Financial services regulatory update - February 2022

FCA: Guidance consultation for firms seeking to limit their liabilities

On 25 January, the FCA published a guidance consultation (GC22/1) on its approach to firms that are proposing compromises in relation to liabilities.  Compromises are arrangements that enable a firm to settle its liabilities with creditors and/or shareholders.  

The FCA has made clear that compromises that unfairly benefit a firm and its other stakeholders at the expenses of consumers are unacceptable.  It will not hesitate to use its regulatory tools in respect of the firm/senior management if it is appropriate to do so.

The consultation includes a number of illustrative examples of how the FCA would consider compromises proposed by firms.

The consultation is open until 1 March 2022. 

FCA: Consultation on strengthening financial promotion rules for high-risk investments

On 19 January 2022, the FCA published a consultation paper (CP22/2) on strengthening its financial promotion rules relating to high-risk investments and firms approving financial promotions. The proposals in the consultation paper mainly relate to financial promotions for high-risk investments, which include investment-based crowdfunding and peer-to-peer agreements. The rules will also include cryptoassets when they are brought within the financial promotion regime – see the Cryptoassets section below.

The proposals focus on the following key areas:

• Strengthening the role of firms approving and communicating financial promotions. The FCA wants to ensure approving firms have the relevant expertise in the promotions they are approving.
• Applying financial promotion rules to qualifying cryptoassets. The FCA intends to generally apply the same rules to cryptoassets as currently are applied to non-readily realisable securities and peer-to-peer agreements. Financial promotions relating to cryptoassets will also need to comply with COBS 4.
• Consumer journey into high-risk investments. The FCA propose a package of measures including strengthening customer risk warnings and banning inducements to invest.
• Classification of high-risk investments. The FCA does not propose to extend the application of its speculative illiquid assets rules presently but will reconsider the issue later in 2022.

The consultation closes on 23 March 2022.  The FCA intends to publish its final rules in the summer of 2022.  It proposes to give firms 3 months from when it publishes its final rules to comply with the new requirements for the consumer journey and the new requirements for firms approving the financial promotions of unauthorised firms.

FCA: TPR firms not meeting its expectations

On 18 January, the FCA published a new webpage outlining its approach to firms in the temporary permissions regime (TPR) that do not meet its expectations. The FCA aims to ensure that, where relevant, firms cannot extend their UK business whilst operating in the TPR. Further, if firms do not voluntarily leave the TPR, the FCA may take action to remove them, potentially resulting in the FCA contacting a firm's home state regulator and issuing a final notice in the UK. Firms may avoid these actions if they voluntarily apply to cancel their temporary permission entirely and, where eligible, enter the supervised run-off mechanism within the financial services contracts regime.

FSCS: 2022/23 budget update

On 12 January 2022, the Financial Services Compensation Scheme (FSCS) published its 2022/23 budget update, including its anticipated running costs. The proposed FSCS budget for 2022/23 is £95.5 million, a £5 million increase on the budget announced in January 2021. Among others, reasons for the increase include the increasing numbers of time-consuming and complex claims requiring expertise to process. The FSCS announced its expectation to end the 2021/22 financial year below its previously announced budget by £5.2 million.

FCA: Joint consultation with PRA on 2022/23 FSCS management expenses levy limit

On 12 January 2022, the FCA and PRA published a joint consultation paper on the 2022/23 management expenses levy limit (MELL) for the Financial Services Compensation Scheme (FSCS). Under the Financial Services and Markets Act 2000, the PRA and FCA set a limit for the total management expenses the FSCS can levy on firms, with the MELL being the maximum amount the FSCS can levy for operating costs in a year without further consultation. 

For 2022/23, the proposed MELL is £110.5 million, consisting of a £95.5 million management expenses budget and an unlevied contingency reserve of £15 million. The proposed MELL will apply from 1 April 2022 until 31 March 2023. The deadline for responses to the consultation paper is 14 February 2022, ahead of the final rules being in place by 1 April 2022.

