Benchmarks Regulation (BMR)
ESMA publishes report on proposed fees for Benchmarks administrators
On 1 February 2021, the European Securities and Markets Authority (ESMA) published the Final Report on its Technical Advice regarding supervisory fees for benchmarks administrators under the BMR.
The aim of the Final Report is to advise the European Commission (EC) on fees to be paid by benchmark administrators that will be supervised by ESMA starting in January 2022.
Supervisory fees will be collected from administrators of critical benchmarks and those of third-country benchmarks that are subject to the EU recognition regime. ESMA's Final Report specifies the type of fees, the services for which fees are due, the amount of the fees and the frequency of payment.
Council of the EU adopts new rules addressing LIBOR cessation
On 2 February 2021, the Council of the EU adopted amendments to the Benchmark Regulation addressing the termination of financial benchmarks.
The amendments have been made against the background of an expected phasing-out of the London Inter-Bank Offered Rate (LIBOR) by the end of 2021. The aim of the new rules is to reduce legal uncertainty and avoid risks to financial stability by making sure that a statutory replacement rate can be put in place by the time a systemically important benchmark is no longer in use.
Under the new framework, the Commission will have the power to replace so-called 'critical benchmarks', which could affect the stability of financial markets in the EU, and other relevant benchmarks, if their termination would result in a significant disruption in the functioning of financial markets in the EU. The Commission will also be able to replace third-country benchmarks if their cessation would result in a significant disruption in the functioning of financial markets or pose a systemic risk for the financial system in the EU.
The new rules also cover the replacement of a benchmark designated as critical in one member state, through national legislation.
In addition, the amendments to the Benchmark Regulation extend the transition period for the use of third-country benchmarks until the new rules governing the use of such benchmarks are applied.
EU supervised entities will be able to use third-country benchmarks until the end of 2023. The Commission may further extend this period until the end of 2025 in a delegated act to be adopted by 15 June 2023, if it provides evidence that this is necessary in a report to be presented by that time.
The text of the regulation adopted by the EU Council on 2 February will be signed on 10 February and is expected to be published in the Official Journal on 12 February. It will enter into force and apply from the following day.
EP publishes the opinion on the proposal for a Council Decision on the conclusion of the UK-EU Trade and Cooperation Agreement
On 2 February 2021, the European Parliament (EP) published the opinion on the proposal for a Council Decision on the conclusion of the UK-EU Trade and Cooperation Agreement. The key points are as followings:
- Calls on the Commission, the ECB, the ESAs, the ESRB and the Single Resolution Board to closely monitor the implementation of the Agreement and market developments in financial services in order to identify potential market disruptions and threats to financial stability, market integrity and investor protection in a timely manner;
- Market access: Calls on the Commission to reflect if and under what conditions the future framework for regulatory cooperation on financial services could strategically integrate the objectives to cooperate in tax matters and fight money laundering into the EU equivalence framework
- CMU: Calls on the Commission to adopt a legislative proposal amending existing financial services legislation (‘the Omnibus Regulation’) with a view to adapting it to the new situation in which the UK has left the internal market and thus where all references to specific UK circumstances have become inappropriate
- AML/CFT: Calls on the Commission to use the tools available, to consider new tools in the upcoming revision of the anti-money-laundering framework and to ensure sincere cooperation in relation to beneficial ownership transparency, to guarantee a level playing field and to protect the single market from money laundering and terrorist financing risks emanating from the UK.
EC launches process towards the adoption of adequacy decision for transfers on personal data flows to UK (GDPR)
On 19 February 2021, the European Commission (EC) launched the process towards the adoption of two adequacy decisions for transfers of personal data to the United Kingdom, one under the General Data Protection Regulation and the other for the Law Enforcement Directive.
The EC carefully assessed the UK's law and practice on personal data protection, including the rules on access to data by public authorities. It concludes that the UK ensures an essentially equivalent level of protection to the one guaranteed under the General Data Protection Regulation (GDPR) and, for the first time, under the Law Enforcement Directive (LED).
The publication of the draft decisions is the beginning of a process towards their adoption. Once this procedure will have been completed, the Commission could proceed to adopt the two adequacy decisions.
Once these draft decisions are adopted they would be valid for a first period of 4 years. After 4 years, it would be possible to renew the adequacy finding if the level of protection in the UK would continue to be adequate.
Until then data flows between the European Economic Area and the UK continue and remain safe thanks to a conditional interim regime that was agreed in the EU-UK Trade and Cooperation Agreement. This interim period expires on 30 June 2021.
EDPS publishes Opinion on two proposed agreements between the EU and the UK: the Trade and Cooperation Agreement and an agreement on the security procedures for exchanging and protecting classified information
On 22 February 2021, the European Data Protection Supervisor (EDPS) published its Opinion on two proposed agreements between the European Union (EU) and the United Kingdom (UK):
- the Trade and Cooperation Agreement (TCA) and
- agreement on the security procedures for exchanging and protecting classified information.
Given the close cooperation that is expected to continue between the EU and the UK, the EDPS welcomes these two agreements. In particular, the EDPS notes that the TCA is based on respecting and safeguarding human rights and the parties’ commitment to ensure a high level of protection of personal data.
Nevertheless, the TCA fails to faithfully take over the EU’s horizontal provisions for cross-border data flows and for personal data protection. Such provisions, which the European Commission has repeatedly stated as non-negotiable, allow the EU to include measures to facilitate cross-border data flows in trade agreements while preserving individuals’ fundamental rights to data protection and privacy. Thus, in amending these horizontal provisions, the TCA creates legal uncertainty about the EU’s position on the protection of personal data in the context of trade agreements and risks creating friction with the EU data protection legal framework.
Capital Markets Union (CMU) Action Plan
EBF publishes High Level Position on the Capital Market Union Action Plan
On 15 February 2021, the European Banking Federation (EBF) published a High Level Position on the Capital Market Union Action Plan.
The EBF welcomes the five-year Capital Market Union (CMU) action plan published by the European Commission (EC) in September 2020. The EBF agrees with the EC that the development of the European Union’s (EU) financial markets is key to finance the green recovery and the digital transformation of the EU. While the EBF has always been an active supporter of EU capital markets, the health crisis and the economic recovery make the CMU project even more necessary than before. With a limited access to the UK since 1 January 2021, the EU needs to become autonomous and to offer competitive alternatives to corporates and investors.
While supporting most of the actions proposed in the action plan, the EBF would like to highlight the need for prioritisation and sequencing of the 16 actions identified by the EC. Furthermore, the members believe that certain actions are a prerequisite to pursuing others. EBF understands this action plan requires a pan-EU agreement on the whole scope (with no cherry-picking). Therefore, the responsive and timely behaviour of all interested stakeholders will ensure overall success and prevent unnecessary delays in the implementation of the long-awaited key milestones and be beneficial for the EU‘s economy and citizens.
The EBF would like to emphasise the need for a strong commitment from the EU Member States, as bold actions and reforms for deeper capital markets can only be taken with their support, as advocated by Markets4Europe, the cross-sectorial and EU wide campaign coordinated by the EBF.
Central Securities Depositary Regulation (CSDR)
AFME publishes response to the target consultation on the review of CSDR
On 10 February 2021, the Association for Financial Markets in Europe (AFME) published its response to the target consultation on the review of CSDR.
AFME welcomes the opportunity to respond to this consultation on the review of the Central Securities Depositories Regulation (“CSDR”). This is a broad-ranging consultation, which covers many important policy areas. The key concern to our members is a requirement to amend the Settlement Discipline provisions, in particular the mandatory nature of the buy-in rules.
AFME considers that other measures, such as those relating to allocation and confirmation procedures, enhancements to CSD functionality, and the introduction of a penalty mechanism, are broadly appropriate with the minor changes suggested in the response, and welcome their introduction at the first possible opportunity. Our most critical recommendation is that initiation of the buy-in process must be a discretionary right of the receiving party, not a mandatory obligation.
AFME proposes a division of the settlement discipline regime. This would involve a first phase in which cash penalties and other measures are introduced, followed by amended buy-in rules in a second phase at an appropriate later date. There are two principal advantages to this sequencing:
- Penalties and other measures can take effect, and their impact monitored and assessed by the authorities.
- If there are to be significant amendments to the current buy-in rules, additional time will be required by all industry participants to adjust accordingly.
This may involve changes to technology and a change to the legal agreements with counterparties to incorporate relevant contractual arrangements. It is impractical and inefficient for the industry to prepare for implementation based on the existing requirements.
AFME asks that these timing concerns are given due consideration by regulators and policy makers, and that clarity is provided quickly on any proposed changes to the CSDR Settlement Discipline Regime. AFME strongly believes that the aforementioned ‘first phase’ initiatives will deliver an improvement to current settlement rates. To measure the success of these new initiatives, we would support further empowerment of ESMA to set target settlement efficiency rates, and to periodically recalibrate the applicable penalty rates. Taken together, these measures would provide a robust, flexible and transparent regulatory framework to appropriately incentivise market participants. This should be supplemented by a buy-in mechanism, which enshrines into EU law the discretionary right of the purchasing party to initiate a buy-in on a failed transaction, and sets out a high-level, harmonized framework for this process.
AFME publishes a position paper on Review of the CSDR – Delivering settlement discipline and supporting liquid and well-functioning European capital markets
On 12 February 2021, the Association for Financial Markets in Europe (AFME) has published a position paper highlighting the risk of mandatory buy-ins to Europe’s economic recovery from the COVID-19 crisis, and calling for this measure to be removed from the upcoming Central Securities Depositories Regulation (CSDR). According to the paper, the mandatory buy-in rules will negatively impact the market by:
- Increasing costs for issuers and investors
- Reducing investor appetite, in particular for SME securities
- Removing liquidity from European markets.
AFME believes this is a disproportionate measure to address the small percentage of trades that fail. The trade association is calling for a more pragmatic, discretionary approach to the buy-in regime.
COVID-19 Regulatory Measures
COVID-19 Regulatory Measures
On 11 February 2021, the European Parliament adopted measures to protect investors and cut red tape for firms.
The adopted targeted adjustments to the Markets in Financial Instruments Directive (MIFID II) remove unnecessary administrative burdens while striking a balance between protecting investors and keeping compliance costs low for firms. The changes apply mostly to professional clients and eligible counterparties such as insurers, pension funds, or public institutions.
Changes to the Prospectus Regulation, which, create a temporary, short-form “EU recovery prospectus” (until 31 December 2022), were also adopted that day. This simplified document presents information about a company and the securities that it offers to the public. It should help companies to raise the capital they need to rebuild their business quickly in the wake of the pandemic.
Both sets of rules belong to the Capital Markets Recovery Package, which is part of the EU’s overall COVID-19 recovery strategy.
Here are a Regulation and a Directive from the EU on Regulatory Measures to help the recovery from the COVID-19 crisis
Here are a Regulation and a Directive from the EU on Regulatory Measures to help the recovery from the COVID-19 crisis.
1. On 26 February 2021, the Regulation (EU) 2021/337 of the European Parliament and of the Council of 16 February 2021 amending Regulation (EU) 2017/1129 as regards the EU Recovery prospectus and targeted adjustments for financial intermediaries and Directive 2004/109/EC as regards the use of the single electronic reporting format for annual financial reports, to support the recovery from the COVID-19 crisis was published in the Official Journal of the European Union (OJ), which mainly provided that:
A. The prospectus exemption threshold of EUR 75 million is increased to EUR 150 million for a limited period of time, from 18 March 2021 to 31 December 2022. This applies to non-equity securities issued in a continuous or repeated manner by a credit institution, where the total aggregated consideration in the Union for the securities offered is less than the threshold per credit institution calculated over a period of 12 months, provided that those securities:
(i) are not subordinated, convertible or exchangeable; and
(ii) do not give a right to subscribe for or acquire other types of securities and are not linked to a derivative instrument.
B. The summary of an EU Recovery prospectus:
- shall be drawn up as a short document written in a concise manner and of a maximum length of two sides of A4-sized paper when printed.
- shall not contain cross-references to other parts of the prospectus or incorporate information by reference and shall:
a) be presented and laid out in a way that is easy to read, using characters of readable size;
b) be written in a language and a style that facilitate the understanding of the information, in particular, in language that is clear, non-technical, concise and comprehensible for investors;
c) be made up of the following four sections:
(i) an introduction
(ii) key information on the issuer, including, if applicable, a specific reference of not less than 200 words to the business and financial impact on the issuer of the COVID-19 pandemic;
(iii) key information on the shares, including the rights attached to those shares and any limitations on those rights;
(iv) key information on the offer of shares to the public and/or the admission to trading on a regulated market.
C. Considering that the preparation of annual financial reports using the single electronic reporting format requires the allocation of additional human and financial resources, in particular during the first year of preparation, and considering the constraints on issuers’ resources due to the COVID-19 pandemic, a Member State may allow issuers to apply that reporting requirement for financial years beginning on or after 1 January 2021, provided that that Member State notifies the Commission of its intention to allow such a delay by 19 March 2021, and that its intention is duly justified.
2. On 26 February 2021, the Directive (EU) 2021/338 of the European Parliament and of the Council of 16 February 2021 amending Directive 2014/65/EU as regards information requirements, product governance and position limits, and Directives 2013/36/EU and (EU) 2019/878 as regards their application to investment firms, to help the recovery from the COVID-19 crisis was published in the Official Journal of the European Union (OJ). The key changes to MiFID II in the Amendment include:
- simplifying information requirements;
- phasing out paper-based investment information;
- amending the “ancillary activity exemption” to include a qualitative test in addition to the existing quantitative tests for firms trading in commodity derivatives; and
- adapting the position limit regime for commodity derivatives to include additional exemptions as well as to support the development of new commodity markets.
There has been nothing changes since the Council's adoption on 15 February 2021. The final text only further the dates that:
- The Commission shall comprehensively review the adequacy of the periodic reporting requirements and submit a report to the European Parliament and the Council: by 28 February 2022.
- ESMA shall submit draft regulatory technical standards to the Commission: by 28 November 2021.
- Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive: by 28 November 2021.
- They shall apply those measures: from 28 February 2022.
European Crowdfunding Service Providers (ECSP) Regulation
Here are two publications from the ESMA on crowdfunding
Here are two publications from the ESMA on crowdfunding.
1. On 25 February 2021, the European Securities and Markets Authority (ESMA) published a Questions and Answers (Q&A) regarding the understanding of Special Purpose Vehicle (SPV) aspects under the Regulation on European crowdfunding service providers for business.
This first set of Q&As provides clarifications on the use of SPV under the ECSPR. It addresses the following topics:
- The circumstances and conditions in which a SPV can be created for the provision of crowdfunding services;
- The types of instruments that can be offered to investors via a SPV;
- Whether a SPV can give exposure to more than one underlying asset;
- The type of underlying asset a SPV can give exposure to; and
- When an asset should be deemed to be illiquid or indivisible within the meaning of the ECSPR.
