EU democracy in action: MEPs criticise both the Council for lack of progress, and the Commission for delay in the adoption of certain proposals

This week, the European Parliament passed a resolution raising concerns about the uncertainty caused by delays in financial services sector reform, which, it says, is in turn holding up sustainable economic growth and job creation.  The vote followed a debate at the plenary session of the European Parliament.    Continue reading

New EU Directive: Reporting by Extractive Companies on Government Payments

The European Parliament and Council of Ministers have agreed the final form of the new EU rules for the disclosure, on a project by project basis, of payments to governments by companies operating in the extractive  industries. The EU’s agreement is part of a suite of transparency initiatives which are designed to promote good governance and improved national development outcomes for developing countries.

All large companies “active” in the oil, gas and minerals industries or the logging of primary forests will be affected and the rules will apply to both EU-incorporated companies and non-EU companies that have a listing in the EU.

We have summarised in a briefing the key aspects of the new requirements, when they will come into force and how they compare with the similar requirements being introduced in the United States under the Dodd-Frank Act.

Please email Fiona Rafla if you would like a copy of this briefing.

AIFMD: Back to basics on scope and marketing following the Commission’s Q&A and the FCA’S CP13/9

In some ways it is surprising that four years on from the first appearance of the draft of the Alternative Investment Fund Managers Directive (the “Directive”) and only weeks away from its national transposition across EU member states, we find ourselves publishing a briefing addressing those two most fundamental of questions: (i) who and what is in scope and (ii) how does the Directive affect the marketing of funds – the very same questions we asked back in April 2009.

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European Commission extends time for ESMA’s technical advice on equivalence of EMIR and third country legal/supervisory frameworks

The European Commission has written to Steven Maijoor, the Chair of the European Securities and Markets Authority (ESMA) to extend the deadline for ESMA to provide its technical advice on the equivalence between certain third country legal and supervisory frameworks and the Regulation No 648/2012 on OTC derivatives, central counterparties and trade repositories (EMIR).     

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EU democracy in action: European Parliament withdraws objection to EMIR technical standards

Pursuant to a compromise proposed by the European Commission on 7 February, the European Parliament has withdrawn its objection to two of the delegated acts adopted by the Commission relating to technical standards supplementing Regulation EU No 648/2012 (EMIR) on OTC derivatives, central counterparties and trade depositories.       Continue reading

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

Product intervention: some thoughts on the FCA’s interactions with Europe

As regulatory rules are increasingly made in Europe, within the UK, the new Financial Conduct Authority (FCA) will move to becoming – as Hector Sants put it – a “supervisory arm” of Europe in relation to conduct issues.  But has the UK really given enough thought to compatibility with European legislation, and to the need for coordination and cooperation with the ESAs and other competent authorities, or are we enshrining potential problems for ourselves in the proposed legislation and policy approach?

In considering the proposals in the UK’s Financial Services Bill (the FS Bill) to give FCA product intervention powers, the interaction with European requirements and the role of the European Supervisory Authorities (the ESAs) assume heightened importance.  Concerns about this interaction were a continuing theme emerging from responses to the FSA’s discussion paper on product intervention. 

The FCA has confirmed that its Product Intervention Committee and the Board will have due regard to how the national approach fits within the wider EU legislative framework and that they will, where appropriate, recommend consideration of the same  issues at EU level.  There is also an acknowledgment that there may be a need to change national rules with the advent of new European rules.  These are welcome assurances, but may not go far enough to address some of the issues to which the interaction of UK and EU product intervention powers may give rise.

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MiFID II: a greater step away from the RDR?

Key recommendations by the Rapporteur on the investor protection elements of the proposed MiFID II Directive, contain some potentially significant concessions for firms.  However, the recommendations are at odds with the UK’s Retail Distribution Review (RDR) rules.  If the Rapporteur’s position prevails, this is likely to fashion an even greater unlevel playing field across the EU.  It remains to be seen whether the recommendations will follow through into the final report, or indeed how influential the report will ultimately be.  However, it is unlikely to allay existing concerns about the competitiveness of UK firms operating in Europe.  Continue reading