FCA: Policy statement on authorisation application fees

On 10 January 2022, the FCA released a policy statement (PS22/1) containing the new structure for authorisation application fees. The new structure went live on 24 January 2022, but further work needs to be completed by the FCA before it can introduce the new £250 charge for stand-alone Form A applications under the senior managers regime and controlled functions for appointed representatives. Key elements of the new structure include:

• The removal of the consumer credit application fee-based derived from income, replacing them with flat-rate fees.
• Condensing the current application charges into 10 pricing categories.
• The FCA has removed the income-based fee for claims management companies, instead introducing a category 4 charge of £2,500 for lead generators who only apply for the permission of seeking out people who may have a claim.
• The FCA has also introduced a new category 3 fee, set at £1,000, which is applicable to firms who take on restricted permissions for debt counselling and debt adjustment, as such activities are ancillary to their main business.

Promotion of qualifying cryptoassets to be regulated in the UK

On 18 January, HMT confirmed that the promotion of certain "qualifying assets" will be brought within the scope of the UK financial promotion regime.  For further detail, please read our special alert.

IMF: correlation of cryptoassets with traditional holdings may increase contagion risk

On 11 January 2022, the International Monetary Fund (IMF) published a blog post examining how cryptoassets have developed from an obscure asset class into an integral element of the digital asset landscape, resulting in financial stability concerns. The IMF's research illustrates that the correlation of cryptoassets with traditional holdings, such as stocks, has significantly increased. This leads to a limitation of perceived risk diversification benefits, as well as raising the risk of contagion between financial markets.

FIA: Growth of US regulated markets for crypto derivatives

On 17 December 2021, the Futures Industry Association (FIA) released an article discussing the growing number of regulated markets for crypto derivatives in the US. The article noted that the CME Group has maintained its leadership position since 2018 in its offering of a fully regulated marketplace for bitcoin futures. However, its position is now being challenged by two market operators moving into the space through acquisitions. This has resulted in an increased choice of marketplace for US fund managers, and other institutional investors wanting exposure in a regulated crypto environment.

Invest Europe to develop ESG reporting standards for PE and VC firms

On 18 January 2022, Invest Europe announced its plans for develop reporting standards for ESG reporting in private equity and venture capital firms. This standardisation would bring harmonisation and transparency to ESG reporting which is essential to both investors and regulators. The reporting standards will be established by summer 2022.

ICMA: Concerns about amendments to the proposed Regulation on European green bonds

On 5 January 2022, the International Capital Market Association (ICMA) published its analysis of the amendments to the Regulation on European green bonds as proposed on 2 December 2021. In the ICMA's opinion, by adding new requirements for bonds and proposing it become mandatory for all green bonds between 2025 and 2028, the proposed amendments illustrate a "fundamental shift" from the European Commission's proposal. The ICMA intend to regulate the entire European sustainable bond market through the European green bonds Regulation and introduce mandatory requirements for all sustainable bonds.

FCA: Primary Market Technical Note on disclosures on ESG matters

On 21 December 2021, the FCA published a Technical Note on disclosures in relation to ESG matters, such as climate change. The note also includes specific requirements and obligations included in retained EU law and how they apply to ESG issues. The FCA also considers that while a wide range of factors can affect the prospects of a company, climate-related risks and opportunities are financially material and, therefore, may need to be disclosed. Furthermore, the FCA notes that disclosure obligations arise under the Listing Rules, Disclosure Guidance and Transparency Rules, and UK MAR in relation to announcements and financial reporting, and on an event-driven basis.

BoE: Revised implementation timetable for RTGS renewal programme

On 17 January 2022, the BoE published an updated webpage on the real-time gross settlement (RTGS) renewal programme. The BoE also announced a revised implementation timetable following a review in late 2021 and incorporating feedback from CHAPS direct participants. The BoE plans to launch a test simulator in February 2022 and will launch a new, end-to-end enhanced ISO 20022-enabled CHAPS pilot platform in summer 2022.

