On the 2 October the ECB published the €STR for the first time, reflecting trading activity on 1 October 2019. The working group on euro risk-free rates recommends that market participants gradually replace the EONIA with the €STR for all products and contracts, making the €STR their standard reference rate.

On the 2 October the European Money Markets Institute (EMMI) has published EONIA® under the reformed determination methodology. Since 1 October 2019, EONIA®’s methodology is directly tracking the €STR, the new euro short-term rate of the European Central Bank (ECB). 
To facilitate a smooth transitioning from EONIA® to the €STR, EMMI will continue to publish EONIA® every TARGET day until 3 January 2022, the date on which the benchmark will be discontinued.
In addition, as the Administrator of EONIA®, EMMI has applied for authorization from the Belgian Financial Services and Markets Authority (FSMA) under Article 34 of the EU Benchmarks Regulation.

On 8 October 2019, the European Securities and Markets Authority (ESMA) updated the compliance table for its guidelines on non-significant benchmarks, which includes the list of competent authorities complying or intending to comply with the guidelines.
According to the list, all EU Member States and all EEA EFTA States comply or intend to comply with the guidelines.

On 24 October  2019, the European Supervisory Authorities (ESAs) issued a Supervisory Statement in order to promote a consistent application by national competent authorities (NCAs) of the scope of the Regulation for packaged retail and insurance-based investment products (PRIIPs Regulation) to bond markets.

The statement responds to uncertainty as to the scope of the PRIIPs Regulation. This uncertainty risks divergent applications by NCAs, with negative consequences for achieving uniform levels of retail investor protection and a level playing field amongst product manufacturers and distributors within the EU. NCAs are recommended to apply the supervisory guidance included in the Statement.

On 16 October 2019, the European Supervisory Authorities (ESAs) have jointly launched a consultation on proposed amendments to Commission Delegated Regulation (EU) 2017/653 of 8 March 2017  (the “PRIIPs Delegated Regulation”).

The main aims of the review are to: 

• Allow the appropriate application of the PRIIPs KID by UCITS and relevant non-UCITS funds, subject to the potential end of the temporary exemption of such funds from the requirements of the PRIIPs Regulation; 
• Address the main regulatory issues that have been identified since the implementation of the PRIIPs KID to those products that are currently in scope. 

These proposals follow a previous consultation paper of the ESAs in November 2018 (CP 2018 60), which had similar aims, but which proposed more targeted amendments to the PRIIPs Delegated Regulation. Based on the feedback received to that consultation, as well as based on  the decision by the co-legislators to extend the exemption for UCITS, the ESAs decided in February 2019 to defer their review and launch a public consultation on more substantive changes later in 2019.

On 29 October 2019, the Council of the EU published its Declaration accompanying its latest decision on the extension of Brexit.

The Council notes that 

• the Withdrawal Agreement will enter into force on the first day of the month following the completion of the ratification procedures by the Parties during this period, which ends at the latest on 31 January 2020. 
• it excludes any reopening of the Withdrawal Agreement in the future and recalls that any unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement, and must not hamper its implementation. 
• during this further extension, the United Kingdom will remain a Member State until the new withdrawal date, with full rights and obligations in accordance with Article 50 TEU, including the obligation to suggest a candidate for appointment as a member of the Commission.

On 30 October 2019, the European Council Decision (EU) 2019/1810 taken in agreement with the United Kingdom of 29 October 2019 extending the period under Article 50(3)TEU was published on Official Journal of the European Union (OJ).

The European Council has adopted a decision to extend the period under Article 50.3 (of the Treaty on the European Union), in the context of the UK's intention to withdraw from the EU.

The extension will last until 31 January 2020 to allow more time for the ratification of the withdrawal agreement. The withdrawal can take place earlier on 1 December 2019 or 1 January 2020, if the withdrawal agreement is ratified by both parties.

For the duration of the extension the United Kingdom remains a member state with all the rights and obligations set out in the treaties and under EU law.

On 30 October 2019, the European Securities and Markets Authority (ESMA) informs about Brexit preparations.

The European Securities and Markets Authority (ESMA) wants to inform stakeholders that, following the European Council’s decision today extending the period under Article 50(3) relating to the United Kingdom’s (UK) withdrawal from the European Union (EU), its previous statements relating to its preparations for a no-deal Brexit on 31 October no longer apply.

