Financial Services Regulatory Update – June 2023 Round Up
General Updates | |
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CBI Consultation on Changes to the ASP |
On 22 June 2023, the Central Bank of Ireland (“CBI”) launched a consultation (here) on the CBI’s proposed approach to the Administrative Sanctions Procedure (“ASP”), introduced by the Central Bank (Individual Accountability Framework) Act 2023 (the “IAF Act”). The CBI’s consultation runs until 14 September 2023. For more information on the IAF, please see our dedicated hub (here). |
EU-UK MoU on Regulatory Cooperation in Financial Services |
On 27 June 2023, the EU and the UK signed a memorandum of understanding (“MoU”) on regulatory cooperation in financial services (here), creating an administrative framework for voluntary regulatory cooperation, outside of the structures of the Trade and Cooperation Agreement (“TCA”). |
Political Agreement on ESAP Proposal |
On 6 June 2023, the European Parliament issued a press release (here) announcing that, following trilogue negotiations, it has reached political agreement with the Council of the EU on the proposed Directive regarding the establishment of a European Single Access Point (“ESAP”) through which competent authorities would be able to access centralised bank account registries. Once officially adopted by the European Parliament and the Council, the legislation can be published in the Official Journal and may enter into force. |
Crowdfunding Regulation: EBA Opinion on Draft RTS |
On 7 June 2023, the European Banking Authority (“EBA”) delivered an opinion (here) on amendments proposed by the European Commission to final draft regulatory technical standards (“RTS”) on requirements regarding the credit scoring of crowdfunding projects, the pricing of crowdfunding offers, and risk management policies and procedures. In its published opinion, the EBA notes the importance of ensuring that crowdfunding providers can access historical data to improve assessments of creditworthiness and the performance of scoring models. |
ESG/Sustainability | |
EU Sustainable Finance Package |
On 13 June 2023, the European Commission issued a communication (here) outlining a number of proposed measures designed to build on and improve the EU’s sustainable finance framework. The package of measures includes the following items:
Details of the full package, along with the accompanying annexes to the various pieces of draft regulation are available here. |
European Commission Consults on Sustainability Reporting Standards |
On 9 June 2023, the European Commission launched a consultation (here) seeking feedback in relation to draft Delegated Regulation supplementing Directive 2013/34/EU (the Accounting Directive) as regards sustainability reporting standards. The draft regulation sets out cross-cutting standards and standards for the disclosure by large companies of environmental, social and governance information. |
ISSB Issues Sustainability Disclosure Standards |
On 26 June 2023, the International Sustainability Standards Board (“ISSB”) issued its inaugural sustainability disclosure standards (here), comprising the following: |
Capital Requirements | |
Political Agreement on Proposed Reforms to Capital Requirements Framework |
On 27 June 2023, the Council of the EU published a press release (here) announcing that it has reached provisional political agreement with the European Parliament on the following:
According to the press release, negotiators sought to achieve implementation of the Basel III standards, as closely as possible, within an EU context. Additionally, the agreed texts seek to take into account the conditions of the EU banking sector by introducing European specificities, on a transitional basis where possible. |
CBI Updates CCyB Strategy |
On 7 June 2023, the CBI announced an update to the countercyclical capital buffer (“CCyB”) rate (here). The CBI seeks to increase the rate from 1 per cent to 1.5 per cent, effective from June 2024. Relatedly, the CBI has published a document (here) outlining its strategy for the CCyB, as part of its framework for macroprudential capital buffers within the context of the overall bank capital framework. |
ITS on Benchmarking of Internal Models ahead of 2024 Exercise |
On 5 June 2023, the EBA published a report (here) containing final draft implementing technical standards (“ITS”) amending Commission Implementing Regulation (EU) 2016/2070 with regard to the benchmarking of internal models. The draft ITS await endorsement by the European Commission, and will apply on the twentieth day following publication in the Official Journal. |
IFD: ITS/RTS on Closely Correlated Currencies |
On 8 June 2023, the following Implementing and Delegated Regulations supplementing the Investment Firms Directive (“IFD”) were published in the Official Journal:
The various regulations entered into force on 28 June 2023. |
CRD IV: ITS on Supervisory Disclosure |