This new timeline upholds the move to enhanced ISO 20022 messaging in spring 2023, now undertaken in a single stage in April 2023 as opposed to a two-stage process. The new RTGS core settlement engine will be introduced in spring 2023, rather than autumn 2023. As part of the wider RTGS renewal programme, the BoE will launch two consultations in spring 2022, seeking views on how RTGS can support the future of payments once the new core settlement engine has been delivered in 2024, and propose the framework for the new RTGS/CHAPS tariff.

House of Lords: Economic Affairs Committee report on central bank digital currencies 

On 13 January 2022, the House of Lords Economic Affairs Committee published a report on the potential introduction of a UK retail central bank digital currency (CBDC). The BoE and HMT established a CBDC taskforce in April 2021, followed by an announcement in November 2021 of their intention to consult on their assessment of the case for a UK CBDC in 2022. In the CBDC report, the committee:

• Asks HMT and the BoE to work alongside international partners on principles and standards for CBDCs, learning lessons from the experiences of countries with early CBDC adoption. 
• Concludes that it has not yet heard a convincing case for why the UK needs a retail CBDC.
• Outlines questions that it considers the taskforce needs to answer in its assessment work.
• Recommends that the taskforce consults on whether a wholesale CBDC would have any material advantages over the development and widened membership of the real-time gross settlement system.

PSR: Strategy for next five years

On 13 January 2022, the PSR published its strategy for the next five years, setting out its four strategic outcomes and its plans for achieving each one. The strategic outcomes are:

• Access to payment systems that meet everyone's needs.
• Effective competition in payment services.
• Protection for people and businesses making payments.
• Efficient and commercially sustainable payment systems.

The PSR also outlined four strategic priorities intended to achieve the above outcomes:

• Access and choice: including removing barriers to the development of new services that meet user needs and continuing to protect access to cash for those that rely on it.
• Protection: including developing governance of the interbank rules and pursuing ways to ensure reimbursement for victims of authorised push payment scams.
• Competition: including developing the interbank systems to provide greater competition for the provision of payment services and keeping under review the need for the PSR to regulate in other areas to protect consumers and businesses.
• Unlocking account-to-account payments: including promoting and facilitating the co-ordination of payment system participants and working with HMT to ensure new systems and arrangements come under its remit if necessary.

Following a consultation in 2021, the PSR made a number of changes to its proposed strategy, including clarifications on how the PSR intends to measure whether it is achieving its strategy.

FCA: Forms for payment services and e-money services firms exiting TPR or SRO

On 5 January 2022, the FCA updated its webpage on cancelling a temporary permission to provide information for payment services and e-money services firms in both the temporary permissions regime (TPR) or the supervised run-off (SRO) regime. The FCA also published notification forms for TPR/SRO cancellation and TPR to SRO notification. 

FCA: Interim findings from project on borrowers in financial difficulty

On 18 January 2022, the FCA published a new webpage on its borrowers in financial difficulty project. The project launched in March 2021, aiming to ensure firms offering a range of retail lending products to support borrowers in financial difficulty. Due to the ongoing impact of COVID-19, the FCA believes that the tailored support guidance continues to provide an adequate framework for lenders to support borrowers in financial difficulty.

The FCA provided its interim findings from the project, focusing on topics such as fees and charges, debt advice, and fair treatment of vulnerable customers. The FCA may further update the webpage after it has analysed all the survey results and plans to publish its findings in the second half of 2022.

European Commission call for advice from EBA on MCD review

On 14 January 2022, the EBA published a letter, dated 20 December 2021, from John Berrigan (European Commission Director General of FISMA) to José Manuel Campa (EBA Chair), alongside a call for advice regarding the Commission's review of the Mortgage Credit Directive. The Commission requires advice from the EBA on a range of issues, including:

• Impact of digitalisation.
• Evaluation of the Mortgage Credit Directive.
• Financial stability.
• Facilitating cross-border provision of mortgages.
• Lessons learned from the COVID-19 pandemic.

The EBA's advice is requested by 30 June 2022.

