On 5 February 2020, the European Banking Authority (EBA) issued a public consultation on revised money laundering and terrorist financing (ML/TF) risk factors Guidelines as part of a broader communication on AML/CFT issues. 

This update takes into account changes to the EU Anti Money Laundering and Counter Terrorism Financing (AML/CFT) legal framework and new ML/TF risks, including those identified by the EBA’s implementation reviews. These Guidelines are central to the EBA’s work to lead, coordinate and monitor the fight against money laundering and terrorist financing, explained in the accompanying factsheet. The consultation runs until 5 May 2020.

These Guidelines are addressed to both financial institutions and supervisors. In its revised version, the EBA is proposing key changes, including new guidance on compliance with the provisions on enhanced customer due diligence related to high-risk third countries. New sectoral guidelines have been added on crowdfunding platforms, corporate finance, payment initiation services providers (PISPs) and account information service providers (AISPs) and for firms providing activities of currency exchanges offices.

The revised Guidelines also provide more details on terrorist financing risk factors and customer due diligence (CDD) measures including on the identification of the beneficial owner, the use of innovative solutions to identify and verify the customers’ identity. In addition, they set clear regulatory expectations of firms’ business-wide and individual ML/TF risk assessments.

On 12 February 2020, the European Commission published its communication on the Action Plan on anti-money laundering, which presents the areas the Commission intends to address in its preparatory work in view of updating the existing regulatory framework.

The initiative will build on recent initiatives including:

• 5th EU anti-money laundering directive
• July AML Package
• Review of the European Supervisory Authorities
• Directive on the use of financial information for the prevention, detection, investigation or prosecution of crime.

No impact assessment is being prepared. Decisions taken in future to act on options with expected significant impact could become the object of an impact assessment as necessary, in accordance with the Better Regulation guidelines.

Roadmaps are open for feedback for 4 weeks, from 12 February 2020 to 11 March 2020.

On 19 February 2020 ECB published  a report on the transfer of liquidity from EONIA’s cash and derivatives products to the €STR. The report supplements a previous report from the working group on the impact of the transition from EONIA to the €STR on cash and derivatives products and provides clarifications around specific topics that have been discussed since then.

The working group highlights that contracts referenced to EONIA with maturities beyond 3 January 2022 would entail significant risks. It therefore recommends that market participants should replace EONIA products with €STR products and reduce their EONIA-linked legacy exposures as soon as possible.

In order to accelerate the transition process, market-makers are encouraged to proactively price in the €STR rather than EONIA as their default, and central counterparties are recommended to consider developments in the nettability (compression) of the €STR and EONIA.

The working group expects a full migration from EONIA-linked to €STR-linked products. It therefore recommends that the current EONIA market liquidity characteristics be used as a benchmark for building the initial target for the €STR and that market participants analysing the available data assess the liquidity of the €STR derivatives market.

On 17 February 2020 ESMA updated its Questions and Answers regarding the implementation of the Central Securities Depositories Regulation (CSDR).

The updated Q&As provide answers to questions regarding practical issues on the implementation of the new CSDR regime.

The latest set of 7 CSDR Q&As approved by the Board clarify the implementation of the settlement discipline regime, as follows:

1. the costs of the penalty mechanism that are charged to participants by a CSD should not be allocated on the basis of the number or value of penalties applied to participants;

2. with respect to the settlement instructions sent by CCPs:

• such instructions can stem from the netting of transactions with various trade dates, subject to the CCP being able to retrieve the original trade dates;
• such instructions can stem from the netting of various types of transactions, subject to the CCP being able to retrieve the original transaction type;
• there is no obligation under CSDR for CSDs to provide for a field to be populated with the “place of trading” of the transactions, but a CSD can provide such a field for it to be populated;
• such instructions can stem from the netting of transactions traded on various trading places, subject to the CCP being able to retrieve the original trading places of each netted transaction and to the trading place indicated in the instruction being the trading place of at least one of the netted transactions. It is also clarified that to benefit from the penalty rate applicable to SME growth market transactions, such transactions should not be netted with others;
• a CSD’s responsibility in respect of collection of information for the purpose of monitoring settlement fails is limited to the information included by the participant in the settlement instruction.

3. in respect of the buy-in process, the length of the extension period should be determined based on the liquidity classification of the relevant financial instrument as of the intended settlement date of the transaction.

On 19 February 2020 EU Commission published it's ideas and actions for a digital transformation. 

The Commission will focus on three key objectives to promote technological solutions that will help Europe pursue its own way towards a digital transformation that works for the benefit of people and respects our fundamental values:

• Technology that works for people;
• A fair and competitive economy; and
• An open, democratic and sustainable society.

It defines an ambitious approach towards digital technological development, as well as how technology will be used to meet climate-neutrality objectives.

The White Paper on Artificial Intelligence and the European data strategy are the first pillars of the new digital strategy of the Commission.

On 3 March 2020, the European Central Bank (ECB) published its letter to all Significant Institutions to follow closely the developments related to COVID-19 and potential risks emanating from its effects. The purpose of this letter is to remind institutions of the critical need to consider and address potential pandemic risk in their contingency strategies. 

Supervised entities are expected to review their business continuity plans and consider what actions can be taken to enhance preparedness to minimize the potential adverse effects of the spread of COVID-19.

On 5 February 2020, the EU Systemic Risk Board (ESRB) published its letter to the European Commission on shortcomings of the AIFMD framework.

In this letter, the ESRB share the its experiences with the scope and application of the AIFMD. In particular, the ESRB share considerations regarding 

(i) the suitability of the reporting framework and access to data for monitoring systemic risk, 

(ii) the need to operationalise existing macroprudential policy instruments, and 

(iii) the ongoing development of the macroprudential policy framework “beyond banking” in general and for investment funds in particular.

On 6 February 2020, the European Association for Investors in Non-Listed Real Estate Vehicles (INREV) informed that on 29 January 2020, the principal global real estate associations, INREV, NCREIF, PREA and ANREV have reached unanimous agreement to the new Total Global Expense Ratio (TGER), which sets out a standardized approach for measuring the total fees and costs of real estate investment vehicles, enabling investors and managers to compare vehicles across different regions.

The new ratio builds on the original INREV Total Expense Ratio (TER) and the Reporting Standards Real Estate Fees and Expense Ratio (REFER) and will greatly enhance the ability of investors and managers to compare fee structures across their non-listed real estate vehicles and investment portfolios, regardless of the regional domicile of these investments. It will also provide an additional mechanism for cost analysis and comparison with industry averages, helping to improve investment decision-making.

On 13 February 2020, the European Securities and Markets Authority (ESMA) updated the Compliance table regarding MAR guidelines for persons receiving market soundings.

On 4 February 2020, the European Securities and Markets Authority (ESMA) launched a Consultation Paper (CP) reviewing the MiFIR transparency regime for equity, ETFs and other related instruments. 

The CP contains proposals, based on in-depth data analysis of the effects of the current regime since January 2018, for possible amendments to the transparency regime.

The key proposals on the MiFIR transparency for equities include:

• Pre-trade transparency and waivers – to address the ongoing high volume of dark trading ESMA proposes to either reduce the number of waivers available to market participants or to make the use of waivers subject to stricter requirements; 
• The DVC mechanism – if maintained, ESMA is proposing to simplify the DVC regime and to apply it in a wider and stricter way to further curb dark trading;
• The SI regime – with a view to addressing concerns about the SI regime, including the volume of trading and perceived lower transparency requirements, ESMA proposes an increase of minimum quoting obligations subject to pre-trade transparency, a revised methodology for determining quoting sizes and/or an extension of the SI obligations to illiquid instruments; and
• The trading obligation for shares – ESMA is proposing to clarify the scope of the trading obligation specifically in relation to third-country shares.

ESMA invites all stakeholders involved in EU securities markets to respond to this consultation by 17 March 2020. ESMA intends to submit its final review report of the transparency regime applicable to equity instruments to the European Commission by July 2020.

A second consultation paper focusing on the obligations applicable to bonds, derivatives and other instruments will be published shortly.