On 21 June 2023, the EBA published a final report (here) containing draft ITS on supervisory disclosures, specifying the format, structure, contents list and annual publication date of the supervisory information to be disclosed by competent authorities, in accordance with Article 143(1) of the CRD IV. The draft ITS will be submitted to the European Commission for endorsement before publication in the Official Journal. The first reference date for the application of the amending ITS is expected to be 31 December 2023 and the first publication date 30 June 2024. |
ECB Consultation on Revised Guide to Internal Models |
On 22 June 2023, the European Central Bank (“ECB”) launched a public consultation (here) on its revised guide to internal models (here). An FAQ document (here) has additionally been published. The revised guide to internal models clarifies the manner in which banks should include material climate-related and environmental risks in their models. It also provides clarifications for banks that wish to revert to the standardised approach for calculating their risk-weighted assets. Specifically on credit risk, the guide helps all banks move towards a common definition of default and a consistent treatment of massive disposals. The update of the market risk chapter details how to measure default risk in trading book positions. The guide also provides clarifications regarding counterparty credit risk. The consultation will run until 15 September 2023. |
High Cost Credit Providers | |
CBI “Dear CEO” Letter to High Cost Credit Providers |
On 30 June 2023, the CBI issued a “Dear CEO” letter (here) to high cost credit providers (“HCCPs”). The letter provides an overview of findings from the CBI’s supervisory engagements with HCCPs, and outlines expectations in relation to providers’ compliance with AML/CFT obligations under Part 4 of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (the “CJA 2010”). |
Credit Institutions | |
BRRD: Updated EBA Guidance for Resolution Planning |
On 13 June 2023, the EBA published a final report (here) containing amended guidelines on improving resolvability for institutions and resolution authorities under the Bank Recovery and Resolution Directive (“BRRD”), introducing a new section on resolvability testing. The updated guidelines will apply from 1 January 2024, with institutions expected to submit their first self-assessment report by 31 December 2024. |
Liquidity Reporting: SRB Guidance |
On 16 June 2023, the Single Resolution Board (“SRB”) published operational guidance (here) for banks on the measurement and reporting of the liquidity situation in resolution, expanding on supervisory expectations articulated in its Expectations for Banks (“EfB”) publication (here). |
Insurance | |
Courts and Civil Law (Miscellaneous Provisions) Bill 2023 |
On 28 June 2023, the Courts and Civil Law (Miscellaneous Provisions) Bill 2023 (here) passed through its final Dáil stages. The Bill includes a range of reforms, including to duty of care legislation. It will amend the Occupiers’ Liability Act 1995 in relation to the duty of care and is an important part of the government’s Action Plan on Insurance Reform. According to the Government, the changes aim to ensure that businesses, community groups and organisers of events fulfil their duty of care responsibilities, while also acknowledging the importance of personal responsibility. The Bill also contains other, wide-ranging amendments, which aim to improve access to justice and make civil processes more efficient, including measures on bankruptcy, legal services, data protection, naturalisation and Irish citizenship, as well as reforms to occupiers’ liability. On 5 July 2023, the Bill was signed into law by the President. |
Insurance Corporations Statistics for Q1 2023 |
On 9 June 2023, the CBI released its Insurance Corporations Statistics for Q1 2023. Key points include:
Technical reserve liabilities also increased in Q1 2023. Unit linked and non-life reserves saw the largest growth over the quarter, with increases of €9 billion and €5 billion, respectively. |
Investment Firms / MiFID | |
Political Agreement on MiFID II Enhancements |
On 29 June 2023, the European Parliament issued a press release (here) announcing that it has reached provisional political agreement with the Council of the EU on proposed amendments to the Markets in Financial Instruments Directive (“MiFID II”) and the Market in Financial Instruments Regulation (“MiFIR”) regarding improvements to data quality standards and investor protection, changes regarding market data consolidation and transparency, as well as provisions on “payment for order flow”. The provisional political agreement now awaits approval by the Permanent Representatives Committee (“COREPER”) II and the Economic and Monetary Affairs Committee, followed by a plenary and Council vote. |
Investment Funds | |
Consultation on Ireland’s Funds Sector |
