EU regulatory agenda 2018 2019

EU Regulatory Agenda 2018Presented to you by:

RC CONSULTANCY ADVISORY & TRAINING

Roger Coenen

[email protected]

Mobile +31 6 42 600 245

Introduction This presentation gives you an overview of the most important regulations to

come into force in 2018 and 2019

The reason to include 2019, is that firms should already start to test relevant regulatory solutions in 2018, in order to be ready for implementation and on-boarding in 2019

This presentation does not claim to be complete on all the financialregulation that is to come, a selection has been made for the ones with thebiggest impact on financial markets and its participants

RC Consultancy Advisory & Training aims to have you better prepared for whatis coming in the coming period

2 January 2018

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Content

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Timeline 2018

Regulatory topics 2018: PRIIPs

Benchmark Regulation

MiFID II

PSD2

GDPR

EMIR II

EMIR margin exchange

2019 Agenda SFTR

Brexit

EMIR clearing obligation category 3

Prospectus Regulation (PD3)

Contact information

Disclaimer


Timeline 2018

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EU Regulatory Agenda 2018

1-jan SFTR29-Mar Brexit21-jun EMIR: clearing obligation for Category 3 counterparties for all OTC derivatives21-jul Prospectus Regulation (PD3)

Q4

2019

Q1 Q2 Q3

03-January:MiFID II comes into force

01-January:* Benchmark Regulation* PRIIPs

25-May:GDPR

Agreements on terms EMIR II Regulation expected during 2018

13-January:PSD2


PRIIPs

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Scope:Firms developing, advising or sellingPRIIPs

Packaged Retail Investment and Insurance-based investment based Products

Per 1-Jan-2018

Further remarks:• PRIIPs is a Regulation• 31-12-2018: EC determines if

pension products should be in scope

• 31-12-2019: exemption periodends for UCITS and InvestmentCompanies

Requirements:• Product manufacturer: obliged to provide KID (Key

Information Document), even if located outside EU;• Seller/advisor of product: obliged to provide KID to

retail investor• Whenever a PRIIPs in-scope product is offered to

an EU retail investor, then the KID must beprovided before the investment decision is made

Target group:Retail investors (being a non-professional client under MiFID II)

What products?Investment products and insuranceproducts with an investment component (e.g. mutual funds, investment objects, structuredproducts, structured deposits, derivatives)

Goal:Increasing transparency of investment products for investorprotection


Benchmark Regulation

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Scope:• Benchmark administrators,

supervised contributors (of input data) and benchmark users

• Benchmark administrators:• EU: authorisation and

registration obliged• Non-EU: either deemed

‘equivalent’, accepted by EU member state of reference orby EU supervised entity

Regulates authorisation and supervision of administrators of benchmarks used by EU regulated entities

Per 1-Jan-2018

Requirements:• Governance of and control by administrators over the

benchmark process• Ensuring that administrators avoid conflicts of interest and

have policies and procedures how to manage them adequately

• Disclosure of input data used for determining a benchmark• Methodology used for determining a benchmark• Code of conduct, that an administrator shall have in place

for its contributors

What products? Benchmark Regulation defines what is deemed as an index An index becomes a benchmark in certain situations (e.g.

used for determining amounts payable, valuations or to measure the performance of an investment fund)

Goal:Ensure accuracy and integrity of benchmarks


MiFID II

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Scope:Investment firms, credit institutions, trading venues, financial/non-financial (above clearing threshold) counterpartiesunder EMIR, CCPs, Data reporting service providers, third country investment firms

Markets in Financial Instruments Directive: revised legislative framework strengthening investor protection and improve the functioning of financial markets making them more efficient, resilient and transparent

Per 3-Jan-2018

Further remarks:• MiFID II consists of a Directive

(MiFID) and a Regulation (MiFIR)• ESMA announced 6 months

transition period for LEIs (20-Dec)

• Equivalence granted on US designated contract markets and SEFs re MiFIR trading venues (5-Dec)

• Many of 28 EU Member Statesstill racing to convert MiFID II into law

• Regulators probably will take softer stance on compliance, in the beginning

• Complacency in implementation, however, is not an option!