On 7 February 2020, the European Securities and Markets Authority (ESMA) published a final report suggesting amendments to the trading obligation under MiFIR following the introduction of EMIR Refit.

The recent changes introduced to EMIR via Refit modify the scope of counterparties subject to the clearing obligation – exemption for small financial counterparties and modified determination of non-financial counterparties. The introduction of EMIR Refit has not been accompanied by direct amendments to MiFIR, which currently leads to a misalignment between the scope of counterparties subject to the clearing obligation (CO) under EMIR and the derivatives trading obligation (DTO) under MiFIR. In light of the close interconnections between those two obligations, EMIR Refit mandates ESMA to assess whether the DTO under MiFIR should be aligned with changes to the CO introduced by EMIR Refit, and to submit its findings in a report to the Commission.

After consulting with stakeholders, ESMA finalised its recommendations to the European Commission (EC), which consist in aligning the scope of counterparties subject to the clearing and the trading obligations.

ESMA is submitting this final report to the EC. On the basis of ESMA’s input, the EC’s report shall be submitted to the European Parliament and to the Council by 18 December 2020.

On 7 February 2020, the European Securities and Markets Authority (ESMA) updated its public register for the trading obligation for derivatives, maintained in accordance with Article 34 of Regulation (EU) No 600/2014 (MiFIR) to inform market participants on the trading obligation for derivatives.

On 7 February 2020, the European Securities and Markets Authority (ESMA) has published seven opinions on position limits  regarding commodity derivatives under the Markets in Financial Instruments Directive and Regulation (MiFID II/MIFIR).

ESMA’s opinions agree with the proposed position limits regarding:

• ICE Endex Dutch TTF Gas contracts; 
• EEX Phelix DE Base Power contracts; 
• EEX Capesize TC5 Freight contracts; 
• EEX Spanish Power Base contracts; and 
• MEFFPOWER  Baseload contracts.

ESMA found that the proposed position limits are consistent with the objectives established in MiFID II and with the methodology developed for setting those limits.

In addition to the five opinions above, ESMA published two opinions on the proposed position limits regarding the OMIP SPEL Base contracts. The first opinion relates to the position limits initially notified by Comissão do Mercado de Valores Mobiliários (CMVM ) which ESMA did not find consistent with the objectives established in MiFID II. In such circumstances, Article 57(5) of MiFID II requires the competent authority concerned  to modify the position limits in accordance with ESMA’s opinions or provide ESMA with justification why the change is considered to be unnecessary. In December 2019, CMVM accordingly notified ESMA of revised position limits for the OMIP SPEL base contracts. ESMA agreed with those revised position limits in a subsequent opinion.

ESMA will continue to assess the notifications received and issue opinions in order to ensure that the position limits are set in accordance with the MiFID II framework.

On 7 February 2020, the European Fund and Asset Management Association (EFAMA) - jointly with the European Forum of Securities Associations (EFSA) - published a statement on market data costs. 

The statement claims that reasonable market data costs would benefit the real economy. Therefore, EFAMA and EFSA recommend among others that the MiFID II and MiFIR requirements will be properly enforced, pricing lists published by trading venues will become easily comparable, market data agreements and audit procedures will be simplified, high level definitions will be harmonized, regulators will focus more on the role of data vendors, and pricing principles will be developed at a global level.

On 11 February 2020, the European Securities and Markets Authority (ESMA) published the updated compliance table for its Guidelines on MiFID II product governance requirements (ESMA35-43-620). 

According to the table, all national competent authorities comply or intend to comply with ESMA's guidelines.

On 17 February 2020 EU Commission opened a consultation on possible reforms to the Markets in Financial Instruments Directive and Regulation (MiFID and MiFIR). 

In particular, the consultation asks about potential changes:

• investor protection rules, in order to strike the right balance between promoting investor participation in capital markets, the competitiveness of the EU's financial sector and safeguarding the interests of investors,
• The Systematic internalisation Regime,
• The re-launch of the Consolidated tape
• Digitatlisation of MIFID,
• The adequacy of on exchange trading obligation...

It also consults on potential actions to foster research coverage for SMEs. The consultation addresses the possible introduction of a new transparency tool that allows investment managers, investment advisors and their clients to have access to “live” asset prices across the EU in a consolidated format (the consolidated tape).  The introduction of the consolidated tape might require changes to MiFID and MiFIR. 

The consultation is available online and runs until 20 April 2020.

On 18 February 2020 ESMA updated its Questions and Answers on the implementation of investor protection topics under the Market in Financial Instruments Directive and Regulation (MiFID II/ MiFIR).

The new Q&As provides clarification on:

• Sales of subordinated eligible liabilities and the assessment of suitability
• Whether Article 44a of BRRD 2 should be apply only if there is an active offering on the part of the firm
• Information to be collected from clients in order to comply with Article 44a(1) and 44a(2) of BRRD 2
• Calculation of 10% threshold referred to in Article 44a(2)(a) of BRRD 2
• What happens if a transaction relating to subordinated eligible liabilities is deemed unsuitable by the firm, but the retail client wishes to proceed anyway
• Monitoring of 10% threshold referred to in Article 44a(2)(a) of BRRD 2

On 18 February 2020 ESMA updated its Questions and Answers on the Prospectus Regulation with two new Q&As.  

The two Q&As provide clarification on the following issues in relation to the Prospectus Regulation:

• The number of additional pages that can be included in a summary where there is more than one guarantor.
• The number of additional pages that can be included in a summary relating to several securities, as per Article 7(7) of the PR.

On 10 February 2020, the International Securities Lending Association (ISLA) informed the public of clarifications concerning the scope of the Regulation on reporting and transparency of securities financing transactions (SFTR). 

In January 2020, ISLA submitted a letter to the European Commission and the European Securities and Markets Authority (ESMA) regarding the SFTR. Specifically, the letter concerned the SFTR scope of non-EU alternative investment funds (non-EU AIFs), and its conflict in relation to the drafting of the Level 1 text.

The ISLA now reported that the responses provided by the Commission as well as ESMA provide explicit confirmation that non-EU AIFs are not subject to the obligations set out in Article 4(1) SFTR, even if the alternative investment fund manager is authorised or registered in accordance with the Alternative Investment Fund Managers Directive, except in respect of SFTs concluded in the course of the operations of a branch in the EU of the non-EU AIF.

On 5 February 2020, the Association for Financial Markets in Europe (AFME) published 

 its Securitisation Data Report: Q3 2019. Main findings are as followings:

•  In Q3 2019, EUR 40.4 billion of securitised product was issued in Europe, a decrease of 33.4% from Q2 2019 and a decrease of 25.8% from Q3 2018. Of the EUR 40.4 billion issued, EUR 31.1 billion was placed, representing 76.9% of issuance, compared to the 45.6% of issuance in Q2 2019 and the 55.8% of issuance in Q3 2018.
• Outstanding volumes fell slightly to EUR 1.19 trillion outstanding at the end of Q3 2019, a decrease of 4.4% QoQ and 0.5% YoY.
•  Credit Quality: In Europe, upgrades outpaced downgrades in Q3 2019, with upgrades concentrated in RMBS, both conforming and non-conforming.
•  Regulatory update: The implementation of the Level 2 legislation under the STS Framework is still progressing. However, some of the key elements of the Securitisation Framework are still pending the finalisation, such as the RTS on Risk Retention (expected adoption by the EC later in 2020). 

In response to the increasing regulatory and policy focus on Sustainable Finance (including the environmental aspects) in September 2019 AFME published a position paper on Green Securitisation in which we highlighted the key voluntary principles which policymakers and market participants should support to help propose green securitisation.

On  6 February 2020, the European Securities and Markets Authority (ESMA) published its Strategy on Sustainable Finance. The strategy sets out how ESMA will place sustainability at the core of its activities by embedding Environmental, Social, and Governance (ESG) factors in its work. 