2. On 26 February 2021, the European Securities and Markets Authority (ESMA) launched a consultation on draft technical standards on crowdfunding under the European crowdfunding service providers regulation (ECSPR). The new Regulation on crowdfunding regulates for the first time at EU level lending-based and equity-based crowdfunding services. It introduces a single set of requirements applicable to CSPs across the EU, including strict rules to protect investors.
ESMA will consider the responses to this consultation when developing the draft technical standards for the European Commission. The closing date for responses from stakeholders is 28 May 2021.
European Market Infrastructure Regulation (EMIR)
European Commission launches initiative on derivatives trading to recognize United States legal and supervisory system as equivalent to EU system
On 3 February 2021, the European Commission launched an initiative on derivatives trading to recognize United States legal and supervisory system as equivalent to EU system.
This initiative concerns over-the-counter (OTC) derivative transactions between an entity in the EU and an entity in the United States.
These are transactions not cleared by a central counterparty, which are supervised by the US prudential regulators.
The initiative aims to ensure there are no conflicting or duplicating requirements in the treatment of these cross-border transactions.
The documentation linked to this initiative is currently not published.
EU publishes Commission Delegated Regulation (EU) 2021/236 of 21/12/2020 amending technical standards of Delegated Regulation (EU) 2016/2251 on the timing of when certain risk management procedures will start to apply for the exchange of collateral
On 17 February 2021,the Commission Delegated Regulation (EU) 2021/236 of 21 December 2020 amending technical standards laid down in Delegated Regulation (EU) 2016/2251 as regards to the timing of when certain risk management procedures will start to apply for the purpose of the exchange of collateral was published in the Official Journal.
Counterparties may provide in their risk management procedures that variation margins are not required to be posted or collected for physically settled foreign exchange forward contracts and physically settled foreign exchange swap contracts where one of the counterparties is not an institution as defined in Article 4(1), point (3), of Regulation (EU) No 575/2013 of the European Parliament and of the Council or would not qualify as such an institution if it were established in the Union.
Counterparties referred to in Article 11(3) of Regulation (EU) No 648/2012 may also continue to apply the risk management procedures that they have in place on 18 February 2021 in respect of non-centrally cleared OTC derivative contracts fulfilling all of the conditions listed in the Regulation.
EU publishes Commission Delegated Regulation (EU) 2021/237 of 21/12/2020 amending RTS of Delegated Regulations (EU) 2015/2205, (EU) 2016/592 and (EU) 2016/1178 on the date at which the clearing obligation takes effect for certain types of contracts
On 17 February 2021, the Commission Delegated Regulation (EU) 2021/237 of 21 December 2020 amending regulatory technical standards laid down in Delegated Regulations (EU) 2015/2205, (EU) 2016/592 and (EU) 2016/1178 as regards the date at which the clearing obligation takes effect for certain types of contracts was published in the Official Journal.
By way of derogation from points (a), (b) and (c) of paragraph 1, in respect of contracts pertaining to a class of OTC derivatives set out in the Annex and concluded between counterparties other than counterparties in Category 4 which are part of the same group and where one counterparty is established in a third country and the other counterparty is established in the Union, the clearing obligation shall take effect on 30 June 2022.
By way of derogation from paragraphs 1 and 2, in respect of contracts pertaining to a class of OTC derivatives set out in the Annex, the clearing obligation shall take effect from 18 February 2022 where the following conditions are fulfilled: (a) the clearing obligation has not been triggered by 18 February 2021; (b) the contracts are novated for the sole purpose of replacing the counterparty established in the United Kingdom with a counterparty established in a Member State.
ESMA publishes final report on Guidelines on common procedures and methodologies on supervisory review and evaluation process of CCPs under Article 21 of EMIR
On 24 February 2021, the European Securities and Markets Authority (ESMA) published the final report on Guidelines aimed at assisting competent authorities in the application of EMIR provisions that deal with the review and evaluation of central counterparties (CCPs).
The guidelines address common procedures and methodologies for the review of arrangements, strategies, processes and mechanisms implemented by CCPs. This includes the evaluation of risks, covering requirements for CCPs to address financial, organizational, operational, and prudential risks as laid down in EMIR.
The objective of these guidelines is to ensure consistency in format, frequency, and depth of CCP supervisory reviews and evaluation processes. In particular, they cover review and evaluation of:
- capital requirements
- organizational requirements
- business continuity
- conduct of business
- prudential requirements, and
- interoperability arrangements.
The Guidelines will be translated in the official EU languages and published on ESMA’s website. The publication of the translations will trigger a two-month period during which national competent authorities must notify ESMA whether they comply or intend to comply with the Guidelines.
FinTech / RegTech / BigTech / SupTech / Digital Economy
EC publishes roadmap on Europe's digital decade: 2030 digital targets
On 10 February 2021, the European Commission published a roadmap related to a common digital plan towards 2030, endorsed by the European Council, this Communication aims to provide a vision of what a successful digital transformation means for Europeans by 2030. It will include a clear ambition based on common targets, digital principles serving people, a framework to foster scaling up European strategic capacities with multi-country projects, a governance structure and actions to engage with citizens.
The Communication aims to provide:
- A vision of what a successful digital transformation means for Europeans by 2030 and a pathway to achieve it
- To reach this vision, the EU would be called to raise its ambition for its digital future towards 2030 in particular in four areas to ensure synergies between digital and green transitions and between the domestic and the external dimensions
- Common digital targets which would capture EU’s common ambition
- A first proposal of a Charter of Digital principles at the service of people
- Furthermore, the Communication would initiate a process aiming at setting out a “2030 Digital Compass”
- For the EU to lead the Digital Decade and strengthen its digital sovereignty, it needs to build its ambitions at home with an outward looking vision that will help the Union map a clear path to project and drive the EU’s strategic interests and values at a global level
The feedback period ends on 9 March 2021.
Investment Funds / Collective Investment Schemes (CIS) / Asset Management
ESMA finalizes rules on standardized information to facilitate cross-border distribution of funds
On 1 February 2021, the European Securities and Markets Authority (ESMA) published a final report on implementing technical standards (ITS) under the Regulation on cross-border distribution of funds. The ITS focus on the publication of information by national competent authorities (NCAs) on their websites, the notification of information by NCAs to ESMA and the publication of information by ESMA on its website.
The final report and draft ITS largely reflect the original consultation proposals, focused on the information to be published on NCAs websites regarding the national rules governing marketing requirements for funds, and the regulatory fees and charges levied by NCAs in relation to fund managers’ cross-border activities.
The draft ITS also include provisions on the communication of information by NCAs to ESMA for the purpose of developing and maintaining a central database listing UCITS and AIFs marketed cross-border on ESMA’s website.
Prudential Requirements for Investment Firms Directive & Regulation (IFD / IFR)
EBA consults on draft technical standards to improve supervisory cooperation for investment firms
On 24 February 2021, the European Banking Authority (EBA) launched 2 public consultations on regulatory technical standards (RTS) and Implementing Technical Standards (ITS) on cooperation and information exchange between competent authorities involved in prudential supervision of investment firms. Both consultations run until 23 April 2021.
These draft standards provide a solid framework for:
(i) cooperation in the supervision of investment firm groups though colleges of supervisors and
(ii) for information exchange for investment firms operating through branches or the free provision of services.
The draft RTS on colleges of supervisors for investment firms groups specify the conditions under which colleges of supervisors exercise their tasks. The RTS target the investment firm groups falling under the remit of the Investment Firms Directive (IFD) and are built on the experience gained over the years in the colleges of supervisors of credit institutions and larger and more complex investment firms groups that have been established in accordance with the Capital Requirements Directive (CRD). The draft RTS are structured around four main sections:
- establishment of colleges,
- functioning of colleges;
- planning and coordination of supervisory activities in going concern situations;
- planning and coordination of supervisory activities in preparation for and during emergency situations.
ESMA updates Q&As, templates and technical instructions for securitization reporting
On 26 February 2021, the European Securities and Markets Authority (ESMA) published 4 new Q&As and modified 11 existing Q&As for securitization reporting. ESMA also updated reporting instructions and an XML schema for the templates set out in the technical standards on disclosure requirements.
The new Q&As include instructions on how to report split and merged underlying exposures. The updated Q&As include revised instructions on how to report income fields for buy-to-let residential real estate mortgages.
The revised reporting instructions address technical issues identified by stakeholders since August 2020. To facilitate the smooth implementation of the updated rules, reporting entities may choose to use version 1.2.0 or version 1.3.0 of the XML schema and of the validation rules until 1 September 2021. As of that date, reporting entities may only use the latest version.
ESMA has also published an XML schema for each of the two standard reports which a registered securitisation repository (SR) must provide in accordance with the regulatory technical standards on securitisation repository operational standards.
Settlement Finality Directive (SFD)
EC launches a targeted consultation on the review of the Directive on settlement finality in payment and securities settlement systems
On 12 February 2021, the European Commission launched a targeted consultation on the review of the Directive on settlement finality in payment and securities settlement systems.
The answers provided to this consultation of the Settlement Finality Directive (SFD) will feed into a Commission report to the European Parliament and Council. The current review covers a variety of issues that have come up since the last review of the SFD which took place in 2008/2009. It considers the impact of new developments in a changing business, technological and regulatory environment. The SFD regulates and protects designated securities settlement and payment systems. It guarantees that transfer orders entered into such systems are also finally settled, regardless of whether the sending participant has become insolvent.
The consultation runs until 7 May 2021.
Sustainable Finance / Green Finance
Here are two publications from the ESAs on the application of the SFDR
Here are two publications from the ESAs on the application of the SFDR.
1. On 4 February 2021, the European Supervisory Authorities (ESAs) published the final report on draft regulatory technical standards (RTS) for the Sustainable Finance Disclosures Regulation (SFDR.
The proposed RTS aim to strengthen protection for end-investors by improving Environmental, Social and Governance (ESG) disclosures to end-investors on the principal adverse impacts of investment decisions and on the sustainability features of a wide range of financial products. This will help to respond to investor demands for sustainable products and reduce the risk of greenwashing.
2. On 25 February 2021, the European Supervisory Authorities (ESAs) published a joint supervisory statement on the effective and consistent application and national supervision of the Regulation on sustainability-related disclosures in the financial services sector (SFDR).
The statement aims to achieve an effective and consistent application and national supervision of the SFDR, promoting a level playing field and protecting investors.
The ESAs recommend the draft RTS be used as a reference when applying the provisions of the SFDR in the interim period between the application of SFDR (as of 10 March 2021) and the application of the RTS at a later date.
The ESAs have also set out in an Annex more specific guidance on the application of timelines of some specific provisions of the SFDR, in particular on the application timeline for entity-level principal adverse impact disclosures and for financial products’ periodic reporting.
In addition, the Annex includes a summary table of the relevant application dates of the SFDR, the Taxonomy Regulation and the related RTS.
Anti-money laundering / Combating the financing of terrorism (AML / CFT)
France publishes Order of 1 February 2021 with regard to the freezing of assets without delay / La France publie l'Arrêté du 1er février 2021 en matière de gel des avoirs sans délai
On 2 February 2021, Order of 1 February 2021 applying Articles L. 562-3-1 and following of the Monetary and Financial Code with regard to the freezing of assets without delay was published in the Official Journal.
The Order aims at implementing the United Nations Security Council Resolutions.
Le 2 février 2021, l'Arrêté du 1er février 2021 portant application des articles L. 562-3-1 et suivants du code monétaire et financier en matière de gel des avoirs sans délai a été publié au Journal Officiel.
L'arrêté vise à mettre en œuvre les résolutions du Conseil de sécurité des Nations unies.
AMF informs on the strengthening by ordinance of the AML/CFT framework for digital assets applicable to PSANs / L'AMF informe sur le renforcement par ordonnance du cadre LB/FT pour les actifs numériques appliqués aux PSAN
On 12 February 2021, the Autorité des marchés financiers (AMF) informed on the strengthening by ordinance of the AML/CFT framework for digital assets applicable to PSANs.
An order published last December modifies the regime for providers of services on digital assets (PSAN) established by the PACTE Act. It makes registration with the AMF mandatory for PSANs providing services for exchanging digital assets for other digital assets and operating a digital asset trading platform. It also refocuses the authorities' due diligence on key LCB-FT obligations when registering PSANs providing services for the custody and purchase or sale of digital assets in legal tender.
Le 12 février 2021, l'Autorité des marchés financiers (AMF) a informé sur le renforcement par ordonnance du cadre LB/FT pour les actifs numériques appliqués aux PSAN.
Une ordonnance publiée en décembre dernier modifie le régime des prestataires de services sur actifs numériques (PSAN) établi par la Loi PACTE. Elle soumet à enregistrement obligatoire auprès de l’AMF les PSAN fournissant les services d’échange d’actifs numériques contre d’autres actifs numériques et d’exploitation d’une plateforme de négociation d’actifs numériques. Elle recentre également sur les obligations clés en matière de LCB-FT le contrôle préalable effectué par les autorités lors de l’enregistrement des PSAN fournissant les services de conservation et d’achat ou de vente d’actifs numériques en monnaie ayant cours légal.
Directive on administrative cooperation in the field of taxation (DAC 6)
AMAFI publishes a Guide DAC 6 / L'AMAFI publie un Guide DAC 6
On 4 February 2021, the Association Française des Marchés Financiers (Amafi) published a Guide DAC 6 .
In order to make it easier for its members to comply with their reporting obligations, the Association wanted to provide them with a guide to the DAC 6 regulations in the form of a Professional Guide. Volume 1 presents the legislative, regulatory and doctrinal framework of the DAC 6 system. Volume 2 provides a common interpretative basis for the typical activities of financial market participants with regard to DAC 6.
The proposed analysis is based on AMAFI's work in working groups dedicated to DAC 6 and supervised by the Tax Committee. The Guide also refers to the work, recommendations, framework contracts, etc. issued by other national and international professional organizations in the financial sector, such as the International Capital Market Association (ICMA), the International Swaps and Derivatives Association (ISDA) and the International Securities Lending Agreement (ISLA), SIFMA (Securities Industry and Financial Market Association), AFME (Association for Financial Markets in Europe), FBE (European Banking Federation), AFG (Association Française de la Gestion Financière), AFTI (Association Française des Professions des Titres), FBF (Fédération Bancaire Française), Bankenverband (Association of German Banks).
Le 4 février 2021, l'Association Française des Marchés Financiers (Amafi) a publié un guide sur DAC 6.
Pour faciliter la mise œuvre à ses adhérents de leurs obligations déclaratives, l’Association a souhaité leur fournir une grille de lecture de la réglementation DAC 6 sous la forme d’un Guide professionnel. Le Tome 1 présente le cadre législatif, réglementaire et doctrinal du dispositif DAC 6. Le Tome 2 propose un socle commun interprétatif des activités typiques des acteurs de marché financier au regard de DAC 6.