Main characteristics:Directive• Investor protection• Organisational requirements• High frequency trading/Algorithmic

trading• Third country access• Position limits on commodity derivativesRegulation:• Market infrastructure• Transparency (pre- and post-trade)• Transaction reporting• Third country access

Target group:Retail AND Wholesale investors

What products?Almost all financial instruments, including derivatives, as described in Directive 2014/65, Annex I, Section C

Goals:• Establish a safer, more transparent

financial system • Adapt regulation to more complex

financial markets and tradingtechnologies

• Better investor protection• Increase transparency

New in scope:• Market makers• Commodity firmsNot in scope:• Custodians


PSD2

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Scope:• All payment accounts where payment transactions,

like fund transfer transactions, are executed• Freely available (online) savings accounts (*NEW*)• Deposit savings accounts are excluded• One-leg transactions (payments where only one of

the payment services providers is located within theEU/EEA. Being either, the provider of the payer or the receiver)

• Payments from and to non-EU/EEA accounts• Applicable to all currencies

Payment Service Directive 2: is the revised PSD, designed by the EU, where a banks’ monopoly on their customer’s account information and payment services is broken

Per 13-Jan-2018

Changes from PSD: PSD introduced SEPA payment products and scope was

only on EU/EEA currencies (2007) PSD2 captures new services for payment transactions

regarding online initiating and viewing of paymenttransactions for payment accounts

Scope extension Less exemptions Limitations to charging card payment costs to clients Decreasing consumer liability Imposing higher demands on payment institutions Access to payment accounts, by third parties and

authentication by clients Retailers will be able to ‘ask’ consumers for permission

to their bank details. Once given permission the retailer receives the payment directly from the consumer’s bank (no intermediaries)

Goal:On top of the PSD goal (creating a single market for payments in the EU), PSD2 is set to create a level playing field (a.o. enabling access for new companies in the payments business)


GDPR

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Scope:• Applies to all companies processing the

personal data of data subjects residing in the Union, regardless of the company’s location (extended jurisdiction)

• Applicable to processing of personal data by controllers and processors in the EU, regardless of whether the processing takes place in the EU or not

• Applicable to processing of personal data of data subjects in the EU by a controller or processor not established in the EU, where the activities relate to: offering goods or services to EU citizens (irrespective of whether payment is required) and monitoring of behavior that takes place within the EU

• If non-EU businesses process data of EU citizens they are obliged to appoint a representative in the EU

The EU General Data Protection Regulation (GDPR) covers the capture, control and consent to use personal information

Per 25-May-2018

Further remarks:• Non-compliance fines up to 4 percent of

global turnover or €20 million (whichevergreater)

• Responsibility of protecting personal data of customers lies with the organisation!

Main characteristics:• Breach notifications: data breaches must

be reported within 72 hours• Right to access: data subjects have greater

control of who has their data and how itwill be used

• Right to be forgotten: data erasure rightsof data subject. Controllers are required tocompare the right to the ‘public interest in the availability of data’ with the request

• Data portability: data subject’s right totransfer personal data to another controller

• Privacy by design: inclusion of data protection from the onset of the designing of systems, rather than an addition

• Data protection officers: mandatory forcontrollers and processors whose coreactivities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale or of special categories of data or data relating to criminal convictions and offences

How to become compliant?Answer two critical questions:1) Where is my data?2) Who is responsible for that data?And show proof of the answers!

Goal:Replaces the Data Protection Directive 95/46/EC and GDPR is designed to harmonize data privacy laws across Europe, to protect and empower all EU citizens’ data privacy and to reshape how organizations approach data privacy


Data Governanceis key!

EMIR II (1/3)

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Definitions: • Alternative Investment Funds (AIF) currently falling

under national regimes and Special Purposes Vehicles (SPVs) in the EU to be considered as Financial Counterparties under EMIR

• UCIT management companies and AIF managers become responsible and will be liable for ensuring EMIR reporting is done for the funds they manage

European Market Infrastructure Regulation II: the Commission released on 3rd May 2017 itsproposed draft update of EMIR II (following the adoption of a report on the review of EMIR)

During 2018

Clearing obligation:• Clearing thresholds: modification of calculation for Non-

Financial Counterparties (NFCs). Threshold will be based on the aggregate month-end average positions for the months March, April both for FCs and Non-Financial Counterparties (NFCs)

