Financial Services and Markets Bill 2022-23 receives Royal Assent

On 29 June 2023, the Financial Services and Markets Bill 2022-23 (FSM Bill) received Royal Assent. 

This follows a debate held in the House of Lords on 27 June 2023, in which it approved amendments may to the FSM Bill by the House of Commons on 26 June 2023. 

A revised version of the FSM Bill was published by Parliament on 20 June 2023.  This incorporates amendments that were made to the Bill in the report stage. The Commons Disagreement and Reason document, which was published on 26 June 2023, sets out the amendments that were rejected by the House of Commons and amendments that were proposed in lieu.

The final text of the Act was published on legislation.gov.uk on 7 July 2023.

FCA highlights key questions for firms to consider when implementing the Consumer Duty

On 28 June 2023, the FCA published a press release setting out ten questions for firms to ask themselves in order to identify and remedy gaps and areas for improvement in their implementation of the Consumer Duty. The Consumer Duty takes effect on 31 July 2023 for new and existing products and services that are open for sale or renewal. 

The FCA expects Boards to have clear oversight of implementation plans relating to the Duty and also expects any potential gaps or weaknesses in the firm's compliance to have been identified and remediation plans to have been developed. 

In addition, the FCA published the results of a survey sent to some firms in spring 2023. The results show that most firms in the sectors surveyed believe they are on track to fully implement the Duty on time, but that some firms have more to do to meet the deadline. 

If a firm believes it will be in significant breach of the Duty when it comes into force, it should inform the FCA. If a firm is struggling to complete all the work required before the deadline, it should prioritise action that will most improve consumer outcomes and reduce the risks of harm. 

UK government and European Commission sign MoU on regulatory co-operation on financial services

On 27 June 2023, HM Treasury announced that the UK government and the European Commission have signed a memorandum of understanding (MoU) on financial services, which sets out the plans for UK/EU voluntary regulatory co-operation on financial services issues. 

The MoU aims to preserve financial stability, market integrity and the protection of investors and consumers while also providing for bilateral exchanges of views and analysis on regulatory developments and other issues of common interest. 

A Joint EU-UK Financial Regulatory Forum (Forum) has also been established. The Forum's objectives include improving transparency, identifying potential cross-border implementation issues, and sharing knowledge to facilitate a common understanding of the EU and UK's regulatory frameworks. 

FCA publishes speech on how culture must change to meet expectations 

On 26 June 2023, the FCA published a speech on how culture must change to meet expectations. The speech was given by Emily Shepperd, FCA Chief Operating Officer and Executive Director of Authorisations. 

In the speech, Shepperd notes that culture remains central to the FCA's supervisory model. Shepperd further notes that a significant change in many firms' cultures, including people management policies and practices, will be required in light of the higher standard of the Consumer Duty and the shift to focusing on customer outcomes.  

The FCA's work on sustainability disclosure requirements and investment labelling is flagged as being crucial.  In particular, Sheppherd highlights the FCA's determination to clean up "ESG" and "sustainability" classifications to restore credibility and confidence to the system.  

Joint Committee of the European Supervisory Authorities consults on first set of RTS and ITS under DORA

On 19 June 2023, the Joint Committee of the European Supervisory Authorities (ESAs) published consultation papers on draft regulatory technical standards (RTS) and implementing technical standards (ITS) under the Regulation on digital operational resilience for the financial sector (DORA).  

Four consultation papers were published:  

• JC 2023 39 - RTS on ICT risk management framework and RTS on simplified ICT risk management framework as mandated under Article 15 and 16(3) of DORA.  

• JC 2023 34 – RTS specifying the criteria for the classification of ICT-related incidents, materiality thresholds for major incidents and significant cyber threats as mandated under Article 18(3) of DORA.  

• JC 2023 35 – RTS specifying content of the policy relating to the contractual arrangements on the use of ICT services supporting critical or important functions provided by ICT third-party service providers as mandated under Article 28(10) of DORA.  

• JC 2023 36 – ITS to establish the templates composing the register of information relating to all contractual arrangements on the use of ICT services provided by ICT third-party service providers as mandated under Article 28(9) of DORA.   

In addition to the consultation papers, an introductory note was published setting out more information on the draft technical standards.   

The deadline for comments on the consultation papers is 11 September 2023. The ESAs will hold a public hearing on the draft technical standards on 13 July 2023 and they expect to submit the draft standards to the European Commission by 17 January 2024.  

Bank of England publishes speech on enhancing resilience in non-banks  

On 16 June 2023, the Bank of England (BoE) published a speech considering how resilience can be enhanced in non-banks. The speech was given by Sarah Breeden, BoE Executive Director, Financial Stability Strategy and Risk.  

In the speech, Breeden provides an overview of the framework for steady-state resilience within liability-driven investment (LDI) funds developed by the Financial Policy Committee and argues that the framework may be relevant when considering resilience of other non-banks whose activities can impact UK financial stability. Potential vulnerabilities in the non-bank sector were highlighted, including poorly-managed leverage, a lack of preparedness for margin calls and liquidity mismatches. 

The BoE suggests that non-bank resilience frameworks should account for risks specific to individual participants, draw on the tails of distributions to calibrate resilience and capture both systemic and idiosyncratic risks. 

The BoE has launched an explanatory exercise to enhance its understanding of the risks to and from non-banks, their behaviours, and how these behaviours can amplify shocks. Please see the update in the ‘Banking and Insurance’ section below for more details of the exercise.   

Financial Ombudsman Service publishes annual complaints data for 2022/23 

On 14 June 2023, the Financial Ombudsman Service (FOS) published its annual complaints data and insight for 2022/23.  

In the period, the FOS received 165,149 new complaints (up from 164,560 in 2021/22). The five most complained about products were firstly current accounts, then credit cards, motor insurance, hire purchase (motor) and building insurance. Approximately half of the complaints about current accounts were from victims of fraud and scams.  

In terms of uphold rate, the lowest rate was 7% for packaged bank accounts, the overall rate was 35% and the highest rate was 86% for mini-bonds. 

Financial Ombudsman Service publishes update on its preparation for the Consumer Duty 

On 13 June 2023, the FOS published a webpage on its preparations for the implementation of the FCA's Consumer Duty.  

