRA will consider following aspects: 

    • The delayed submission for the aspects of:
      (i) Harmonized regulatory reporting, where the original remittance deadlines fall on or before 31 May 2020:  For many reports, the original remittance date is 12 May 2020. In applying the extension, the PRA will accept submission on or before 12 June 2020.
      (ii) PRA-owned regulatory reporting where the remittance deadlines contained in the PRA rulebook fall on or before 31 May 2020: Firms are able to submit at any time along the original submission period up to the end of the delayed submission window.
    • To ease the burden on firms at this time the PRA strongly encourages firms to submit branch return data for H1 2020 using the old version of the branch return template instead of the new version of the branch return.
    • To maintain the safety and soundness of authorised firms during this period, the PRA may request the more frequent submission of particular reports and additional ad-hoc reporting on key prudential metrics.
    • The PRA will consider whether the actions in this announcement will be extended to reporting beyond that due by the end of May 2020 in due course.
    • The PRA will be flexible in its expectations of firms’ publication timeline for Pillar 3 disclosures and understands that:
      (i) For many firms there may be a lag time between the publication of financial statements and Pillar 3 disclosures.
      (ii) As the deadline for publication of firms’ financial statements has been delayed by up to two months, it follows that firms’ Pillar 3 disclosures, which are published at the same time or a reasonable amount of time after the financial statements, will also be delayed significantly compared to the usual publication date.
  • FCA publishes Joint statement on series of actions to ensure information continues to flow to investors and support the continued functioning of the UK’s capital markets

  • On 26 March 2020, the Financial Conduct Authority (FCA) informed that, in response to the current situation of COVID-19, the Financial Conduct Authority (FCA), Financial Reporting Council (FRC) and Prudential Regulation Authority (PRA) provide a series of actions to ensure information continues to flow to investors and support the continued functioning of the UK’s capital markets. This includes:

    • A statement by the FCA allowing listed companies an extra 2 months to publish their audited annual financial reports. Further measures to allow companies and auditors to focus on the delivery of information to investors and the capital markets include:
      (i) Delaying the filing of accounts by companies
      (ii) Postponement of auditor tenders.
      (iii) Postponement of audit partner rotation.
      (iv) Reduction of FRC demands on companies and audit firms.
      (v) Extension of reporting deadlines for public sector bodies.
    • Guidance from the FRC for companies preparing financial statements in the current uncertain environment, complemented by guidance from the PRA. To  maintain  effective decision making in the interests of the company, their workforce and other business partners, the FRC encourages Boards to:
      (i) Develop and implement mitigating actions and processes to ensure that they continue to operate an effective control environment: in particular, addressing any key reporting and other controls on which they have placed reliance historically, but which may not prove effective in the current environment.
      (ii) Consider how they will secure reliable and relevant information, on a continuing basis, in order to manage their future operations and those of their workforce and suppliers, including the flow of financial information from significant subsidiary, joint venture and associate group entities.
      (iii) Pay attention to capital maintenance, ensuring that sufficient reserves are available when the dividend is made, not just proposed.
    • Guidance from the FRC for audit firms seeking to overcome challenges in obtaining audit evidence.
  • PRA publishes Statement on VAR back-testing exceptions temporary approach

  • On 30 March 2020, the Prudential Regulation Authority (PRA) published its Statement on Temporary approach to VAR back-testing exceptions to mitigate the possibility of excessively pro-cyclical market risk capital requirements. 

    The PRA is aware that the exceptional levels of market volatility over the past few weeks have led to an elevated level of VAR back-testing exceptions across the industry. In order to mitigate the possibility of excessively pro-cyclical market risk capital requirements through the automatic application of a higher VAR multiplier (ie mc and ms, as defined in CRR Article 366), the PRA will allow firms – on a temporary basis – to offset increases due to new exceptions through a commensurate reduction in risks-not-in-VAR (RNIV) capital requirements. 

    The PRA’s temporary approach is relevant to firms experiencing an elevated level of VAR back-testing exceptions. This approach will be reviewed by the PRA after 6 months.

  • FCA and PRA publish the expectations for dual-regulated firms under Senior Managers and Certification Regime (SM&CR) in the context of COVID-19 crisis

  • On 3 April 2020, the FCA and PRA published a joint statement on Senior Managers and Certification Regime (SM&CR) and coronavirus (Covid-19): expectations of dual-regulated firms.
    The FCA and the PRA recognise that firms directly affected by coronavirus will need to keep their governance arrangements under review. Where the FCA and the PRA can, they intend to provide flexibility to FCA and PRA dual-regulated firms. They have made specific provisions for firms in these circumstances:

    1. Notifications about changes to Senior Manager responsibilities: The obligation on firms to update and resubmit a Statements of Responsibilities (SoRs) if there are ‘significant changes’ to Senior Management Functions (SMFs) responsibilities is set in statute. Understanding the current operational challenges and are keen to ensure that firms prioritize their resources appropriately. So, the regulators:

    • expect firms to resubmit relevant SoRs as soon as reasonably practicable taking into account the current circumstances; and
    • understand that firms may take longer than usual to submit revised SoRs in the present environment.

    2. Temporary arrangements for Senior Management Functions (SMFs): If the FCA and PRA conclude that the 12-week rule is insufficient to allow firms to respond to temporary SMF absences linked to coronavirus, they will consider additional measures.

    3. Notifications about temporary arrangements (including allocating Prescribed Responsibilities to unapproved individuals acting up as SMFs under the 12-week rule): If firms cannot reallocate an absent SMF’s PRs among their remaining SMFs due to reasons relating to coronavirus, they can temporarily allocate them to the individual who is acting up as interim SMF under the 12-week rule, even if they are, at the time, unapproved as an SMF.

    4. Allocating responsibility for coordinating firms’ responses to coronavirus among SMFsWhere firms have an SMF24, aspects of their response to coronavirus that may naturally sit with this SMF. For instance, compliance with PRA and FCA requirements and expectations on:

    • - business continuity; 
    • - information security; and 
    • - outsourcing.

    Given the likelihood of SMFs becoming suddenly, temporarily absent, the PRA encourages firms to consider how they may respond to unexpected changes to current contingency plans (contingencies upon contingencies).

    5. Furloughing Senior Management FunctionsDual-regulated firms must have individuals performing one of the following combinations of SMFs at all times, however:

    • - If an individual performing one of the mandatory or required SMFs referred to above becomes absent, the firm must appoint individuals to continue performing these SMFs so they can continue fulfilling their legal and regulatory obligations. If the replacement is temporary, firms can use the 12-week rule to arrange cover. 
    • - Other SMFs are not ‘mandatory’ under PRA and FCA rules. So firms have greater flexibility to furlough the individuals performing them. For instance, if a firm temporarily suspends a business service or function due to the disruption it could, in principle furlough the SMF responsible for it.