The key priorities for ESMA highlighted in the strategy include: 

• completing the regulatory framework on transparency obligations via the Disclosures Regulation. ESMA will work with the EBA and EIOPA to produce joint technical standards;
• reporting on trends, risks and vulnerabilities (TRV) of sustainable finance by including a dedicated chapter in its TRV Report, including indicators related to green bonds, ESG investing, and emission allowance trading;
• using the data at its disposal to analyse financial risks from climate change, including potentially climate-related stress testing in different market segments;
• pursuing convergence of national supervisory practices on ESG factors with a focus on mitigating the risk of greenwashing, preventing mis-selling practices, and fostering transparency and reliability in the reporting of non-financial information;
• participating in the EU Platform on Sustainable Finance that will develop and maintain the EU taxonomy and monitor capital flows to sustainable finance; and
• ensuring ESG guidelines are adhered to in the entities that ESMA supervises directly, while being ready to accept any new supervisory mandates related to sustainable finance.

ESMA’s work spans the investment chain from issuer to investment funds, investment firms and retail investors. It has already delivered on several objectives of the EU’s action plan on financing sustainable growth and will continue to assist the EU institutions to achieve sustainable finance goals, including by providing advice on areas where new Level 1 and Level 2 measures may be necessary.

On 13 February 2020,  Decrees of 12 February 2020 No 2020-115, 2020-118 and 2020-119 reinforcing the national mechanism of fight against money laundering and financing of terrorism were published in the Official Journal as well as a Report to the President of the Republic concerning Decree No 2020-115.

The purpose of these decrees is to fully implement AMLD V and complete the transposition of AMLD IV into French law as well as rationalizing and reinforcing the harmonization of national AML/CFT mechanisms.

1) Decree No 2020-115 

• National scope of entities subject to AML/CFT measures are brought in line with European requirements, including some branches in the financial sector and tax consultancy services delivered by law professionals, formerly exempted from some requirements due to secrecy;
• Surveillance requirements and counter-measures towards high risk countries listed by the European Commission and the FATF are reinforced;
• Clear definition of the terms "banking correspondence" and "transit accounts";
• Adaptation of the beneficial owners' regime to  updates requirements and declarations of suspicious activities as well as extension of transparency requirements;
• Adjustment of control competences on entities of the financial sector between the AMF and ACPR.

2) Decree No 2020-118

• Simplification of methods of verification of the client's identity for distance business relationships;
• Clarifications of requirements concerning the verification of the identity of the beneficial owners, inviting companies subject to systematically consult dedicated registers;
• Clarifications of the cooperation of national authorities with the EBA;
• Determination of methods of declaration and consultation of the RBO.

3) Decree No 2020-119

• Clarification of the TRACFIN competences;
• Extension of the composition of the Orientation Council on AML/CFT and reinforcement of its mission of coordination;
• Clarification of transmission of information methods concerning beneficial owners listed on the Trade and Companies Register for corporate entities.

Version française

Le 13 février 2020, les Ordonnance n°2020-115, n°2020-118 et n°2020-119 renforçant le dispositif national de lutte contre le blanchiment de capitaux et le financement du terrorisme ont été publié au Journal Officiel ainsi qu'un Rapport au Président de la République relatif à l’ordonnance no 2020-115.

L'objectif de ces ordonnances est de pleinement transposer AMLD V et compléter la transposition d'AMLD IV dans le droit français ainsi que de rationaliser et renforcer l'harmonisation du dispositif LCB-FT français.

1) Ordonnance n°2020-115

• Le champ d'application national des entités soumises aux mesures de LCB-FT est aligné sur les exigences européennes, y compris certaines branches du secteur financier et les services de conseil fiscal fournis par des professionnels du droit, auparavant exemptés de certaines exigences en raison du secret professionnel ;
• Les exigences de surveillance et les contre-mesures à l'égard des pays à haut risque répertoriés par la Commission européenne et le GAFI sont renforcées ;
• Définition claire des termes "correspondance bancaire" et "comptes de transit" ;
• Adaptation du régime des bénéficiaires effectifs aux exigences de mise à jour et aux déclarations d'activités suspectes, ainsi qu'extension des exigences de transparence ;
• Ajustement des compétences de contrôle des entités du secteur financier entre l'AMF et l'ACPR.

2) Ordonnance n°2020-118

• Simplification des méthodes de vérification de l'identité du client pour les relations commerciales à distance ;
• Clarification des exigences concernant la vérification de l'identité des bénéficiaires effectifs, en invitant les sociétés soumises à consulter systématiquement des registres dédiés ;
• Clarification de la coopération des autorités nationales avec l'ABE ;
• Détermination des méthodes de déclaration et de consultation du RBO.

3) Ordonnance n°2020-119

• Clarification des compétences de TRACFIN ;
• Extension de la composition du Conseil d'orientation en matière de LCB-FT et renforcement de sa mission de coordination ;
• Clarification des modalités de transmission des informations concernant les bénéficiaires effectifs inscrits au registre du commerce et des sociétés pour les personnes morales.

On 20 February 2020, the Autorité des marchés financiers (AMF) published a paper on the Prevention of money laundering and terrorist financing.

The fight against money laundering and terrorist financing (AML-CFT) is one of the AMF’s main supervisory priorities. The Fifth Money-Laundering Directive has been transposed into French law at the beginning of 2020. It sets out a series of measures to fight against terrorist financing more effectively and guarantee improved transparency of financial transactions. Below is a brief reminder and guide on the reference legislation.

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Le 20 février 2020, l'Autorité des marchés financiers (AMF) a publié un article sur la prévention du blanchiment des capitaux et du financement du terrorisme.

La lutte contre le blanchiment de capitaux et le financement du terrorisme (LAB-CFT) est l'un des principaux axes de surveillance de l'AMF. La cinquième directive sur le blanchiment de capitaux a été transposée en droit français au début de l'année 2020. Elle prévoit une série de mesures pour lutter plus efficacement contre le financement du terrorisme et garantir une meilleure transparence des transactions financières. Vous trouverez ci-dessous un bref rappel et un guide sur la législation de référence.

On 7 February 2020, Decree No 2020-95 on fees thresholds applied to saving plans destined to finance SME and Mid-Sized Businesses was published in the Official Journal.

The purpose of the current decree  is to determine fees' thresholds and extends the commitments period applicable to funds authorized as ELTIF. The decree indicates fees' thresholds that SMEs and mid-sized businesses (MSB) are allowed to impose when opening and keeping accounts as well as fees on the transactions operated on those accounts. 

The decree extends the possibility of commitments related to ELTIFs destined to allow shareholders to justify eligibility criteria of their investment to SME-MSB.

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Le 7 février 2020, le décret n°2020-95 du 5 février 2020 relatif au plafonnement des frais afférents au plan d’épargne en action et au plan d’épargne en actions destiné au financement des PME et ETI a été publié au Journal Officiel.

L'objectif de ce décret est de plafonner les frais et élargissement des engagements aux fonds ayant reçus l’autorisation d’utiliser la dénomination « ELTIF ». Ce décret indique le plafonnement des frais relatifs aux PEA et au PEA-PME au titre de leur ouverture, de leur tenue, des transactions qui y sont opérées. Le décret élargit par ailleurs aux fonds européens d’investissement de long terme (fonds ELTIF) les engagements des organismes de placement collectifs destinés à permettre aux porteurs de parts ou actionnaires de justifier de l’éligibilité de leur investissement au PEA-PME.

On 7 February 2020, Decree of 28 January 2020 on  amendments of the AMF General Regulation was published in the Official Journal of France.

This Decree updates the General Regulation of the Autorité des marchés financiers about te adhoc committee and independent expert which shall be appointed in the context of takeover bids.

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Le 7 février 2020, un arrêté du 28 janvier 2020 portant homologation de modifications du règlement général de l’Autorité des marchés financiers a été publié au Journal Officiel français.

Cet arrêté mets à jour le règlement général de l’Autorité des marchés financiers concernant le comié ad hoc et l'expert independant qui doivent être nommés dans le cadre d'appels d'offre.