The FOS notes that the Duty will only apply to events that take place after 31 July 2023 and that it is likely to take some time after this date for complaints to come to the FOS as businesses will have a chance to put things right before a consumer can bring a complaint to the FOS.  

Despite this, the FOS notes that there will be some areas where the Duty will come into play more quickly, including issues about customer service or administration. The FOS expects that complaints in these areas may be received soon after 31 July implementation date. 

When the FOS starts to receive complaints relating to the Duty it will share its insights and work with businesses to ensure they understand the approach and can properly apply it.  

Financial Markets Standards Board publishes spotlight review on three lines model

On 8 June 2023, the Financial Markets Standards Board (FMSB) published a spotlight review on the three lines model, often referred to as the "three lines of defence." 

The model comprises the first line (management and business generators), the second line (risk and compliance teams) and the third line (internal audit). The spotlight review considered the approach taken by regulators and industry to the model, as well as how the model has evolved.  

The FMSB notes that while the model has generally been a force for good, it has contributed to difficulties such as disputed accountability, expertise concerns, siloed knowledge and excessive duplication. 

The FMSB concludes that the model should be used as a tool to assist in the analysis of risk infrastructure, rather than being a substitute to that infrastructure and recommends that the model should be used as a lens to examine whether checks and balances are working. 

The review includes a risk register which lists 55 risk management framework issues. The potential impact of each issue is considered and potential mitigants are provided.

Law Commission publishes final report on how to change the law so that it better recognises and protects digital assets 

On 28 June 2023, the Law Commission published its final report setting out its recommendations on changes to the law to ensure it better recognises and protects digital assets, particularly crypto-tokens and cryptoassets. The Commission also published a summary of the final report. 

The final report develops the preliminary conclusions set out in the Commission's July 2022 consultation paper, being: 

• Emphasis on common law, as the common law system in England and Wales is well placed to provide a coherent and globally relevant regime for existing and new types of digital asset. 

• The recognition of a third category of personal property, referred to as digital objects, to better accommodate and protect the unique features of certain digital assets. 

• The creation of a panel of industry experts by the government to provide guidance on technical and legal issues relating to digital assets and to ensure that courts can respond sensitively to the complexity of emerging technology and apply the law to new fact patterns involving that technology. 

• The requirement for future work on securitisation and collateralisation of crypto-tokenisation to provide market participants with new legal tools, such as new ways to take security over crypto-tokens and tokenised securities.  

MiCA Regulation and recast revised WTR published in the Official Journal of the European Union  

On 9 June 2023, the following were published in the Official Journal of the European Union:  

• Regulation (EU) 2023/1114 on markets in cryptoassets and amending Regulations (EU) 1093/2010 and (EU) 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937 (MiCA).  

• Regulation (EU) 2023/1113 on information accompanying transfers of funds and certain cryptoassets and amending Directive (EU) 2015/849 (recast revised WTR).   

MiCA entered into force on 29 June 2023. Provisions relating to the development or adoption of Delegated Acts and various regulatory technical standards and implementing technical standards applied from 29 June 2023. Provisions relating to issuers of asset-reference tokens and e-money tokens will apply from 30 June 2024. The remaining provisions will apply from 30 December 2024.  

The recast revised WTR entered into force on 29 June 2023 and will apply from 30 December 2024.  

APPG publishes speech launching the APPG inquiry into crypto and digital assets

On 9 June 2023, the all-party parliamentary group (APPG) published a speech launching the APPG's first report into the cryptocurrency and digital asset industry. The report is titled ‘Realising Government's Vision for the UK to Become a Global Hub for Cryptocurrency and Fintech Innovation'. The speech was given by the APPG Chair, Dr Lisa Cameron MP. 

The speech outlines the reasons behind the APPG's decision to launch the initial inquiry and sets out the key areas the inquiry looked at, including the UK's approach to regulation of cryptocurrency, the role of UK regulators and the potential for the UK to be a global hub for cryptocurrency investment. 

In the report, the APPG provides over 50 recommendations with the hope that these will establish a foundation for further discussion and debate regarding the future of cryptocurrency and digital asset regulation in the UK. On 13 June 2023, a debate on cryptocurrency regulation was held at Westminster Hall. During the debate Andrew Griffith, Economic Secretary to the Treasury, confirmed that the government does not agree that cryptoassets are like gambling and made clear that the financial regulators are the correct bodies to regulate crypto. 

FCA publishes policy statement on financial promotion rules for cryptoassets and related guidance consultation  

On 8 June 2023, the FCA published a policy statement (PS23/6) containing near-final financial promotion rules for cryptoassets and a guidance consultation (GC23/1) on cryptoasset financial promotions. 

In the policy statement, the FCA summarises the feedback it received on the proposals in its January 2022 consultation paper (CP22/2) relating to cryptoassets. The FCA is largely proceeding with these proposals and has confirmed that cryptoassets will be classified as "restrictive mass market investments". It has made targeted changes in several areas to align the rules for cryptoassets with its final rules for other high-risk investments. The near-final rules are contained in the draft Cryptoasset Financial Promotions Instrument 2023 and will take effect from 8 October 2023. 

In the guidance consultation, the FCA outlines its proposals for non-Handbook guidance on cryptoasset financial promotions and sets out the draft text of the guidance. The guidance aims to assist firms in gaining a clear understanding of the FCA's expectations around the requirement that financial promotions are fair, clear, and not misleading. Responses to the guidance consultation should be made by 10 August 2023.  

On 4 July 2023, the FCA sent a letter to unregistered cryptoasset firms about the new regime. The FCA reminded firms that they must get ready for the new regime by 8 October and that it will "take robust action" against persons illegally promoting to UK consumers. The FCA has also released a questionnaire, which will help it gather information from firms about their preparations for the new regime. It has asked for responses by 4 August 2023.

Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023 published

On 7 June 2023, the Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023 (Order) was published, alongside an explanatory memorandum. 

The Order came into force on 8 June 2023 for the purpose of enabling the FCA to make rules and give guidance and will come into force on 8 October 2023 for all other purposes.  