L’analyse ainsi proposée est élaborée sur la base des réflexions menées par l’AMAFI au sein de groupes de travail dédiés à DAC 6 et supervisés par le Comité Fiscal. Le Guide fait également référence aux travaux, recommandations, contrats-cadres, … émis par d’autres organisations professionnelles du secteur financier, nationales ou internationales, telles que l’ICMA (International Capital Market Association), l’ISDA (International Swaps and Derivatives Association), l’ISLA (International Securities Lending Agreement), la SIFMA (Securities Industry and Financial Market Association), l’AFME (Association for Financial Markets in Europe), la FBE (Fédération Bancaire Européenne), l’AFG (Association Française de la Gestion Financière), l’AFTI (Association Française des Professions des Titres), la FBF (Fédération Bancaire Française), la Bankenverband (Association des banques allemandes).
AMF publishes Guide on fees and contributions owed to the AMF / L'AMF publie un guide sur les droits et contributions dus à l'AMF
On 5 February 2021, the Autorité des marchés financiers (AMF) published a Guide on fees and contributions owed to the AMF.
This guide presents the system of rights and contributions due to the AMF by service providers, asset management players, as well as issuers and their shareholders, resulting in particular from the finance law for 2019 which simplified and streamlined this device. Readjusted by the new finance law for 2021, it also includes the practical arrangements for settling these rights and contributions.
Le 5 février 2021, l'Autorité des marchés financiers (AMF) a publié un guide sur les droits et contributions dus à l'AMF.
Ce guide présente le régime des droits et contributions dus à l'AMF par les prestataires, les acteurs de la gestion d'actifs, ainsi que les émetteurs et leurs actionnaires, issu notamment de la loi de finances pour 2019 qui a simplifié et rationnalisé ce dispositif. Réajusté par la nouvelle loi de finances pour 2021, il comporte également les modalités pratiques de règlement de ces droits et contributions.
AMF publishes a summary of its short thematic inspections on liquidity contracts / L'AMF publie la synthèse des contrôles SPOT sur les contrats de liquidité
On 17 February 2021, the Autorité des marchés financiers (AMF) published a summary of its short thematic inspections on liquidity contracts.
As announced in the AMF’s supervision priorities for 2020, a series of short thematic “SPOT” inspections targeting liquidity contracts was carried out. The inspections were conducted under the provisions of AMF Decision 2018-01 of 2 July 2018 on establishing liquidity contracts on equity securities as accepted market practice.
A liquidity contract provides a framework for the conditions under which an issuer entrusts an investment services provider (ISP) with carrying out transactions on its behalf to stimulate the market and promote the liquidity of its shares.
AMF Decision 2018-01 sets out the conditions for implementing liquidity contracts within the framework of the accepted market practice established by the AMF. These conditions, when they are met, allow ISPs to benefit from the exemption framework provided for in Article 13 of Regulation (EU) 596/2014 of the European Parliament and of the Council of 16 June 2014 on market abuse. Accordingly, the prohibition of market manipulation as referred to in Article 15 of the MAR does not apply when an order or transaction has been carried out for legitimate reasons and complies with an accepted market practice as defined in Article 13 of the same Regulation.
Le 17 février 2021, l'Autorité des marchés financiers (AMF) a publié la synthèse des contrôles SPOT sur les contrats de liquidité.
Comme annoncé dans les priorités de supervision 2020 de l’AMF, une série de contrôles courts thématiques « SPOT » portant sur les contrats de liquidité a été menée dans le cadre des dispositions de la Décision AMF n°2018-01 du 2 juillet 2018 sur l’instauration des contrats de liquidité sur titres de capital au titre de pratique de marché admise.
Un contrat de liquidité permet d’encadrer les conditions dans lesquelles un émetteur confie à un prestataire de services d’investissement (« PSI ») le soin de réaliser des opérations pour son compte afin d’animer le marché et de favoriser la liquidité de son titre.
La décision AMF 2018-01 précitée fixe les conditions de mise en œuvre des contrats de liquidité dans le cadre de la pratique de marché admise établie par l’AMF. Ces conditions, lorsqu’elles sont respectées, permettent de bénéficier du cadre dérogatoire prévu à l’article 13 du règlement (UE) n°596/2014 du Parlement Européen et du Conseil du 16 avril 2014 sur les abus de marché. Ainsi, l’interdiction portant sur les manipulations de marché telle que visée à l’article 15 du règlement MAR ne trouve pas à s’appliquer lorsqu’un ordre ou une transaction a été réalisée pour des raisons légitimes et est conforme à une pratique de marché admise telle que définie à l’article 13 du règlement précité.
Shareholders' Rights Directive (SRD II)
AMF clarifies its expectations regarding mainly registered shares as the 2021 season of shareholders' meetings approaches / L'AMF précise ses attentes concernant les valeurs essentiellement nominatives pour la saison 2021 des assemblées générales
On 26 February 2021, the Autorité des marchés financiers (AMF) clarified its expectations regarding mainly registered shares as the 2021 season of shareholders' meetings approaches.
The AMF supports market initiatives aimed at improving the maintenance of registers of essentially registered securities. During the next season of general meetings, it will pay increased attention to the compliance of intermediaries with their obligations to transmit information on security holders.
The AMF is also committed to improving the keeping of registers of essentially registered securities, particularly in the run-up to shareholders' meetings, by reminding shareholders of the obligations incumbent on custodian account keepers and by proposing a technical amendment to its general regulations.
1. Reminder of conservative account keepers obligations and increased monitoring during the next general meeting campaign
The AMF reminds custodial account keepers that the first paragraph of Article 322-55 of the General Regulation stipulates that they must send the registered reference slips to the central depositary "no later than 12 noon on the second trading day following the date of execution of the order".
The AMF also asks them to ensure the quality of the BRNs they send in order to reduce the number of rejections. For residual rejections, it asks them to significantly reduce their regularization deadlines.
The departments will pay increased attention to compliance with these rules and to the improvement of the processing of personal reference forms in preparation for the 2021 general meeting campaign. If necessary, the AMF will carry out controls.
2. Modification of the rule for the recognition of nominative reference slips in the shareholders' register
The study carried out by the AMF shows that the practices of the registrars are disparate, with some applying the accounting rule provided for in Article 322-55, while others already practice accounting on the settlement/delivery date.
It seemed desirable to harmonize the practices of the registrars and to use the settlement/delivery date, which is the date of the transfer of ownership, as the date of the booked movements. The AMF has therefore proposed an amendment to Article 322-55 of its General Regulation to this effect, which has been transmitted to the Minister of the Economy, Finance and Recovery for approval. In order to allow issuers of essentially registered securities and their agents sufficient time to adapt their registry-keeping accounting information systems, the AMF proposes that this amendment only become mandatory as of January 1, 2022 and that it may be applied in advance and on a voluntary basis by issuers and registry-keepers.
In addition to the aforementioned amendment to Article 322-55, the AMF encourages issuers and their registrars to take into account, within the framework of their general meeting, the registered reference slips received between the record date and the deadline for taking into account voting instructions, provided that they relate to transactions for which the date of transfer of ownership is prior to the record date.
Le 26 février 2021, l'Autorité des marchés financiers (AMF) a précisé ses attentes concernant les valeurs essentiellement nominatives à l’approche de la saison 2021 des assemblées générales.
L’AMF soutient les initiatives de Place visant à améliorer la tenue des registres des titres essentiellement nominatifs. A l’occasion de la saison prochaine des assemblées générales, elle portera une attention accrue au respect par les intermédiaires de leurs obligations en matière de transmission des informations sur les détenteurs des titres.
L’AMF s’engage également pour l’amélioration de la tenue de registre des valeurs essentiellement nominatives, particulièrement à l’approche des assemblées générales en rappelant les obligations qui incombent aux teneurs de comptes conservateurs et en proposant une modification technique de son règlement général.
1. Rappel des obligations des TCC et surveillance accrue lors de la prochaine campagne d’assemblées générales
L’AMF rappelle aux teneurs de comptes conservateurs que l’article 322-55 du règlement général dispose dans son premier alinéa qu’ils doivent adresser les bordereaux de références nominatives au dépositaire central « au plus tard le deuxième jour de négociation à 12 heures suivant la date d'exécution de l'ordre ».
L’AMF leur demande également de veiller à la qualité des BRN qu’ils adressent afin de diminuer le nombre des rejets. Pour les rejets résiduels, elle leur demande de réduire sensiblement leurs délais de régularisation.
Les services porteront une attention accrue au respect de ces règles et à l’amélioration des processus de traitement des bordereaux de références nominatives en vue de la campagne d’assemblées générales 2021. Si cela s’avérait nécessaire, l’AMF diligenterait des contrôles.
2. Modification de la règle de comptabilisation des BRN dans le registre des actionnaires
L’étude menée par les services de l’AMF montre que les pratiques des teneurs de registre sont disparates, certains appliquant la règle de comptabilisation prévue par l’article 322-55, d’autres pratiquant déjà une comptabilisation en date de règlement/livraison.
Il est apparu souhaitable d’harmoniser les pratiques des teneurs de registre et de retenir comme date des mouvements comptabilisés la date de règlement/livraison, qui matérialise le transfert de propriété. L’AMF a donc proposé une modification de l’article 322-55 de son règlement général en ce sens, qui a été transmise au Ministre de l’Economie, des Finances et de la Relance aux fins d’homologation. Afin de laisser aux émetteurs de valeurs essentiellement nominatives et à leurs mandataires un temps suffisant pour adapter leurs systèmes d’information de comptabilité de tenue de registre, l’AMF propose que cette modification ne devienne obligatoire qu’à compter du 1er janvier 2022 et qu’elle puisse être appliquée par anticipation et sur base volontaire par les émetteurs et teneurs de registre.
En complément de la modification de l’article 322-55 susmentionnée, l’AMF encourage les émetteurs et leurs teneurs de registre à prendre en compte, dans le cadre de leur assemblée générale, les bordereaux de références nominatives reçus entre la date d’enregistrement (record date) et la date limite de prise en compte des instructions de vote, à condition qu’ils soient relatifs à des transactions dont la date de transfert de propriété est antérieure à la record date.
Sustainable Finance / Green Finance
Here are two annoucement from the AMF in the strengthening of professional certification requirements in sustainable finance / Voici deux annonces de l'AMF sur le renforcement des exigences de certification professionnelle en matière de finance durable
Here are two annoucement from the AMF in the strengthening of professional certification requirements in sustainable finance.
1. On 10 February 2021, the Autorité des marchés financiers (AMF) decided to create a module for verifying the knowledge of professionals in green and responsible finance, and to give greater weight to these issues in the general examination for AMF certification.
Understanding and considering environmental, social and governance (ESG) issues, as well as energy transition and climate issues are major challenges when it comes to training. To create a common core of knowledge about sustainable finance, which is essential for the proper understanding of these issues and to improve the quality of advice given to clients, the AMF has decided to significantly expand the section devoted to this topic in the general examination questionnaire. It is also offering a new certificate to people who wish to acquire specific knowledge in this area.
In addition to the general examination, the new sustainable finance certification will be endorsed by a specific examination and certificate. This optional module will be made up of 60 questions, spanning the sustainable finance terminology and ecosystem, the French and European regulatory framework, ESG issues, non-financial asset management approaches and the marketing of sustainable investment products. The first examinations will take place by the end of this year, once the AMF has certified training organizations that wish to offer this examination.
2. On 22 February 2021, the Autorité des marchés financiers (AMF) strengthened the professional certification requirements in sustainable finance.
Environmental, social and governance (ESG), energy transition and climate issues pose significant challenges in terms of training professionals in the financial sector, while more and more ESG investments are offered to savers. In order to create a common base of knowledge in sustainable finance for the Paris financial center, essential for a good understanding of these subjects and for the quality of advice to clients, the AMF has chosen to significantly increase the section devoted to this theme in the AMF exam questionnaire.
The number of questions relating to sustainable finance in the AMF exam will be increased from 4 to 15 out of a total of 120 questions (compared to 115 currently). These questions will address essential concepts such as green finance and the consideration of climate risks, socially responsible investment (SRI) and labels, ESG criteria and management approaches in this area.
Chapter 8.7. of the AMF examination program is modified accordingly.
The updated instruction is published on the AMF website and comes into force on March 15, 2021.
Voici deux annonces de l'AMF sur le renforcement des exigences de certification professionnelle en matière de finance durable.
1. Le 10 février 2021, l'Autorité des marchés financiers (AMF) a décidé de créer un nouveau module de vérification des connaissances des professionnels portant sur la finance verte et responsable, et de donner plus de poids à ces questions dans l’examen généraliste de la certification AMF.
La maîtrise et l’intégration des enjeux environnementaux, sociaux et de gouvernance (ESG), de la transition énergétique et du climat posent des défis importants en termes de formation. Afin de créer un socle commun de connaissances en matière de finance durable, indispensable à la bonne compréhension de ces sujets et à la qualité du conseil aux clients, l’AMF a choisi d’augmenter significativement le volet consacré à ce thème dans le questionnaire de l’examen général et de proposer un nouveau certificat à ceux qui souhaitent acquérir des connaissances spécifiques dans ce domaine.
Au-delà de l’examen général, la nouvelle certification en finance durable sera validée par un examen et une attestation spécifiques. Ce module optionnel sera composé de 60 questions, balayant la terminologie et l’écosystème de la finance durable, le cadre réglementaire français et européen, les enjeux ESG, les approches extra-financières en gestion d’actifs et la commercialisation des produits d’investissement durables. Les premiers examens auront lieu d’ici à la fin de l’année, après la certification par l’AMF des organismes de formation souhaitant proposer cet examen.
2. Le 22 février 2021, l'Autorité des marchés financiers (AMF) a renforcé les exigences de certification professionnelle en matière de finance durable.
Les enjeux environnementaux, sociaux et de gouvernance (ESG), de la transition énergétique et du climat posent des défis importants en termes de formation des professionnels du secteur financier alors que de plus en plus de placements ESG sont proposés aux épargnants. Afin de créer un socle commun de connaissances en matière de finance durable pour la Place financière de Paris, indispensable à la bonne compréhension de ces sujets et à la qualité du conseil aux clients, l’AMF a choisi d’augmenter significativement le volet consacré à ce thème dans le questionnaire de l’examen AMF.
Le nombre de questions portant sur la finance durable dans l’examen AMF sera porté de 4 à 15 sur un total de 120 questions (contre 115 actuellement). Ces questions aborderont les notions essentielles telles que la finance verte et la prise en compte des risques climatiques, l’investissement socialement responsable (ISR) et les labels, les critères ESG et les approches de gestion en la matière.
Le chapitre 8.7. du programme de l’examen AMF est modifié en conséquence.
L’instruction mise à jour est publiée sur le site de l’AMF et entre en vigueur le 15 mars 2021.
Belgium publishes a law implementing a tax on securities accounts
On 25 February 2021, Belgium published a law implementing a tax on securities accounts (TSA).