FCA: Final report on strategic review of retail banking business models

On 20 January 2022, the FCA published a final report and annexes on its review of retail banking business models, after considering developments and trends in retail banking since 2015. The FCA's analysis is based on detailed financial information, data, and documents from deposit-taking institutions, such as the largest banks and building societies. The key findings of the report included:

• Competition in the mortgage market has increased, resulting in yields falling.
• Large banks are in a strong position but face growing competition.
• Yields on consumer credit are lower, especially for unarranged overdrafts.
• Digital challenger banks have rapidly gained a share in the personal and business current account markets.
• Proportionately to most banks, large banks did more micro-business lending under government schemes.

The FCA has published a webpage to summarise its next steps, which include the fact that the full impact of COVID-19 will take time to fully understand. In the short-term, the FCA will be discussing the report with firms and consumer organisations and is allowing stakeholders to send written submissions by 31 March 2022.

PRA: Dear CEO letters on 2022 supervision priorities

On 12 January, the PRA issued 'Dear CEO' letters on 2022 priorities for its supervision of the following groups:

• International banks.
• UK deposit-takers.
• Insurance firms.

Each letter focuses on similar themes including resilience, diversity, and climate change. The PRA also considers the increasing importance of data for its regulatory supervision and outlines its expectations for all firms to ensure the integrity of their regulatory returns.

PRA: policy statement on updated approach to insurance business transfers

On 12 January 2022, the PRA published a policy statement on its updated approach to insurance business transfers under the Financial Services and Markets Act 2000 and the Friendly Societies Act 1992. After consideration of the responses to its July 2021 consultation paper, the PRA made minor amendments to the statement of policy on its approach to insurance business transfers, including:

• Allowing firms to submit documentation to the PRA at least six weeks ahead of the sanction hearing.
• Clarifying the duration between the directions hearing and sanction hearing where it may be appropriate for an independent expert to produce an updated scheme report.
• Examples of what it would consider "other means" to satisfy itself of a transferee's operational resilience.

HMT: Consultation on future regulatory framework for CCPs and CSDs

On 17 January 2022, HMT published a consultation paper on a revised regulatory framework for central counterparties (CCPs) and central securities depositories (CSDs) as part of its ongoing Future Regulatory Framework (FRF) review. The BoE is responsible for the recognition and supervision of UK CCPs and CSDs and, as part of the FRF review, HMT plans to extend the regulatory responsibilities of the BoE. The consultation focuses on various aspects of the BoE's future role:

• Objectives and principles: HMT is considering specifying the issues that the BoE should consider when advancing its financial stability objective in its position as regulator of CCPs and CSDs.
• Accountability: HMT proposes that that internal Financial Market Infrastructure Board of the BoE should be placed on a statutory basis.
• New powers: HMT intends to give the BoE a general rule-making power concerning CCPs and CSDs, allowing the BoE to replace provisions in retained EU law with its own rules.

The deadline for responses is 28 February 2022.

FCA: New webpage and templates on MIFIDPRU Remuneration Code

On 13 January 2022, the FCA published a new webpage on the MIFIDPRU Remuneration Code, which applies to all MIFIDPRU investment firms in performance periods starting on or after 1 January 2022. The FCA also published, in relation to the Code, a remuneration policy statement template and table of material risk takers.

FCA: Statement on short selling indicator reporting

On 13 January 2022, the FCA published a statement explaining that it is implementing temporary measures for reporting the short selling indicator in transition reports while it reviews amendments to the UK transaction reporting regime. Presently, the FCA is in the early stages of considering policy options for the UK MiFIR transaction reporting regime. Until the future of the short selling indicator field is determined, the FCA confirmed that it will not take action against firms who do not yet meet the requirements. It plans to keep its position under review.

FCA: Market studies on accessing and using financial markets wholesale data

On 11 January 2022, the FCA published a feedback statement (FS22/1) on accessing and using financial markets wholesale data and announced its intentions to launch two market studies in response to findings of limited competition in markets for benchmarks, indices, credit ratings, and trading data. The market studies will cover:

• Contracts for benchmarks and indices: launching in summer 2022, this study will investigate complex contracts for benchmarks and indices and whether the contracts prevent switching to cheaper, better quality or more innovative providers.
• Charges for credit ratings data: launching by the end of summer 2022, this study will consider whether high charges for access to credit ratings data increases costs to investors and limits market entry.