The Order expands the scope of the existing financial promotion restriction contained in section 21 of FSMA by amending the FPO to include financial promotions in respect of cryptoassets. The amendment aims to improve consumers' understanding of risks associated with cryptoasset investments and to ensure cryptoasset promotions are held to the same standard as broader financial services.  

The Order also modifies and applies certain existing exemptions in the FPO to qualifying cryptoassets and creates a temporary and limited exemption to the financial promotion restriction for cryptoasset businesses registered with the FCA under the Money Laundering Regulations. 

ESMA updates Q&As on DLT Pilot Regime Regulation 

On 2 June 2023, ESMA published an updated version of its Q&As on the implementation of the Regulation on a pilot regime for market infrastructures based on distributed ledger technology (DLT). 

ESMA has added new Q&As relating to:  

• DLT market infrastructures.  

• Cash settlement.  

• DLT financial instruments.
• Exemptions from the Central Securities Depositories Regulation. 

ISSB issues two IFRS Sustainability Disclosure Standards 

On 26 June 2023, the International Sustainability Standards Board (ISSB) issued the first two IFRS Sustainability Disclosure Standards: 

• IFRS S1 General Requirements for Disclosure of Sustainability-related Financial Information. 

• IFRS S2 Climate-related Disclosures.  

Both standards are accompanied by guidance (S1 and S2) which suggests ways that a company may apply the disclosure requirements. 

Individual jurisdictions will decide whether companies will be required to comply with the standards. The UK government has stated that it will consult on a framework to adopt and endorse the ISSB's standards for the UK. The FCA has stated that it intends to update its reporting requirements for listed companies in line with the ISSB's standards once they are endorsed for use in the UK.  

ESMA publishes call for evidence on the integration of sustainability preferences in MiFID II suitability assessment and product governance arrangements  

On 16 June 2023, ESMA published a call for evidence on the integration of sustainability preferences in the suitability assessment and product governance arrangements under the MiFID II Directive. 

The call for evidence aims to enable ESMA to gain a better understanding of the implementation of sustainability factors into certain organisational requirements. It became a requirement for such sustainability factors to be implemented following revisions to the MiFID II Delegated Regulation ((EU) 2017/565) and the MiFID II Delegated Directive ((EU) 2017/593). ESMA also hopes to gain an understanding of investor reactions to the incorporation of sustainability factors within the services of investment advice and portfolio management. 

In the call for evidence, ESMA seeks views on firms' approaches to:  

• Collecting client's sustainability preferences and considering them as part of clients' suitability assessments.
• Specifying sustainability-related objectives for products as part of target market assessments. 

• Explaining sustainable finance concepts to clients.  

The deadline for responses is 15 September 2023.  

European Commission publishes measures on improving the EU sustainable finance framework, including legislative proposals and approvals 

On 13 June 2023, the European Commission published a package of measures to build on and strengthen the EU sustainable finance framework, including a legislative proposal that it has adopted for a Regulation on the transparency and integrity of ESG rating activities (COM(2023)314) and approval in principle of a draft Taxonomy Environmental Delegated Act and draft amendments to the Taxonomy Climate Delegated Act. 

Network for Greening the Financial System issues results of survey on its climate scenarios 

On 9 June 2023, the Network for Greening the Financial System (NGFS) published a summary of the key findings from its first public feedback survey on climate scenarios. It also published a set of presentation slides on its findings. 

Climate scenario analysis provides a framework for exploring how climate risks may evolve in the future. The latest hypothetical scenarios were published by the NGFS in September 2022. 

The NGFS launched the survey in February 2023, and findings include that:  

• Most respondents assess both transition and physical climate-related risks and their potential effects through key financial risks. 

• Respondents mainly use climate scenario analysis to assess how climate risks could affect their organisation or financial stability.  

The next version of the NGFS scenarios will be released by the end of 2023.  

European Supervisory Authorities publish progress reports on greenwashing in the financial sector

On 1 June 2023, the European Supervisory Authorities (ESAs) published the following reports on greenwashing in the financial services sector:  

• EBA's progress report on greenwashing monitoring and supervision.  
• EIOPA's progress report on greenwashing.  

• ESMA's progress report on greenwashing.  

In the reports, the ESAs put forward a common high-level understanding of greenwashing applicable to market participants across their respective remits, identify high-risk areas within their respective sectors that are exposed to greenwashing and set out preliminary remediation actions which will be adjusted and completed where needed. 

Owing to the integrated nature of the financial system, the ESAs are working in a co-ordinated manner to address issues. 

The ESAs are expected to publish their final greenwashing reports in May 2024. The final reports will set out their final recommendations, including possible changes to the EU regulatory framework. 

European Commission adopts legislative proposals on payment services and financial data access

On 28 June 2023, the European Commission published a package of proposals on financial data access and payments. The package includes the texts of the following legislative proposals that it has adopted concerning reforms to EU payment services and to implement a framework for financial data access: 

• Proposal for a Directive on payment services and electronic money services in the internal market amending the Settlement Finality Directive (SFD) and repealing the revised Payment Services Directive (PSD2) and the second Electronic Money Directive (2EMD). This is referred to as the proposed PSD3. 

• Proposal for a Regulation on payment services in the internal market and amending the EBA Regulation (1093/2010). This is referred to as the proposed Payment Services Regulation (PSR).

• Proposal for a Regulation on a framework for financial data access and amending the EBA Regulation (1093/2010), the EIOPA Regulation (1094/2010) and the ESMA Regulation (1095/2010) and the Regulation on digital operational resilience for the financial sector (DORA). 

The proposals will repeal PSD2 and 2EMD and replace these Directives with PSD3 and the PSR. The amendments function to enhance safety and security of electronic payments and transactions in the EU to safeguard customers' rights and to provide a wider choice of payment service providers. 

PSR responds to Treasury Committee report on approach to introducing mandatory reimbursement for APP fraud

On 14 June 2023, the House of Commons Treasury Committee published a report containing the response of the Payment Systems Regulator (PSR) to the Committee's February 2023 report on the PSR's proposals to introduce mandatory reimbursement for authorised push payment (APP) scams. 