Compared to the draft law, only one technical amendment was made, clarifying that securities accounts that are part of the property of a Belgian establishment (i.e. a non-resident for income tax purposes) are in principle also in scope irrespective of whether the account is held with a Belgian or foreign financial intermediary. Other proposed amendments were not withheld.
The tax applies in principle to securities accounts held by resident and non-resident individuals, companies and legal entities. Exemptions are foreseen for certain financial institutions that hold a securities account for their own account as well as for non-residents who hold the account for their own account with "a central securities depository" or with an account licensed by the NBB "deposit bank" that performs similar functions.
The new tax concerns all securities (including cash on the securities account,) if the average value of the securities account exceeds € 1.000.000 (then the tax is due on the entire average value). The rate of taxation of 0,15% will apply on the average value of a securities account.
Anti-money laundering / Combating the financing of terrorism (AML / CFT)
Bundesrat publishes Draft law on the European interconnection of transparency registers and on the implementation of Directive 2019/1153
On 12 February 2021, the Bundesrat published draft law on the European interconnection of transparency registers and on the implementation of Directive 2019/1153 laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offence. The draft law converts the German transparency register from the previous catch-all register to a full register. This means that in future – unlike the previous catch-all register solution, which referred to other registers for the majority of German companies – the beneficial owner of all legal entities in Germany can be directly and immediately identified from the register. This not only creates the data requirements for the European interconnection of the transparency registers, but also considerably increases the practical and digital usability of the transparency register. This represents another significant step in strengthening the German anti-money laundering system.
Directive (EU) 2019/1153 (EU Financial Information Directive) aims to make bank account and financial intelligence unit (FIU) information usable for the purposes of preventing and prosecuting serious crime, including outside the field of money laundering and terrorist financing. The Directive requires Member States to specifically designate competent police and law enforcement authorities for account register and FIU access and provides for an exchange of data with Europol via the designated authorities. Since German law has long granted the police and prosecution authorities comprehensive access to the account retrieval procedure as well as to the FIU data exchange, only the designation of the Federal Criminal Police Office (Bundeskriminalamt) and the Federal Office of Justice (Bundesamts für Justiz) for access to the account retrieval procedure and the designation of the Federal Criminal Police Office for access to the FIU data exchange are required to implement the Directive. Following on from this, the corresponding powers for the subsequent exchange of data with Europol are standardized.
Bundesrat adopts draft law on anti-money laundering
On 12 February 2021, the Bundesrat approved the draft Law to improve combating money laundering. The draft law provides that in future it will no longer matter that assets originate from very specific criminal offenses. It should only be decisive that an asset was obtained through some kind of crime, regardless of whether through drug trafficking, extortion, human trafficking, fraud or embezzlement. If the perpetrator recklessly does not recognize the criminal origin of the asset or even accepts it and hides or disguises it, the new offense of money laundering should then take effect.
Bank Recovery and Resolution Directive (BRRD)
BaFin publishes Circular on 02/2021 on the minimum requirements for information systems for the provision of information for valuations in the context of settlement (MaBewertung)
On 23 February 2021, the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) published Circular on 02/2021 on the minimum requirements for information systems for the provision of information for valuations in the context of settlement (MaBewertung).
The circular contains requirements for institutions to maintain suitable systems and processes in order to be able to provide essential information for effective and efficient processing on an ad hoc basis - within 24 hours of the request of the resolution authority. Information that is required for an assessment within the meaning of Article 20 (1) of the SRM Ordinance or Article 69 (16) of the SRM Ordinance or Article 146 (1) of the Reorganization and Resolution Act ( SAG ) is deemed to be “material” .
The circular is addressed to all institutions within the meaning of Section 2 Paragraph 1 SAG and companies within the meaning of Section 1 Number 3 SAG in Germany that are not within the competence of the Single Resolution Board ( SRB ).
Investor protection / Consumer protection
German Government adopts draft law to further strengthen investor protection
On 10 February 2021, the Bundesfinanzministerium adopted a draft law to further strengthen investor protection. The draft law constitutes the final implementation of the package of measures to further strengthen investor protection which the Federal Ministry of Finance and the Federal Ministry of Justice and Consumer Protection jointly presented in August 2019.
In particular, the draft law includes the following rules:
- so-called blind pool investments (i.e. investments where the specific investment objects have not yet been determined at the time the prospectus is prepared) are being prohibited to ensure that investors can make an informed assessment at the time the investment is made;
- investments may only be distributed by supervised investment advisors and financial investment intermediaries;
- the possibilities for auditing the financial statements of issuers of investments are being improved and a control of use of funds by independent third parties introduced in order to prevent misuses;
- in case of investor protection concerns by the German Federal Financial Supervisory Authority (BaFin), the review of investment prospectuses will be suspended in order to allow for consideration of possible product intervention measures; and
- in order to further increase transparency for investors, investment sales prospectuses, securities information sheets and investment information sheets will be published on BaFin's website.
Sustainable Finance / Green Finance
BaFin publishes Journal on the last Sustainable Finance updates
On 15 February 2021, the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) published Journal on the last Sustainable Finance updates.
The outbreak of the COVID-19 pandemic and the containment efforts have resulted in the majority of people working from home and the decline in travel worldwide. According to information from the German online portal Statista, CO2 emissions also fell significantly in 2020, by 6.5% worldwide, and even by 12% in Germany compared to 2019.
It is expected that emissions will rise again as the economy recovers. However, this snapshot clearly shows the global, European and national efforts that would actually be necessary to achieve the goal of limiting global warming to well below two degrees Celsius as agreed in the Paris Climate Agreement.
The following paper highlights the impact of COVID-19 on Green Finance. It also summaries political actions to encourage Sustainable Finance.
BaFin publishes overview of sustainability-related disclosure obligations for financial market participants and financial advisors according to SFDR
On 15 February 2021, the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) published overview of sustainability-related disclosure obligations for financial market participants and financial advisors according to SFDR and the Taxonomy Regulation. This overview takes the form of a table summarizing the obligations under SFDR.
SFC informs on MoU on Cross-boundary Wealth Management Connect
On 5 February 2021, the Securities and Futures Commission (SFC) announced that it has entered into a Memorandum of Understanding (MoU) on the Cross-boundary Wealth Management Connect Pilot Scheme in Guangdong-Hong Kong-Macao Greater Bay Area (the Scheme) with the People’s Bank of China, the China Banking and Insurance Regulatory Commission, the China Securities Regulatory Commission, the State Administration of Foreign Exchange, the Hong Kong Monetary Authority (HKMA) and the Monetary Authority of Macao.
SFC issues latest Quarterly Report which summarizes key developments from October to December 2020
On 23 February 2021, the Securities and Futures Commission (SFC) published its latest Quarterly Report which summarizes key developments from October to December 2020.
Key figures for the quarter include:
- The number of licensees and registrants totalled 47,217, of which 3,122 were licensed corporations.
- The SFC conducted 74 in-depth inspections of licensed corporations to review their compliance with regulatory requirements.
- The SFC authorised 51 unit trusts and mutual funds, including 23 funds domiciled in Hong Kong, and 18 unlisted structured investment products for public offering.
- 34 new listing applications were vetted, including two from companies with a weighted voting rights structure and four from pre-profit biotech companies.
- The SFC issued section 179 directions (Note 2) to gather additional information in 10 cases and wrote to detail our concerns in two transactions as part of its review of corporate disclosures.
- Three licensed corporations and three individuals were disciplined, resulting in total fines of $2.72 billion.
- It made 2,157 requests for trading and account records triggered by untoward price and turnover movements.
SFC publishes MoU with Financial Reporting Council (FRC)
On 24 February 2021, the Securities and Futures Commission (SFC) that the SFC and the Financial Reporting Council (FRC) have concluded a new Memorandum of Understanding (MoU) to strengthen the regulation of the capital markets through enhanced collaboration between the two regulators .
Under the new MoU, the SFC and the FRC agreed to foster closer cooperation in the regulation of the securities and futures market, particularly in relation to the regulation under their respective supervisory regimes of listed entity auditors and compliance by listed entities with financial reporting requirements.
The enhanced collaboration between the SFC and the FRC under the new MoU, which includes case referrals, joint investigations, mutual assistance, capacity building and the exchange and use of information, will increase the overall effectiveness of both regulators in ensuring the quality of financial reporting by listed entities and the audit quality of listed entity auditors. It will also help maintain the integrity of Hong Kong’s capital market and its reputation as an international financial center.
To ensure that their regulatory efforts are well coordinated, the two regulators agreed to notify one another when preparing and issuing policies or guidelines which may have a significant impact on their respective regulatory functions.
Investment Funds / Collective Investment Schemes (CIS) / Asset Management
SFC publishes Circular on Asset and Wealth Management Activities Survey 2020
On 19 February 2021, the Securities and Futures Commission (SFC) published Circular to Licensed Corporations Engaged in Asset and Wealth Management Activities - Asset and Wealth Management Activities Survey 2020.
In light of the latest situation of the COVID-19, the SFC recognized that licensed corporations may require longer time to complete the survey. Accordingly, the SFC extended the response period and ask for the completion of the questionnaire through the online submission system on or before 16 April 2021.
The licensed corporations which had had gross operating income derived from asset management, giving advice on funds / portfolios and / or private banking / private wealth management during the year of 2020 should complete the whole questionnaire. The corporation that did not engage in any of the activities covered in the survey throughout the year is also requested to fill in the part of General Information in the questionnaire.
Anti-money laundering / Combating the financing of terrorism (AML / CFT)
CBI updates on Beneficial Ownership Register for Certain Financial Vehicles
On 1 February 2021, the Central Bank of Ireland informs that the Beneficial Ownership Register for Certain Financial Vehicles (CFVs) is available to access. The latest CFVs contained on the Register are:
- Irish Collective Asset-Management Vehicles (ICAV),
- Unit Trusts,
- Credit Unions.
Two further CFV categories will be available on the Register from 1 September 2021:
- Investment Limited Partnerships,
- Common Contractual Funds.
COVID-19 Regulatory Measures
CBI updates its communication on regulatory flexibility for Securities Markets, Investment Management, Investment Firms and Fund Service Providers
On 2 February 2021, the Central Bank of Ireland (CBI) updates its communication on regulatory flexibility for Securities Markets, Investment Management, Investment Firms and Fund Service Providers in the context of the COVID-19.
In particular, the CBI remove measures that have expired on their terms, or that are addressed elsewhere in the CBI’s Markets Update.
CBI updates Q&A on the payment of distributions and variable remuneration by investment firms and market operators during the COVID-19 pandemic
On 18 February 2021, the Central Bank of Ireland (CBI) updated its Q&A on the payment of distributions and variable remuneration by investment firms and market operators during the COVID-19 pandemic:
- All MiFID investment firms and market operators are requested to exercise a high degree of prudence if considering making any distributions until they can forecast their costs and future revenues with a high degree of certainty.
- All MiFID investment firms and market operators should be in a position to evidence that they have immediate access to sufficient financial resources to meet all of its capital and liquidity requirements post-distribution over an extended period of time.
- MiFID investment firms subject to CRD IV/CRR are also expected to exercise a high degree of prudence in respect of any proposal to create an obligation to pay variable remuneration to a material risk taker.
- All MiFID investment firms which are subject to CRD IV/CRR and designated as “Medium-High” or above under the Central Bank's Probability Risk Impact System (PRISM) should engage with their supervision team, in good time before proceeding with any distribution.
- Additionally MiFID market operators designated as “Medium-High” or above under PRISM should also engage with their supervision team, in good time before proceeding with any distribution.
European Market Infrastructure Regulation (EMIR)
CBI publishes Statement on margining and clearing requirements under EMIR
On 2 February 2021, the Central Bank of Ireland (CBI) published its statement on margining and clearing requirements under EMIR to confirm that CBI will:
- apply the EU framework in a risk-based and proportionate manner with regards to the requirements related to the measures contained in the draft RTS until the amended RTS enter into force.
- apply the EU framework with regards to the clearing obligation and the treatment of intragroup OTC derivative contracts with a third country group entity as well as the treatment of OTC derivative contracts novated from a UK counterparty to an EU counterparty in a risk-based and proportionate manner until the amended RTS enter into force.
Investment Funds / Collective Investment Schemes (CIS) / Asset Management
IF provides an overview of Investment Limited Partnership (ILP)
On 23 February 2021, the Irish Funds Industry Association (IF) provided an overview of Investment Limited Partnership (ILP) and the key changes under the recent legislation.
The ILP has been recently updated by the Investment Limited Partnerships (Amendment) Act 2020. The changes have modernized the ILP by:
i) clarifying the rights, obligations and status of limited partners and general partners;
ii) aligning the standards and features of the ILP with those already in place for other Irish regulated investment fund structures;
iii) updating the framework for changes in market practice since 1994; and iv) updating the ILP to take account of more recent EU legislation, in particular the Alternative Investment Fund Managers Directive (AIFMD).
Here are four publications from the Central Bank of Ireland on the Alternative Investment Fund Managers Directive (AIFMD)
Here are four publications from the Central Bank of Ireland on the Alternative Investment Fund Managers Directive (AIFMD).
1. On 2 February 2021, the Central Bank of Ireland (CBI) published its response to the European Commission’s public consultation on the review of the Alternative Investment Fund Managers Directive (AIFMD), which was sent to the EC on 29 January 2021.
Aligned with the format of the AIFMD consultation paper, CBI’s views are set out under a number of principles:
- Functioning of the AIFMD Regulatory Framework;
- Investor Protection;
- International Context;
- Financial Stability;
- Sustainability/ESG; and
- Other matters.
The CBI also provided more detailed, tailored views on specific aspects of the consultation in the Annex to this letter. The commentary under these headings and in the Annex should be interpreted as relating to the regulation of investment funds (both UCITS and AIFs) and their fund service providers, including fund management companies, depositaries and fund administrators. Unless otherwise stated, the Bank generally supports consistency of approach across the two primary pieces of legislation in area, namely AIFMD and the UCITS Directive.
2. On 2 February 2021, the Central Bank of Ireland (CBI) published Guidance on share class features of closed ended QIAIFs, together with a Feedback Statement to its Consultation Paper (No 132).
This Guidance addresses operational matters for closed-ended QIAIFs (“CE QIAIFs”) and the application of certain provisions of the AIF Rulebook to those CE QIAIFs.
This Guidance applies only to closed-ended Qualifying Investor AIFs (“CE QIAIF”) which typically invest in illiquid assets.
Share classes in a CE QIAIF may be used to operationalize either the capital commitment made by an investor or the participation of the investment management function in the QIAIF. These share classes may, subject to requirements further set out below, provide for the:
(i) allocation of the returns of specific assets to the share class and / or
(ii) (ii) participation by a share class in the CE QIAIF other than on a pro rata basis.
3. On 2 February 2021, the Central Bank of Ireland (CBI) published its 37th edition of its AIFMD Questions and Answers document. The new Q&As address:
- questions relating to authorization of depositaries of assets other than financial instruments "DAoFI" (ID 1136, ID 1137, ID 1138, ID 1139] and
- the scope of the defined term “issuing body” as contained in the AIF Rulebook (ID 1140).