On 21 June 2023, the Minister for Finance Michael McGrath launched a public consultation (here) as part of the review of the State’s asset management and funds servicing sector entitled “Funds Sector 2023: A Framework for Open, Resilient and Developing Markets”. The review seeks to ensure that Ireland’s funds sector is resilient and that regulatory and supervisory frameworks are future-proofed, supportive of macro-prudential stability, investor protection, and consistent with international best-practice. The consultation will run until 15 September 2023. |
MMF Stress Testing Exercise |
On 6 June 2023, ESMA published the results (here) of stress tests conducted on money market funds (“MMFs”) pursuant to Article 28 of the MMF Regulation. The results generally indicate a good resilience of the industry to most market factors. However, ESMA expresses some concerns, particularly with regard to low-volatility net asset value (“LVNAV”) funds and their continued ability to maintain a stable value. |
AIFMD/UCITS Directive: Q&As |
On 14 June 2023, ESMA published updated Q&A documents regarding: (i) the Alternative Investment Fund Managers Directive (“AIFMD”); and (ii) the Undertakings for Collective Investment in Transferable Securities (“UCITS”) Directive. The updated document on the application of the AIFMD (here) has added Q&As regarding notifications of alternative investment funds (“AIFs”), notification of AIF managers (“AIFMs”), and calculation of leverages. The updated document on the application of the UCITS Directive (here) contains new Q&As on management of AIFs and pension schemes by UCITS management companies, de-notification of marketing arrangements for UCITS, and the scope of activities passported by UCITS management companies. |
ESMA Report regarding ETFs/UCITS |
On 6 June 2023, ESMA published (here) a follow-up report in respect of its 2018 peer review on its guidelines on exchange traded funds (“ETFs”) and other UCITS issues. As part of its follow-up report, ESMA enquired about the supervisory work carried out by the CBI (among other supervisory authorities). It did not find areas of insufficient or partial compliance on the part of the Irish authorities. However, it recommends that the CBI continue to: (i) monitor the adequacy and implementation of supervisory practices; (ii) keep track of and build on market information (including research such as the Better Finance report); and (iii) investigate cases of high efficient portfolio management (“EPM”) costs and contraventions of guidelines, taking stringent supervisory action where needed. |
Eligible Assets Directive: Request for Technical Advice |
The European Commission has published a letter (here), dated 6 June 2023, inviting ESMA to carry out an assessment of the implementation of the Eligible Assets Directive (which defines the scope of UCITS eligible assets), and to recommend potential revisions that could be made to ensure the Directive keeps up with market developments. ESMA is invited to deliver its technical advice by 31 October 2024. |
Sanctions / Restrictive Measures | |
EU’s 11th Package of Sanctions against Russia |
On 23 June 2023, the Council of the EU adopted its 11th package of sanctions against Russia (here), in response to the ongoing illegal war in Ukraine. The agreed package consists of the following key elements:
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Amended ECB Sanctioning Powers |
On 6 June 2023, Regulation (EU) 2023/1092 of the ECB was published in the Official Journal (here), amending Regulation (EC) No 2157/1999 regarding the powers of the ECB to impose sanctions. The purpose of the amending regulation is to enhance the efficacy, proportionality and dissuasive effect of sanctions imposed by the ECB, as well as improve the transparency associated with decision-making. |
EMIR | |
EMIR 3: Updates on Progress |
On 13 June 2023, the Economic and Monetary Affairs Committee (“ECON”) of the European Parliament published a draft report (here) on the European Commission’s proposal to update the European Market Infrastructure Regulation (“EMIR”) in order to mitigate excessive exposures to third-country central counterparties (“TC-CCPs”) and improve the efficiency of EU clearing markets. Additionally, the Council of the EU has published a progress report (here) updating the Permanent Representatives Council (“COREPER”) on the work of the Council Working Party (“CWP”) on Financial Services in relation to reviewing the European Commission’s legislative proposals in relation to EMIR 3. For more information on the EMIR 3 proposal, please see our briefing (here). The progress of EMIR 3 can also be tracked on the EU’s Eur-Lex website (here). |
Framework for ESMA’s Fifth CCP Stress Test |
ESMA has published a final report (here) outlining the framework for its fifth stress test exercise for central counterparties (“CCPs”), which includes information on the exercise’s scope, methodology, its expected deliverables, and an implementation plan. Article 21(6) of EMIR requires ESMA to carry out a CCP stress test at least annually. This year’s exercise is expected to be finalised in H1 2024, and for the first time will include a climate risk component, to assess the degree to which CCPs are affected both by the transition to a carbon-neutral economy and by the physical risks to which climate change will give rise. |