The FCA also announced that it will gather data on competition in the market for wholesale trading data supplied by trading venues, and plans to publish its findings later in 2022.

ESMA launches common supervisory action with NCAs

On 20 January 2022, in a press release, ESMA announced the launch of its common supervisory action (CSA) with national competent authorities (NCAs) regarding the value of UCITS and open-ended alternative investment funds across the EU. The CSA will be carried out in 2022 and will determine how compliant the supervised entities are with the relevant valuation-related provisions in the UCITS and AIFMD frameworks. The CSA aims to achieve effective supervision of valuation methodologies, policies, and procedures of supervised entities, which will ensure that assets which are less liquid are valued fairly during both normal and stressed market conditions.

IOSCO report providing new global-level data on global investments

On 4 January 2022, the International Organisation of Securities Commissions (IOSCO) published its Investment Funds Statistics Report, detailing the potential systemic risks the global investment funds industry may pose to the international financial system. The IOSCO report utilises supervisory data from IOSCO members and, in the future, will be undertaken annually to ensure the regular collection and analysis of investment fund data. Key takeaways from the report include:

• For closed-ended funds, liquidity management concerns are different to other fund types, while leverage levels are not meaningful.
• In aggregate, open-ended funds are not meaningfully leveraged by any metric.
• Hedge funds demonstrate strong liquidity management procedures, with portfolio liquidity significantly exceeding the liquidity offered to investors.
• Currently leverage metrics inadequately capture the leverage employed by private equity funds, who are key users of leveraged finance.

ESMA publishes letter to EU Commission requesting support on reverse solicitation

On 4 January 2022, the European Securities and Markets Authority (ESMA) published a letter, addressed to the director general for financial stability, financial markets, and capital markets union, regarding the Commission's request for support from ESMA in relation to the report on reverse solicitation. In particular, the letter requested ESMA ask NCAs for input on questions concerning the use of reverse solicitation by asset managers and the impact on passporting activities. 

ESMA surveyed NCAs, inviting them to respond to such questions, and found that almost all NCAs have no readily available information on asset managers' or investor associations' use of reverse solicitation. Interestingly, some NCAs provided information on the extent to which reverse solicitation is used within their jurisdiction which enables ESMA to share anecdotal evidence. For example, the Cyprus Securities and Exchange Commission reported that 30% of the UCITS management companies, and 50% of AIFMs, established in Cyprus use reverse solicitation. 

In terms of next steps following these findings, ESMA confirmed that the extension of the notification portal to enable the exchange of notifications of cross-border marketing between NCAs has been proposed for prioritisation in the 2022 ESMA budget.

PSR: Fines of £33 million for two pre-paid cards market-sharing cartels

On 18 January 2022, the PSR announced that it had imposed fines of £3 million against Mastercard, allpay, Advanced Payment Solutions (APS), Prepaid Financial Services (PFS) and Sulion for anti-competitive behaviour by agreeing not to compete or take each other's clients. The PSR's investigations into the parties' behaviour related to the use of pre-paid cards by local authorities to provide welfare payments to vulnerable customers, including the homeless, victims of domestic violence, and asylum seekers.

The PSR found two market cartels operating from 2012 to 2018 and from 2014 to 2016. The PSR also noted that the parties entered into a settlement agreement, with Mastercard, allpay, and PFS receiving a 20% discount for entering the settlement prior to the statement of objections. APS and Sulion received a 10% discount for settling after the statement of objections.

FCA: Update to Treasury Committee on Woodford fund investigation

On 10 January 2022, the FCA published a letter from Nikhil Rathi (FCA Chief Executive) to Mel Stride (House of Commons Treasury Committee Chair), giving an update on the FCA's investigation into the LF Woodford Equity Income Fund (WEIF). 