4. On 2 February 2021, the Central Bank of Ireland (CBI) published Regulatory Guidance on Depositaries for AIFs under Regulation 22(3)(b) of the AIFM Regulations, which sets out the Central Bank’s requirements for depositaries seeking authorization for Depositaries of Assets other than Financial Instruments (DAoFI).
The AIF to which a DAoFI is appointed may, to a limited extent, invest in financial instruments which are the subject of custody obligations. This may arise, for example, where the AIFs in question fulfil obligations regarding assets invested in, or have obligations relating to the ongoing management of the AIF and its assets (for example, payment of fees and expenses).
The Central Bank expects that a DAoFI will generally seek to delegate the custody of financial instruments to a depositary. Provision for the holding of financial instruments by a DAoFI for and on behalf of AIFs is also provided for in this Guidance.
CBI publishes CP138 - Consultation on Cross-Industry Guidance on Outsourcing
On 25 February 2021, the Central Bank of Ireland published CP138 - Consultation on Cross-Industry Guidance on Outsourcing.
The Guidance is supplemental to existing sectoral legislation, regulations and guidance with which regulated firms are already expected to comply. It is the Central Bank’s expectation that the boards and senior management of regulated firms review the Guidance and adopt appropriate measures to strengthen and improve their outsourcing frameworks and their effective management of outsourcing risk in line with this Guidance. Regulated firms must be able to demonstrate that they have considered the supervisory expectations set out in the Guidance in this regard.
With regard to the Central Bank’s requirements in relation to Notifications and the submission of Outsourcing Registers, it is proposed that:
- for regulated firms who fall within scope of the EBA, EIOPA and ESMA Guidelines referenced above, the Central Bank timelines for implementation of these aspects of the Guidance will align with the timelines mandated by the EBA, EIOPA and ESMA respectively; and
- for all other regulated firms, the timeline for implementation of these requirements will be in accordance with existing sectoral regulation or guidelines or as will be notified by way of an industry letter.
The consultation will remain open for 5 months from 25 February until 26 July 2021.
CBI clarifies its expectations in respect of the European Single Electronic Format (ESEF) Regulation
On 2 February 2021, the Central Bank of Ireland (CBI) published its clarification on the CBI's expectations in respect of the European Single Electronic Format (ESEF) Regulation.
- The Central Bank of Ireland will continue to accept annual financial reports from Irish issuers subject to the Transparency (Directive 2004/109/EC) Regulations 2007 (S.I. No. 277 of 2007) and ESEF Regulation in PDF format for financial years beginning between 1 January 2020 and 31 December 2020.
- Similarly, in examining the compliance of those financial reports from such issuers with the relevant financial reporting framework, the Irish Auditing and Accounting Supervisory Authority (IAASA) has indicated it will also accept financial statements in PDF format.
- Issuers who wish to publish their annual financial reports in accordance with the ESEF Regulation in 2021 (for financial years beginning between 1 January 2020 and 31 December 2020) will still be able to proceed.
- Where an issuer chooses to publish their annual financial reports in ESEF in 2021, all relevant requirements of the Transparency Regulations and the ESEF Regulation will need to be complied with.
Collective Investment Schemes
Banca d'Italia issues the results of the consultation on the discipline regulating collective savings schemes
On 18 February 2021, Banca d'Italia published a summary of the insights gathered via the consultation about the discipline covering collective investment (i.e. savings) schemes. Below the key points:
1. Elimination of the obligation for Italian managers of closed, non reserved AIFs, not to own a share at least equal to 2% of the total, net, initial value of the AIF
Concerning this point, the entities participating to the consultation, generally expressed support and appreciation, as long as transparency towards the investors would be guaranteed.
2. Possibility to defer the initial subscription fee
On this point, it has been requested to increase the management fees over time, in order to recuperate the amount of subscription fee not initially paid by the investor. If the investor leaves the fund before having paid the entire, initial subscription fee deferred over time, it has been requested that the investor shall provide the residual amount of the subscription fee not yet paid. Lastly, it has been proposed to clearly indicate in the information provided to investors the methodology of subscription to the fund, which also explains the treatment of subscription fees.
3. Possibility of the manager to suspend, under exceptional market circumstances, the right to reimbursement of investors in open Italian UCIs.
Concerning this point, the entities participating to the consultation required (and received) more detailed information about the timeline to exercise this right, as well as a clearer definition of "exceptional market circumstances".
4. Cancellation of the limit of credit investments towards the same counterparty for the managers of closed, reserved AIFs.
For this point, Banca d'Italia did not proceed to any modification as the insights of CONSOBO would be needed.
COVID-19 Regulatory Measures
Banca d'Italia shares an alert on financial crimes during COVID-19
On 11 February 2021, Banca d'Italia shared an alert to inform that financial crimes are likely to arise as a consequence of COVID-19, due to the economic weakness caused by the pandemic.
Examples of financial crimes include, but are not limited to: the danger of scams, corruption, speculative maneuvers, usury, direct or indirect acquisition of companies by criminal organizations, appropriation, collusive conduct, abuses both in the phase of access to public credit lines, and in the use of the granted credit, as well as illegal actions perpetrated online.
In order to counter these actions, it has been mandated to increase anti money laundering monitoring and reporting to the UIF. Moreover, the UIF advise to put in place stricter measures when dealing with the conversion of tax credits in the equivalent sum of money and details the more frequent fraudulent actions. Lastly, the communication advise to apply a strict screening towards the application for funding and to increase attention for online transactions.
CONSOB lists the information to be provided by financial intermediaries in the context of reporting as a consequence of COVID-19 (notice no. 1/21)
On 16 February 2021, CONSOB published a notice listing all the documents and information that financial intermediaries shall provide in the context of reporting as a consequence of COVID-19.
More specifically, the reporting obligations target:
- All supervised issuers, the control bodies and the independent auditors
- Companies that publish 2020 non-financial statements
- Issuers with listed shares and supervisory bodies participating to meetings in which decisions related to capital are taken
- Entities responsible for preparing the offer documents and prospectuses
- Issuers subject to the MAR regulation.
Concerning the information to be provided, the following areas are considered of crucial importance:
- The application of IAS 1 “Presentation of financial statements”, addressing issues such as business continuity, the effect of uncertainty on accounting estimates, as well as the representation of the items impacted by COVID-19
- The application of IAS 36 “Impairment of assets”, in relation to the methods for determining the recoverable value of intangible and tangible assets that may be impacted by the deterioration of economic prospects
- The application of IFRS 9 "Financial instruments" and IFRS 7 "Financial instruments: Additional information", in relation to risks associated with financial assets and liabilities, with particular attention to liquidity risk and the measurement of expected losses on credits from credit institutions
- The application of IFRS 16 “Leasing”, in relation to the specific problems connected with the consequences of COVID-19.
Concerning non financial declarations instead, the following items shall be addressed:
- The impact of the COVID-19 pandemic on non-financial issues, highlighting the mitigation actions adopted
- Social and personnel issues, with a focus on health, safety at work and remote working, as well as the policies adopted in this regard towards employees and collaborators
- Trends and factors that may affect the issuer's business model, the resilience of this model to the consequences of exceptional events such as COVID-19 and the consequences on the capacity of company to continue to create value over time
- The risks related to climate change
- The existing interconnections between financial and non-financial information, highlighting how the company's financial situation and performance have been impacted by the events generated by COVID-19.
CONSOB's notice also provides additional details on the role of the supervisory bodies and on the item that should be subject to attentive verification, as well as on the role of auditing companies.
Lastly, the notice details the documents to be provided in case of an increase of capital, or in case of a public offering for acquisition or exchange.
CONSOB invites online portals' managers to pay attention to COVID-19 consequences (notice no. 2/21)
On 16 February 2021, CONSOB published a note concerning the impacts of the COVID-19 emergency on the obligations of the managers of online portals.
During 2020, COVID-19 produced significant economic effects, with potentially greater impacts on the prospects of small and medium-sized enterprises, whose capital raising also takes place through online portals.
On 25 March 2020, CONSOB published the notice no. 2/20, which highlighted the need by the managers of the portals registered as per art. 50-quinquies, paragraph 2, of d. lgs. February 24, 1998, n. 58 of the TUF, to consider with due diligence the potential implications that the COVID-19 emergency could have caused in terms of investor protection. The notice also invited them to adopt the consequent measures.
In consideration of the persistence of the pandemic, there is still a need for portal managers to adopt the most appropriate measures in order to ensure the continuity of the online activities. Managers will also have to ensure that information given to investors at the time of publication of the offers clearly details effects of the pandemic on the sustainability of the related projects.
Lastly, portal managers are called to implement the measures adopted in this regard and to provide updates in the report on the activities carried out and on the organizational structure in place (pursuant to art 21, paragraph 3, of the “Regulation on raising capital through online portals” adopted with Resolution no. 18592 of 26 June 2013 and subsequent amendments).
Borsa Italiana amends transactions reporting rules (notice no. 5606)
On 24 February 2021, Borsa Italiana issued amendments to the Transaction Reporting Guidelines.
In particular, the changes cover functional aspects for the reconciliation of files, as well as the contacts of Borsa Italiana to be used for communications on this matter.
The changes will enter into effect on 8 March 2021.
CONSOB launches a public consultation on the anti-corruption plan for the years 2021-2023
On 5 February 2021, CONSOB launched a consultation on the anti corruption plan elaborated for the years 2021-2023 (the plan is only applicable to CONSOB internal processes).
The document details the regulatory background based on which the plan is elaborated, and describes the objectives of the plan (identify high risk activities in terms of corruption, provide mechanisms to prevent corruption, implement anti-corruption reporting obligations, strengthen transparency obligations, introduce mechanisms to monitor high risk relationships).
Moreover, it describes the method implemented to identify risks, the interventions to reduce risks, and the plan to implement the anti-corruption measures.
Banca d'Italia issues own provisions on liquidity stress tests applicable to collective asset managers
On 16 February 2021, Banca d'Italia issued its own provisions amending the Regulation of 5 January 2015, concerning collective asset management. The provisions aim to update the discipline, based on the recent ESMA Guidelines on liquidity stress tests in UCITS and AIFs, issued on 16 July 2020.
The provisions issued by Banca d'Italia:
1) eliminate the obligation for SGRs to purchase shares of managed, closed, not reserved AIFs, of at least 2% (or 1% if certain investment thresholds are exceeded) of the total net value of the fund
2) introduce the obligation for SGRs, SICAVs and SICAFs to transmit to Banca d'Italia, upon request, the documentation on liquidity stress tests, to demonstrate that under normal stress conditions, the entity is capable of fulfilling requests of refunds. In case of significant liquidity risks, the intermediary shall notify to Banca d'Italia the risk and detail the actions taken
3) introduce the obligation for managers to (a) implement adequate systems of governance and management of liquidity risk, and (b) carry out stress tests
4) indicate that fund managers who use leverage on a substantial basis, shall refer and apply Sections V.1.1 to V.1.6 of ESMA Guidelines
5) indicate that depositories shall apply section V.2 of the Guidelines and establish appropriate verification procedures to ascertain that managers have documented procedures for the stress testing program
6) indicate that the payment of subscription fees may take place at the same time or after the subscription of the shares and that, in case the manager withdraws them gradually (so-called
- their amount must be indicated in the regulations along with the terms, methods and withdrawal period
- furthermore, the case in which the subscriber requests the reimbursement of the shares before the end of the withdrawal period, shall be disciplined
- -the withdrawal period cannot exceed the duration of the fund
7) indicate that the overall duration of the suspension of the right of reimbursement cannot exceed one month. Moreover, Banca d'Italia and the participants to the fund shall be informed about this suspension.
8) concerning the regulations about open, non-reserved AIFs and UCITS, alternative formulations of the suspension clause detailed above have been introduced, and shall be communicated to Banca d'Italia within 10 days from their adoption
9) for reserved AIFs investing in credit, the limit of concentration for investments in loans to the same counterpart has been removed.
Listing / Trading rules
Borsa Italiana amends trading rules on IDEM market
On 18 February 2021, Borsa Italiana amended the Guide to the Trading Parameters with Notice no. 4984.
In particular, on the IDEM market, the maximum limits in terms of quantity for orders on futures have been modified, following the introduction of futures contracts with a new minimum lot, introduced as of 1 March 2021.
Additionally, further minor changes to the “Guide about Parameters ” have been implemented, relating to the deviation limits and the minimum thresholds for the conclusion of agreed transactions on the IDEM market.
Regulated market managed by Borsa Italiana, in which futures contracts and option contracts are traded, have as underlying assets indices and individual stocks.
Payment Services Directive (PSD2)
Banca d'Italia shares instructions concerning the application of PSD2
On 17 February 2021, Banca d'Italia shared instructions concerning the application of PSD2, covering more specifically the points listed below:
1) Exemption from the obligation to carry out the contingency procedure
The Delegated Regulation 2018/389 of the European Commission of 27 November 2017, which
complements PSD2 regarding the technical standards for customer authentication and open communication standards (hereinafter RTS), requires all payment service providers that have accounts accessible online (Account Servicing Payment Service Providers o ASPSP) to prepare an interface allowing third parties to execute their activities (Third Party Providers or TPP). This obligation can be satisfied by:
a) creating an online interface dedicated to accessing TPPs
b) using interfaces already available to customers to access their online accounts
In case of adoption of the dedicated interface (option a), ASPSP shall ensure access also through an alternative mechanism (so-called solution fall-back). Banca d'Italia can exempt ASPSP from the obligation to implement this fall-back interface if the conditions detailed in article 2 are met. This publication explains the procedure and timeline to follow in order to be granted this exception.
2) Exemptions from the adoption of strong customer authentication procedures for "corporate" payments
According to Article 17 of the RTS, PSPs are allowed not to adopt strong authentication of the customer (Strong Customer Authentication or SCA) for payment services targeting exclusively corporate customers, if these payment services use dedicated processes or protocols that
guarantee the safety levels required by the PSD2 directive. The document explains that, in order to be granted this exemption, documents describing the solution implemented to meet the safety requirements of PSD2 should be provided to Banca d'Italia. Furthermore, a document summarizing safety and operational risks shall be completed.
3) Signaling of issues in using dedicated interfaces
Banca d'Italia reminds PSPs that they shall immediately report to Banca d'Italia any technical issues in the use of interfaces implement to meet the regulatory requirements laid out by PSD2.
4) Report on operational and safety risks of payment services
PSPs shall submit an annual report on the results of the analysis of operational and security risks related to payment services. Standardized documentation to be completed is available on Banca d'Italia's website and shall be filled in by the parent companies of the banking groups, by the individual banks, by payment and electronic money institutions. Banking groups can provide a single module or multiple modules, depending on whether the solutions are homogeneous within the group or specific to each entity. Where applicable, the form must be accompanied (once only) by the "Exemption form covering strong customer authentication for corporate payments"
Italy publishes the Prospectus Regulation
On 24 February 2021, the Propsectus Regulation, Legislative Decree of 2 February 2021, n. 17, was published on the Gazzetta Ufficiale (General Series No. 46).