Guidelines: Temporary Restrictions in Cases of Significant Non-Default Events |
On 2 June 2023, ESMA published the official English language translation of its guidelines (here) under EMIR further specifying the circumstances in which a competent authority may impose temporary restrictions on a CCP in the event of a significant non-default event. The guidelines will apply from 2 August 2023. |
Central Counterparties | |
Counterparty Credit Risk: ECB Consultation |
On 2 June 2023, the ECB launched a public consultation on its report (here) on sound practices in counterparty credit risk (“CCR”) governance and management. The report summarises the findings of a targeted review of banks, undertaken by the ECB in 2022, highlighting good practices, as well as areas for improvement. The ECB found, in particular, that there is scope for improvement in areas such as customer due diligence, the definition of risk appetite, default management processes and stress testing frameworks. The ECB consultation runs until 14 July 2023. |
CCPRRR: RTS Published in Official Journal |
On 21 June 2023, separate Delegated Relegations containing RTS supplementing the Regulation on the recovery and resolution of CCPs (“CCP Recovery and Resolution Regulation” or “CCPRRR”) were published in the Official Journal:
Both Delegated Regulations entered into force on 11 July 2023. |
CCP Recovery and Resolution: ESMA Guidelines |
In the month of June, ESMA published the following guidelines relating to the regime for CCP Recovery and Resolution:
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Fintech | |
MiCA Regulation and Recast Revised WTR Published in Official Journal |
On 9 June 2023, the Regulation on markets in crypto-assets (“MiCA”) (here) and the Regulation on information accompanying transfers of funds and certain crypto-assets (“recast revised WTR”) were published in the Official Journal (here). MiCA will apply 18 months after the date of its entry into force, save for requirements relating to asset-referenced tokens and e-money tokens which will apply 12 months after entry into force. The recast revised WTR will have general application from the same date as MiCA. |
DLT Pilot Regime Regulation: Q&As |
On 2 June 2023, ESMA published an updated version of its Q&A document (here) regarding the implementation of the Regulation on a pilot regime for market infrastructures based on distributed ledger technology (“DLT Pilot Regime Regulation”). |
Digital Finance | |
Commission Proposals on the Future of the Euro |
On 28 June 2023, the European Commission adopted (here) two mutually supportive proposals relating to the future of the euro:
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Agreement on Proposed EU Directive on Distance Financial Services Contracts |
On 6 June 2023, the Council of the EU confirmed via a press release (here) that it has reached provisional political agreement with the European Parliament on the proposed Directive (here) regarding financial services contracts concluded at a distance. The agreed text simplifies existing legislation, and seeks to enhance consumer protection and create a level playing field in respect of financial services conducted online, via telephone, or using other forms of remote marketing. The Council has additionally published a note (here), dated 16 June 2023, containing details of the provisional political agreement. The compromise text of the proposed Directive is included in an Annex to the note. |
DORA: Consultation on First Package of Policy Products |
On 19 June 2023, the European Supervisory Authorities (“ESAs”) launched a public consultation (here) on the first batch of policy products published under the Regulation on digital operational resilience for the financial sector (“DORA”). The package (detailed below) contains four sets of draft RTS and one set of ITS, which collectively seek to ensure a consistent and harmonised EU-wide framework in the areas of ICT risk management, major ICT-related incident reporting and ICT third party risk management:
The consultation will run until 11 September 2023, with the draft standards anticipated to be submitted to the European Commission by 17 January 2024. For more information on DORA, please see our related briefing (here). |
AML/CFT | |
Amended List of High-Risk Third Countries |
On 26 June 2023, Commission Delegated Regulation (EU) 2023/1219 was published in the Official Journal (here), amending the list of high-risk third countries for the purposes of the Fourth Money Laundering Directive (“MLD4”), by adding Nigeria and South Africa, and removing Cambodia and Morocco. |
Payments | |
Commission Proposals regarding Reform of EU Payment Services |
On 28 June 2023, the European Commission published (here) two legislative proposals that it has adopted concerning EU payment services and financial data access.