    6. Certification requirements for dual regulated firmsFirms should continue to take reasonable steps to complete any annual certifications of employees that are due to expire while coronavirus restrictions are in place.

  • FCA publishes the expectations for solo-regulated firms under Senior Managers and Certification Regime (SM&CR) in the context of the COVID-19 crisis

  • On 3 April 2020, the Financial Conduct Authority (FCA) published its expectations to help solo-regulated firms apply the SM&CR. The FCA recognised that firms directly affected by coronavirus will need to keep their governance arrangements under review and make appropriate changes as circumstances change. The FCA does not require firms to have a single Senior Manager responsible for their coronavirus response. Firms should allocate these responsibilities in the way which best enables them to manage the risks they face.

    The FCA's expectations are on:

    1. Statements of Responsibilities and ‘significant changes’ to Senior Manager Responsibilities: 

    • The FCA wants to minimise the burden to firms at this time, so the FCA does not intend to enforce the requirement on firms to submit updated Statements of Responsibilities (SoRs)
    • The FCA does not expect allocations (however temporary) to be clearly documented internally, so that everyone understands who is responsible for what. This should be available if the FCA request it.
    • Firms’ internal records should aim to keep a ‘running commentary’ of their Senior Manager population and their responsibilities during this period. This includes keeping Statements of Responsibilities, role profiles and Responsibilities Maps (if applicable) up to date.  

    2. Temporary arrangements for Senior Management Functions:

    • The FCA intends to issue a Modification by Consent to the 12-week rule to support firms using temporary arrangements during the crisis.
    • Nevertheless, the FCA expects firms to clearly document these responsibilities, however temporary, including on relevant Statements of Responsibilities and Responsibilities Maps (if applicable).

    3. Notifications about temporary arrangements:

    • The FCA does not expect firms to submit the updated SoRs of the absent Senior Manager or of Senior Managers who take on the responsibilities of the absent manager. 
    • This allocation (however temporary) should be clearly documented internally, so that everyone understands who is responsible for what. 

    4. Furloughed staff:

    • Unless a furloughed Senior Manager is permanently leaving their post, the manager will retain their approval during their absence and will not need to be re-approved by the FCA when they return. The firm is still responsible for ensuring the Senior Manager is fit and proper. 
    • If a firm is subject to the Overall Responsibility rule, the responsibilities of the furloughed Senior Manager must be allocated to another Senior Manager. If the firm is relying on the 12-week rule, the replacement does not need not be a Senior Manager.

    5. Reallocating Prescribed Responsibilities:

    • Individuals performing required functions – eg Compliance Oversight, the money laundering reporting officer (MLRO) and the Limited Scope Function – should only be furloughed as a last resort. 
    • Where a required function applies to a firm, the firm should replace the furloughed individual until their return. If the replacement is temporary, firms can use the 12-week rule to arrange cover. 
    • Firms need to ensure the allocation is appropriate and complies with our rules (for example, that an oversight role is not allocated to an executive).
    • Other Senior Management Functions are not ‘mandatory’ so firms have greater flexibility to furlough the individuals performing them.
  • FCA sets out priorities for 2020/21

  • On 7 April 2020, the Financial Conduct Authority (FCA) published its business priorities for the year ahead – with specific focus on the challenges presented by the coronavirus (Covid-19) pandemic.
    In responding to the challenge of coronavirus the FCA will focus on ensuring that financial services businesses give people the support they need, that people avoid scams, and that financial services businesses and markets know what we expect of them.
    Throughout the pandemic, the FCA will:

    • protect the most vulnerable – ensuring that they can get the financial services and the help they need
    • tackle scams – helping consumers avoid the scams that spring up as the pandemic develops
    • ensure fair treatment for consumers and small firms - making sure that firms give strong and clear support to customers, recognising challenges that everyone is facing
    • keep markets working well – ensuring that markets remain orderly
    • mitigate firm failures – mitigating the impact on consumers where firms fail in these challenging circumstances
  • FCA publishes expectations regarding funds in the context of COVID-19

  • On 6 April 2020, the Financial Conduct Authority (FCA) published its expectations of firms in the light of the coronavirus (Covid-19) crisis.
    The FCA acknowledges the significant challenge firms are facing in the current environment. Nevertheless the FCA expects them to continue to uphold the best interest of their investors at all times. But the FCA sets out its expectations as followings:

    • Delaying annual and half-yearly fund reports: The FCA agreed on the delay of publishing annual and half-yearly fund reports.
    • Virtual general meetings: Fund documentation may contain details about arrangements that are additional to what is prescribed by the FCA's rules. The FCA cannot forbear on private law obligations owed by authorised fund managers (AFMs) to unitholders or claims which they might bring. So AFMs will need to consider the terms of their fund documentation, including prospectuses and instrument of incorporation, when making arrangements for meetings during this time.
    • Ensuring compliance with limits on value at risk (VaR): The FCA understands some authorised fund managers have experienced issues ensuring compliance with limits on value at risk (VaR) as part of their risk-limit systems. The FCA expects firms to have plans in place already to deal with such events and to take appropriate remediation action, considering market conditions and what is in the best interests of their customers. 
    • Electronic signatures: During the coronavirus crisis, the FCA is willing to accept electronic signatures on applications to authorise funds or approve changes to funds. Applicants may use such electronic signatures where appropriate and relevant forms should be construed accordingly.
  • FCA informs on extending deadlines to publishing fund reports and accounts

  • On 6 April 2020, the Financial Conduct Authority (FCA) informed that the FCA is giving firms extra time to produce their annual and half-yearly reports and accounts because of the impact of coronavirus (Covid-19).
    Fund managers and auditors face unparalleled challenges in preparing financial information as a result of the coronavirus (Covid-19) pandemic. These challenges are largely operational, particularly the need to engage a large number of internal and external parties. The FCA announced a temporary relief to the regulatory deadlines for publishing funds’ half-yearly and annual reports and accounts, in particular:

    • Extra 2 months for annual reports:
      Where the authorised fund managers (AFMs) of UK UCITS schemes and non-UCITS retail schemes (NURS) need extra time to complete their fund’s annual reports, this temporary relief will permit an additional 2 months to publish them.
    • Extra month for half-yearly reports:
      For half-yearly reports, the relief permits one extra month to publish. Again, firms do need to inform the FCA if they are using this extension. This will help fund managers to be transparent with investors, as the extra time will ensure that they can produce reports that are accurate. The FCA expects firms to continue to uphold the best interests of their investors at all times.
    • Using the additional time: The COVID-19 pandemic presents operational challenges for funds’ reporting processes. Nevertheless, the FCA expects firms to publish reports on time, if they can publish within the usual time limits without compromising the quality of the reporting and in line with the current health guidelines.
    • Temporary relief: The FCA will not begin enforcement action for breaches of the FCA rules set out in the Policy section below if AFMs publish annual reports and assessment of value reports within 6 months of their accounting year-end date.
    • What AFMs need to do:
      AFMs that wish to use the additional time should:
      (i) promptly inform the fund’s depositary and auditors, and
      (ii) email the FCA with details of the funds this will apply to and the intended new date of publication: ukcis@fca.org.uk.
    • How long this temporary policy will last:
      This policy is intended to be temporary while the UK faces the extreme disruption of the Covid-19 pandemic and its aftermath. 