• Clearing obligation: the new text introduces the concept of Small Financial Counterparties (SFCs), with the same thresholds as NFCs regarding the clearing threshold

• For NFCs: clearing obligation will only concern the classes of derivatives which breach the clearing threshold

• Front loading obligation: removed for new OTC contracts onto a clearing platform, clearing will start at the live date of the first clearing

• Pension schemes exemption from the clearing obligation: further extended by 3 years (until 16/08/2020)

• Clarification status of assets held at clearing member level: obligation to hold assets exclusively on behalf of clients, whether held in omnibus or segregated form. Assets shall not be part of a defaulting clearing member’s pool of assets

Goal:The Commission intends to improve the transparency of Over-the-Counter (OTC) derivatives positions and exposures as well as simplify and better balance the clearing and reporting obligations for market participants


Main updates of the proposal:

Also applies at indirect clearing member’s level

EMIR II (2/3)

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During 2018

Reporting obligation:• Backloading: it will no longer be required to

report the transactions that were not outstanding prior to 12 February 2014

• Intra-group transactions: where at least one of the counterparties is a NFC, these transactions will be exempted from the reporting obligation

• Central Counterparty (CCP): becomes responsible and liable for reporting on behalf of both the trading parties for exchange-traded derivatives transactions (ETD). MiFIR requires all derivatives traded on a regulated market to be cleared through a CCP result of MiFIR

• FCs: are responsible and liable for reporting the transactions they perform with NFCs not subject to the clearing obligation (the so-called NFC-)


Main updates of the proposal (cont.):

Dispositions on data reported to TRs:• Trade Repositories (TRs) are forced to have an

appropriate procedure to verify the completeness and the accuracy of the data reported to them as well as a proper reconciliation of the data process

• TRs will have to ensure the safe transfer of data to another TR at the customer’s demand

EMIR II (3/3)

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During 2018

Classification of counterparties• “Securitization Special Purpose Entities”:

proposal not to be classified as financial counterparty

• Alternative Investment Funds (AIFs): proposal toclassify as Financial Counterparty if establishedin the EU or whose manager is authorized orregistered under the EU’s AIFM Directive

• If proposal is agreed, then SSPEs and a largeproportion of AIFs will (as currently the case) notbe subject to EMIR’s clearing and margin requirements (unless they constitute NFC+ entities)


Main updates of the proposal (cont.):

Next steps:• Also, an article is introduced mandating another

review by ESMA, within 3 years• Currently, the mandatory draft update of EMIR

regulation is being reviewed by the European Parliament

• After validation by the parliament, a quick publication of the text is expected to ensure an effective application of the new rules

EMIR margin exchange

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Required exchange of margin for non-cleared derivatives:• Largest counterparties already exchange Initial Margin (IM)• Between now and September 2020 all counterparties trading derivatives (with an aggregated notional amount in excess of €8

billion) will be subject to IM requirements (unless other exemption applies)• Variation margin (VM) requirements began to apply to most counterparties from 1 March 2017• However, VM requirements posed difficulties in meeting them by most counterparties• Physically settled fx forwards: are exempted from posting Initial Margin (IM)• Also exempted are: fx swaps and currency swaps• Dodd-Frank in the US exempts physically-settled fx forwards from requirements to exchange VM• EMIR has no provision for a VM requirements exemption on above mentioned fx forwards• Council of the EU recognized need for international regulatory convergence• Proposed amendment: if either counterparty to the physically-settled FX forward is an entity who is neither (a) an EU credit

institution or EU MiFID investment firm (each, an “institution”), nor (b) a non-EU entity that would be an institution if it were established in the EU, then no variation margin will need to be exchanged

• New standards become effective the day after publication in the Official Journal• Foreseen date for VM requirements is 3 January 2018• As a result, above changes are highly unlikely to be effective then • Competent authorities, for institution to non-institution transactions, should apply the EU framework in a risk-based and

proportionate manner until the amendment has become effective (meaning not seeking to enforce VM arrangements)

European Market Infrastructure Regulation: regulates derivatives in the EU and has been in force since 16 August 2012

Day after publication in Official Journal


SFTR (1/2)

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Scope:• If trading repo or buy/sell-backs• If lending or borrowing equities• As a prime broker lending margin

to hedge funds Be ready to report

Principal parties to trade reporting:• European entities and their

branches• European branches of non-

European entities• Financial and non-financial firms

are required to report• Both sides to SFT report (if in

scope)

The European Commission want to increase the transparency of Securities Financing Transactions markets, which are not currently covered through other regulations. As such this regulation will require

firms to report their SFTs to an approved EU trade repository.