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ECON Adopts Proposals regarding Instant Credit Transfers in Euro |
On 28 June 2023, the European Parliament's Economic and Monetary Affairs Committee (“ECON”) published a press release (here) announcing the adoption of its draft report on the European Commission's legislative proposal for a Regulation amending the Single Euro Payments Area Regulation (“SEPA Migration Regulation”) and the Cross-Border Payments Regulation as regards instant credit transfers in euro. |
SFTR Data Reporting: Q&As |
On 7 June 2022, ESMA published an updated version of its Q&A document (here) on complying with data reporting requirements under the Regulation on reporting and transparency of securities financing transactions (“SFTR”), with a new Q&A on reporting requirements with regard to securities financing transactions (“SFTs”) concluded by institutions for occupational retirement provision (“IORPs”) and personal pension funds. |
Central Securities Depositories | |
Political Agreement on CSDR Refit Regulation |
On 27 June 2023, the Council of the EU published a press release (here) confirming that it has reached provisional political agreement with the European Parliament on the proposed Regulation amending the Central Securities Depositories Regulation (“CSDR”) (the “CSDR Refit Regulation”). The proposed changes aim to reduce the financial and regulatory burden on CSDs, and improve their cross-border operational abilities, while also strengthening overall financial stability. |
Other | |
Selected Consultations, Discussion Papers, Speeches and Reports Published |
CBI – Financial Stability Review 2023: (here) CBI – Insurance Quarterly: June 2023 (here) CBI – “Insurance, regulation, and the transition to a net zero economy” – Remarks by Gerry Cross, Director of Financial Regulation, Policy and Risk at the CBI (here) CBI – Quarterly Bulletin Q2 2023 (here) CBI – “The Individual Accountability Framework: What it means for Directors” – Remarks by Gerry Cross, Director of Financial Regulation, Policy and Risk at the CBI (here) EBA – Annual Report 2022 (here) EBA – Report on ML/TF Risks Associated with Payment Institutions (here) ECB – Report on the International Role of the Euro (here) ECB – TARGET Annual Report 2022 (here) ECB – Target2-Securities Annual Report 2022 (here) ESMA – Annual Report 2022 (here) ESMA – “Building safe digital financial markets: a collective effort” – Remarks by Verena Ross, ESMA Chair, at the ISLA 30th Annual Securities Finance & Collateral Management Conference (here) ESMA – Call for Evidence on the Integration of Sustainability Preferences in the Suitability Assessment and Product Governance Arrangements under MiFID II (here) ESMA – Report on Marketing Requirements and Marketing Communications under the Regulation on Cross-Border Distribution of Funds (here) European Commission – Financial Stability and Integration Review 2023 (here) European Commission – Keynote speech detailing progress made in implementing the EU Digital Finance Strategy and the Retail Payments Strategy – Remarks by Mairead McGuinness at the FinTech Soiree (here) European Commission – Report on the Adequacy of the Information to be disclosed under the Country-by-Country Reporting (“CbCR”) Provisions of CRD IV (here) European Insurance and Occupational Pensions Authority (“EIOPA”) – Financial Stability Report (here) International Association of Insurance Supervisors (“IAIS”) – Consultation on a New Stakeholder Engagement and Consultation Policy (here) (feedback due by 20 August 2023) IAIS – Consultation on Insurance Capital Standard as a Prescribed Capital Requirement (here) (feedback due by 21 September 2023) IAIS – Consultation on ICP 14 (Valuation) and ICP 17 (Capital Adequacy) (here) (feedback due by 21 September 2023) International Swaps and Derivatives Association (“ISDA”) – ISDA in Review – June 2023 (here) UK Law Commission – Final Report on Digital Assets (here) |
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This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.
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