On 27 January 2020, the Autorité des marchés financiers (AMF) adopted its action plan to promote investment research.
The AMF is planning to clarify its policy and support certain adjustments at the European level as part of the targeted review of MiFID II. These concern the regulation of issuer-paid analysis, pricing, proportionality, third-party research and ESG research.

The proposed action plan is divided into six themes:

• Support the development of issuer-paid research; 
• Ensure the proper functioning of the research market; 
• Adapt a certain number of provisions to the current Framework;  
• Exempt independent research from the inducement regime; 
• Establish proportionality in the inducement regime; and 
• Prepare the emergence of ESG research.

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Le 27 janvier 2020, l'Autorité des marchés financiers (AMF) a arrêté son plan d’action en faveur de la recherche en investissement.
L'AMF entend préciser sa doctrine et soutenir certains ajustements au niveau européen dans le cadre de la revue ciblée de MIF 2. Ces ajustement concernent spécifiquement l’analyse financée par les émetteurs, tarification, proportionnalité, recherche indépendante, recherche ESG.

Le plan d'action proposé par l'AMF s’organise autour de six axes :

• Accompagner le développement de l’analyse financée par les émetteurs ;
• Assurer le bon fonctionnement du marché de la recherche ;
• Adapter un certain nombre de dispositions du cadre actuel ;
• Exonérer la recherche indépendante du régime des incitations ;
• Instaurer de la proportionnalité dans le régime des incitations ; et 
• Préparer l’émergence d’une recherche ESG.

BACKGROUND

The Monetary Fund Regulation (EU) 2017/1131 (the MMF Regulation) entered into force on 21 July 2018.

A new category of AIF, entitled  was introduced by an ordinance in 2017 on modernising the legal framework for asset management and debt financing, which can be set up as funds (specialised finance funds - ("SFOs") or companies (specialised finance companies - "SFC").

WHAT'S NEW?

On 21 February 2020, the Autorité des marchés financiers (AMF) updated Doctrine DOC-2012-06 on declared AIFs previously covering specialised professional funds (SPF) and professional private equity funds, to take into account recent national and European legislative and regulatory developments and to include specialised financing organisations (SFOs).

The AMF clarifies its doctrine on the declaration and amendment of a SFOs. Open in particular to professional investors and investors with an initial subscription of EUR 100,000 or more, the SFO is not subject to prior approval by the AMF but must be declared.

From now on, any new UCITS or AIF that meets the definition of money market fund within the meaning of the MMF Regulation must obtain specific authorisation. FFS and FIOs are likely to be affected and must therefore, in addition to their declaration to the AMF, apply for authorisation as money market funds.

The procedures for disclosing research expenses in the prospectuses of AIFs managed by a portfolio management company that chooses to use a research expense account as part of its collective management business are set out in detail in the standard prospectus plan of the funds.

The AMF draws the attention of management companies to the one-year period from the publication of this update to bring the regulatory documentation of their funds into compliance, provided this does not put them in a position of non-compliance with the laws and regulations in force.

WHAT'S NEXT?

Other changes may take place in the course of 2020, in particular in relation to the texts implementing the PACT law.

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BACKGROUND

Le règlement (UE) 2017/1131 relatif aux fonds monétaires (règlement MMF) est entré en application le 21 juillet 2018.

Une nouvelle catégorie de FIA a été introduite par une ordonnance en 2017 portant sur la modernisation du cadre juridique de la gestion d’actifs et du financement par la dette qui peuvent être constitués sous forme de fonds (fonds de financement spécialisé – « FFS ») ou sous forme de société (sociétés de financement spécialisé – « SFS »).

WHAT'S NEW?

Le 21 février 2020, l' Autorité des marchés financiers (AMF) a mit à jour sa Doctrine DOC-2012-06 sur les FIA déclarés couvrant jusque-là les fonds professionnels spécialisés (FPS) et les fonds professionnels de capital investissement (FPCI) an de prendre en compte de récentes évoluons législatives et réglementaires nationales et européennes et d’y intégrer les organismes de financement spécialisé (OFS). Ouvert notamment à des investisseurs professionnels et des investisseurs dont la souscription initiale est supérieure ou égale à 100 000 euros, l’OFS ne fait pas l’objet d’un agrément préalable de l’AMF mais doit lui être déclaré.

L’AMF précise sa doctrine concernant la déclaration et la modification d’un OFS.

Désormais, tout nouvel OPCVM ou FIA répondant à la définition de fonds monétaire au sens du règlement MMF doit obtenir un agrément spécifique. Les FPS et OFS sont susceptibles d’être concernés et doivent alors le cas échéant, en plus de leur déclaration auprès de l’AMF, solliciter un agrément en tant que fonds monétaire.

Les modalités d’affichage des frais de recherche dans les prospectus des FIA gérés par une société de gestion de portefeuille qui choisirait de recourir à un compte de frais de recherche dans le cadre de son activité de gestion collective font l’objet de précisions dans le plan type des prospectus des OPC concernés.

WHAT'S NEXT?

D'autres modifications pourront intervenir au cours de l’année 2020, notamment en lien avec les textes d’application de la loi PACTE.

On 10 February 2020, the Autorité des marchés financiers (AMF) published amendments to:

• Instruction DOC-2006-07 on takeover bids, 
• Instruction DOC-2006-08 on independent expertise and 
• Recommendation DOC-2006-15 on independent expertise.

The AMF also published the summary of responses to the public consultation on these amendments following the report of the working group on the squeeze-out and independent expertise in the context of public offers.

In the context that the provisions of the PACTE law have led to a lowering threshold for implementing the squeeze-out, the AMF has set up a working group bringing together the various stakeholders, responsible for improving the regulations applicable to the squeeze-out and independent expertise in the context of public offers.

Version française

Le 10 février 2020, l'Autorité des marchés financiers (AMF) a publié les modifications de:

• Instruction DOC-2006-07 sur les offres publiques d'achat ;
• Instruction DOC-2006-08 sur l'expertise indépendante et le retrait obligatoire ;
• Recommandation DOC-2006-15 sur l'expertise indépendante.

L'AMF a publié un résumé de ses réponses à la consultation publique sur ces modifications à la suite du rapport du groupe de travail sur le retrait obligatoire et l'expertise indépendante dans le contexte des OPA.

Dans le contexte de la loi Pacte, dont les dispositions ont conduit à un abaissement du seuil de mise en œuvre du retrait obligatoire, l'AMF a constitué un groupe de travail réunissant les différentes parties prenantes, en charge d'améliorer la réglementation applicable au retrait obligatoire et à l'expertise indépendante dans le contexte des OPA.

On 20 February 2020, the Association Française des Titres (AFTI) published an  Implementation Guide for the French Financial Market on Shareholders Rights Directive II. 

The Shareholder Rights Directive II (SRD II) - Directive (EU) 2017/828 - amends the first Directive (2007/36/EC) as regards the encouragement of long-term shareholder engagement. The SRD II sets out the objectives to be achieved by the Member States and shall be transposed into national law by all EU Member States before 10 June 2019. In France, the first part of the Directive was transposed into national law by the law of May 22, 2019 relating to the growth and transformation of companies, known as the PACTE law, as well as by implementing decree n ° 2019-1285. The remaining provisions will be the subject of additional texts.

This document is a last version of the Implementation Guide, identifying and explaining the impacts of the SRD II Directive on the financial institutions situated or operating in France (custodians, depositories, general meeting centralising agents, corporate action centralising agents, market infrastructures such as central securities depositories, etc.). 

Following the analyses and impacts presented by this guide, a working group mandated by the French Association of Securities Professionals (AFTI) will monitor the implementation work that may lead to updates of this Guide or the publication of complementary documents if the needs be.

This document took part in being based on the interpretation of European texts for its drafting without taking into account official transpositions into national law, some of which are not available taking into account the elements collected from European working groups which aim to define common market practices.

Version française

Le 20 février 2020, l'Association Française des Titres (AFTI) a publié un Guide d'implémentation pour la Place française sur la Shareholders Rights Directive II.