Q1-2019 (est. phased go-live)

What products?Securities Finance Trades: Repo Securities and Commodities Borrowing and Lending (SBL) Buy Sell Backs (BSB) Margin Lending (ML) by prime brokers

Goal:Increase transparency in shadow banking activities. SFTR will provide transparency to regulators and investors on the use of SFTs, and will better allow to identify risks associated with collateral and its re-use


SFTR (2/2)

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The European Commission want to increase the transparency of Securities Financing Transactions markets, which are not currently covered through other regulations. As such this regulation will require

firms to report their SFTs to an approved EU trade repository.

When to report?Timely and accurate reporting:• T+1 for transactions• T+1 for collateral known at point of trade• S+1 for collateral at settlement• 180 day rules for back-book trades at regulation

go-live


Q1-2019 (est. phased go-live)

What is reported?• Transaction level reporting:

•For repo, securities lending, buy-sell back• Position level reporting:

•For margin lending• Initial and modification reports:

•New trades and modification to open positions•Collateral and re-use of collateral•Certain CCP novation activity

Reporting requirements phasing-in after initial go-live date

Phase 1 Investment firms and credit institutions

On Day 1

Phase 2 CCPs and CSDs After 3 months

Phase 3 Insurance, UCITS, AIF, pension funds

After 6 months

Phase 4 Non-financial counterparties(NFCs)

After 9 months

What data?• Up to 153 fields (depending on product/report type)• Considerable number of fields will not be

currently/readily available• Unique Trade Identifiers (UTI) required for transactions• ISO20022 Standards

Brexit (1/2)

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Post-Brexit relationship:• What will be the post-Brexit status of non-UK citizens

resident in the UK?• What will be the amounts that the UK should pay to the

EU in respect of EU budgetary funding that already has been committed?

• What is the nature of the post-Brexit border betweenNorthern Ireland and the Republic of Ireland?

• Final deal on the UK’s future relationship with the EU should be completed by October 2018

On 29 March 2017, the UK government formally notified the European Council of theUK’s intention to withdraw from the EU. The effect from Article 50 is that the UK now

has until 29 March 2019 to negotiate and agree the terms of the UK exit

Per 29-Mar-20191

Considerable uncertainties remain: Terms of relationship between UK and EU after 29 March 2019, including whether or not the UK will remain

part of the single market, and if so, whether that would be purely during any agreed transitional period The extent to which, in a transition period, there would be any difference in the rights and obligations of

the UK as they currently stand

Expectations post-Brexit:• Likely that UK financial services firms will no

longer be able to take advantage of the MiFID“passport”

• Meaning: separate authorisation may benecessary for UK firms carrying out financial activities in the EU (unless they can rely on “equivalence” provisions in MiFID II and otherEU legislation)


1 Assuming no extension is agreed by the other EU member states

Brexit (2/2)

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On 29 March 2017, the UK government formally notified the European Council of theUK’s intention to withdraw from the EU. The effect from Article 50 is that the UK now

has until 29 March 2019 to negotiate and agree the terms of the UK exit

Per 29-Mar-20191

Clearing euro-denominated derivatives EC proposal (June 2017):1. Joint supervision of “systemic” clearing houses outside the EU that handle large amounts of derivatives

and other contracts traded in euros2. Smaller firms to carry on operating under existing rules3. Firms deemed systematically important to face stricter scrutiny and, ultimately, could be forced to move

derivatives clearing denominated in EU currencies inside the EU• France advocates, again, for tough controls and to impose additional requirements on clearing houses by

EU regulators (EC and ESMA), in order to have a say (up to a veto right) on some decisions taken by third-country authorities

• Germany prefers to give more power to the ECB, rather than to Paris-based ESMA• Clearing in euros has become a battleground between London and Brussels in the Brexit talks• The vast bulk of euro-denominated derivatives are cleared in London (e.g. around 75% of interest rate

derivatives), with the Bank of England acting as supervisor and responsible for the oversight