The letter contained the following key points:

• The FCA is finalising its legal analysis and plans to decide whether to take action, what action should be taken, and against whom.
• The FCA intended to complete the investigatory work by the end of 2021, but that was subject to ongoing review (note, the letter was dated 15 December 2021).
• The investigation remains a priority for the FCA and it has gathered all key evidence which it is analysing on an ongoing basis.

In a letter of response to Mr Rathi, dated 10 January 2022, Mr Stride emphasised that the investigation is still of 'keen interest' to the committee, and he expects the FCA to use its resources to ensure as swift as possible a conclusion (and keep the committee updated on progress).

FCA: Criminal proceedings for fraud and converting criminal property

On 7 January 2022, the FCA published a press release to announce that it has issued criminal proceedings against two individuals for: fraud by false representation, fraud by abuse of position, and converting criminal property. The FCA alleges that the individuals dishonestly represented to investors that the company of which they were directors was authorised and regulated by the FCA to operate as a peer-to-peer lender. It also alleges that the individuals abused their positions by transferring funds to a separate company and transferring additional funds that they knew, or suspected, were proceeds of crime into a bank account belonging to one of the individuals. The charged individuals appeared before court on 26 January 2022, and the case is expected to continue on 23 February 2022.

EBA discussion paper on selected payment fraud data under PSD2

On 17 January 2022, the EBA released a discussion paper on its preliminary observations on selected payment fraud data under the revised PSD2. The discussion paper outlines the main findings regarding credit transfers, card-based payments, and cash withdrawals. Additionally, it includes other patterns which appear inconclusive, and require stakeholder comments and views. Some such patterns imply that the regulatory requirements for payment security are working as intended. Furthermore, the analysis shows that fraud is significantly higher for cross-border transactions where the counterparts are located outside the European Economic Area than for those inside it (which is a known pattern of payment fraud). Comments can be made on the discussion paper until 19 April 2022.

European Commission new Delegated Regulation amending list of high-risk third countries 

On 7 January 2022, the European Commission adopted a Delegated Regulation amending the list of high-risk third countries with strategic anti-money laundering (AML) and counter-terrorist financing (CTF) deficiencies. The amendments are as follows:

• Countries added to the list: Burkina Faso, Cayman Islands, Morocco, Senegal, Haiti, the Philippines, South Sudan, Jordan, and Mali.
• Countries removed from the list: Ghana, Botswana, Mauritius, the Bahamas, and Iraq.

The Delegated Regulation outlines the actions being taken by Turkey to address the deficiencies in its AML and CTF regime, but the Commission has decided not to adopt further measures with respect of Turkey presently. The Regulation will be submitted to the Council of the EU and the Parliament to consider for approval and, if neither object, will enter into force 20 days after it is published in the Official Journal of the European Union.

EBA opinion and report on de-risking

On 5 January 2022, the EBA released a document containing its opinion on de-risking and a report on de-risking and its impact on financial services. De-risking occurs when financial institutions decide not to provide services to categories of customers who are associated with higher money laundering or terrorism financing (ML/TF) risk. In the opinion the EBA outlines proposals for steps to address the issue of de-risking, including:

• Competent authorities should more actively engage with institutions that de-risk and with users of financial services that are especially affected by de-risking, helping to raise awareness of the rights and responsibilities held by the institutions and customers.
• The European Commission should clarify the relationship between the different frameworks at play. Particularly, it should clarify the interaction between different anti-money laundering and counter-terrorist financing requirements, and the right to open and use a payment account with basic features.
• Competent authorities should remind financial institutions that they can opt to offer only basic financial products and services to customers with ML/TF risk.

The EBA intends to follow up with competent authorities on the steps taken to address unwarranted de-risking to inform its next opinion on the issues with ML/TF, due to be released in 2023.

The FCA's new authorisation application fee structure has how many standard pricing categories?

• 6
• 10
• 15
• 80 

The answer to last month's trivia: the FCA's court action to resolve business interruption insurance claims resulted in over £1.2 billion being paid to businesses.