La Directive européenne (UE) 2017/828 – Shareholders Rights Directive II (SRD II) modifie la première Directive (2007/36/CE) relative aux droits des actionnaires. La Directive SRD II fixe les objectifs à atteindre par les États membres et doit faire l’objet d’une transposition en droit national par chaque État membre avant le 10 juin 2019. En France une première partie de la Directive a été transposée dans le droit national par la loi du 22 mai 2019 relative à la croissance et la transformation des entreprises, dite loi PACTE ainsi que par le décret d’application n°2019-1285. Les dispositions restantes feront l’objet de textes supplémentaires.

Le présent document est la dernière version du guide d’implémentation recensant et expliquant les impacts de la Directive SRD II pour les établissements de la Place française (Teneurs de Comptes Conservateurs, dépositaires, centralisateurs d’Assemblée Générale (AG), centralisateurs d’Opérations Sur Titres (OST), infrastructures de marché telles que le dépositaire central…).

Suite aux analyses et impacts présentés par ce guide un groupe de travail mandaté par l’Association Française des professionnels du Titres (AFTI) effectuera le suivi des travaux de mise en œuvre pouvant mener à des mises à jour de ce Guide ou la publication de documents complémentaires si le besoin s’en faisait ressentir par la Place. 

Ce document a pris pour partie de se baser sur l’interprétation des textes européens pour sa rédaction sans tenir compte des transpositions officielles en droit national dont certaines ne sont pas disponibles en tenant compte des éléments recueillis en provenance des groupes de travaux européens qui visent à définir des pratiques de marché communes.

On 4 February 2020, the German Federal Council (Bundesrat) published the draft law of 31 January 2020 prepared by the German government, which further implements amendments to the European transparency directive, or more specifically the provisions of Commission Delegated Regulation (EU) 2019/815 of 17 December 2018 supplementing Directive 2004/109/EC of the European Parliament and of the Council with regard to regulatory technical standards on the specification of a single electronic reporting format (ESEF). 

The objective of the draft law is to facilitate the access of issuers, investors and competent authorities to financial reporting, and enhance the analysis and comparability of such statements. 

According to the European provisions, all financial statements must be prepared using the European Single Electronic Format (ESEF) as of 1 January 2020. As the details on the ESEF were only published in May 2019, the draft law now aims to supplement the existing legal requirements in Germany with technical details on the ESEF.

On 7 February 2020, the Securities and Futures Commission (SFC) published a special edition of its SFC Regulatory Bulletin to provide an update on its front-loaded approach to address market quality and corporate conduct issues. 

Case studies illustrate the SFC’s key areas of concern and recent regulatory interventions in initial public offering (IPO) applications and corporate transactions.

In a number of cases, failures on the part of directors, often involving conflicts of interest, played a central role in dubious corporate transactions involving overvalued acquisitions and suspect valuations. Directors are reminded of their obligations to guard shareholders’ interests and remain professional and vigilant when performing their duties.

Other cases would highlight the need for IPO sponsors to conduct proper due diligence and exercise professional scepticism when assessing IPO applicants, and stress that sponsors bear responsibility for the due diligence work conducted by third-party professionals.

The SFC considers tackling misconduct by listed companies as a high priority and will use its front-loaded approach to intervene early in situations where market integrity is at serious risk . The SFC stresses that it will not hesitate to hold individuals accountable for their actions.

More specifically, the SFC’s front-loaded regulatory approach combines early regulatory intervention in listing matters and enhanced supervision of intermediaries which are complemented by focused enforcement actions against firms with important gatekeeping functions and individuals in senior roles.

On 27 February 2020, the Securities and Futures Commission (SFC) published Circular to Licensed Corporations Engaged in Asset and Wealth Management Activities regarding Asset and Wealth Management Activities Survey 2019.

As an annual exercise to collect information on asset and wealth management activities in Hong Kong for regulatory and market facilitation purposes and to develop a better understanding of the state of the asset and wealth management industry in Hong Kong, the SFC commenced the Asset and Wealth Management Activities Survey 2019 (the “AWMAS”).

The SFC extended the response period and would appreciate your continued co-operation by completing the questionnaire through the online submission system on or before 29 April 2020.

On 12 February 2020, the Central Bank of Ireland (CBI) published PRISM Impact Review - Revised Prudential Impact Models, which sets out to ensure that the Central Bank continues to deliver a robust, risk-based and outcomes-focused approach to supervision.

This paper focuses on that part of the Review which has examined the prudential impact models in the Asset Management, Credit Union, Fund Service Providers, Insurance, Payments and e-Money plus Market Infrastructure sectors.

The revised prudential impact models represent an enhancement of those models, as the majority include new metrics which better represent the actual impact of financial service provider failure.

On 4 February 2020, the S.I. No. 27/2020 - Migration of Participating Securities Act 2019 (Prescribed Form) (Section 10) Regulations 2020 was published on Irish Statute Book.

The form (Form B90), set out in the S.I, is prescribed for the purposes of section 10(1) of the Migration of Participating Securities Act 2019 (No.50 of 2019).

This form must be certified by a director or the secretary of the company. This form is a declaration of compliance with all the legal requirements relating to the Migration of Participating Securities Act 2019 . It is a criminal offence pursuant to section 876 of the Companies Act 2014 for a person to knowingly or recklessly deliver a document to the CRO which is false in a material particular.

In accordance with section 10(2) of the Migration of Participating Securities Act 2019 the filing of this form shall be accompanied by an affidavit sworn by one or more of the Directors of the participating issuer verifying the statement contained herein. This affidavit will be visible on the company register.

On 5 February 2020, the Banca d'Italia published provisions regarding customer due diligence and data and information retention for non-financial operators of 4 February 2020.

The Provision has been issued containing "Provisions relating to customer due diligence and the retention of data and information for non-financial operators registered in the list referred to in article 8 of decree-law no. 350 of 25 September 2001". The measure takes into account the comments received during the public consultation phase and will be published in the Official Journal of the Italian Republic.

On the 21st of February 2020, CONSOB launched a consultation on how the reporting of ex post costs and charges connected to the provision of investment services could be changed in order to better align with the objectives detailed by MIFID II, including increased transparency on costs' disclosure.

On 5 February 2020, the Chambre des députés published a communication regarding the first assessment of the register of beneficial owners (RBE). The results of this assessment are as followings:

• At the end of January, about 105,000 entities declared their beneficial owners as required;
• The registration rate of non-profit organizations (associations), as of 31st January, is around 45%. the RBE has pointed out that this low rate hides thousands of inactive associations, for which a delisting procedure is in progress.
• The managers of registered firms had more than 16,000 requests which aimed to limit the access of the information by the public and to make it only accessible to national authorities, credit institutions, financial institutions as well as bailiffs and notaries. 
• 424 requests were credited, only those concerning minors were accepted, according to officials.
• Six appeals are in progress as well as three preliminary questions concerning the interpretation of the concepts of the risks and the circumstances making such a request acceptable.

On 5 February 2020, the Ministerial Regulation of February 5, 2020 amending Annex IC to the Grand-Ducal Regulation of October 29, 2010 was published on the Legilux (Journal Officiel du Grand-Duché de Luxembourg).

As person named AMADOU KOUFA has been added to the list of financial prohibitions and restrictive measures against certain persons, entities and groups in the context of the fight against the financing of terrorism.

On 10 February 2020, the Luxembourgish Chambre des députés published the opinion of the Chambre de Commerce Luxembourg (CCL) regarding the draft law n° 7467/7 which transposes the fifth European Anti-Money Laundering Directive (AMLD V) into Luxembourgish law. 

The opinion asks for clarifications concerning the following topics: 

• the definition of the concept "branch of foreign professionals" versus "foreign professional" in the context of audit and  accounting; 
• with a view to the absence of a census of "foreign professionals", which possibility the Institut des Réviseurs d'Entreprises (IRE) and the Ordre des Experts-Comptables (OEC) will have to identify those entities and ensure their compliance with the requirements under the AML law; and 
• the risk of juridical uncertainty caused by potentially insufficient coherence between the current parliamentary amendment 3 to the draft law n° 7467 and the provisions of the audit law and the law on the OEC.