The regulation aligns the national legislation to the provisions of the EU Regulation 2017/1129 on the prospectus to be published for public offerings or for the admission to trading securities on a regulated market.
The newly published regulation amends Legislative Decree No. 58 (TUF) of 24 February 1998 and will enter into force on 31 March 2021.
Banca d'Italia shares details on TLTRO operations planned during 2021
On 2 February 2021, Banca d'Italia shared updates on TLTROs planned throughout 2021.
TLTRO-III operations are conducted on a quarterly basis, and started in September 2019. Three more operations will be conducted in June, September and December 2021. Each operation has a duration of three years.
The document details the characteristics of the operations previously conducted, focusing in particular on the interest rate of the first 7 operations.
Banca d'Italia launches a consultation on supervisory reporting circulars ( no. 115, 272, 148, 189, 217)
On 2 February 2021, Banca d'Italia launched a consultation on the amendments to the following circulars on supervisory reporting:
1) Circular no. 115 of 7 August 1990 “Instructions for completing the supervisory reports on a consolidated basis "
2) Circular no. 272 of 30 July 2008 “Account matrix”
3) Circular no. 148 of 2 July 1991 “Guidelines for Statistics Reporting and Supervisory Reporting for Intermediaries of the Stock Market "
4) Circular no. 189 of 21 October 1993 “Guidelines for Statistics Reporting and Supervisory Reporting for Collective Investment Organizations of Savings "
5) Circular no. 217 of 5 August 1996 “Guidelines to compile Supervisory Reports for Financial Intermediaries, for payment institutions and IMEL "
In particular, the changes aim to:
a) align the representation, from a reporting perspective, of some financial activities with the harmonized supervisory framework implemented on an European level
b) integrate reporting schemes with the introduction of new voices, to satisfy micro and macro-prudential supervisory needs
c) review informational details, to further align with the regulatory framework of reference as well as with the developments in terms of financial intermediation
d) update the references to the discipline of business crisis and insolvency, detailed in the discipline covering impaired assets, based on Legislative Decree 14/2019.
The changes introduced in terms of reporting would apply from 30 June 2021, while the adjustments concerning business crisis and insolvency would apply from 1 September 2021 , as foreseen by art. 5 of the D.L. 23/2020, as amended by L. 40/2020.
The deadline for submitting comments is 3 April 2021.
Banca d'Italia shares the progress achieved in 2020 concerning sustainable investments
On 16 February 2021, Banca d'Italia shared an article about the progress achieved during 2020 concerning sustainable investments.
More specifically, in 2020 Banca d'Italia made progress in applying sustainability criteria to its financial investments. After the application of the ESG (Environmental, Social and Governance) investment criteria to the equity portfolios managed internally, the sustainable investment policy was gradually extended to other markets and classes of activity.
The management of corporate bond portfolios, carried out both internally for securities in euros, and through external managers for those in US dollars, is now based on the replication of ESG indices replacing the previous, traditional ones.
Finally, a portfolio of green bonds issued by supranational bodies and agencies was set up in 2020. These investments, in euros and dollars, are added to the initial investment made in 2019 on the green bond market, through the subscription to a share of the fund managed by the Bank for International Settlements, and mainly composed of sovereign and supranational issues in dollars.
Anti-money laundering / Combating the financing of terrorism (AML / CFT)
Chambre des députés publishes draft law n° 7758 implementing Regulation (EU) 2018/1805 of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders in Luxembourg
On 1 February 2021, the Chambre des députés published draft law n° 7758 implementing Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on the mutual recognition of freezing orders and confiscation orders in Luxembourg.
Based on this draft law, the State prosecutor, the investigating judge or the trial court having decided, in the exercise of their powers, the criminal seizure of property are competent to issue, on the basis of the (EU) regulation 2018/1805, a freezing order of these assets. The draft highlights the requirements to issue this freezing order.
The draft law also approach the mutual recognition of freezing orders issued by foreign authorities.
CSSF communicates on a new eDesk module: AML/CFT Market Entry Form (Funds and IFM)
On 8 February 2021, the Commission de Surveillance du secteur financier (CSSF) published a communication on the digitalization of the AML/CFT Market Entry Form, previously under Excel dedicated form.
Aiming at collecting standardized key information in relation to money laundering and terrorist financing risks (“ML/FT risk”), the Market Entry Form will have to be filled out and submitted through our eDesk portal as from 15 February 2021.
This AML/CFT Market Entry Form has to be submitted by Funds regulated or authorized with a label and Investment Fund Managers (“IFM”) supervised by the CSSF when submitting the following requests:
- For a fund, upon authorization & adding sub-funds;
- For an investment fund manager, upon authorization or registration, license extension & modification of qualified shareholding.
The AML/CFT Market Entry Form must be initiated and submitted by:
- the compliance officer in charge of the control of compliance with the professional obligations1 (“responsable du contrôle du respect des obligations professionnelles” (“RC”)) of the Fund respectively the IFM, or
- the person responsible for compliance with the professional obligations (“responsable du respect des obligations professionnelles” (“RR”)) of the Fund respectively the IFM.
The completion of the Market Entry Form, however, may be assigned within eDesk portal to another employee of the entity or third party, while bearing in mind that the ultimate responsibility for the adequate completion of the form shall remain with the “RC” or “RR”.
In order to allow users to become familiar with the new format and finalise the current ongoing requests, the CSSF has decided to put in place a one-month transition period ending on 15 March 2021. During this period, requests for the Market Entry Form may be submitted via eDesk for fund approval or email for any other request, using the current Excel dedicated form, or via the new eDesk/AML/CFT Market Entry Form dedicated module.
Luxembourg publishes Law of 25 February 2021 clarifying certain AML/CTF provisions and extending temporary regime for marketing of UK UCITS to retail investors
On 26 February 2021, Luxembourg published Law of 25 February 2021 clarifying certain AML/CTF provisions and extending temporary regime for marketing of UK UCITS to retail investors.
The newly published law amends:
- the amended law of 12 November 2004 on the fight against money laundering and the financing of terrorism;
- the amended law of 20 April 1977 relating to the operation of games of chance and betting relating to sporting events;
- the amended law of 17 December 2010 concerning undertakings for collective investment;
- the law of 25 March 2020 establishing a central data retrieval system for bank, payment accounts and safe-deposit boxes, and
- the law of 10 July 2020 establishing a Register of fiducies and trusts.
The main objective of the law is to clarify and add further detail to certain provisions of the AML/CTF Law and Gambling Law as well as to further correct three material errors which have crept into the central data retrieval system Law and Register of fiducies and trusts Law.
These targeted adaptations aim to complete the transposition of certain provisions of AMLD IV. These modifications to the framework for the prevention of money laundering and the fight against financing of terrorism by Directive (EU) 2018/843 are in line with the recommendations of the Financial Action Task Force in this area.
The second objective of this law is to extend, until 31 July 2021, the temporary regime introduced in Article 186-6 of the UCI Law by the Luxembourg law of 8 April 2019 concerning the measures to be taken in relation to the financial sector, and more particularly regarding certain Luxembourg and UK funds, in case of a withdrawal of the UK from the EU.
The Law provides that any UK UCITS that markets its units in Luxembourg as of 31 January 2021 is authorized to market to retail investors in Luxembourg until 31 July 2021 on the basis of article 100, paragraph 1 of the UCI Law, as long as that UCITS is managed, as at 31 December 2020, by a management company authorized, in accordance with the provisions of the UCITS Directive, by the UK authorities.
Chambre des députés publishes draft law 7761 amending the supervisory power of the CSSF and the CAA in terms of authorization procedure
On 2 February 2021, the Chambre des députés published draft law 7761 amending the supervisory power of the CSSF and the CAA in terms of authorization procedure.
The objective of this draft law is to modernize the authorization regime for entities in the financial sector by directly granting the CAA and the CSSF the power to approve and withdraw the authorization of these entities. The CAA and the CSSF, as national competent authorities, will exercise their power to authorize the entities subject to their respective supervision.
The changes implemented by the draft take into account the evolution of EU Regulatory framework increasingly advocating the attribution of authorization powers to the competent national authorities in charge of prudential supervision. This approach to granting and withdrawing authorization is reflected in European texts conferring authorization and direct supervisory powers on European institutions and authorities.
Luxembourg, as a leading financial center, must adopt an authorization regime in line with these developments. While the powers of authorization have already been assigned to competent national authorities in certain areas, the draft law aims to reflect the change in approach in a series of sectoral laws relating to the financial sector. The draft law also pursues an objective of administrative simplification.
FinTech / RegTech / BigTech / SupTech / Digital Economy
CSSF publishes communication on financial innovation
On 9 February 2021, the Commission de Surveillance du secteur financier (CSSF) published a report entitled "Financial Innovation a challenge and an ambition for the CSSF".
Integration of technological innovation in financial services and markets is a continuing challenge for regulators such as the CSSF. To embrace this major challenge, the CSSF relies mainly on three approaches:
- a proactive open regulatory approach to avoid hindering new opportunities and benefits by creating excessive regulatory barriers for innovation;
- a prudent risk-based regulatory approach in order to safeguard the role of prudential supervision of the financial sector in ensuring the safety and soundness of the financial sector with a special focus on consumer protection, market confidence and AML considerations; and
- a technology neutral approach which ensures that each project presented to the CSSF is assessed on the basis of the services effectively provided, regardless of the technology used.
It is also important for the CSSF to raise awareness on the financial innovations currently impacting the industry and to communicate its position to both the public and the industry. It is for this reason that the CSSF regularly publishes documents on financial innovation topics such as Artificial Intelligence, Cloud Computing, RoboAdvice and Digital on-boarding.
This document aims at further describing the involvement and the work of the CSSF regarding the Financial Innovation.
Investment Funds / Collective Investment Schemes (CIS) / Asset Management
CSSF updates Schema XML O1.2
On 3 February 2021, the Commission de Surveillance du secteur financier (CSSF) updated Schema XML O1.2 - information on a monthly basis from funds that offer a formal guarantee of repayment in the prospectus to their investors.
CSSF updates MMFR Handbook
On 5 February 2021, the Commission de Surveillance du secteur financier (CSSF) updated the handbook on reporting principles to be used by the MMF Managers in order to report activity to the CSSF as the National Competent Authority (NCA) for Luxembourg.
This version 1.2 provides update on New dashboard for reporting status. This dashboard will allow manager of MMF(s) to view online the status of all the expected reports for each fund/sub-fund and each period : accepted, warning, rejected or missing reports on the CSSF or ESMA side. This will help manager of MMF(s) to reach its reporting obligations.
The application is only accessible to the MMF manager’s users having the specific role “MMF reporting dashboard” in eDesk platform.
CSSF updates registration form for an alternative investment fund manager
On 16 February 2021, the Commission de Surveillance du secteur financier (CSSF) updated registration form for an alternative investment fund manager (AIFM).
This changes concern:
- Tab 4. AIF Information: The CSSF added one more column for "Other AIFM name" in the table 4.2.1 "AIF - Leverage/Redemption Rights/AuM"
- Tab 5. Documents: a link was added to the "AML/CFT IFM market entry form".
CSSF publishes notification form in accordance with Circular CSSF 02/77 with additional explanations
On 18 February 2021, the Commission de Surveillance du secteur financier (CSSF) published Notification Form in accordance with Circular CSSF 02/77 with additional explanations.
In the framework of Circular CSSF 02/77, the CSSF has revised the mandatory notification form 02/77 for the submission to the CSSF of notifications on NAV calculation errors and non-compliances with the investment rules. In the context of the revision of the form, the CSSF specifies as well its expectations in relation to the notification process and the use of the form.
The notification form is applicable to the following undertakings for collective investment (UCI): UCITS and UCIs subject to the Law of 17 December 2010 and Specialized Investment Funds (SIFs) subject to the Law of 13 February 2007.
The introduction of a revised version of the form follows the experience gained by the CSSF since 2017 and pursues in particular the objective to facilitate the filling of the form by the notifying entities and to further streamline its content.
The changes brought to the form concern notably the introduction of additional drop-down menus (e.g. categorization of investment breaches), the removal of some data fields (e.g. share class specific information) or the addition of some data fields (notably on corrective measures implemented at the level of the fund for avoiding the reoccurrence of similar incidents in the future).
These changes will also allow the CSSF to improve the operational processing of the information contained in the notification form. The revised notification form should be used with immediate effect; notifications using the old form will be accepted until 22 March 2021.
CSSF informs on the simplification of the submission process for a new sub-fund via a new questionnaire
On 23 February 2021, the Commission de Surveillance du secteur financier (CSSF) informed that the request for approval of a new sub-fund under an existing fund structure must be transmitted via one single new questionnaire.
This specific application questionnaire will further standardize the information necessary for the examination of the application.
The new questionnaire is applicable to
- UCIs subject to the Law of 17 December 2010,
- specialized investment funds subject to the Law of 13 February 2007
- investment companies in risk capital governed by the Law of 15 June 2004.
One questionnaire must be completed for each sub-fund for which an approval is requested. While this new questionnaire is introduced with immediate effect, filings using the former questionnaires will be accepted until 12 March 2021.
Market Abuse Directive & Regulation (MAD / MAR)
CSSF publishes findings and observations of STOR Survey (2019-2020)
On 15 February 2021, the Commission de Surveillance du secteur financier (CSSF) published the general findings and observations of suspicious transaction and order report (STOR) Survey (2019-2020).
In 2019, the CSSF launched a thematic review of more than 70 Luxembourg banks and investment firms in relation to their systems and procedures to detect and notify orders and transactions in financial instruments that could constitute market abuse. The review covered the period from 2017 to 2018. The statutory obligation for ‘persons professionally arranging or executing transactions’ to establish and maintain systems and procedures to detect and notify suspected market abuse is laid down in Article 16 (2) of the Market Abuse Regulation (2014) (also referred to as “MAR”). The related technical standards are set out in more detail in a Commission Delegated Regulation (EU) 2016/957 of 9 March 2016. The surveyed entities included those entities which, in the period covered by the review, reported the highest numbers of transactions in financial instruments to the CSSF under the transaction reporting regime pursuant to Article 26 of MiFIR.
Within the context of the thematic review, the surveyed entities were asked to complete a questionnaire established on the basis of the aforementioned technical standards. After the evaluation of the feedback received, the CSSF communicated the general findings and observations of the thematic review to the surveyed banks and investment firms in June 2020.
For a limited number of surveyed entities, the CSSF also reverted with specific observations to clarify certain elements or to highlight potential weaknesses or shortcomings. The entities in question have since reverted to the CSSF, in most cases with an indication of the measures that have been or are being implemented.