    The FCA also provided a FAQ on this issue.

  • FCA publishes position on issue related to Client assets and COVID-19

  • On 6 April 2020, the Financial Conduct Authority (FCA) published its position on queries, which the FCA received, on client assets (CASS) compliance related to the current disruption caused by coronavirus (Covid-19), in particular:

    • Handling cheques: Firms have noted some difficulties being caused by cheques being delivered to unmanned offices and remaining unbanked. Clients send cheques to firms for a variety of reasons. The FCA expects firms to consider potential harm caused by not being able to cash the cheque on a case-by-case basis – for instance, whether it means that the customer cannot receive the product or service intended until the cheque is cashed. Firms should communicate clearly with clients on this.
    • CASS audit reports: Some firms are concerned the current situation could lead to additional breaches needing to be reported and costs of the CASS audit reports could increase. If an audit firm subject to SUP 3.10.4R is not able to submit a particular CASS audit report to the FCA within the 4-month deadline (SUP 3.10.7R), it should follow the ‘late reporting’ rules in SUP 3.10.8, sending an email to CASSAudit@fca.org.uk setting out:
      (i) the name and FRN of the regulated firm
      (ii) the period covered by the audit report
      (iii) a full account of the reasons for the delay
      (iv) when it expects to be able to report,
    • Physical asset reconciliations: CASS 6.6.22 R requires a firm to reconcile physical safe custody assets as often as is necessary and, in any event, every 6 months. Where there are logistical difficulties in relation to this requirement arising from coronavirus, the FCA expects firms to take such mitigatory steps as are possible in the circumstances, to ensure that clients assets remain protected.
    • Depositing client money: Some firms subject to CASS 7 have noted that an increase in client money holdings may lead to some operational challenges in terms of meeting segregation and diversification requirements. Firms should continue to follow the rules on diversifying holdings in CASS 7.13. If a firm is experiencing any challenges in being able to segregate money, the FCA expects it to have assessed the options available to it in detail before contacting the FCA.
    • Notification of CASS breaches: There are specific requirements in CASS relating to fundamental components of the regime. Firms should continue to make any notifications required under CASS.
    • CASS firm classification: Firms should continue to operate as normal and notify the FCA of their categorization in January as usual.
    • Delays to improvement programs: Firms should consider reporting such delays to FCA as per Principle 11 and SUP 15 and, where relevant, keep existing CASS contacts at the FCA notified of progress towards compliance.
  • FCA publishes CP20/6 on Regulated fees, levies abd rates proposals 2020/21

  • On 7 April 2020, the Financial Conduct Authority (FCA) published Consultation paper 20/6 on Regulated fees and levies: rates proposals 2020/21. Comments should be sent the FCA by 19 May 2020. 
    The FCA launched this consultation on FCA periodic fees rates for the next financial year (2020/21) and the changes the FCA is proposing to application fees or other fees. The FCA also consults on the Financial Ombudsman Service general levy, Money and Pensions Service, Devolved Authorities and illegal money-lending levies for the next financial year.
    All fee payers will be affected by this consultation. Although fees are indirectly met by financial services consumers, there isn’t anything directly relevant to them or consumer groups in the consultation paper. 
    Given the impact of Covid-19, the FCA has aimed to ensure that we protect the smallest firms by proposing a freezing of minimum fees. This means that the 71% of firms that are small enough to only pay minimum fees will see no change in the fees they pay.
    To help medium and smaller firms, the FCA is proposing to extend the period for paying their fees by two months to 90 days. This means that 89% of firms will have until the end of 2020 to pay their fees and levies. Larger firms will be expected to pay their fees under the usual payment terms. 

  • PRA updates COVID-19 regulatory reporting and disclosure amendments (9 April 2020)

  • On 9 April 2020, the Prudential Regulation Authority (PRA) updated its statement on COVID-19 regulatory reporting and disclosure amendments. The updates aim to extend the deadline of additional returns:

    • Supervisory benchmarking exercise – credit risk: Up to one month delay 
    • REP005 – High earners report: Up to one month delay.
  • FCA updates Cross-border payments regulation - information for firms on coronavirus (COVID-19) response

  • On 16 April 2020, the Financial Conduct Authority (FCA) updated information for firms on coronavirus (COVID-19) response regarding Cross-border payments regulation.
    The EU Commission issued a statement on 9 April which reminds payment service providers of the forthcoming application date of 19 April for currency conversion transparency requirements. 
    The FCA expect firms to comply with the requirements where they can, and if not, to implement these obligations as soon as possible. However, the FCA will take a reasonable approach towards enforcement of the implementation of the new rules in the light of the need to preserve the stability and continuity of online payment services. That may mean assessing the immediate need to meet the new transparency obligations against the risk of introducing non-essential risk or a significant reduction in a firm’s capacity to deliver frontline services to customers in the present circumstances.

  • FCA updates its expectations on financial resilience for FCA solo-regulated firms (version 17/04/2020)

  • On 17 April 2020, the Financial Conduct Authority (FCA) updated the statement its expectations on  financial resilience for FCA solo-regulated firms (version 17/04/2020). Additional information to the previous version provides that:

    • Firms' responsibility by planning ahead and ensuring the sound management of their financial resources means taking appropriate steps to conserve capital, and to plan for how to meet potential demands on liquidity.
    • If a firm is planning to draw down a capital and liquidity buffer, it should contact the FCA or its named FCA supervisor.
    • Firms should maintain an up-to-date wind-down plan that takes consideration of the current market impact of the coronavirus (COVID-19) crisis.
    • When considering whether to make a discretionary distribution of capital to fund a share buy-back, fund a dividend, upstream cash or meet a variable remuneration decision, the FCA expects firms and their boards to satisfy themselves that each distribution is prudent given market circumstances, and consistent with their risk appetite. The FCA does not expect firms to distribute capital that could credibly be required to absorb losses over the coming period. The FCA may contact specific firms in relation to this, as relevant.
    • Non-bank lenders subject to IFRS9 are reminded that the standard requires that the forward-looking information used in expected credit loss estimates is both reasonable and supportable. It is essential that the standard is implemented in a well-balanced and consistent way that reflects not only the potential impact of the coronavirus crisis, but also the support provided by governments and central banks domestically and internationally to protect the economy.
  • FCA publishes expectations for wet-ink signatures in light of COVID-19 restrictions

  • On 20 April 2020, the Financial Conduct Authority (FCA) published its expectations of firms when dealing with the need for 'wet-ink' signatures (i.e. signing a document by hand using a pen).
    The FCA's rules do not explicitly require wet-ink signatures in agreements, nor do they prevent firms from using electronic signatures in agreements. The validity of electronic signatures is a matter of law. Firms should consider the legal position themselves because we cannot give legal advice.
    The FCA also recently stated that the FCA would accept electronic signatures for fund-related applications and on all applications from mutual societies. The FCA confirms that firms may use electronic signatures for all interactions withe the FCA.