On  7 October 2019, the European Securities and Markets Authority (ESMA) published its  statement on the publication of databases and IT-systems, including the update on 28 March 2019, informed the public of ESMA’s approach concerning the various transparency calculations in case of the United Kingdom (UK) leaving the European Union (EU) without a withdrawal agreement (no-deal Brexit). Following the European Council’s decision on 11 April the period under Article 50(3) TEU was extended resulting in a new potential no-deal Brexit date on 31 October 2019.  

In case of a no-deal Brexit on 31 October 2019, the UK Financial Conduct Authority (FCA) will stop sending data to ESMA and will no longer have access to ESMA’s IT applications and databases. Starting from 1 November 2019 no new UK-related data will be received and processed by ESMA nor published on the ESMA website.

This updated statement informs stakeholders on ESMA’s approach to all ESMA IT applications and databases in case of a no-deal Brexit on 31 October 2019 and focuses in particular on the MiFID II/MiFIR publications performed by the various ESMA databases (Financial Instruments Reference Database (FIRDS), Financial Instruments Transparency System (FITRS), double volume cap mechanism data (DVC system)) as well as the annual ancillary activity calculations).

On 7 October 2019, the European Securities and Markets Authority (ESMA)  issued this statement in relation to its approach to the application of some key MiFID II/MiFIR and BMR provisions in the event the United Kingdom (UK) leaves the European Union (EU) on 31 October 2019 without a withdrawal agreement (no-deal Brexit). 

There is still uncertainty, at the time of publication, as to the final timing and conditions of Brexit, should those change, ESMA may adjust its approach and inform the public of this adjusted approach as soon as possible.

This statement updates the issues covered in the statement published on 7 March 2019.The following MiFID II aspects are covered in this statement:  

• the C(6) carve-out,  
• the ESMA opinions on third-country trading venues for the purpose of post-trade transparency; and  
• the position limits regime and post-trade transparency for OTC transactions. 

This statement also covers the ITS on main indices and recognised exchanges under the Capital Requirenent Regulation CRR and the ESMA register of administrators and 3rd country benchmarks under the Benchmark Regulation (BMR). 

On the 2 October the European Securities and Markets Authority (ESMA) has updated its Questions and Answers (Q&As) regarding the implementation of the Central Securities Depository Regulation (CSDR).

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

The latest CSDR Q&A clarifies the scope of the cash penalties regime and more precisely the exemption applicable to insolvent participants. In particular, it specifies that it applies only to settlement fails caused by that participant or to those relating to the liquidation of its position.

On 7 October 2019, the Council of the EU adopted new rules on whistle-blowers protection, which will require the creation of safe channels for reporting both within an organisation - private or public - and to public authorities. It will also provide a high level of protection to whistle-blowers against retaliation, and require national authorities to adequately inform citizens and train public officials on how to deal with whistle-blowing.

The main elements of the compromise include:

• Creation of channels of reporting within companies/administrations
• Hierarchy of reporting channels
• A large number of profiles protected by the new rules
• A wide scope of application
• Support and protection measures for whistle-blowers
• Feedback obligations for authorities and companies.

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive two years after the date of entry into force of this Directive.

On the 2 October the European Securities and Markets Authority (ESMA) has issued an update of its Q&A on practical questions regarding data reporting issues, stemming from the European Markets Infrastructure Regulation (EMIR).

The Q&As clarify:

• OTC Question 2(h) on when counterparties that start taking positions in OTC derivatives need to notify the relevant NCAs and ESMA;
• OTC Question 4 on whether counterparties not subject to the clearing obligation should also obtain representation;
• OTC Question 13 on how a counterparty should determine whether an entity established in a third country would be an FC+/- or NFC+/- if it was established in the Union;
• TR Question 14 on how the derivatives should be reported in the scenario where a Clearing Member defaults and a CCP temporarily assumes both sides of the outstanding transactions;
• TR Question 17 on how to populate the fields Trading Venue and Compression for derivatives reported at position level; and
• • TR Question 53 on how to report derivatives based on €STR and other benchmarks that are not explicitly captured by the EMIR ITS.

On 10 October 2019, the Council of the EU published its statements on the Adoption of the Regulation of the European Parliament and of the Council amending Regulation (EU) No 648/2012  as regards the procedures and authorities involved for the authorisation of CCPs and requirements for the recognition of third-country CCPs.