Markets in financial instruments Directive and Regulation (MiFID II / MiFIR)
CSSF announces new MiFIR data completeness and quality enhancement campaign for 2021
On 11 February 2021, the Commission de Surveillance du secteur financier (CSSF) published the MiFIR Transaction Reporting Issue/Error notification document as well as a press release regarding the obligation for credit institutions and investment firms to report transactions in financial instruments as set out in Article 26 of Regulation (EU) N° 600/2014 (“MiFIR”).
The press release informs on the number of reporting entities as well as the number of reports received by the CSSF in 2020 and aims more particularly to inform all reporting entities on the quality and completeness campaigns that the CSSF conducted during the year 2020 as well as to announce the topics that will be the subject of dedicated campaigns during the year 2021.
The press release also introduces the new template that should be used to notify the CSSF of any errors, omissions or failures with respect to the reporting obligation as required under Article 15(2) of Commission Delegated Regulation (EU) 2017/590 (“RTS 22”). The last part of the press release includes a list of topics that have already been subject of a specific campaign and for which details are available in previous communications.
CSSF publishes Guidance on e-Prospectus
On 22 February 2021, the Commission de Surveillance du secteur financier (CSSF) published Guidance & Related documents including FAQ LuxTrust, User guide for:
- Approval Requests: submission and follow-up of an approval request
- Authentication and Access: authentication to e-Prospectus and access to files
- Data Fields: submission and follow-up of an approval request
- Notification: submission of a notification request.
Link to e-Prospectus will be available from 1 March 2021.
Sustainable Finance / Green Finance
CSSF communicates on the SFDR fast track procedure and the deadline of 10 March 2021
On 5 February 2021, the Commission de Surveillance du secteur financier (CSSF) published a press release on the SFDR fast track procedure and the deadline of 10 March 2021.
The CSSF would like to remind that UCITS management companies and alternative investment fund managers will have to comply with Regulation (EU) 2019/2088 on sustainability-related disclosures in the financial sector (SFDR Regulation) for 10 March 2021.
For the purpose of bringing pre-contractual information within the meaning of Article 6 (3) of the SFDR Regulation in compliance with the SFDR Regulation, the CSSF published on 16 December 2020 on its website a Communication on its SFDR fast track procedure for the purpose of visa stamping of amended prospectuses/issuing documents.
UCITS management companies and alternative investment fund managers are reminded that the prospectuses/issue documents to be brought into compliance with the SFDR Regulation must be submitted by 28 February 2021 at the latest in order to be able to meet the deadline of 10 March 2021 of the SFDR Regulation.
To facilitate the examination of sustainability-related disclosures inserted in prospectuses/issuing documents submitted by ordinary procedure to amend a fund, the CSSF informs that it has adapted the confirmation letter of the SFDR fast track procedure so that it can also be used to support the review of sustainability-related disclosures included in a prospectus/issuing document submitted outside the SFDR fast track procedure.
Anti-money laundering / Combating the financing of terrorism (AML / CFT)
FINMA updates AML/CFT measures against Syria (03/02/2021)
On 3 February 2021, the FINMA updated AML/CFT measures against Syria.
FINMA updates AML/CFT sanctions against the Al-Qaïda group or Talibans (22/02/2021)
On 22 February 2021, the FINMA updated AML/CFT sanctions against the Al-Qaïda group or Talibans.
By decision of February 19, 2021, the competent United Nations sanctions committee modified the list of persons, companies and organizations sanctioned. The modification is directly applicable in Switzerland.
FINMA updates AML/CFT measures against the Central African Republic
On 24 February 2021, the State Secretariat for Economic Affairs (SECO) has published an amendment to the Annex to the Ordinance of 14 March 2014 on Measures against the Central African Republic (SR 9188.8.131.52).
With a resolution dated February 22, 2021, the responsible UN sanctions committee changed the list of persons, companies and organizations sanctioned in this context. The change is directly applicable in Switzerland. On February 23, 2021, SECO therefore adjusted the SESAM (SECO Sanctions Management) sanctions database, which is relevant for Switzerland, and published the adjustment on its website.
The financial intermediaries are requested to block the relevant assets immediately and to report such business relationships to SECO in accordance with the provisions of the ordinance. Reporting to SECO does not release a financial intermediary from reporting to the Money Laundering Reporting Office immediately in accordance with Art. 9 of the Anti-Money Laundering Act.
FINMA updates AML/CFT measures against the Al-Qaida group or the Taliban
On 25 February 2021, the FINMA announced the update of AML/CFT measures against the Al-Qaida group or the Taliban.
The State Secretariat for Economic Affairs (SECO) has published an amendment to Annex 2 of the Ordinance of October 2, 2000 on Measures against Persons and Organizations with Connections to Usama bin Laden, the Al-Qaida group or the Taliban (SR 946.203).
By resolution of February 23, 2021, the responsible UN sanctions committee changed the list of persons, companies and organizations sanctioned in this context. The change is directly applicable in Switzerland. SECO has therefore adapted the SESAM (SECO Sanctions Management) sanctions database, which is relevant for Switzerland, and published the adaptation on its website .
The financial intermediaries are requested to block the relevant assets immediately and to report such business relationships to SECO in accordance with the provisions of the ordinance. Reporting to SECO does not release a financial intermediary from reporting immediately to the Money Laundering Reporting Office Switzerland according to Art. 9 of the Anti-Money Laundering Act if the requirements are met.
Blockchain / Distributed Ledger Technology (DLT)
SBA publishes Opinion on Consultation of the Blockchain ordinance
On 2 February 2021, the Swiss Bankers Association (SBA) published its Opinion on Consultation of the Blockchain ordinance.
In SBA view, the most important concerns are as follows:
- In Art. 4 (1) (b) AMLO, the element of "power of disposal" should not be abandoned, but rather adapted and clarified according to the circumstances of virtual currencies. Otherwise, there is a risk of great legal uncertainty regarding the applicability of the AMLA.
- The alignment of the threshold of professionalism for crypto-based assets with public deposits, as provided for in Art. 5a of the Banking Act, as envisaged in Art. 6 para. 2 of the E-Banking Ordinance, seems unsuitable. An alignment must be made with the professional activity threshold for asset management according to Art. 19 FINIV.
- Retention for an indefinite period should also be possible for liquid assets from DLT trading systems. This should be aligned with the settlement periods for securities firms. The custody period provided for in Art. 5a para. 2 E-BankO should be waived. In addition, it is requested that Art. 5 para. 3 lit. c Banking Ordinance be amended.
The legislative adjustments contribute to an increase in legal certainty in the area of blockchain/ DLT and enable innovative developments in these areas for the Swiss financial center. The ordinances are largely successful and designed to be practical. However, there are still some inconsistencies that need to be adjusted. In particular, the Money Laundering Ordinance, the Banking Ordinance and the Financial Market Infrastructure Ordinance still need to be adapted.
The overriding concern of the industry is that DLT trading systems should not be disadvantaged compared to traditional trading systems as a result of the transfer of the DLT decree of the parliament to the federal ordinance level. But neither are they disadvantaged compared to the new market participants. Parity between the individual players must be ensured.
SBA publishes statement on the DLT Shell Ordinance
On 15 February 2021, the Swiss Bankers Association (SBA) published its statement on the DLT Shell Ordinance.
The SBA welcomes the adoption of a blanket ordinance and the associated embedding of the legislative amendments at the level of the Federal Council ordinance. The amendments to the law help increase legal certainty in the blockchain / DLT area and enable the Swiss financial center to develop innovative developments in these areas.
The regulations are largely successful and designed to be practical. However, there are still some inconsistencies that need to be adjusted. There is a need for adjustments, particularly with regard to the Money Laundering Ordinance, the Banking Ordinance and the Financial Market Infrastructure Ordinance.
The overriding concern of the industry is that DLT trading systems are not put at a disadvantage compared to traditional trading systems by the transfer of the DLT decree of the parliament to federal ordinance level. But this is also not the case with the new market participants. Parity between the individual actors must be ensured.
SNB publishes SIC System Report and Duty to Inform - The Swiss Interbank Clearing (SIC) Payment System
On 23 February 2021, the Swiss National Bank (SNB) published a SIC System Report and Duty to Inform - The Swiss Interbank Clearing (SIC) Payment System.
This publication describes the Swiss Interbank Clearing payment system (SIC system), through which financial institutions settle their interbank payments in francs as well as a significant portion of their customers' franc payments.
It is a real-time gross-settlement system for interbank and customer payments in francs. Payments are settled definitively and irrevocably in central bank money. The participants in the SIC system are primarily banks, but also insurance companies, securities houses and other financial institutions. The SIC system is operated by SIC AG on behalf of the National Bank and is a joint venture between the SNB and the financial center. The National Bank acts as the system administrator, while SIC AG is responsible for operating the system and performing operational tasks. There is a legal basis for the SNB's role: the SNB's legal mandate to serve cashless payment traffic. In addition, the National Bank is also responsible for the supervision of the SIC system.
FinTech / RegTech / BigTech / SupTech / Digital Economy
SBA publishes Opinion on Consultation on the partial revision of the FINMA Circular 2016/7 "Video and online identification"
On 1 February 2021, the Swiss Bankers Association (SBA) published its Opinion on Consultation on the partial revision of the FINMA Circular 2016/7 "Video and online identification".
SBA welcomes the fact that FINMA is taking account of technological change and providing new options for online identification. SBA also supports the goal of ensuring a fully automated and yet secure opening process with online identification. Contrary to FINMA's assessment, however, SBA believes that this is not yet fully possible with the planned adjustments. In SBA view, new technologies, artificial intelligence or machine learning, but also camera specifications of modern smartphones already offer more possibilities than the Chip Scan.
Investment Funds / Collective Investment Schemes (CIS) / Asset Management
SBA publishes letter on the adjustments concerning collective investment schemes
On 9 February 2021, the Swiss Bankers Association (SBA) published a letter on the adjustments concerning collective investment schemes.
The SBA refers to the practice draft "MWSTG on the topic of collective capital investments", which was published as a draft on the website of the FTA on 15 December 2020.
In principle, SBA agrees with the FTA's draft. SBA is of the opinion and have understood that despite the adaptation of the wording of the law to the new financial market law in the area of collective investment schemes, the previous practice of the FTA is to be continued unchanged.
Editorial adjustments ("distribution" is replaced by "offering" and the references to the new laws are adjusted) should not lead to material changes. However, in SBA opinion, certain formulations leave some room for interpretation.
Sustainable Finance / Green Finance
SBA publishes Opinion on Consultation of the partial revision (climate risk) of the circular on disclosure by banks
On 1 February 2021, the Swiss Bankers Association (SBA) published its Opinion on the Consultation of the partial revision (climate risk) of the circular on disclosure by banks.
Position of the SBA :
- Alignment of FINMA regulation with the TCFD standard is welcomed. It is also important that the implementation is principle- and risk-based and, moreover, proportional.
- The required information should be based on TCFD in terms of content and logic. Annex 5 should be structured accordingly for this reason (corporate governance, strategy, risk management, metrics and targets).
SBA publishes opinion on the consultation process on the federal government's sustainable development strategy
On 19 February 2021, the Swiss Bankers Association (SBA) published its opinion on the consultation process on the federal government's sustainable development strategy.
- Appropriate consideration and harmonization with international developments is welcomed. The SBA will be happy to contribute to the corresponding work of the federal government.
- The banks support the creation of transparency on risks from ESG factors. These transparency rules must be internationally coordinated, include the entire economy and be designed in accordance with the principle of proportionality.
- Sustainability in the Swiss financial system must be assessed on a differentiated basis according to business activity, since on the one hand financial flows are a reflection of the real economy and there is therefore an interaction, and on the other hand the decision-making authority over financial flows/assets is often with the end customers and the financial institutions act here merely as intermediaries.
- Financing the Sustainable Development Goals and the Paris climate targets cannot be secured with public funds alone. Mobilizing private funds is imperative. Aligning the financial system with these goals is therefore gaining importance, which is also recognized as a critical factor by international financial bodies.
If Switzerland is to become an international hub for sustainable finance and thus be able to make its contribution to the financing of sustainability, appropriate attention must be paid to the framework conditions for mobilizing private funds.
Directive on disclosure of non-financial and diversity information / Non-financial reporting
AFM publishes exploratory study on the use of non-financial information by institutional investors and analysts
On 16 February 2021, the Autoriteit Financiële Markten (AFM) published an exploratory study on the use of non-financial information by institutional investors and analysts.
1) The effect of non-financial aspects at companies on future performance could be stated more clearly
According to investors and analysts, companies could ensure that they pay more attention to non-financial information. In their reporting, companies could provide greater insight into their business model and more clearly state the effects of non-financial performance and risks on their future financial position.
2) According to investors, the availability of relevant non-financial information is limited
Investors also state that only limited non-financial information is currently available and that the information that is provided is incomplete and also not comparable. In their view, standardisation of non-financial reporting would make this information more relevant and reliable. According to those interviewed, this could involve usage of uniform definitions and assurance reports from an external party subject to supervision.
3) Institutional investors still pay limited attention to the long term
Investors and analysts say that their attention to non-financial aspects is driven mainly by legislation and regulations relating to sustainability and pressure from their stakeholders. At the moment, this relates mainly to impact in the short term, such as costs. They are less interested in how non-financial aspects could have an impact in the long term. Scant attention is paid to non-financial aspects at public contacts such as shareholder meetings (GMSs). These issues are raised in one-on-one contacts.
4) Standardisation and new legislation could help
The AFM believes that previously initiated standardisation of non-financial reporting and upcoming legislation and regulations, such as the EU sustainable finance taxonomy, may also give a positive boost to the use of non-financial information by investors and analysts. Companies can assist in this process by reporting relevant and reliable non-financial information.
5) Exploratory study conducted using desk research and qualitative interviews
The exploratory study was conducted in 2020 with the aim of obtaining insight into the use of non-financial information by institutional investors and analysts and the provision of this information by listed companies. This involved the use of desk research and qualitative interviews. A follow-up to the exploration will be conducted later this year.
Investment Funds / Collective Investment Schemes (CIS) / Asset Management
AFM clarifies the scope of individual asset management in sector letter
On 4 February 2021, the Autoriteit Financiële Markten (AFM) clarified which services do not fall under the definition of individual asset management. It expects companies to check on the basis of this sector letter whether they meet all requirements and take action where necessary.
- Investment services are often incorrectly classified under individual asset management
- Investment firms do not always have the correct permits and investors do not receive full protection
- Sector letter informs investment firms about permits and legal requirements
By broadly interpreting the individual asset management investment service, there is a risk that other investment services will also be provided. The company may not have the correct permits. Or it does not comply with all legal requirements that apply to those investment services. Professional investors will then not receive the full protection that comes with these investment services.
The AFM therefore considers it important that investment firms carefully determine which of the services they provide fall within the scope of individual asset management, and which do not fall within the scope of individual asset management. And what consequences this has for them. In order to offer companies a handle for this, the AFM has further explained and illustrated the scope in the sector letter on the basis of three practical examples.