On 11 February 2020, the Luxembourg Council of State published its opinion on the draft law n° 7467 implementing the fifth European Anti-Money Laundering Directive (AMLD V) into Luxembourgish law and modifying several national laws, among others the Law of 12 November 2004 on the fight against money laundering and the financing of terrorism (AML Law). 

In the opinion, the Council provides detailed comments on the recent amendments made by the parliament during the legislative process. Especially, the Council criticizes the missing coherence between the suggested amendments to the draft law and the coordinated text, which would result for instance in incorrect references throughout the document.

On 12 February 2020, the Chambre des députés of Luxembourg published a new opinion by the Conseil d'État on draft law n° 7467 which transposes the fifth European Anti-Money Laundering Directive (AMLD V) into Luxembourgish law. 

In this opinion, the Conseil d'État particularly noted that the 6-month period during which a ban may remain in force, without the disciplinary body being entered, appears to be excessively long. The Council of State proposes to reduce this period to maximum of two months.

On 26 February 2020, the Association of the Luxembourg Fund Industry (ALFI) responded to the IOSCO Consultation CR05/2015 December 2019 on “Conflicts of Interest and Associated Conduct Risks during the Debt Capital Raising Process".

The IOSCO consultation report considers conflicts of interest and associated conduct risks during the debt capital raising process for traditional corporate bonds. The work involves determining which issues and potential harms identified in stage one are common to debt capital raisings and identifying specific debt capital raising related issues and possible solutions through guidance, as in stage one.

On 5 February 2020, the Commission de Surveillance du secteur financier (CSSF) updated the Additional guidance for Credit Institutions related to specific reporting aspects.

This version provides:

• Addition of guidance related to FINREP F 22 reporting
• Reformulation of the part related to the reporting of interest income on liabilities and interest expense on assets in an environment of negative interest rates
• Addition of a table of contents

On 4 February 2020, the Commission de Surveillance du secteur financier (CSSF) updated Application questionnaire for additional sub-fund, which requires following information:

1. General information on the undertaking for collective investment
2. Description of investment policy and valuation (specify per sub-fund)
3. Offering of units/shares of the undertaking
4. Information on Risk Management Process (RMP) - for UCITS only
5. Other supportive information
6. Information on the applicant (or designated contact person of applicant) completing and filing this application for authorization of additional sub-funds to an existing undertaking for collective investment

On 6 February 2020, the Association of the Luxembourg Fund Industry (ALFI) published its document on the considerations for investment fund managers with regard to on-site inspections in Luxembourg by the CSSF.

Please note that the document is only available to ALFI members.

On 13 February 2020, the Commission de Surveillance du Secteur Financier (CSSF) informed the public that the European Securities and Markets Authority (ESMA) has launched a Common Supervisory Action (CSA) with national competent authorities (NCAs) on the supervision of UCITS’ managers liquidity risk management across the European Union.

In this context, the CSSF launched on 10 February 2020 the first stage of the Common Supervisory Action (CSA) by asking a large sample of Luxembourg-based UCITS managers to complete, by 13 March 2020 at the latest, a dedicated questionnaire for all UCITS managed, i.e. Luxembourg domiciled UCITS and foreign domiciled UCITS. All concerned Luxembourg-based UCITS managers were contacted by the CSSF in that context.

On 25 February 2020, the Commission de Surveillance du secteur financier (CSSF) issued a communication in the context of the ESMA common supervisory action on UCITS liquidity risk management.

This communication follows up on a previous communication issued on 13 February 2020 by the Commission de Surveillance du Secteur Financier in the context of the launch of the ESMA Common Supervisory Action (CSA) on the supervision of UCITS’ managers liquidity risk management across the European Union.

The CSSF would like to inform the Luxembourg-based UCITS managers concerned by the first stage of the CSA exercise that the dedicated section to complete the questionnaire is now accessible through the CSSF’s eDesk portal (https://www.cssf.lu/edesk).

On 12 February 2020, the Commission de Surveillance du Secteur Financier (CSSF) published press release 20/05 on the monitoring of the quality of transaction reports received under Article 26 of MiFIR.

The press release relates to the obligation for credit institutions and investment firms to report transactions in financial instruments as set out in Article 26 of MiFIR. It informs on the number of reporting entities as well as the number of reports received by the CSSF in 2019 and aims more particularly to inform all reporting entities on the quality and completeness campaigns that the CSSF conducted during the years 2018 and 2019. Also, it announces the topics that will be the subject of dedicated campaigns during the year 2020 (which are: the trading capacity, transmission of an order, late reporting, and partial executions).

On 3 February 2020, the Commission de Surveillance du secteur financier (CSSF) published Circular CSSF 20/735 on the update of the ESMA guidelines on stress tests scenarios under Article 28 of the Money Market Fund Regulation, dated 28 January 2020.

The purpose of this circular is to implement the “Guidelines on stress test scenarios under the MMF Regulation (Ref. ESMA/34-49-164)” as published on 19 July 2019 by the European Securities and Markets Authority (ESMA) (“the 2019 Guidelines”) into Luxembourg regulation applicable to the money market funds (MMFs) under the supervision of the CSSF and to the Luxembourg managers of MMFs. The updated “Guidelines on stress tests scenarios under Article 28 of the MMF Regulation (Ref. ESMA/34-49-164)”, when compared to the first set of the guidelines, now also include common reference stress test scenarios as well as common reference parameters for those scenarios. 

The CSSF will issue a new circular following each subsequent update of the ESMA "Guidelines on stress tests scenarios under Article 28 of the MMF Regulation".

On 3 February 2020, the Commission de Surveillance du secteur financier (CSSF) published Circular CSSF 20/736 regarding ESMA Guidelines on the reporting to competent authorities under Article 37 of the MMF Regulation, dated 28 January 2020.

The objective of the Guidelines is notably to ensure the common, uniform and consistent application of Article 37 of the MMF Regulation and of the Commission Implementing Regulation (EU) 2018/708 of 17 April 2018 laying down implementing technical standards with regard to the template to be used by managers of money market funds when reporting to competent authorities as stipulated by Article 37 of the MMF Regulation (“Commission Implementing Regulation”). More particularly, the Guidelines aim to provide guidance on the contents of the fields of the reporting template included in the Annex of the Commission Implementing Regulation. 

In accordance with Article 37 of the MMF regulation, further clarified by the Commission Implementing Regulation, the manager of an MMF shall report information to the competent authority of the MMF by using the reporting template. In particular, the Guidelines specify that:

• -The first quarterly report that is to be submitted by managers of MMFs pursuant to Article 37 of the MMF Regulation concerns the first quarter of 2020. This report should be sent to the competent authority of the MMF no later than 30 days after the end of Q1 2020.
• Managers of MMFs subject to a yearly reporting obligation have to provide for these MMFs the first reporting, covering the entire year 2020, not later than 30 days after the end of Q4 2020.
• As there will be no requirement to retroactively provide historical data for any period prior to the starting date of the reporting, the first reporting provided by managers for MMFs authorized before 2020 should only contain historical data as of 1 January 2020.

On 20 February 2020, the Chambre des députés published raft Law 7527 amending CRS and FATCA Laws in Luxembourg.

The amendments to the Law of 18 December 2015 on Common Reporting Standard (CRS) specifies that financial institution should not adopt practices intended to circumvent the communication of information to the tax authorities. They are required to keep records of actions taken and evidence used to ensure the execution of the declaration and due diligence procedures for ten years after the end of the calendar year in which they are required to communicate the information. They must put in place policies, controls, procedures and IT systems to ensure the fulfillment of the reporting and due diligence obligations incumbent on them under this law. These IT policies, controls, procedures and systems must be proportionate to the nature, features and size of the reporting Luxembourg financial institutions.

Other provisions concern reporting conditions in the absence of reportable accounts, an update of the sanctions mentioned in the law and the modalities concerning the access by the Tax authorities to the  record maintained by financial institution.

The amendments related to FATCA Law of 24 July 2015 have the same content and purpose as the one proposed for the amendment of the CRS Law, they are however addressed to US accounts.