The main amendments are:

• ESMA in cooperation with the ESCB, shall develop draft regulatory technical standards specifying the conditions under which additional services or activities that a CCP wishes to extend its business to are not covered by the initial authorisation and therefore require an extension of authorisation 
• the competent authorities of clearing members shall request the consent of the competent authority of the CCP to participate in the college, justifying the request based on their assessment of the impact the CCP’s financial distress may have on the financial stability of their respective Member State
• the central banks of issue of Union currencies of the financial instruments cleared or to be cleared by the CCPs
• the CCP’s competent authority shall publish on its website and notify to ESMA a list of the members of the college within 30 calendar days after the college’s establishment
• - where the CCP's competent authority does not agree with an opinion of the college, including any recommendations contained therein aimed at addressing shortcomings in the CCP's risk management procedures and increasing its resilience, its decision shall contain full reasons and an explanation of any significant deviation from that opinion or recommendations.

On 17 October 2019, the European Securities and Markets Authority (ESMA) published the results of a peer review it conducted into supervisory actions of six National Competent Authorities (NCAs) regarding their approaches at enhancing the quality of derivative data reported under the European Market Infrastructure Regulation (EMIR). 

This peer review complements ESMA’s Data Quality Action Plan (DQAP) in order to further improve the quality and usability of derivatives data.       

The review was targeted at the six NCAs who supervise important derivative markets in the European Union (EU) and have key counterparties reporting their derivative trades to EU Trade Repositories, namely: 

• the Netherlands Authority for the Financial Markets (AFM); 
• the French Authority of the Financial Market (AMF); 
• the German Federal Financial Supervisory Authority (BaFin); 
• the Central Bank of Ireland (CBoI); 
• the Cypriot Securities and Exchange Commission (CySEC); and 
• the UK Financial Conduct Authority (FCA).

In addition, ESMA was reviewed in its role as direct supervisor of Trade Repositories (TRs).

The peer review assessed how the seven Authorities supervised data quality under EMIR in the following areas: 

• NCAs’ supervisory approach to EMIR data quality; 
• Integration of EMIR data within the NCA’s overall supervisory approach; and 
• NCAs’ access, assessment and analysis of EMIR data quality. 

The review delivered mixed results for the six NCAs. The majority of NCAs had a supervisory approach to EMIR data quality in place. However, two NCAs lagged behind when it came to integrating EMIR data quality controls into their overall supervisory approach, which negatively impacted the NCAs’ ability to access, assess and analyse EMIR data.

The review also identified good supervisory practices by the seven Authorities. These good practices should be considered by all NCAs and, where appropriate, incorporated into existing supervisory approaches. ESMA has also put forward several initiatives to improve the supervision of EMIR’s data quality in the short and long-term. 

The short-term initiatives include: revising NCAs’ annual Data Quality Review exercises and identifying how NCAs can regularly use the data as part of their overall supervisory approach.

On the 3 October the European Securities and Markets Authority (ESMA) has published a consultation paper on the provisions of the Market Abuse Regulation (MAR) as requested by the European Commission. 

The consultation paper includes proposals affecting the investor community as a whole, but which are particularly relevant for issuers of financial instruments admitted to trading or traded on a trading venue and their management, investment firms and asset management companies.

The consultation paper addresses a wide range of issues, including:

• the possible inclusion of spot FX contracts within the scope of MAR;
• the definition and delayed disclosure of inside information in different cases;
• the appropriateness of the trading prohibition and insider lists for persons discharging managerial responsibilities (PDMRs);
• a possible cross-market order book surveillance framework;
• cum/ex and multiple withholding tax reclaim schemes; and
• cross-border enforcement of sanctions.

The consultation period is open until 29 November 2019. 

On 8 October 2019, the European Securities and Markets Authority (ESMA) issued its final report on a set of Regulatory Technical Standards (RTS) on the application of the Market Abuse Regulation (MAR).

ESMA’s RTS cover cooperation arrangements between national competent authorities and their counterparts in third-countries for the purpose of efficiently exchanging information and enforcing the obligations related to market abuse.

Market abuse can take many forms and concern different markets at the same time. As markets’ integration further increases, smooth cooperation between authorities, entities and public bodies is paramount in order to identify and deter abusive behaviour. 

ESMA has submitted these RTS for endorsement to the European Commission. Once fully implemented, these RTS will form part of the single rulebook for EU securities markets.