  • PRA publishes Q&A on the usability of liquidity and capital buffers

  • On 20 April 2020, the Prudential Regulation Authority (PRA) published a set of Q&A on the usability of liquidity and capital buffers and their operation as set out in the PRA rules and guidelines and in response to the COVID-19 outbreak. This document is relevant to all banks to which the Capital Requirements Directive IV applies.
    The questions in this version are as followings:
    1. Regarding Liquidity:

    • Q1. What is a “liquidity buffer”?
    • Q2. What does it mean that liquidity buffers can be used as necessary to support the economy?
    • Q3. What are the implications for a bank of using its liquidity buffers?
    • Q4. What is the expected period banks will have to restore buffers?

    2. Regarding Capital

    • Q1. What is a “capital buffer”?
    • Q2. What are the implications for a bank of using its capital buffers?
    • Q3. If banks use their buffers, what is the expected period they will have to restore these buffers?
  • FCA sets out position on the impact the COVID-19 crisis on professional indemnity insurance (PII) for financial advisers

  • On 21 April 2020, the Financial Conduct Authority (FCA) set out its position on the impact that the coronavirus (COVID-19) crisis is having on professional indemnity insurance (PII) for financial advisers.
    The FCA's position remains that firms need to have PII policies in place in accordance with the FCA^s rules to support their ability to meet liabilities as they fall due and to protect their consumers. It is ultimately a commercial decision for insurers about what cover they will offer including cost and on what terms. But they need to meet their regulatory obligations, including when manufacturing, distributing and writing a contract of insurance.

  • FCA publishes Changes to regulatory reporting up to 30 June 2020

  • On 22 April 2020, the Financial Conduct Authority (FCA) published the changes to regulatory reporting up to 30 June 2020. 
    Given the impact of coronavirus (COVID-19), the FCA introduced some temporary measures for firms submitting regulatory returns, by extending the submission deadlines for the regulatory reporting: 

    • 1 month for reporting of: Own funds, COREP Leverage Ratio, COREP LE, COREP NSFR, Asset Encumbrance, FINREP Breakdown of Credit Risk Data, Market Risk, Operational Risk, Large Exposures, Forecast Data from Firms, Interest rate gap report, UK integrated group - Large Exposures (UK integrated group), Pillar 2 Information, Systems and Controls Questionnaire, High Earners Report, Financial Resources.
    • 2-month for the return of: Annual report and accounts, Annual financial reports (as required under Disclosure Guidance and Transparency Rules), Credit union complaints return, Complaints return, Claims management companies complaints return.
    • Not required to submit the following return for 2020: Employers’ Liability Register compliance return.
  • FCA updates expectations regarding AIFMD in light of coronavirus (COVID-19)

  • On 22 April 2020, the Financial Conduct Authority (FCA) updated its expectations regarding AIFMD in light of coronavirus (COVID-19), by adding one new section on AIFMD transparency reporting.
    The FCA does not intend to change the usual deadlines for reporting transparency information  under the AIFMD Level 2 Regulation (Regulation 231/2013/EU).
    Firms that suspect they may not be able to meet the usual deadlines should inform their usual supervisory contact or contact firm.queries@fca.org.uk to explain the reasons.

  • FCA updates information for firms on COVID-19 response regarding Funds and asset management

  • On 22 April 2020, the Financial Conduct Authority (FCA) updated information for firms on coronavirus (COVID-19) response by adding one new section on Funds and asset management.
    Where required, the FCA gives firms extra time to produce their annual and half-yearly fund reports and accounts because of the impact of coronavirus. Fund managers will have an extra 2 months for their annual fund reports, and an extra 1 month for half-yearly fund reports.
    Fund managers using this additional time will need to promptly inform the fund’s depositary (where one is required) and auditors, and email ukcis@fca.org.uk with details of these funds for which they intend to make use of the relief. 

  • PRA publishes Statement on the regulatory treatment of the UK Coronavirus Business Interruption Loan Scheme (CBILS) and the UK Coronavirus Large Business Interruption Loan Scheme (CLBILS)

  • On 27 April 2020, the Prudential Regulation Authority (PRA) published its statement in response to HM Treasury’s announced changes to UK Coronavirus (COVID-19) business interruption loan schemes.
    This statement complements the government’s announcement, and sets out the PRA’s observations on whether the guarantees provided by the Secretary of State for Business, Energy and Industrial Strategy under the CBILS and CLBILS (the schemes), are eligible for recognition as unfunded credit risk mitigation (CRM) under the Capital Requirement Regulation (CRR). FIrms should:

    • Review relevant articles of the CRR, and any relevant PRA rules and guidance (including expectations set out in the PRA’s Supervisory Statement on credit risk mitigation – SS17/13 ‘Credit risk mitigation’).
    • Where necessary, seek independent advice to confirm that all the applicable requirements and expectations have been satisfied. 

    The PRS expects lenders to:

    • use their judgement on what information is required to make credit decisions.
    • consider the range of information available to them including (but not limited to): the performance of the business prior to the COVID-19 outbreak; a view of how the loan will be repaid in due course, relying on judgement in the absence of financial forecast information; and the general prospects for the sector in which the business operates once the effects of the pandemic have receded.
  • FCA publishes letter on ensuring fair treatment of corporate customers preparing to raise equity finance

  • On 28 April 2020, the Financial Conduct Authority (FCA) published a letter on ensuring fair treatment of corporate customers preparing to raise equity finance. The FCA expects financial firms to continue to provide strong support and services to customers during this period of disruption.
    Firms also need to fulfil their obligations under the Market Abuse Regulation (MAR) concerning the identification, handling and disclosure of inside information received in connection with the renegotiation of a corporate client’s existing facilities. This includes details of a potential equity capital markets transaction. Depending on the circumstances, sharing such information within a lending bank may be inconsistent with that bank’s obligations under MAR. 