The AFM expects investment firms to use this sector letter to check whether they have the correct permits and, where necessary, take steps to comply with all laws and regulations that apply to its services.
AFM publishes answer to the proposal of new pension law
On 12 February 2021, the Autoriteit Financiële Markten (AFM) published its answer to the proposal of new pension law.
In the transition to a new pension system, the interests of members to have a good retirement provision must be paramount. The new scheme must be in line with the risks that participants are able and willing to bear. Pension administrators must clearly inform them about this and provide them with proper guidance.
The bill is the elaboration of the June 2019 Pension Agreement between the cabinet and the social partners. It aims to make pensions more transparent and more personal. This means that the new pension is also more in line with social developments and the labor market. The AFM supports the bill, but draws attention to a number of points in its consultation response.
Sustainable Finance / Green Finance
Banco de España adopts the Eurosystem’s common stance for sustainable investment
On 4 February 2021, the Banco de España announced that it subscribes to the decision adopted today by the Eurosystem to establish a common stance for climate change-related sustainable investment in non-monetary policy, eurodenominated portfolios. The decision announced by the European Central Bank (ECB) follows extensive preparatory work by a high-level Eurosystem group, in which Juan Ayuso, Director General Operations, Markets and Payment Systems, participated. The decision will allow Eurosystem member countries to embark on the transition to a decarbonised economy, in keeping with the goals set by the European Union (EU) to combat climate change. In addition, this agreement provides the basis for determining the carbon footprint of these portfolios by measuring greenhouse gas emissions and other parameters relating to sustainable and responsible investment.
The principles adopted today by the Eurosystem are in line with the action already taken by the Banco de España to pursue a climate-friendly investment policy.
In 2019, the Banco de España decided to add sustainability and responsibility criteria to its investment policy in respect of its own portfolios. As part of this strategy, the Banco de España has direct green bond investments in different currencies and participates in the open-ended investment fund for US dollar-denominated green bonds launched by the Bank for International Settlements (BIS) in 2019.
The Banco de España also participates in the second sustainable fund created by the BIS in January 2021 for investments in euro-denominated green bonds. The incorporation of sustainability criteria in the management of own portfolios complies with the second of the recommendations of the Network for Greening the Financial System (NGFS) published in 2019.
Anti-money laundering / Combating the financing of terrorism (AML / CFT)
FCA publishes FG21/2 - Summary of feedback received for the CP20/7 on Changes to the Sourcebook for professional body anti-money laundering supervisors – criminality checks
On 24 February 2021, the Financial Conduct Authority (FCA) published FG21/2 - Summary of feedback received for the CP20/7 on Changes to the Sourcebook for professional body anti-money laundering supervisors – criminality checks.
The FCA agreed for following changes:
- Changing reference to the term ‘sufficient information’ from ‘excluding acceptance of a self-declaration’ to excluding ‘self-declaration alone’.
- Removing the expectation that an application includes evidence of UK residency within the previous 5 years. This is replaced with an expectation that a PBS satisfies itself that a disclosure agency check from the UK (as opposed to a different country) is appropriate, including by considering the applicant’s residential history.
- Clarifying that where it is relevant to an application that there are differing criminal law regimes across the UK (in relation to the time period for the expiration of convictions), the applicable regime is the one within the jurisdiction where the regulated services are to be provided.
- Clarifying that for a current application, a PBS may accept a criminality check submitted to a different PBS in respect of a previous application, provided it was obtained from the disclosure agency appropriate for the current application.
- Simplifying FCA’s expectations around applications from those residing or who have resided overseas. The FCA also removed reference to ‘statutory declarations’ and replaced this with ‘professional references that are independently verified’ in ‘exceptional circumstances’.
Benchmarks Regulation (BMR)
BoE remarks on path to ending new use of GBP LIBOR-linked derivatives
On 24 February 2021, the Bank of England (BoE) provided that the Working Group on Sterling Risk-Free Reference Rates published an update to its priorities and roadmap for the final year of transition. For the GBP LIBOR-linked derivatives market the recommended milestones established by the Working Group are:
- By end-Q1 2021, cease initiation of new GBP LIBOR-linked linear derivatives* that expire after the end of 2021.
- By end-Q2 2021, cease initiation of new GBP LIBOR-linked non-linear derivatives* that expire after the end of 2021.
- During Q2/Q3 2021, cease initiation of new cross-currency derivatives with a LIBOR-linked sterling leg, that expire after the end of 2021.
- Progress active conversion of all legacy GBP LIBOR contracts where viable through to completion by end-Q3 2021.
The Working Group’s key expectation for all market participants is that any new GBP derivatives that expire after the end of 2021, entered into after the recommended milestones, be based on SONIA.
To support this and building on the ‘SONIA first’ initiative in October 2020, the Working Group proposed in particular that interdealer broker trades taking place after the relevant milestone solely reference SONIA, with the exception of single currency basis swaps to facilitate transition flows.
Central Counterparty Clearing House (CCP)
UK Government launches a consultation on Expanded Resolution Regime for Central Counterparties (CCP)
On 24 February 2021, the UK Government launched a consultation on Expanded Resolution Regime for Central Counterparties (CCP)which would give the Bank of England additional powers to mitigate the risk and impact of a CCP failure and the subsequent risks to financial stability and public funds.
These new powers would help to better protect financial stability by enabling the Bank to take full control of a CCP when necessary and use a number of tools without reliance on the CCP’s rulebook. This would mean the Bank could take faster and more extensive action to stabilize the CCP than it can now. These powers would also limit risks to public funds by ensuring CCPs and clearing members ultimately bear the losses arising from a CCP failure, rather than taxpayers, whilst still stabilizing the CCP, preventing contagion and providing reassurance to the market.
This consultation closes at 11:59pm on 28 May 2021.
COVID-19 Regulatory Measures
PRA updates statement on COVID-19 regulatory reporting amendments
On 5 February 2021, the Prudential Regulation Authority (PRA) updated statement on COVID-19 regulatory reporting amendments.
In this statement, the PRA provided further guidance on submitting this year’s annual submissions and other types of regulatory reporting.
Consistent with the measures announced by the FRC and FCA, the PRA will accept a delay in the submission by UK banks and designated investment firms of their annual reports and accounts by up to two calendar months, where the remittance deadlines contained in the PRA Rulebook fall on or before Saturday 31 July 2021. For building societies, while the PRA is prepared to accept a similar delay, firms considering this may need to consider other statutory requirements that apply to them.
Firms should keep their supervisory contact at the PRA notified of any significant developments in their financial circumstances and those that are able to submit before the end of the delayed submission window are encouraged to do so.
FCA sets out its approach to international firms
Many international firms provide services in the UK, making an important contribution to UK financial services, and we are committed to maintaining open and vibrant markets.
With more international firms expected to be looking to become authorised in the UK, FCA thinks it is helpful to set out how it approaches authorising and supervising them.
In September 2020, FCA consulted on its approach to international firms (CP20/20). FCA has considered the responses when preparing the approach document and the feedback statement.
On 3 February 2021, the Financial Conduct Authority (FCA) published its approach to the authorization The FCA expects firms seeking authorization to have an active place of business in the UK to enable us to effectively supervise its UK activities.
International firms serving UK customers can sometimes create different risks of harm compared to UK firms because of the way their businesses are structured and operate. In the approach document the FCA sets out how these risks may be mitigated, and the factors that will be taken into account when deciding whether it may be more appropriate for an international firm to seek authorization as a UK incorporated firm for all or part of its business and supervision of international firms.
The publication explains how the FCA will assess international firms when they apply for authorisation to operate in the UK market. The FCA has considered responses to a consultation published last year (CP20/20) and the FCA has also published a feedback statement alongside the approach document.The document should help international firms understand FCA’s expectations and how to manage risks appropriately when providing regulated financial services in the UK.
This approach is for international firms that:
- intend to apply for authorisation in the UK
- have applied for authorisation in the UK
- are already authorised in the UK.
The FCA expects firms seeking authorisation to have an active place of business in the UK to enable us to effectively supervise its UK activities.
Firms that are also regulated by the Prudential Regulation Authority (PRA) may wish to refer to the relevant publications from the PRA.
Investment Funds / Collective Investment Schemes (CIS) / Asset Management
IA publishes a briefing on Long-Term Asset Fund (LTAF)
On 2 February 2021, the Investment Association (IA) published a briefing on Long-Term Asset Fund (LTAF) .
The LTAF is a new fund structure allowing wider access to assets such as infrastructure and private companies which are not regularly traded. It will provide the benefits of greater diversification for pension savers and investors, while helping to provide much needed additional investment for the UK economy.
Once established, the LTAF will allow investors to access:
- Private equity
- Private credit
- Venture capital
- Infrastructure, including transport
- Real estate
- Collective Investment Vehicles that invest in private asset classes, including limited partnerships
The LTAF will also be able to hold cash, listed shares and bonds, including money market instruments to provide options for managing portfolio liquidity while awaiting opportunities to invest in less liquid asset classes.
Senior Managers & Certification Regime (SM&CR)
FCA updates on User guides and Q&As on adding, amending certified and assessed persons data
On 26 February 2021, the Financial Conduct Authority (FCA) updated the Directory of certified and assessed persons with the new version of:
- User guide on adding multiple Directory Persons data (version 10.0)
- User guide on amending multiple Directory Persons data (version 10.0)
- Questions and Answers cover a range of topics such as reporting, the submission process and use of data (version 10.0).
Sustainable Finance / Green Finance
UK publishes Draft Statutory Instrument - Recognized Auction Platforms (Amendment and Miscellaneous Provisions) Regulations 2021
On 12 February 2021, the Draft Statutory Instrument - Recognized Auction Platforms (Amendment and Miscellaneous Provisions) Regulations 2021 was published in the UK legislation.
Following the end of the Transition Period, the UK is operating a new UK ETS. Consequently, this instrument makes consequential amendments to UK financial services to incorporate the UK ETS. In doing that, the amendments do not remove the ability to trade or regulate financial instruments based on EU emissions allowances.
1. Financial Services and Markets Act 2000 (“FSMA”)
- amends FSMA to continue the FCA’s power to suspend auctioning of emission allowances if deemed necessary as part of its functions derived from market abuse regulations.
- ensures that FSMA refers to the correct definition of emission allowance as is necessary for the functioning of the UK ETS.
2. The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (“RAO”)
- amends the RAO to reflect the creation of the new UK ETS.
- ensures that the act of bidding in a UK emission allowance auction is a regulated activity and, as such, gives the FCA the appropriate oversight over this activity.
- bring UK emission allowances into the scope of what is considered a ‘financial instrument’
3. The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (“FPO”)
- updates the FPO to reflect the introduction of a UK emissions allowance, which means that the promotion of investment in UK emission allowances can only be undertaken by persons with the correct permissions.
4. The Financial Services and Markets Act 2000 (Disclosure of Confidential Information)
- updates these regulations so that the FCA can correctly discharge its functions with regard to the disclosure of information relating to the UK ETS and emissions allowance holdings. Such information must be disclosed in the running of the UK ETS to allow for proper functioning and oversight of the scheme.
5. The Recognized Auction Platform Regulations 2011
- reflect that emission allowances auctions are now to be carried out for a UK ETS and will involve the auctioning of UK emission allowances.
- sets out what persons or firms are permitted to access the UK auction platform, primarily those based in the UK
6. The Financial Services and Markets Act 2000 (Qualifying Provisions) Order 2013
- enable the FCA to exercise designated FSMA enforcement powers in respect of breach of the Greenhouse Gas Emissions Trading Scheme Auctioning Regulations 2021.
- ensures that the FCA has the investigation and enforcement powers to fulfil its duties with regard to preventing financial misconduct in the context of the auctioning and trading of emission allowances.
7. The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017
- ensures the relevant prohibitions against financial crimes apply to the UK ETS and the trading of UK allowances.
8. Market Abuse Regulation
- The scope has been changed to apply to behaviors or transactions, including bids, relating to the auctioning of emission allowances on an auction platform recognized under the UK Recognized Auction Platforms Regulations 2011.
- A new definition for UK Emission Allowance Market Participant definition (“UK EAMP”) has been inserted.
- The definition of inside information for emission allowances has been updated so that, broadly speaking, for participants in the market for UK emission allowances who have aggregate emissions or thermal rated input at or below the minimum thresholds referred to in UK MAR, information about their physical operations related to their UK installations and UK aviation activities is not considered to be inside information as it does not have a significant price effect on the price of emission allowances.
Securities Financing Transactions Regulation (SFTR)
ICMA publishes Sixth version of the ICMA SFTR Recommendations
On 17 February 2021, the ICMA European Repo and Collateral Council (ERCC) released the sixth edition of the detailed ICMA Recommendations for Reporting under SFTR.
Compared to the previous version published on 29 October 2020, the updated edition of the guide reflects the end of the Brexit transition period on 31 December and the resulting split of SFTR into an EU and a UK version, which the recommendations continue to cover both.
The new version also incorporates further guidance released by both ESMA and the FCA, in particular ESMA’s Q&As. A number of sections have been substantially revised as a result, including the guidance around the reporting of settlement fails (see e.g. section 9.16 of the Guide).
To allow for an easier comparison, ICMA published a blackline version alongside the guide itself which shows all the changes that have been made since the last publication in late October. The SFTR Recommendations will continue to evolve to reflect ongoing discussions within the ERCC’s SFTR Task Force as well as any further official guidance published by regulators. Further updates will be made available on the ICMA website.
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.
Gaëlle Kerboeuf, Group Legal Manager - Projects & Regulatory Monitoring
Pauline Fieni, Group Compliance - General secretary, Projects & Regulatory Monitoring
Permanent Editorial Committee
Gaëlle Kerboeuf, Group Legal Manager - Projects & Regulatory Monitoring
Pauline Fieni, Group Compliance - General secretary, Projects & Regulatory Monitoring
Corinne Brand, Group Communications Manager
Jennifer Yeboah, Team Manager Legal (Belgium)
François Honnay, Head of Legal and Compliance (Belgium)
Tania Deltchev, Head of Legal (France)
Stefan Ullrich, Head of Legal (Germany)
Georgios Frangou, Compliance Officer (Germany)
Robin Donagh, Legal Advisor (Ireland)
Razanajafy (Fara) Francois-Sim, Head of Compliance (Ireland)
Costanza Bucci, Head of Legal & Compliance (Italy)
Luciana Vertulli, Compliance Officer (Italy)
Fernand Costinha, Head of Legal (Luxembourg)
Julien Fetick, Senior Financial Lawyer (Luxembourg)
Gérald Stadelmann, Head of Legal (Luxcellence Luxembourg)
Samuel Zemp, Compliance Officer (Switzerland)
Sarah Anderson, Head of Legal (UK)
Olga Kitenge, Legal, Risk & Compliance (UK)
Michele Tuen, Head of Trustee and Legal (Hong Kong)
Henk Brink (The Netherlands)
Beatriz Sanchez Jete, Compliance (Spain)
Arrate Okerantza Elejalde, Legal (Spain)
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