On the 2 October the European Securities and Markets Authority (ESMA) has updated its Questions and Answers (Q&As) regarding transparency and market structures issues under the Market in Financial Instruments Directive (MiFID II) and Regulation (MiFIR).

The updated Q&A for transparency issues clarifies that for ETFs there is only one average daily turnover (ADT) band from which to choose the highest threshold to be used to calculate the average value of transactions (AVT).

The amended Q&A for market structures issues clarifies how to interpret the application of the tick size regime to periodic auctions.

On the 3 October ESMA published an updated version of its public Register to inform market participants on the trading obligation for derivatives. 

Pursuant to Commission Delegated Regulation (EU) 2017/2417, several classes of interest rate derivatives denominated in EUR, GBP and USD as well as several classes of credit derivatives denominated in EUR are required to be traded on regulated markets (“RMs”), multilateral trading facilities (“MTFs”), organized trading facilities (“OTFs”) or third-country venues established in third-country in respect of which the European Commission has adopted an equivalence decision.

On the 3 October the European Securities and Markets Authority (ESMA) has 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 Q&As on MiFID II and MiFIR investor protection and intermediaries’ topics update answers on:

• Best execution – Disclosure of reports to the public
• Other issues – Drafting change on understanding the term “ongoing relationship”

The purpose of the MiFID II/MiFIR investor protection Q&As is to promote common supervisory approaches and practices in the application of MiFID II and MiFIR.

On 7 October 2019, the European Securities and Markets Authority (ESMA) updated its Questions and Answers on data reporting under the Market in Financial Instruments Regulation (MiFIR).

The new Q&As in section 17 provide clarifications in relation to the requirements for submission of reference data and transactions under MiFIR. In particular, the Q&As relate to reporting of FX forward financial instruments under art. 26 and art. 27 of MiFIR.

The amended Q&A in section 21 on national client identifiers for natural persons provides an update on how different national identifiers specified in Annex II of RTS 22 are represented, in particular the amendments are related to the new provisions for Portuguese and Romanian national client identifiers.

The amendments to the existing Q&A on MiFIR data reporting becomes effective from 07 October 2019.

On the 1 October ESMA issued the official translations of its Guidelines on risk factors under the Prospectus Regulation. The guidelines aim to encourage appropriate, focused and more streamlined disclosure of risk factors, in an easily analysable, concise and comprehensible form, by assisting competent authorities in their review of the specificity and materiality and of the

presentation of risk factors across categories. Although these guidelines are addressed to competent authorities, in order to expedite the process of approving prospectuses, RDs, URDs, SNs and any supplements thereto, persons responsible for the prospectus should consider these guidelines when preparing a prospectus for submission to the relevant competent authority.

On 18 October 2019, the European Commission launched the International Platform on Sustainable Finance (IPSF) together with relevant authorities from Argentina, Canada, Chile, China, India, Kenya, and Morocco as part of the international efforts to meet the Paris Agreement commitments.  The European Commission issued Frequently Asked Questions in order to clarify the role and objectives of the newly created platform.

The launch of this Platform is essential to stimulate investment and redirect capital flows towards our climate objectives at the scale required for the most important economic transition of our times. It will act as a forum for facilitating exchanges and, where relevant, coordinating efforts on initiatives and approaches to environmentally sustainable finance, while respecting national and regional contexts. It will focus on environmentally sustainable initiatives in particular in the areas of taxonomies, disclosures, standards and labels, which are fundamental for investors to identify and seize green investment opportunities worldwide. 

The IPSF is supported by the Coalition of Finance Ministers for Climate Action, the European Bank for Reconstruction and Development, the European Investment Bank, the International Organisation of Securities Commissions, the Network for Greening the Financial System, the Organisation for Economic Co-operation and Development, and the United Nations Environment Programme – Finance Initiative, in their role of observers. 

On 11 October 2019, the Council of the EU has issued its final assessment as regards the economic substance requirements under criterion 2.2 of the EU list of non-cooperative jurisdictions for tax purposes. 

The Council published its assessment for:

• the United Arab Emirates (UAE),
• the Marshall Islands,
• and the Cayman Islands.

According to this final assessment, the EU agrees that the UAE, the Marshall Islands and the Cayman Islands have implemented their commitment to introduce substance requirements under criterion 2.2.

On 11 October 2019, the Council of the EU has issued its final assessment of the Marshall Islands as regards the economic substance requirements under criterion 2.2 of the EU list of non-cooperative jurisdictions for tax purposes. 