The Committee's report considered the PSR's proposal to delegate the mandatory reimbursement of APP fraud to Pay.UK  through the Faster Payment Service (FPS) rules. The Committee raised concerns about potential conflicts of interest arising from Pay.UK's status as an industry body, Pay.UK's lack of enforcement powers and the opportunities for banks and other payment service providers (PSPs) to delay implementation. 

The PSR's response to the Committee's report outlines that its approach will address the issues raised by the Committee. This will be achieved by the PSR using its new statutory powers under the Financial Services (Banking Reform) Act 2013, as amended by the Financial Services and Markets Act 2023 to:  

• Issue a general direction to all PSPs requiring them to comply with the scheme rules. 

• Require Pay.UK to establish scheme rules for the FPS to require all PSPs using FPS to comply with the PSR's APP fraud reimbursement policy.   

The PSR's response to the Committee's report follows the publication of a policy statement (PS23/3) on 7 June 2023 in which the PSR sets out its final policy on the mandatory reimbursement of APP fraud. The policy statement follows the PSR's September 2022 consultation paper (CP22/4), and contains changes made in response to comments received.  

In the policy statement, the PSR outlines the new mandatory reimbursement requirement for payment firms and explains how it will work in practice. Payment firms will be incentivised to take action, with both the sending and receiving firm splitting the costs of reimbursement 50:50. Customers will also be more protected, with most APP fraud victims being reimbursed within five business days. Additional protections to vulnerable customers have also been put in place.  

Annex 3 (containing question-by-question feedback and response to the PSR's consultation) and annex 4 (cost benefit analysis) to the policy statement have been published separately.  

Further consultations will be held in July and August 2023. In October 2023, the final legal instruments will be given to Pay.UK and the PSR will carry out a further consultation on the legal instruments with firms. By the end of 2023 the PSR will publish all legal instruments and additional guidance, with the new requirements to come into force in 2024.  

Joint Regulatory Oversight Committee publishes roadmap to develop UK open banking

On 6 June 2023, the Joint Regulatory Oversight Committee (being the FCA, PSR, Competition and Markets Authority and HM Treasury) (JROC) published a press release setting out its next steps to develop open banking in the UK. 

The roadmap involves setting up dedicated workstreams to action the six key themes and priorities JROC outlined in its April 2023 recommendations. To support this, JROC has launched and published terms of reference for two new working groups on variable recurring payments (VRP working group) and future open banking entity (Future Entity working group). It was planned that both working groups would be established by the end of June 2023.  

The VRP working group will be chaired by the PSR and will develop a blueprint for the phased roll-out of non-sweeping VRP by the end of September 2023. The Future Entity working group will be chaired by the FCA and will consider the design of the future entity, including its role, structure and funding.  

JROC has tasked Open Banking Ltd (OBL) to lead and co-ordinate workstreams on four of the other key themes, including mitigating the risks of financial crime and levelling up availability and performance. JROC has sent a letter to OBL setting out specific activities to progress the above themes. 

FCA joins other regulators to call on firms to help struggling customers 

On 28 June 2023, the FCA published a press release announcing that it has joined forces with other regulators to call on firms to support customers struggling with the increased cost of living and to keep prices fair for customers. The approach was agreed at a roundtable hosted by the Chancellor on the same day and builds on the wide range of actions the FCA has already taken to support consumers struggling with the cost of living. 

The largest banks and building societies will be required to explain to the FCA the pace and extent of their pass through of interest rates, and how they are proactively supporting customers to switch to high interest rate products that might be suitable. The FCA will then report on how well the cash savings market is supporting savers to benefit from higher interest rates.  

New mortgage charter to support residential mortgage customers agreed 

On 23 June 2023, HM Treasury published a press release announcing that it has agreed new support measures for mortgage holders with the FCA and the UK's principal mortgage lenders. 

The commitments, which are set out in a Mortgage Charter, include a new agreement permitting customers to switch to an interest-only mortgage for six months. Alternatively, customers can extend their mortgage term to reduce their monthly payments and switch back to their original term within the first six months. Customers can use either option without a new affordability check and there will be no impact on their credit score. 

The Charter also sets out that customers will not be forced to have their homes repossessed within 12 months from their first missed payment and that customers who are worried about their mortgage repayments calling their lender for information and support will have no impact on their credit score. 

Under the Charter, lenders will also offer tailored support to customers who are struggling (such as offering a switch to interest only payments) and will deploy highly trained staff to help such customers.

On 30 June 2023, the FCA published policy statement (PS23/8) explaining the amendments required to its Mortgage and Home Finance: Conduct of Business (MCOB) sourcebook to support the implementation of the Charter. The rule changes took effect from 30 June 2023. The FCA will review the impact of the changes within 12 months.

FCA publishes statement on incorrect mortgage annual percentage rate of charge calculations  

On 1 June 2023, the FCA published a statement on mortgage annual percentage rate of charge (APRC) calculations.  

When offering customers a mortgage, lenders are required to disclose the associated costs of the contract. One measure used for this is the APRC which shows, as a percentage, the annual cost of a mortgage over its lifetime. The APRC incorporates all relevant charges (including fees) that relate to the mortgage borrowing. 

In the statement, the FCA explains that due to systems issues when interest rate expectations rose sharply amid market volatility in autumn 2022 some firms incorrectly calculated the APRC. The problems arose when firms calculated an APRC for mortgages where the reversion rate was lower than the initial introductory rate period. The FCA advises that where this is the case the APRC should be calculated on the basis that the initial rate will continue to the end of the mortgage term, rather than reverting to the lower reversion rate after the initial fixed period. 

FCA data shows that up to 88% of mortgages with an initial fixed rate period were priced with an introductory rate higher than the reversion rate between early October and late November 2022. Therefore a significant proportion of these mortgages will have included an incorrect APRC figure in its associated disclosure.  

The FCA comments that an APRC calculated on incorrect assumptions is unlikely by itself to deprive borrowers of the ability to make informed choices, but as customers use the APRC to compare the cost of different products it is important that non-compliance is rectified promptly. 

The FCA has stated that it will give firms time to ensure their systems are compliant but expects this to be done as soon as possible. The FCA will continue to monitor the market, including any changes in product pricing that further expose the calculation issue. 