On 4 February 2020, the De Nederlandsche Bank (DNB) published an updated guidance document on the Act on the prevention of money laundering and terrorist financing (Wet ter voorkoming van witwassen en financieren van terrorisme) and the Sanctions Act 1977 (Sanctiewet 1977). The new version stems from December 2019; the previous version of the guidance document was published in April 2015 and now no longer applies.

The guidance document mainly incorporates the amendments that have been made to the Wwft as a result of the implementation of the Fourth Anti-Money Laundering Directive (EU/2015/849) (Vierde anti-witwasrichtlijn), which came into effect in the Netherlands on 25 July 2018. In addition, the guidance document no longer addresses the requirements relevant for trust offices (this will be dealt with separately by DNB).

This guidance document is not a legally binding document or a policy rule. The examples provided in the guidance document are not exhaustive and serve as a guide for the explanation and application of legal obligations. DNB notes that the guidance document is currently being translated into English and will be available soon.

On 17 February 2020, the Dutch government provided answers to the questions and comments on the draft law implementing the fifth European Anti-Money-Laundering Directive (AMLD V) which were expressed by different political groups such as the PvdA Group, the PVV group, the SP group and the ChristenUnie Group.

Topics of concern were among others the treatment of crypto assets services providers, the scope of the law and the potential costs and efforts that might result from the draft law for the financial sector. 

The government now clarified among others that: 

• It was decided in the Netherlands to limit the implementation of AMLD V to the provisions of the directive and to not include the more stringent requirements of the new FATF standards; 
• Trust offices are considered pre-eminently capable of conducting research on their customers and of assessing when a transaction must be reported as unusual to the Dutch FIU as they have direct contact with the customer before they enter into a business relationship as well as a continuous view of the customer; 
• The extension of the scope of suspicious transaction reporting will indeed increase the workload of the FIU and thus require additional funds (which have already been allocated to the FIU in the budget plan from 2021 onward); 
• The inclusion on crypto-services providers into the scope of the AML Law will lead to additional supervision costs which will be charged to the newly supervised entities; 
• The Netherlands are committed to removing legal barriers to data sharing to ensure a successful implementation of the AMLD V implementation act; 
• A registration obligation for virtual currencies services providers was included in the draft law; 
• The DNB was chosen as supervisor for virtual asset services providers as it has broad experience with AML supervision of various institutions; 
• There is no European "passport" system for providing virtual currency related services in the Netherlands to ensure that effective supervision can take place; and that 
• The European Commission, member states as well as the FATF will evaluate the effectiveness of AMLD V.

On 12 February 2020, the draft Act implementing capital requirements 2020 (Implementatiewet kapitaalvereisten 2020) was published for public consultation on Overheid, the Dutch portal for government documents. 

The draft Act contains changes to the Act on the Financial Supervision (Wet op het financieel toezicht) which are necessary to implement:

• Directive (EU) 2019/878 of the European Parliament and of the Council of 20 May 2019 amending the Capital Requirements Directive IV as regards exempted entities, financial holding companies, mixed financial holding companies, remuneration, supervisory measures and powers and capital conservation measures (CRD V); and 
• Regulation (EU) 2019/876 of the European Parliament and of the Council of 20 May 2019 amending the Capital Requirements Regulation as regards the leverage ratio, the net stable funding ratio, requirements for own funds and eligible liabilities, counterparty credit risk, market risk, exposures to central counterparties, exposures to collective investment undertakings, large exposures, reporting and disclosure requirements (CRR II).

CRD V entered into force on 27 June 2019 and needs to be transposed in national laws by 28 December 2020. The Draft Act transposes part of CRD IV into Dutch law and will in the course of this year be followed by implementing decrees or regulations. The majority of the provisions of CRR II will apply from 28 June 2021.

CRD V and CRR II only provide for a total of four provisions with Member State options, two of which are included in CRD V and relate to the remuneration rules. The Netherlands will make use of these two Member State options so that national choices that have already been made can be sustained (the 20% bonus cap and the wider scope of the remuneration rules will both be retained).

The public consultation will end on 11 March 2020.

On 24 February 2020, the De Nederlandsche Bank (DNB) issued Q&As on Obligations for safe custody service providers under the AML/CFT Act.

In the Netherlands, banks that provide safe custody services and non-bank undertakings whose principal business is providing safe custody services are subject to the Anti-Money Laundering and Anti-Terrorist Financing Act (“the Act”).

As custodians, they are therefore under a duty to identify and adequately mitigate integrity risks, conduct appropriate customer due diligence, adequately monitor their customers’ transactions, and immediately report any unusual transactions to FIU-NL. This should prevent their services from being used for money laundering or terrorist financing.

Firms have revealed a need for further guidance on implementation of the requirements under the Act. To meet this need, the authority prepared a Q&A document specifically addressing aspects relevant to safe custody service providers that are not discussed in the Guidelines. In issuing the document, the Bank seeks to raise awareness of the Act requirements in the sector and clarify their implementation.

On 11 February 2020, the De Nederlandsche Bank (DNB) published its Corporate Social Responsibility (CSR) vision for 2020. 

The CSR vision was launched by DNB in 2019, with objectives for the two topics sustainability and achieving an inclusive financial and economic system.

With respect to sustainability, the DNB will: 

• Investigate how climate risk management can be integrated into market entry and review requirements and to what extent behaviour and culture within financial institutions have an impact on sustainable financing decisions; 
• Broaden the approach for climate risks to other sustainability risks, such as declining biodiversity; 
• Continue to anchor climate risks in the DNB's supervision of banks, insurers and pension funds; 
• Map the CO2 emissions of the financial market infrastructure and the possibilities for reducing emissions; 
• Consider the role climate considerations play in the evaluation and possible revision of the ECB's monetary policy strategy; 
• Research the role of sustainable financial products in the transition to a climate neutral economy; and lastly 
• Further integrate sustainability aspects into the DNB's own reserve management. To work for an inclusive economic and financial system, the DNB will: 
• Conduct in-depth analyses of the labour market, housing market, lending and payment transactions as regards their accessibility; 
• Further develop the Pension Agreement to guarantee the sustainability of the pension system; and 
• Investigate the accessibility of retail payment transactions for consumers and SME entrepreneurs.

Singapore, 15 January 2020… The Monetary Authority of Singapore (MAS) and the Accounting and Corporate Regulatory Authority (ACRA) launched the Variable Capital Companies (VCC) framework. The VCC is a new corporate structure that can be used for a wide range of investment funds and provides fund managers greater operational flexibility and cost savings.  It will encourage more funds to be domiciled in Singapore and enhance our value as an international fund management centre.

On 3 February 2020, the Swiss National Bank (SNB) issued a circular letter on the adjustment of criteria for SNB repos in the context of Brexit. 

The SNB informs the public that it has amended its guidelines on monetary policy instruments, and has updated the criteria for collateral eligible for SNB repos. 

The amendment would prevent securities domiciled in the United Kingdom from losing their eligibility as collateral due to the UK’s departure from the European Union. Its implementation results in the following:  

• Eligible issuers: The United Kingdom is added to the list as a host economy for eligible issuers. 
• Eligible markets: Recognised stock exchanges and representative markets in the United Kingdom are considered eligible markets. 
• Procedure: Securities whose ultimate or intermediate depository is in the United Kingdom and which are delivered through SIX SIS Ltd meet the criteria for eligibility.

On 25 February 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) published FAQ regarding the distribution platform.

The FAQs clarify technical particularities linked to the FINMA’s communication sent via the distribution platform to the supervised entities.

On 25 February 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) publishes FAQs regarding the delivery platform.

The FAQs clarify technical provisions linked to the delivery platform which is an information and communication technology system through which supervised institutions, audit firms and other external offices can submit documents to FINMA electronically in a secure web environment.