  • FCA updates Changes to regulatory reporting during COVID-19

  • On 28 April 2020, the Financial Conduct Authority (FCA) updated on the Changes to regulatory reporting during COVID-19. The FCA has inserted that:

    • The flexibility in relation to the submission deadlines for the regulatory returns, provided firms submit them by the deadlines applies also for the Employers’ Liability Register compliance return due in August.
    • This means firms are not required to commission an audit or draft a Director’s Certificate, this year. However, the FCA expects firms to continue to ensure that the Employers’ Liability Register is accurate and up to date.
    • 2-month delay is also allowed for Key data from claims management companies (CMC001).
  • FCA publishes further statement from the RFRWG on the impact of COVID-19 on the timeline for firms’ LIBOR transition plans

  • On 29 April 2020, the Financial Conduct Authority (FCA) published further information to the  joint statement made on 25 March it remains the central assumption that firms cannot rely on LIBOR being published after the end of 2021. The FCA and the Bank of England have worked with members of the Working Group on Sterling Risk-Free Reference Rates (RFRWG) and its sub-groups and task forces to consider how all firms’ LIBOR transition plans may be impacted by Coronavirus.
    Taking this into consideration the RFRWG recommends that:

    • By the end of Q3 2020 lenders should be in a position to offer non-LIBOR linked products to their customers;
    • After the end of Q3 2020 lenders, working with their borrowers, should include clear contractual arrangements in all new and re-financed LIBOR-referencing loan products to facilitate conversion ahead of end-2021, through pre-agreed conversion terms or an agreed process for renegotiation, to SONIA or other alternatives; and
    • All new issuance of sterling LIBOR-referencing loan products that expire after the end of 2021 should cease by the end of Q1 2021.


    The RFRWG agreed that progress can also continue to be made in other areas, and the FCA, the Bank of England and the Chair of the RFRWG will support the delivery of the RFRWG workplan in key areas that will continue the momentum on LIBOR transition. This includes:

    • Publishing the RFRWG's analysis on, and considerations for, dealing with 'tough legacy' contracts;
    • Building on the strong consensus on how to calculate a fair credit spread adjustment in legacy cash products to assist transition from LIBOR in cash markets; and
    • When plans and working arrangements disrupted by the Coronavirus begin to stabilise, the RFRWG and its members will intensify communication with customers needing to move away from LIBOR as part of transition.
  • PRA adopts recommendations concerning COVID-19 health crisis

  • During the month of April, the Prudential Regulation Authority (PRA) adopted several recommendations concerning COVID-19 health crisis.

    1) PRA publishes joint statement on the delay to implementation of the Basel 3.1 standards
    On 2 April 2020, the Prudential Regulation Authority (PRA) published a joint statement with the HM Treasury on the delay to implementation of the Basel 3.1 standards.
    Delaying the implementation of the Basel 3.1 standards by one year will provide operational capacity for banks and supervisors to respond to the immediate financial stability priorities from the impact of COVID-19.
    PRA and HM Treasury remain committed to the full, timely and consistent implementation of the Basel 3.1 standards, and will work together towards a UK implementation timetable that is consistent with the one year delay.

    2) PRA publishes statement on COVID-19 regulatory reporting and disclosure amendments
    On 2 April 2020, the Prudential Regulation Authority (PRA) published a statement to outline its approach to regulatory reporting and Pillar 3 disclosures for UK banks, building societies, designated investment firms and credit unions in response to COVID-19 and the EBA’s statement on ‘Supervisory reporting and Pillar 3 disclosures in light of COVID-19’. The PRA will consider following aspects: 

    • The delayed submission for the aspects of:
      (i) Harmonized regulatory reporting, where the original remittance deadlines fall on or before 31 May 2020:  For many reports, the original remittance date is 12 May 2020. In applying the extension, the PRA will accept submission on or before 12 June 2020.
      (ii) PRA-owned regulatory reporting where the remittance deadlines contained in the PRA rulebook fall on or before 31 May 2020: Firms are able to submit at any time along the original submission period up to the end of the delayed submission window.
    • To ease the burden on firms at this time the PRA strongly encourages firms to submit branch return data for H1 2020 using the old version of the branch return template instead of the new version of the branch return. 
    • To maintain the safety and soundness of authorised firms during this period, the PRA may request the more frequent submission of particular reports and additional ad-hoc reporting on key prudential metrics. 
    • The PRA will consider whether the actions in this announcement will be extended to reporting beyond that due by the end of May 2020 in due course. 
    • The PRA will be flexible in its expectations of firms’ publication timeline for Pillar 3 disclosures and understands that: 
      (i) For many firms there may be a lag time between the publication of financial statements and Pillar 3 disclosures.
      (ii) As the deadline for publication of firms’ financial statements has been delayed by up to two months, it follows that firms’ Pillar 3 disclosures, which are published at the same time or a reasonable amount of time after the financial statements, will also be delayed significantly compared to the usual publication date.

    3) PRA publishes statement on decision by insurance companies to pause dividends
    On 8 April 2020, the Prudential Regulation Authority (PRA) published its statement on decision by insurance companies to pause dividends.
    The PRA welcomes the prudent decision from some insurance companies today to pause dividends given the uncertainties associated with COVID-19. Decisions regarding capital or significant risk management issues need to be informed by a range of scenarios, including very severe ones.

    4) PRA publishes Letter to PRA-regulated credit unions on COVID-19
    On 8 April 2020, the Prudential Regulation Authority (PRA) published a letter sent to PRA-regulated credit unions on COVID-19. 
    This letter: 

    • sets out details of a PRA rule modification available to all CUs from today’s date until 1 January 2021; 
    • explains the PRA’s supervisory focus and priorities for CUs in this period of stress; and 
    • reiterates messages on regulatory reporting.

    5) PRA updates COVID-19 regulatory reporting and disclosure amendments (9 April 2020)
    On 9 April 2020, the Prudential Regulation Authority (PRA) updated its statement on COVID-19 regulatory reporting and disclosure amendments. The updates aim to extend the deadline of additional returns:- Supervisory benchmarking exercise – credit risk: Up to one month delay - REP005 – High earners report: Up to one month delay.

    6) PRA publishes Q&A on the usability of liquidity and capital buffers
    On 20 April 2020, the Prudential Regulation Authority (PRA) published a set of Q&A on the usability of liquidity and capital buffers and their operation as set out in the PRA rules and guidelines and in response to the COVID-19 outbreak. This document is relevant to all banks to which the Capital Requirements Directive IV applies.
    The questions in this version are as followings:1. Regarding Liquidity:Q1. What is a “liquidity buffer”?Q2. What does it mean that liquidity buffers can be used as necessary to support the economy? Q3. What are the implications for a bank of using its liquidity buffers? Q4. What is the expected period banks will have to restore buffers?2. Regarding CapitalQ1. What is a “capital buffer”?  Q2. What are the implications for a bank of using its capital buffers?  Q3. If banks use their buffers, what is the expected period they will have to restore these buffers?