FCA finalises guidance for supporting customers in financial difficulty

On 3 July 2023, the FCA published a policy statement (PS23/9), which contains its finalised guidance on how firms should support customers in financial difficulty. The guidance builds on the FCA's customers' best interest rule and the Consumer Duty. It will come into effect on 31 July 2023.  

On the same day, the FCA published the findings of its review of how home and motor insurers are supporting customers in financial difficulty and handling claims. 

Bank of England launches first system-wide exploratory scenario exercise  

On 19 June 2023, the Bank of England (BoE) announced the launch of its first system-wide exploratory scenario (SWES) exercise and published a new webpage containing related information. 

In light of events in global markets in recent years that illustrated how liquidity conditions can quickly deteriorate, the BoE asked a group of banks and non-bank financial institutions (NBFIs) that are active in UK financial markets to participate in a collaborative SWES exercise. The exercise aimed to: 

• Enhance understanding of the risks to and from NBFIs, and the behaviour of NBFIs and banks in stress, including what drives those behaviours.

• Investigate how those behaviours and market dynamics can amplify shocks in markets and potentially pose risks to UK financial stability.    

The BoE makes clear that the SWES will focus on how the actions of individual financial firms can interact to exacerbate shocks and the resulting impact on a specific set of important UK financial markets (the gilt market, gilt repo market, sterling corporate bond market and associated derivate markets), rather than being a test of the resilience of the individual participants.  

The initial information gathering phase of the SWES was launched on 19 June 2023. Later in 2023, the BoE will ask banks, insurers, funds and central counterparties to evaluate the impact of a severe but plausible stress to global financial markets. The BoE expects to publish a report to conclude the SWES exercise in 2024.  

Lending Standards Board launches review of Standards of Lending Practice for business customers  

On 15 June 2023, the Lending Standards Board (LSB) published a consultation document launching a review of its Standards of Lending Practice for business customers. 

The review aims to identify how the standards can emphasise expectations on firms in the areas of inclusion, sustainability and support for business customers in financial difficulty. The consultation covers whether the business standards still reflect industry best practice, whether the scope of the business standards is appropriate or should be expanded, opportunities for developing new best practice and guidance and whether the LSB should take into account any economic or regulatory developments when setting best practice.  

The consultation closes on 10 August 2023.  

Business Banking Resolution Service publishes 2022 annual report

On 7 June 2023, the Business Banking Resolution Service (BBRS) published its annual report for 2022.  

The BBRS opened for case registrations in February 2021, making 2022 the second full year of operation. In 2022, 197 cases were registered with the BBRS, and at the end of the year the BBRS had 85 open cases and 820 closed cases. Case volumes remain lower than those anticipated when the BBRS was launched. The report shows that more than £1 million of financial awards were made to customers as a result of using the BBRS, although the true amount of financial rewards is likely to be greater as BBRS is not informed of the settlement figure when a dispute is resolved directly between an SME and a bank. 

The report also highlights that BBRS has facilitated non-financial awards, including changes to exit fee arrangements, changing customer loan terms and removing negative information from credit files.  

2023 is an important period for the BBRS, as it is currently funded to run until the end of the year. The BBRS will communicate any changes to the service to ensure continuity in business banking resolution support for those that need it.  

Basel Committee on Banking Supervision announces outcome of June 2023 meeting

On 6 June 2023, the Basel Committee on Banking Supervision (BCBS) published a press release announcing the outcome of a meeting held on the same day to take stock of recent market developments and risks to the global banking system. A range of policy and supervisory initiatives were discussed at the meeting.  

At the meeting, the BCBS agreed to continue examining lessons learned from recent banking turmoil and emphasised the importance of strengthening supervisory effectiveness. The BCBS also agreed to consult on planned revisions to its core principles for effective banking supervision. A consultation paper will be published in July 2023.  

At the meeting, the BCBS also agreed to further assess the use of climate scenario analyses by banks and supervisory practices in the area. 

ESMA launches Data Strategy for 2023-2028 

On 15 June 2023, ESMA published its Data Strategy for 2023-2028.  

The Data Strategy supplements the ESMA Strategy 2023-2028 and elaborates on how ESMA data assets will be mobilised to best serve and help deliver on the following strategic and thematic objectives:  

• Enable cutting-edge, smart and effective data-driven supervision.  
• Promote efficiency, transparency and co-operation in data policy.  
• Contribute to the provision of relevant, useful and understandable information to the market in machine-readable form.  
• Systematically use data for evidence-based policy development, supervision and risk assessment.  
• Pursue thought leadership and collaboration on data standards.  

• Enhance ESMA's role as a data hub.   

ESMA has stated that it intends to revise the Data Strategy document over time as new legislative, technological or any other types of development emerge, particularly the section on its implementation plan.  

ECON publishes draft report on proposed Directive on EU clearing systems

On 12 June 2023, the European Parliament's Economic and Monetary Affairs Committee published its draft report on the European Commission's legislative proposal for a Directive on the treatment of concentration risk towards central counterparties and the counterparty risk on centrally cleared derivative transactions.  

The draft report contains a draft European Parliament legislative resolution, the text of which sets out suggested amendments to the proposed Directive.   

Implementing Regulation and Delegated Regulations on supervisory co-operation under the Investment Firms Directive published in Official Journal of the European Union

On 8 June 2023, the following Implementing and Delegated Regulations supplementing the Investment Firms Directive (IFD) were published in the Official Journal of the European Union:  

• Commission Delegated Regulation (EU) 2023/1117 supplementing the IFD with regard to regulatory technical standards (RTS) specifying requirements for the type and nature of the information to be exchanged by competent authorities of home and host member states.  
• Commission Delegated Regulation (EU) 2023/1118 supplementing the IFD with regard to RTS specifying the conditions under which colleges of supervisors exercise their tasks.  

• Commission Implementing Regulation (EU) 2023/1119 laying down implementing technical standards for the application of the IFD with regard to standard forms, templates and procedures for information sharing between the competent authorities of home and host member states.  

The Implementing and Delegated Regulations entered into force on 28 June 2023.   