1 Assuming no extension is agreed by the other EU member states

EMIR clearing obligation Category 3

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Definition and dates: • Category 3 counterparties are financial counterparties or alternative investment funds

(AIFs), who are not clearing members of an EU authorised central clearing counterparty, and whose outstanding trades have a gross notional amount of EUR 8 billion or less

• Clearing obligation for OTC interest rate derivatives denominated in EUR, GBP, JPY and USD was set on 21 June 2017

• Clearing obligation for OTC index credit default swaps and OTC interest rate derivatives denominated in NOK, PLN and SEK was set on 9 February 2018

• New effective date for all of the above types of OTC derivatives is 21 June 2019

European Market Infrastructure Regulation: regulates derivatives in the EU and has been in force since 16 August 2012

21-Jun-2019


PD3 (1/2)

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Scope:EU rules on the information that must be provided by companies that want to attract investors, raise capital and finance their growth

The EU’s new Prospectus Regulation entered into force in July 2017 and the vast majority of its provisions will take effect from 21 July 2019

21-Jul 2019

Exemptions:From requirement to prepare a prospectus:• Apply to an offer of securities to the public with a total

consideration of less than EUR1 million over a 12-month period• Member states can increase this amount to EUR 8 million• The “wholesale denomination” exemption for public offers of

securities with a minimum denomination of EUR100,000 is still valid

Goals:• Make it easier and cheaper for smaller

companies to access capital• Introduce simplification and flexibility

for all types of issuers, in particular for secondary issuances and frequent issuers which are already known to capital markets

• Improve prospectuses for investors by introducing a retail investor-friendly summary of key information, catering for the specific information and protection needs of investors


High-denominated securities:Lighter (proportionate) disclosure requirements are envisaged for:• those that are admitted to trading on a regulated market, and• other non-equity securities that are to be traded only on markets

(or segments thereof) to which only qualified investors have access• And no prospectus summary will be required under the new regime

PD3 (2/2)

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Other securities:• Prospectus summary must be no longer

than seven pages of A4-sized paper• Must be presented and laid out in a way

that is easy to read, with characters of readable size and written in a style and language that facilitates the understanding of the information

• It may contain no more than the 15 most significant risk factors specific to the issuer

• A summary will no longer be required in the base prospectus itself, but the final terms for each issuance of securities must include, as an annex to the final terms, a summary of that issuance

The EU’s new Prospectus Regulation entered into force in July 2017 and the vast majority of its provisions will take effect from 21 July 2019

21-Jul 2019

Risk factors: • Will be required to be presented in a limited number of categories,

depending on their nature, and must be ranked by materiality, based on both the probability of their occurrence and the expected negative impact if the relevant risk occurs

Universal Registration Document (URD):• A new Universal Registration Document regime will be brought in by

the new Regulation (similar to the U.S. shelf registration system)• Issuers with a URD will benefit from a faster approval process and

after having had a URD approved by the relevant competent authority for two consecutive years, will be allowed to file further URDs without prior approval, although they will still be subject to review by the authority


Non-EU issuer:The relevant EU competent authority may permit a non-EU issuer to draw up the required prospectus under the rules of its home jurisdiction, provided that those rules are determined to be equivalent to the Regulation and cooperation arrangements are in place between the relevant authorities in its home jurisdiction and the relevant EU competent authority

Contact information

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Roger CoenenRC Consultancy Advisory & TrainingConsultant/Business Analyst Financial RegulationMobile +31 6 42 600 [email protected]

Disclaimer

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The provided information in this presentation does not pretend to be complete and is based on information from public sources. You will find highlights of financial regulation that need attention in the period to come, but the detail of focus, of course, varies per business line

And although RC Consultancy Advisory & Training, represented by Roger Coenen, can rely on a long-standing and broad experience in the financial markets and theregulations concerned, no liability is accepted for the content of thispresentation. The presented information has been treated and processed verythoroughly, however an accidental error might still occur

Neither should this presentation be seen or used to take investment decisions, project decisions, legal decisions or other relevant business decisions. Always askfor (external) advice from professionals, as financial regulation needs tailor-madesolutions

Wishing you a happy and healthy 2018

Roger Coenen

EU regulatory agenda 2018 2019

Economy & Finance

Transcript of EU regulatory agenda 2018 2019