    7) PRA publishes Statement on the regulatory treatment of the UK Coronavirus Business Interruption Loan Scheme (CBILS) and the UK Coronavirus Large Business Interruption Loan Scheme (CLBILS)
    On 27 April 2020, the Prudential Regulation Authority (PRA) published its statement in response to HM Treasury’s announced changes to UK Coronavirus (COVID-19) business interruption loan schemes.
    This statement complements the government’s announcement, and sets out the PRA’s observations on whether the guarantees provided by the Secretary of State for Business, Energy and Industrial Strategy under the CBILS and CLBILS (the schemes), are eligible for recognition as unfunded credit risk mitigation (CRM) under the Capital Requirement Regulation (CRR). FIrms should:

    • Review relevant articles of the CRR, and any relevant PRA rules and guidance (including expectations set out in the PRA’s Supervisory Statement on credit risk mitigation – SS17/13 ‘Credit risk mitigation’).
    • Where necessary, seek independent advice to confirm that all the applicable requirements and expectations have been satisfied.

    The PRS expects lenders to:

    • use their judgement on what information is required to make credit decisions.
    • consider the range of information available to them including (but not limited to): the performance of the business prior to the COVID-19 outbreak; a view of how the loan will be repaid in due course, relying on judgement in the absence of financial forecast information; and the general prospects for the sector in which the business operates once the effects of the pandemic have receded.
  • Financial supervision

    BoE publishes Market Notice on Asset Purchase Facility (APF): Additional Corporate Bond Purchases

  • On 2 April 2020, the Bank of England (BoE) published Market Notice on Asset Purchase Facility (APF): Additional Corporate Bond Purchase.
    The Bank will purchase bonds issued by companies (including their finance subsidiaries) that make a material contribution to economic activity in the UK, subject to the Bank's restrictions. The Bank will consider a number of factors in making its eligibility decisions. Companies with significant employment in the UK or with their headquarters in the UK will normally be regarded as meeting this requirement, but the Bank will also consider whether the company generates significant revenues in the UK, serves a large number of customers in the UK or has a number of operating sites in the UK.
    Corporate bonds issued by banks, building societies, insurance companies and other financial sector entities regulated by the Bank or the Financial Conduct Authority will not be eligible. Bonds will also not be eligible if issued by leveraged investment vehicles or from companies within groups which are predominantly active in businesses subject to financial sector regulation. 
    The Bank will offer to purchase sterling corporate bonds of eligible issuers, with the following characteristics:a. Conventional senior unsecured or secured, unsubordinated debt. b. Bonds rated investment grade by at least one major rating agency and subject to the Bank’s assessment process. c. Cleared and settled through Euroclear and/or Clearstream. d. Minimum amount in issue of £100 million. e. Minimum residual maturity of twelve months; no perpetual debt. f. At least one month since the security was issued. g. Securities will need to be admitted to official listing on an EU stock exchange. 

  • PRA publishes Business Plan 2020/21

  • On 9 April 2020, the Prudential Regulation Authority (PRA) published Business Plan sets out the PRA’s strategy, workplan, and budget for 2020/21.
    The strategy for 2020/21 will be delivered through PRA's strategic goals, extracts of:

    • Robust prudential standards and supervision: Have in place robust prudential standards and hold regulated firms, and those who run them, accountable for meeting these standards
    • Adapt to market changes and horizon scanning: Continue to adapt to changes in the markets in which the PRA is involved and pre-empt and mitigate risks to PRA's objectives
    • Financial resilience: Ensure that firms are adequately capitalised, and have sufficient liquidity, for the risks they are running or planning to take
    • Operational resilience: Develop our supervision of operational resilience in order to mitigate the risk of disruption to the provision of important business services
    • Recovery and resolution: Ensure that banks and insurers have credible plans in place to enable them to recover from stress events, and that firms work to remove barriers to their resolvability to support the management of failure – proportionate to the firm’s size and systemic importance – in an orderly manner
    • Competition: Facilitate effective competition by actively considering the proportionality of PRA's approach as it contributes to the safety and soundness of the UK financial system
    • EU withdrawal: Deliver a smooth transition to a sustainable and resilient UK financial regulatory framework following the UK’s exit from the European Union
    • Efficiency and effectiveness: Operate effectively and efficiently by ensuring that resources are allocated to work that best advances PRA's strategy and reduces the greatest risks to the delivery of our statutory objectives, and by providing an inclusive working environment in which all staff can perform to their potential.
  • Regulation on Short Selling and certain aspects of Credit Default Swaps

    FCA updates the Short positions disclosed to FCA

  • On 15 April 2020, the Financial Conduct Authority (FCA) updated a private and public notification regime for investors who hold net short positions in certain financial instruments. This document shows the public short positions disclosed to the FCA. 

  • Securities Financing Transactions Regulation (SFTR)

    FCA informs on the Government's guidance on Trade Repository Registration Arrangements under the UK Securities Financing Transactions Regulation

  • On 30 April 2020, the Financial Conduct Authority (FCA) informed that the HM Treasury, UK Government, confirmed that they intended to bring forward legislation before the end of the transition period which will be similar to the Trade Repositories Regulations.
    It will allow TRs who wish to offer services under the UK SFTR to register with the FCA, or apply in advance, and operate in the UK immediately after the end of the transition period.
    Further details, including draft application forms, will be provided in due course.

  • INTERNATIONAL

    Capital requirements / CRD / CRR / Basel III/IV

    BIS publishes Basel III Monitoring Report

  • On 8 April 2020, the Bank of International Settlement (BIS) published the Basel III Monitoring Report. 
    This report presents the results of the Basel Committee's latest Basel III monitoring exercise, based on data as of 30 June 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 June 2019 reporting date, the results do not reflect the economic impact of the coronavirus disease (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.

  • COVID-19 Regulatory Measures

    FATF publishes statement on COVID-19 and measures to combat illicit financing

  • On 1 April 2020, the Financial Action Task Force (FATF) published statement on COVID-19 and measures to combat illicit financing . 
    The FATF encourages governments to work with financial institutions and other businesses to use the flexibility built into the FATF’s risk-based approach to address the challenges posed by COVID-19 whilst remaining alert to new and emerging illicit finance risks. The FATF encourages the fullest use of responsible digital customer on boarding and delivery of digital financial services in light of social distancing measures. At a time when critical relief is needed in-country and beyond, effective implementation of the FATF Standards fosters greater transparency in financial transactions, which gives donors greater confidence that their support is reaching their intended beneficiaries. The continued implementation of the FATF Standards facilitates integrity and security of the global payments system during and after the pandemic through legitimate and transparent channels with appropriate levels of risk-based due diligence.