ESMA updates Q&As on data reporting under the Regulation on reporting and transparency of securities financing transactions

On 7 June 2023, ESMA published an updated version of its Q&As on complying with reporting requirements under the Regulation on reporting and transparency of securities financing transactions. 

The Q&As were previously updated in March 2023. In this update, ESMA has added a new Q&A at number 16 on reporting of securities financing transactions concluded by IORPs and personal pension funds. IORPs are financial institutions that manage collective retirement schemes for employers to provide retirement benefits to their employees (i.e. pension scheme members and beneficiaries). They are long-term investors that aim to deliver the best returns to their members and beneficiaries at the same time as keeping their investments safe. 

Association for Financial Markets in Europe publishes updated paper on MiFID II and PRIIPs requirements for equity-linked markets

On 6 June 2023, the Association for Financial Markets in Europe (AFME) published an updated paper setting out its approach to the EU MiFID II product governance and PRIIPs regimes, for equity-linked markets. 

The paper aims to assist manufacturers of equity-linked securities to define target markets for product governance purposes and ensure that securities are not offered to retail investors. Accordingly, the approach focuses on transactions aimed at a professional investor base. AFME notes that although the paper focuses on EU requirements, compliance with its approach should also meet relevant UK requirements.  

Schedules to the paper include a target market assessment, measures to ensure offers are made to professional investors only and suggested wording for legends and selling restrictions for inclusion in transaction documents.  

ESMA publishes letter to European Commission on transparency regime under MiFIR 

On 2 June 2023, ESMA published a letter it has sent to the European Commission on the transparency regime for single name-credit default swaps (CDSs) and standardised OTC-derivatives under the Markets in Financial Instruments Regulation (MiFIR). 

ESMA notes that the single-name CDS market is opaque and subject to a high degree of uncertainty and speculation as to the actual trading activity and its drivers. Following the events on single-name CDS markets at the end of March, ESMA notes that it remains convinced of the need to further improve the MiFIR requirements on trade transparency, notably on post-trade transparencies for OTC-derivatives. 

ESMA notes that given the single-name CDS market and most OTC-derivatives markets are global, it is key that there is a globally co-ordinated approach to ensure consistent rules and avoid gaps. 

European Commission requests advice from ESMA on Eligible Assets Directive review  

On 16 June 2023, ESMA published a letter sent by the European Commission making a formal request to ESMA for technical advice on the review of the Eligible Assets Directive (EAD). 

The Commission intends to carry out a review of the EAD that will take into account market and regulatory developments that have occurred since the EAD was adopted and take stock of market practices to ensure that the eligibility rules are implemented in a uniform manner in all member states. 

In the letter, the Commission mandates ESMA to carry out an assessment of the implementation of the EAD to analyse whether any divergences have arisen and to provide the Commission with a set of recommendations on how the EAD should be revised to track market developments.   

The Commission requests ESMA to deliver its technical advice by 31 October 2024.  

ESMA publishes updated Q&As on application of UCITS Directive  

On 14 June 2023, ESMA published an updated version of its Q&As on the application of the UCITS Directive.  

New Q&As have been added on the de-notification of marketing arrangements for UCITS, the scope of activities passported by UCITS management companies and the management of alternative investment funds and pension schemes by UCITS management companies.   

ESMA publishes updated Q&As on application of AIFMD  

On 14 June 2023, ESMA published an updated version of its Q&As relating to the application of the Alternative Investment Fund Managers Directive (AIFMD). 

New Q&As have been added to section II on notifications of alternative investment funds, section IV on notification of alternative investment fund managers and section VII on calculation of leverage.  

ESMA publishes follow-up report to peer review on guidelines on ETFs and other UCITS issues 

On 6 June 2023, ESMA published a follow-up report to its final report about its peer review on the guidelines on exchange traded funds and other UCITS issues. 

ESMA published its final report in July 2018 which contained findings from the peer review which identified that some national competent authorities (NCAs) needed to improve their practices when supervising disclosures to investors, operational aspects of costs, fees and revenues for efficient portfolio management (EPM) and collateral management issues.  

ESMA carried out the follow-up peer review to assess whether the NCAs referred to have improved their practices and to consider the supervisory work carried out by the NCAs identified regarding the attribution of revenues and costs derived from securities lending by UCITS. 

The follow-up report shows that the NCAs have strengthened their supervisory practices, enhanced internal and external guidance and performed supervisory work in the area of ETFs and other UCITS since 2018. The report identified that there are still concerns in relation to the level of costs for some UCITS using EPM techniques.  

ESMA expects NCAs to continue monitoring the effective application of the guidelines and the effectiveness of the supervisory practices implemented and to take supervisory action where needed.

FCA publishes statement on Upper Tribunal decision to allow references  

On 13 June 2023, the FCA published a statement following the Upper tribunal (Tax and Chancery Chamber) issuing its decision in Thomas Seiler, Louise Whitestone and Gustavo Raitzin v FCA. The matter concerns whether the individuals, who worked at private bank Julius Baer International Ltd, acted without integrity in relation to certain arrangements entered into between the bank and a person connected with the bank's client.  

In November 2022, the FCA issued decision notices to the individuals prohibiting them from performing any function in relation to any regulated activities. The individuals each referred their respective decision notices to the Upper Tribunal. 

The Upper Tribunal has allowed the references and is therefore remitting the matter to the FCA with a direction to reconsider its decision to prohibit the applicants in the light of its findings. The FCA notes that the Upper Tribunal was critical of many aspects of the individuals' conduct, although it found that such conduct was negligent rather than reckless. The FCA also notes that this was a complex multi-party investigation involving thousands of documents and that human error, which cannot be eliminated completely, led to one document of limited significance not being disclosed. The FCA is taking the Upper Tribunal's recommendations in relation to this seriously and is reviewing its disclosure processes.  

FCA commences criminal proceedings for unauthorised sale and rent back activities  

On 13 June 2023, the FCA published a press release announcing that it has commenced criminal proceedings against three individuals for carrying out regulated activities without authorisation.  

The FCA alleges that two of the individuals offered loans and sale and rent back agreements on behalf of a firm without being approved by the FCA and that one of the individuals offered sale and rent back agreements without being authorised to do so.  