On 7 February 2020, the Eidgenössische Finanzmarktaufsicht (FINMA) launched a consultation on the follow-up regulation to the new Financial Services Act (FinSA) and Financial Institutions Act (FinIA), which obliged FINMA to pass a number of implementing provisions (mainly technical in nature). The follow-up regulation consists of a new, streamlined ordinance, which amends existing ordinances and circulars and provides for the abolition of three circulars. 

The new FINMA ordinance regulates the details of professional indemnity insurance for portfolio managers, trustees and managers of collective assets, details on calculating the de minimis threshold for gaining authorisation as a portfolio manager, and on risk management and internal control system for managers of collective assets.

FINMA also proposes amending the client identification threshold values in its Anti-Money Laundering Ordinance (AMLO-FINMA) from CHF 5,000 to CHF 1,000 for exchange transactions in cryptocurrencies. Through these measures, FINMA is implementing the international standards approved in mid-2019 and acknowledging the heightened money-laundering risks in this area.

The consultation will run until 9 April 2020.

On 16 January 2020, the Bank of England (BoE), Financial Conduct Authority (FCA) and the Working Group on Sterling Risk-Free Reference Rates (RFRWG) have published a set of documents, outlining priorities and milestones for 2020 on LIBOR transition.

To help achieve this, the RFRWG has published its priorities and an updated roadmap for the year ahead to highlight important events and clarify actions market participants should take to reduce LIBOR exposure and transition to alternative rates, including: 

• Ceasing issuance of cash products linked to sterling LIBOR by end-Q3 2020; 
• Throughout 2020, taking steps that demonstrate that compounded SONIA is easily accessible and usable;
• Take steps to enable a further shift of volumes from LIBOR to SONIA in derivative markets;
• Establishing a framework for the transition of legacy LIBOR products, in order to significantly reduce the stock of LIBOR referencing contracts by Q1 2021;
• Considering how best to address issues “tough legacy” contracts.

The BoE and FCA support these objectives and have published two documents designed to further catalyse transition efforts: 

• First, a joint letter that has been sent to major banks and insurers, supervised in the UK. This letter sets out the initial expectations of the FCA and PRA of firms’ transition progress during 2020, including in relation to the targets set by the RFRWG, and highlights the FPC’s close monitoring of the steps being taken. 
• Second, a statement from the Bank and the FCA encouraging market makers to switch the convention for sterling interest rate swaps from LIBOR to SONIA on 2 March 2020. This is designed to help progress transition in the derivatives market. 

The RFRWG has also published a series of documents, including: 

• A document setting out the RFRWG’s views on which types of business and client should use overnight SONIA, relative to alternatives including forward-looking term rates. This concludes that use of SONIA compounded in arrears is appropriate and operationally achievable for 90% of new loans by value, which is consistent with the RFRWG’s existing expectation that the use of forward-looking term rates will be more limited than the current use of LIBOR. The Bank and FCA supports this conclusion fully. 
• A set of helpful ‘lessons learned’ from recent conversions of legacy LIBOR contracts.
• A factsheet that makes clear the “whys” and “what's” of LIBOR transition that sets out why all market participants need to act now.

On 1 February 2020, the Financial Conduct Authority (FCA) provided information for firms during the Brexit implementation period.

On 31 January 2020 at 11pm the UK leaved the European Union (EU) and enter an implementation period, which is due to last until 31 December 2020. During the implementation period, EU law will continue to apply. Firms and funds will continue to benefit from passporting between the UK and EEA. Consumer rights and protections derived from EU law will also remain in place.

There will therefore be no changes to the reporting obligations for firms, including those for MiFIR transaction reporting, under EMIR, and for CRAs, which will continue in line with existing EU regulatory requirements.

The windows for EEA firms to notify us that they want to use the Temporary Permissions Regime (TPR), or for fund managers to notify us of any funds they want to continue to market in the UK under the Temporary Marketing Permissions Regime (TMPR), closed at the end of 30 January.

Firms and fund managers that have already submitted a notification need take no further action at this stage.

On 26 February 2020. the Financial Conduct Authority (FCA) provided its remarks on the considerations for UK firms after the transition period, with a list of questions which may help firms decide whether they conduct business in the EEA and so whether their business might be affected at the end of the transition period. 

How firms are affected at the end of the transition period will depend on a number of factors, including any such agreement between the UK and the EU about our future relationship. 

UK-based firms that only do business in the UK may be affected less directly than others or not affected at all. However, firms which carry out business between the UK and the European Economic Area (EEA) – whether through a passport or directly under EU legislation – are likely to be affected. This page sets out some considerations that may be relevant in your planning.

On 6 February 2020, the Financial Conduct Authority (FCA) informed some changes to the EMIR notifications and applications process to improve its overall operation and data quality. 

The changes take effect from Monday 10 February 2020. For most submitters, the changes should have minimal impact. The main change has been made in relation to notifications and applications submitted by non-financial counterparties (those who are not FCA registered firms and do not have a profile on FCA’s CONNECT system). Going forward, to submit notifications and applications pursuant to their EMIR obligations, non-financial counterparties will need to create a firm profile on CONNECT before making submissions (this is referred to as ‘enrolling’ on the system).

In addition, the functionality for all firms to manually input counterparty details has been removed. Firms will be required to search for their firm profile using either a Firm Reference Number (FRN), Legal Entity Identifier (LEI) or Firm Name.

The FCA also updated the following FCA EMIR webpages to detail any changes that have been made and the FCA encouraged all users to familiarize themselves with the updated requirements:

• EMIR notifications and exemptions 
• How to register with CONNECT for EMIR notifications.

On 5 February 2020, the Statutory Instrument 2020 No. 117 - The Financial Services and Markets Act 2000 (Central Counterparties, Investment Exchanges, Prospectus and Benchmarks) (Amendment) Regulations 2020 was published on UK legislation.

Most of these Regulations come into force at the end of the period of twenty-five days beginning with the day on which these Regulations are made. Only Regulation 4 comes into force on 26th March 2020.

These regulations make amendments to:

• UK financial services law:
  i. to update references to Regulation (EU) 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, such that these include changes made by Regulation (EU) 2019/2099.
  ii.  to update a reference to Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds, to include amendments made by Regulation (EU) 2019/2089. 
• Financial Services and Markets Act 2000 (S.I. 2001/995): to take into an account an update to the tick-size regime in Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments made by Directive (EU) 2019/2034 of the European Parliament and of the Council of 27 November 2019 on the prudential supervision of investment firms. 
• Financial Services and Markets Act 2000 (S.I. 2019/1043): to provide that the Financial Conduct Authority is the supervisory authority for issuing prior approval of documents for the purposes of exemptions under Article 1(4) (f) and (5)(e) of Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, as amended by Regulation (EU) 2019/2115.

On 28 February 2020, the Financial Conduct Authority (FCA) publishes Feedback Statement FS20/2 on Discussion Paper DP18/10 - Patient Capital and Authorized Funds, which sought views on whether there are any unnecessary barriers to investing in long-term assets (also known as patient capital) through authorized funds. 

This FS will be of interest to: 

• operators and investment managers of UK authorized funds and specialized funds (ELTIF, EuSEF and EuVECA), and their depositaries 
• intermediaries, such as platform service providers, discretionary wealth managers and financial advisers 
• pension plan operators (eg those offering self-invested personal pensions) 
• life assurance companies with an interest in patient capital, either by direct investment or through holdings in investment funds 
• retail, professional and institutional investors 
• ancillary service providers.

On 26 February 2020, the International Swaps and Derivatives Association (ISDA) published EMIR Reporting Best Practices matrix.

The EMIR Reporting Best Practices cover 87 data points across 61 reporting fields, including both over-the-counter and exchange-traded derivatives, and were developed to improve the accuracy and efficiency of trade reporting and to reduce compliance costs. The best practices are available to all market participants to access and implement.

The EMIR Reporting Best Practices is a cross-trade association initiative developed jointly by the European Fund and Asset Management Association (EFAMA), European Venues and Intermediaries Association (EVIA), Futures Industry Association (FIA), German Investment Funds Association (BVI), Global Foreign Exchange Division (GFXD), International Swaps and Derivatives Association, Inc. (ISDA) and Investment Association (IA).