  • BIS publishes report on Leverage and margin spirals in fixed income markets during the COVID-19 crisis

  • On 3 April 2020, the Bank of International Settlement (BIS) published a report on Leverage and margin spirals in fixed income markets during the COVID-19 crisis.
    The key takeaways of the report are the following:

    • For a two-week period in mid-March 2020, government bond markets experienced uncharacteristic turbulence, sometimes selling off sharply in risk-off episodes when they would normally attract safe haven flows.
    • Evidence in the US Treasury market points to forced selling of treasury securities by investors who had attempted to exploit small yield differences through the use of leverage.
    • Even though government bonds are safe assets, large holdings by leveraged investors may detract from orderly market functioning and may necessitate interventions by the central bank.
  • BIS revises framework for margin requirements for non-centrally cleared derivatives

  • On 3 April 2020, the Bank of International Settlement (BIS) revised the framework for margin requirements for non-centrally cleared derivatives.
    Relative to the 2019 framework the revision extend by one year the final two implementation phases of the margin requirements. With this extension, the final implementation phase will take place on 1 September 2022. 
    This extended timeline will provide additional operational capacity for firms to respond to the immediate impact of the Covid-19 and at the same time, facilitate covered entities to act diligently to comply with the requirements by the revised deadline.

  • IOSCO issues Statement on Application of Accounting Standards during the COVID-19 Outbreak

  • On 3 April 2020, the International Organization of Securities Commissions (IOSCO) issued a Statement on Application of Accounting Standards during the COVID-19 Outbreak.
    In response to the COVID-19 pandemic, a number of governments, authorities and regulators across the globe have adopted relief programmes aimed at financial institutions, businesses and households resulting in increased liquidity, debt payment holidays, moratoriums on repayment of loans and mortgages, loan guarantees and other support measures.
    The IOSCO reminds that issuers should evaluate the implications of these government-backed relief programs and economic forecasts when assessing whether there is a significant increase in credit risk (SICR). These circumstances may have a temporary impact on borrower´s liquidity or more significantly on the credit risk over the expected life of the financial instrument and thus affect the SICR’s assessment and the measurement of the expected credit losses.
    Issuers should include robust disclosures of material information that can provide much needed transparency to users of financial statements. Such disclosure considerations should include how issuers have taken into account the various issues discussed above in determining their ECL approach.
    These considerations are relevant for a wide range of issuers that extend credit and are subject to IFRS 9 impairment requirements, encompassing banks, non-bank financial institutions and other entities that have provided loans and/or credit.

  • ISDA publishes Letter to G-20 on Dollar Funding

  • On 8 April 2020, the International Swaps and Derivatives Association (ISDA), together with the Institute of International Finance (IIF), sent a letter to Group-of-20 finance ministers and central bank governors setting out recommendations to ease the acute shortage of US dollars for emerging market countries.
    The concern is that this dollar liquidity problem has expanded beyond developed markets (DMs) and the four emerging market countries (EMs) with whom the Federal Reserve currently has swap lines. Many other EMs potentially require increased access to USD liquidity since they face numerous challenges during the ongoing COVID-19 crisis. The knowledge of potential foreign exchange shortfalls might lead to a loss of trust in their local currencies, which could, lead to local currency depreciation. The USD liquidity need arises via three potential channels: 

    1. Deterioration of the current account 
    2. Reduced roll over of foreign exchange debt 
    3. Change in the ‘dollarization’ level of the domestic financial system.

    The letter recommends that the G20 finance ministries and central banks work collaboratively with the IMF to take a series of actions: 

    • The Federal Reserve should expand its swap lines to EMs beyond the countries that participated in 2008, where appropriate, recognizing the FRB’s concerns with taking on credit risk. 
    • The G20 should use its influence to increase substantially the “cap” of 50% of quota on the IMF’s Rapid Financing Instrument, which works as a liquidity line for EM countries.    
    • The G20 should use its influence with the IMF to urge it to consider its existing facilities (or to create a new one) that would boost the reserves of EM and DM countries.  This could allow those countries to take advantage of the FRB’s new FIMA Repo Facility.   
    • To increase IMF resources, the G20 countries should accelerate approval of the IMF’s proposal to double the New Arrangements to Borrow and, where appropriate, expand bilateral loans to the IMF. 
  • ISLA publishes position paper - Making Sense of Sustainable Securities Lending & Short Selling During the COVID-19 Crisis

  • On 8 April 2020, the International Securities Lending Association (ISLA) published first position paper of the ISLA Council for Sustainable Finance (ICSF): Making Sense of Sustainable Securities Lending & Short Selling During the COVID-19 Crisis.
    The ISLA Council for Sustainable Finance (ICSF) recognises the severity of the current situation caused by the COVID-19 pandemic, and believes that by demonstrating a collective commitment to the sustainability agenda. The ICSF can stimulate the market and increase investor confidence.
    The paper therefore considers the positive mechanisms that are securities lending and short selling, set against a backdrop of the Principles for Sustainable Securities Lending (PSSL).
    As ICSF is uniquely positioned to combine finance with sustainability, it can contribute to this debate with fresh ideas. It commits to working with regulators so as to demonstrate the potential for PSSL to help with market recovery, strengthen global markets, encourage diversity and inclusion, and reinforce the overall sustainable finance agenda.

  • BIS publishes FSI Brief No 2 addressing financial institutions' operational challenges during the COVID-19 pandemic

  • On 16 April 2020, the Bank of International Settlement (BIS) published FSI Brief No 2 addressing financial institutions' operational challenges during the COVID-19 pandemic
    Guidance issued by financial sector authorities in response to the Covid-19 crisis seems to suggest that international efforts to come up with operational resilience standards should take into account at least the following elements: 

    • critical/essential employees: identifying the critical functions and employees that support important business services, as well as ensuring employees' safety and that they can safely resume their duties (remotely, if necessary).
    • IT infrastructure: ensuring that IT infrastructure can support a sharp increase in usage over an extended period and taking steps to safeguard information security.
    • third-party service providers: ensuring that external service providers and/or critical suppliers are taking adequate measures and are sufficiently prepared for a scenario in which there will be heavy reliance on their services.
    • cyber resilience: remaining vigilant in order to identify and protect vulnerable systems, and detect, respond and recover from cyber attacks.
  • FATF extends its assessment and follow-up deadlines in response to COVID-19

  • On 28 April 2020, the Financial Action Task Force (FATF) informed on the temporarily postponement of all remaining FATF mutual evaluations and follow-up deadlines.
    The FATF has decided on a general pause in the review process for the list of high-risk jurisdictions subject to a call for action and jurisdictions subject to increased monitoring, by granting jurisdictions an additional four months for deadlines.
    Despite the decision to temporarily postpone the deadlines due to the current force majeure situation, the FATF will not let up its efforts to fight money laundering, terrorist financing and proliferation financing, and will continue working with all jurisdictions in its global network to ensure an effective implementation of its standards. 