The individuals appeared at Westminster Magistrates' Court in May and June 2023. One of the individuals has indicated a not guilty plea, while the other two did not indicate a plea.  

Preliminary issue decision on FSMA third party rights reference (Upper Tribunal) published  

On 9 June 2023, the Upper Tribunal (Tax and Chancery Chamber) published its decision in Banque Havilland S.A., Edmund Rowland, Vladimir Bolelyy and David Rowland (Third Party) v FCA. The decision relates to a preliminary issue regarding a third party rights reference made by an individual, David Rowland (DR), under section 393(3) of the Financial Services and Markets Act 2000 (FSMA).  

DR was identified in separate decision notices given by the FCA to Banque Haviland S.A. and three former employees. DR made his reference to the tribunal on the basis that these decision notices contained statements that are prejudicial to him. 

The applicants (being Banque Havilland, Edmund Rowland and Vladimir Bolelyy) have referred their decision notices to the tribunal and their references will be heard in due course, together with DR's third party reference. The third former employee, David Weller (DW), has not referred his decision notice. In March 2023, the FCA issued DW with a final notice setting out the regulatory action it had decided to take. This final notice has not yet been published. 

DR argues that the FCA was not permitted to issue the final notice to DW pending the outcome of DR's third party reference. The FCA argued that it may issue a final notice under section 390 FSMA when it has determined to take the action to which the decision notice relates and the subject has not made a reference to the tribunal, regardless of whether or not a third party has made a reference under section 393 of FSMA.

The tribunal concluded that the issue of a final notice to DW has no impact on DR's reference and that the tribunal did not need to determine the question as to whether or not the FCA acted lawfully in issuing the final notice before DR's reference has been determined.  

In light of these conclusions, the applicant's references and DR's third party reference will proceed to a hearing.   

FCA fines firm for cum-ex trading oversight failings

On 5 June 2023, the FCA published the final notice it has issued to ED&F Man Capital Markets Ltd (MCM), a commodities brokerage firm, fining it £17,219,300 for serious failings in its oversight of cum-ex trading. As MCM agreed to resolve the matter, they qualified for a 30% discount under the FCA’s executive settlement procedures. Were it not for this discount, the FCA would have imposed a financial penalty of £22,428,800 on MCM. 

The FCA found that between February 2012 and March 2015, MCM breached the following of the FCA's Principles for Business:  

• Principle 2 (Skill, care and diligence).  

• Principle 3 (Management and control). 

The FCA found that the breaches enabled significant volumes of dividend arbitrage trading on behalf of clients, allowing clients to make withholding tax reclaims. As a result, £20 million of the withholding tax reclaims made by MCM's clients to the Danish tax authority were illegitimate. MCM benefitted by charging £5 million in fees.  

The FCA found that MCM's compliance function failed to provide any meaningful oversight of the trading activities of the equity finance desk and failed to properly consider possible risks and the appropriate level of oversight in relation to the dividend arbitrage trading. As a result, MCM did not conduct its business with due skill, care and diligence.  

The FCA also found that MCM did not take reasonable care to organise and control its affairs responsibly and effectively with adequate risk management systems. MCM's dividend arbitrage trading business is underpinned by the requirement for legal and tax opinions, but MCM had inadequate systems and controls to ensure the existence of those opinions and to check that trading was carried out in line with them.  

In the accompanying press release, the FCA notes that due to the seriousness and nature of the breaches and the significant revenue generated for MCM the financial penalty imposed on MCM is the largest of the four cases the FCA has brought relating to cum-ex trading.  

FCA publishes speech on doing the right thing 

On 1 June 2023, the FCA published a speech, Do the right thing, focusing on key aspects of the FCA's work that will be directly relevant to the FCA's future enforcement strategy. The speech was given by Therese Chambers, FCA Joint Executive Director of Enforcement and Market Oversight.  

The speech highlighted that firms and their advisors can "do the right thing" and explained that the way they respond to issues is an opportunity to do the right thing. The speech also highlighted that the FCA appreciates and rewards transparency and co-operation. 

In the speech the FCA also praised Quilter, the parent company of Lighthouse Advisory Services, for taking action to redress customer losses. In addition, the FCA encouraged creditors for Woodford Equity Income Fund to seriously consider the offer on the table as the FCA believes it is the quickest and best chance to obtain redress. The FCA also highlighted its supercharged commitment to fight crime and fraud, evidenced through its assertive action taken in the case of wealth management firm WealthTek LLP.  

Financial Action Task Force announces outcomes from its plenary meeting 

On 26 June 2023, the Financial Action Task Force (FATF) published a document setting out the outcomes from its plenary meeting, which took place earlier that month. 

At the meeting, the FATF reiterated that all jurisdictions should be vigilant to current and emerging risks from the circumvention of measures taken against the Russian Federation to protect the international financial system. The FATF also published an updated list of the jurisdictions under increased monitoring and an up-to-date list of the high-risk jurisdictions subject to a call for action.

The FATF's advancement of the work on preventing the misuse of non-profit organisations was also discussed at the meeting. The FATF also agreed to release potential revisions for public consultation and agreed on new projects, including a project to enhance money laundering investigations and prosecutions.  

EBA publishes report on money laundering and terrorist financing risks associated with payment institutions  

On 16 June 2023, the EBA published a report on money laundering (ML) and terrorist financing (TF) risks associated with payment institutions.  

In 2022, the EBA carried out an assessment of ML and TF risks in the payments sector with the aim of better understanding the extent to which payment institutions' anti-money laundering (AML) and counter-terrorist financing (CTF) systems and controls are effective in tackling those risks and the effectiveness of current supervisory approaches to tackling ML and TF risk in payment institutions.  

In the report, the EBA concludes that: 

• Not all competent authorities are currently doing enough to comply with their legal obligations concerning the AML and CTF supervision of payment institutions.  
• Payment institutions' AML and CTF internal controls do not seem robust enough to mitigate ML and TF risks.  
• Some member states' assessment of AML and CTF controls in the authorisation process is weak.  

• There is no common approach to the AML-CTF supervision of agent networks or of payment institutions with significant agent networks.  

