Latest Shake-up of the Remuneration Provisions for Banks and Investment Firms Part 1: Investment Firms

Authors: Mark Ife and Paul Ellerman

Agreement has now been reached between the European Parliament, the Commission and the Council on the final texts of two Directives which will impact on the remuneration provisions which apply to banks and investment firms. The first is the Investment Firms Directive (IFD), which will introduce a new prudential regime for investment firms. The second is the Directive which contains the fourth set of amendments to the Capital Requirements Directive (which is generally being titled CRD5). The European Parliament will consider both Directives in its plenary sessions between 15 and 19 April 2019.

This briefing sets out details of the remuneration provisions contained in the IFD and the related Investment Firms Regulation (IFR). A subsequent briefing will cover the revised provisions contained in CRD5.

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Time to Mobilise: EBA finalises Guidelines on Outsourcing Arrangements

Following consultation in the second half of 2018, the European Banking Authority (“EBA“) published its Final Report on Draft Guidelines on Outsourcing Arrangements (the “Guidelines“) on 25 February 2019.

Most provisions of the Guidelines will enter into force on 30 September 2019. At the same time, the Guidelines will replace those issued by the EBA’s predecessor organisation, the Committee of European Banking Supervisors (“CEBS“), in 2006 and will also incorporate the EBA’s 2017 Recommendation on Outsourcing to Cloud Service Providers which came into effect on 1 July 2018.

The Guidelines are intended to establish a more harmonised framework for all financial institutions that are within the scope of the EBA’s mandate. The Guidelines apply to credit institutions and investment firms which are subject to the Capital Requirements Directive (“CRD“) as well as payment and electronic money institutions.

The Guidelines are issued under Article 16 of Regulation (EU) No. 1093/2010, the Regulation establishing the EBA. Member States’ competent authorities and financial institutions “must make every effort to comply” with the Guidelines. However, the EBA has acknowledged the need for proportionality within the text of the Guidelines, so that a firm and its competent authority(ies) should have regard to the nature, scale and complexity of the firm’s activities when complying with (or in the case of competent authorities, monitoring compliance with) the Guidelines.

The Guidelines will apply to all outsourcing arrangements entered into, reviewed or amended on or after 30 September 2019. Institutions should review and amend their existing outsourcing arrangements for compliance accordingly. Where an institution has not completed a review of an outsourcing arrangement which relates to critical or important functions by 31 December 2021, this should be notified to the relevant competent authority, along with an explanation of the measures which the institution proposes to take to either complete the review or exit the arrangement.

For many firms, the finalisation of the Guidelines will be a catalyst for a significant programme to review (and potentially rationalise or change) existing outsourcing arrangements. Cross-functional working will be essential, as various control and business functions will have an interest in the use of third party suppliers. Programmes are likely to bring together legal, operational risk, regulatory, compliance, procurement, and audit expertise, while oversight within the three lines of defence approach will need to be allocated not only to business functions but also to appropriate senior management, risk committee and board level to provide good governance of the processes and to ensure that decisions are aligned with business strategy and risk appetite.

We are conducting a detailed review of the Guidelines and will publish a more comprehensive analysis shortly.

Has the EBA got it wrong? Proposals to apply the “bankers’ bonus cap” to more banks and investment firms

Proposed guidelines from the European Banking Authority (EBA) would extend the “bankers’ bonus cap” to all IFPRU investment firms as well as all banks, irrespective of size – this may include asset managers, hedge funds, broker-dealers, and spread-betting, FX and commodity trading houses and would also extend to every firm (including AIFMs or UCITS management companies) in the same group as a bank or an IFPRU investment firm – approximately 1,000 firms in the UK. Continue reading

European Banking Authority consults on draft regulatory technical standards for recovery plans

The European Banking Authority (EBA) has published a consultation paper containing draft Regulatory Technical Standards (RTSs) on the content of recovery plans under the draft Recovery and Resolution Directive (RRD).  This builds on the EBA Recommendation issued in January 2013 to foster the development of group recovery plans and their discussion within colleges of supervisors.  The EBA is to hold a public hearing on 30 April 2013, and responses to the consultation are sought by 11 June 2013. Continue reading

EU: EBA’s report on good practices for ETF risk management

The European Banking Authority (EBA) today published an opinion addressed to competent authorities (as defined in the Capital Requirements Directive) which outlines a high level description of good practices with respect to the management of key risks that credit institutions encounter through their ETF business units or when dealing with ETFs, to:

  • seek to ensure that potential risks associated with ETFs are managed adequately from the perspective of the credit institution – and indirectly from the perspective of its customers; and
  • provide guidance as to the evaluation of risk that might emerge at bank level through their operational relationships with ETFs.

Although the opinion is addressed to competent authorities, credit institutions that have business units managing ETFs within their group, and those who may act as counterparties in swaps, securities lending and repos, as market makers/ authorised participants, or as ETF investors, should read it carefully – not least since it contains (in part II) a three-page checklist of questions – under the general headings of  liquidity, counterparty credit risk, and operational risk/conflicts of interest – which they can, in due course, expect their supervisor to be posing to their risk management function (and on which firms need therefore to be able to provide answers/explanations).

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EBA Guidelines on assessment of the suitability of members of management bodies of credit institutions and their key function holders

The European Banking Authority (EBA) has today published Guidelines on the assessment of the suitability of members of the management body and key function holders, setting out the process, criteria and minimum requirements for assessing the suitability of those persons.  The Guidelines contain provisions to be followed by both credit institutions and competent authorities when assessing the suitability of all members of the management body and key function holders (such as heads of significant business lines, EEA branches, third country subsidiaries, support and internal control functions).  Financial and mixed financial holding companies (in case of a financial conglomerate whose most important sector is banking) are within the scope of the Guidelines because of the significant influence they have on their credit institutions. Continue reading