  • Financial market infrastructure

    ICMA publishes Quarterly Report Second Quarter 2020

  • On 6 April 2020, the International Capital Market Association (ICMA) published Quarterly Report Second Quarter 2020.
    The focus of the ICMA Quarterly Report for the Second Quarter of 2020 is on COVID-19: the impact on capital markets and the response, introduced by a message from Martin Scheck, ICMA’s Chief Executive. There are feature articles on official responses to the market impact of COVID-19:

    • the Chinese bond market and the impact of COVID-19; 
    • Time to Act: ICMA’s third corporate bond secondary market study, which is particularly timely in view of COVID-19. 


    The Quarterly Assessment also deals with post-Brexit and the question of whether the transition period should be extended.

  • Markets in financial instruments Directive and Regulation (MiFID II / MiFIR)

    ICMA publishes an in-depth report on consolidated tape for greater post-trade transparency in the EU bond markets

  • On 30 April 2020, the International Capital Market Association (ICMA) published a report into considerations surrounding the establishment of an EU consolidated tape (CT) for bond markets. This report was produced in response to a request from the European Commission’s DG-FISMA for a bespoke study assessing the feasibility of implementing a consolidated tape for EU post-trade raw bond data.
    Greater transparency in bond markets and other “non-equity” asset classes was one of the key objectives of MiFID II and MiFIR, however, in bond markets, this has yet to be fully achieved. A key reason for this is the lack of a central database, which aggregates the various raw post-trade data sources into a single view, also referred to as a ‘consolidated tape’. Instead, raw post-trade bond data (date, time of execution, reported date & time [taking into account current publication and deferral obligations under MiFID II], ISIN, price, venue, volume, amendment or cancel) is currently fragmented across the different Approved Publication Arrangements (APAs) with inconsistent presentation formats and differing modes of machine readability. Inadequate data quality poses further challenges to the data that is currently available. Lastly, there is also a noticeable unlevel playing field with respect to access to raw post-trade bond data. 
    Commenting on the benefits to the market of a single reliable source of post-trade data, Martin Scheck, ICMA Chief Executive said: “The goal of the bond market consolidated tape is to improve post-trade transparency, assist decision-making and provide market insights to end-investors, large or small. We believe that adoption of the appropriate structure would benefit the whole market, by providing a centralised, high quality, affordable, trustworthy data source, offering a comprehensive market view.“
    The post-trade CT report, the culmination of work by a taskforce of thirty-six ICMA member firms from the buy-side, sell-side, trading venues and data providers, recommends several key elements such as: the assessment of potential governance models likely to become a successful consolidated tape provider (CTP) ‘going concern’; creation of a CTP revenue sharing scheme for APAs and trading venues based on quality of cleansed aggregated data; a balanced tiered pricing model based on usage (or proportion of usage); relevant necessary changes to level one of MiFID II to alter the CTP obligation to obtain bond post-trade data, to an obligation for venues, APAs and eligible investment firm obligation to provide it to the CTP; and finally the borrowing of a number of fundamentals from Trade Reporting and Compliance Engine (TRACE), a consolidated tape for the US fixed income markets.

  • Securities Financing Transactions Regulation (SFTR)

    ICMA ERCC releases updated version of its SFTR recommendations

  • On 22 April 2020, the International Capital Market Association (ICMA) published an updated version of the ICMA Recommendations for Reporting under SFTR. The ICMA guide was initially published on 24 February and aims to help members interpret the regulatory reporting framework specified by ESMA and sets out complementary best practice recommendations to provide additional clarity and address ambiguities in the official guidance. As compared to the initial publication, the updated version published includes relevant updates, including to reflect the recently granted 3-month delay to the first phase of the SFTR go-live as well as the forbearance on backloading. The updated version also covers a number of new questions, as well as additions and revisions to existing recommendations covered in the guide. For ease of comparison, ICMA published, alongside the new guide, a blackline version which shows all the changes that have been made since the initial publication. 

  • Sustainable Finance / Green Finance

    IOSCO steps up its efforts to address issues around sustainability and climate change

  • On 14 April 2020, the International Organization of Securities Commissions (IOSCO) published its report on Sustainable Finance and the Role of Securities Regulators and IOSCO, which seeks to help market participants address issues related to sustainability and climate change.  
    The report highlights three recurring themes that involve multiple and diverse sustainability frameworks and standards, including sustainability-related disclosure, a lack of common definitions of sustainable activities, and greenwashing and other challenges to investor protection. 
    The report indicates that many issuers and asset managers operating cross border may be subject to different regulatory regimes or participate in multiple regional or international third-party initiatives. This wide variety of regulatory regimes and initiatives, often with inconsistent objectives and requirements, may prevent stakeholders from fully understanding the risks and opportunities that sustainable business activities entail.

    • More
    • IOSCO steps up its efforts to address issues around sustainability and climate change
  • CONTACTS

    This publication is produced by the Projects & Regulatory Monitoring teams as well as experts from the Legal Department and the Compliance Department of CACEIS entities, together with the close support of the Communications Department.

    Editors
    Gaëlle Kerboeuf, CACEIS Group Legal Manager - Projects & Regulatory Monitoring
    Pauline Fieni, CACEIS Compliance - General secretary, Projects & Regulatory Monitoring

    Permanent Editorial Committee
    Gaëlle Kerboeuf, CACEIS Group Legal Manager - Projects & Regulatory Monitoring
    Pauline Fieni, CACEIS Compliance - General secretary, Projects & Regulatory Monitoring
    Corinne Brand, Group Communications Manager

    Local Expert Correspondents
    Jennifer Yeboah, Team Manager Legal (CACEIS Belgium)
    François Honnay, Head of Legal and Compliance (CACEIS Bank Belgium Branch)
    Tania Deltchev, Head of Legal (France)
    Stefan Ullrich, Head of Legal (Germany)
    Robin Donagh, Legal Advisor (Ireland)
    Razanajafy (Fara) Francois-Sim, Head of Compliance (CACEIS Ireland Limited)
    Costanza Bucci, Head of Legal & Compliance (Italy)
    Agathe Doleans, Deputy Chief Compliance Officer (Luxembourg)
    Fernand Costinha, Head of Legal (Luxembourg)
    Gérald Stadelmann, Head of Legal (Luxcellence Luxembourg)
    Mireille Mol, Legal & Compliance (Netherlands)
    Alessandra Cremonesi, Legal Fund Structuring (Switzerland)
    Samuel Zemp compliance office (CACEIS Bank Switzerland Branch)
    Neil Coxhead, Managing Director & Head of Regional Coverage (UK Branch)
    Michele Tuen, Head of Trustee and Legal, Trustee and Legal (Hong Kong)
    Marc Weijkamp, AH Legal (Netherlands)

    Design
    CACEIS Group Communications

    Photos credit
    CACEIS, Adobe Stock

    CACEIS
    1-3, place Valhubert
    75206 Paris CEDEX 13