The EBA recommends that a more robust implementation by supervisors of the EBA's guidelines on risk factors and on risk-based supervision will assist in mitigating ML and TF risks. The EBA further recommends that legislative changes may be required to address issues concerning the AML and CTF assessment component of the authorisation of payment institutions, the consideration of ML and TF risks in the process of passporting notifications and the treatment by member states of agents of payment institutions in the cross-border context.   

Political agreement reached on proposed Directive on cross-border law enforcement access to bank account registries  

On 6 June 2023, the European Parliament published a press release announcing that it has reached political agreement with the Council of the EU on the proposed Directive amending Directive (EU) 2019/1153 regarding competent authorities' access to centralised bank account registries through the single access point.   

The aim of the proposed Directive is to ensure more effective investigations into illicit finance by making it easier to retrieve data across borders from centralised bank registries. The proposed Directive mandates EU member states to ensure that the information from centralised registries is available through a single access point to be developed and operated by the European Commission.  

The political agreement is subject to the approval of the Council and Parliament before going through the formal adoption procedure. The agreed revised text of the legislative proposal has not yet been published. 

EBA consults on changes to AML and CTF risk factors guidelines under MLD4 to include cryptoasset service providers  

On 31 May 2023, the EBA published a consultation paper (EBA/CP/2023/11) on proposed changes to its guidelines on customer due diligence and the factors credit and financial institutions should consider when assessing money laundering (ML) and terrorist financing (TF) risks associated with business relationships and occasional transactions under Article 17 and 18(4) of the Fourth Money Laundering Directive (MLD4). 

The EBA is proposing to extend the scope of the guidelines to cryptoasset service providers (CASPs), as CASPs are exposed to ML and TF risks which are increased due to the use of innovative technologies, instant transfers of cryptoassets across the world and services that contain privacy-enhancing features. 

The new guidelines emphasise the need for secure remote onboarding tools to be used by credit and financial institutions, provide sector-specific guidance for CASPs, highlight risk factors that reflect specific features of cryptoassets and CASPs and provide guidance on mitigating measures CASPs should take where the risk is either increased or reduced.  

The consultation closes on 31 August 2023. 

Financial Action Task Force announces outcomes from its plenary meeting 

On 26 June 2023, the Financial Action Task Force (FATF) published a document setting out the outcomes from its plenary meeting, which took place earlier that month. 

At the meeting, the FATF reiterated that all jurisdictions should be vigilant to current and emerging risks from the circumvention of measures taken against the Russian Federation to protect the international financial system. The FATF also published an updated list of the jurisdictions under increased monitoring and an up-to-date list of the high-risk jurisdictions subject to a call for action.

The FATF's advancement of the work on preventing the misuse of non-profit organisations was also discussed at the meeting. The FATF also agreed to release potential revisions for public consultation and agreed on new projects, including a project to enhance money laundering investigations and prosecutions.  

EBA publishes report on money laundering and terrorist financing risks associated with payment institutions  

On 16 June 2023, the EBA published a report on money laundering (ML) and terrorist financing (TF) risks associated with payment institutions.  

In 2022, the EBA carried out an assessment of ML and TF risks in the payments sector with the aim of better understanding the extent to which payment institutions' anti-money laundering (AML) and counter-terrorist financing (CTF) systems and controls are effective in tackling those risks and the effectiveness of current supervisory approaches to tackling ML and TF risk in payment institutions.  

In the report, the EBA concludes that: 

• Not all competent authorities are currently doing enough to comply with their legal obligations concerning the AML and CTF supervision of payment institutions.  
• Payment institutions' AML and CTF internal controls do not seem robust enough to mitigate ML and TF risks.  
• Some member states' assessment of AML and CTF controls in the authorisation process is weak.  

• There is no common approach to the AML-CTF supervision of agent networks or of payment institutions with significant agent networks.  

The EBA recommends that a more robust implementation by supervisors of the EBA's guidelines on risk factors and on risk-based supervision will assist in mitigating ML and TF risks. The EBA further recommends that legislative changes may be required to address issues concerning the AML and CTF assessment component of the authorisation of payment institutions, the consideration of ML and TF risks in the process of passporting notifications and the treatment by member states of agents of payment institutions in the cross-border context.   

Political agreement reached on proposed Directive on cross-border law enforcement access to bank account registries  

On 6 June 2023, the European Parliament published a press release announcing that it has reached political agreement with the Council of the EU on the proposed Directive amending Directive (EU) 2019/1153 regarding competent authorities' access to centralised bank account registries through the single access point.   

The aim of the proposed Directive is to ensure more effective investigations into illicit finance by making it easier to retrieve data across borders from centralised bank registries. The proposed Directive mandates EU member states to ensure that the information from centralised registries is available through a single access point to be developed and operated by the European Commission.  

The political agreement is subject to the approval of the Council and Parliament before going through the formal adoption procedure. The agreed revised text of the legislative proposal has not yet been published. 

EBA consults on changes to AML and CTF risk factors guidelines under MLD4 to include cryptoasset service providers  

On 31 May 2023, the EBA published a consultation paper (EBA/CP/2023/11) on proposed changes to its guidelines on customer due diligence and the factors credit and financial institutions should consider when assessing money laundering (ML) and terrorist financing (TF) risks associated with business relationships and occasional transactions under Article 17 and 18(4) of the Fourth Money Laundering Directive (MLD4). 

The EBA is proposing to extend the scope of the guidelines to cryptoasset service providers (CASPs), as CASPs are exposed to ML and TF risks which are increased due to the use of innovative technologies, instant transfers of cryptoassets across the world and services that contain privacy-enhancing features. 

The new guidelines emphasise the need for secure remote onboarding tools to be used by credit and financial institutions, provide sector-specific guidance for CASPs, highlight risk factors that reflect specific features of cryptoassets and CASPs and provide guidance on mitigating measures CASPs should take where the risk is either increased or reduced.  

The consultation closes on 31 August 2023. 

The answer to last month's question: according to the PRA's Business Plan for 2023/24, there were 319 PRA supervised banks as at January 2023.   

The UK's regime for cryptoasset financial promotions comes into force later this year.  How many routes will be available to firms to lawfully communicate a financial promotion of cryptoassets? 

• 3 
• 2 
• 5 
• 4.