On 15 August 2019, the Cabinet of the Marshall Islands adopted a new amendment to the Economic Substance Regulation. These amendments became part of the pre-existing Economic Substance Regulations, 2018 that remained applicable as of 1 January 2019. 

Therefore, the EU agrees that the Marshall Islands has implemented its commitment to introduce substance requirements under criterion 2.2.

On 11 October 2019, the Council of the EU has issued its final assessment of the Cayman Islands as regards the economic substance requirements under criterion 2.2 of the EU list of non-cooperative jurisdictions for tax purposes. 

On 3 May 2019, the Cayman Islands adopted a new Regulation and a new Guidance, amending the legislative framework on economic substance requirements. The Cayman Islands Cabinet subsequently approved on 10 September 2019 the International Tax Co-operation (Economic Substance) (Amendment of Schedule) (No. 3) Regulations, 2019, which were published in the official gazette on 11 September 2019 and took immediate effect. The amendment settles issues that were raised by the EU after the adoption of the new Regulation and Guidance. 

Therefore, the EU now agrees that - leaving aside the issue of collective investment funds - the Cayman Islands remains compliant with criterion 2.2. 

On the 22 October the Belgian Chamber of representatives issued a draft law amending the law of 19 April 2014 on alternative investment funds and their managers with a view to promoting impact funds.

Alternative investment funds may be offered to retail investors, including through a so-called private investment. In Belgium, the conditions in this area are however very restrictive, so that Belgian managers of impact investment funds are currently forced to create these funds in foreign law.

In order to allow the formation of Belgian-controlled impact investment funds, this proposal aims to facilitate access for Belgian private investors to impact funds. To this end, it is planned to reduce the minimum investment thresholds currently in effect for private placements from € 250,000 to € 10,000 per investor and per product and to authorize a public offering of impact funds, which invest loans, subject to compliance with applicable prospectus legislation.

On the 21 in October the NBB updated  its website devoted to anti-money laundering and counter-terrorist financing (AML/CFT). Changes have been made in particular to the pages of the site containing comments and recommendations from the NBB on various topics. 

On the 22 October FSMA published its opinion on the mention of the target market in prospectuses of issuers not subject to MiFID II.

The FSMA takes the view that it is preferable not to mention the target market in the prospectus of an issuer who is not subject to MiFID II as this information is not drafted by the issuer, does not concern the issuer and may be considered misleading.  

However, if the issuer and the manufacturer still want to include a target market clause, the FSMA considers that the inclusion of such information in the prospectus or in other documents relating to the offer is only possible provided certain conditions are met:

• The description of the target market may not be used as a selling restriction.
• It is not appropriate to include information in the prospectus that bears no relation to the objective pursued by it. This applies in particular to exemption clauses that concern the relationship between the manufacturer and the distributor or the final investors.
• The information about the target market must be consistent throughout the prospectus. For instance, requirements regarding the knowledge and experience of the investor, as included in risk factors, may not be contrary to those mentioned in the target market clause.
• The description of the target market should clearly mention that the investment firm in question is responsible and not the issuer (or the prospectus should at most mention that this issuer is only responsible for the accurate reflection of the information received from the manufacturer).

BACKGROUND

On 21 October 2019 the French government adopted Decree 2019-1068 transposing into French law the EU Council Directive 2018/822/EU on cross-border tax arrangements (‘DAC6’ or ‘EU MDR’). DAC6 has been in force since June 25, 2018.

Pursuant to the EU Council Directive 2018/822/EU regarding mandatory automatic exchange of information in the field of taxation with respect to reportable cross-border arrangements, intermediaries and taxpayers are subject to new reporting obligations involving certain cross-border tax planning arrangements. 

France had until December 31, 2019, to implement DAC6. The Decree closely follows the EU Directive’s scope, hallmarks and reporting requirements.

WHAT'S NEW?

The Decree adds the following new articles to the French tax code:

• Article 1649 AD, which defines the scope of the filing obligation;
• Article 1649 AE, which identifies the persons subject to the filing obligation;
• Article 1649 AF, which establishes the territorial priority rule when an intermediary or a taxpayer has a filing obligation in several EU member states;
• Article 1649 AG, which sets out the events triggering the filing obligation, as well as the deadline for submitting the information;
• Article 1649 AH, which codifies the hallmarks in the directive; and
• Article 1729 C ter, which sets out the applicable penalties for failure to comply with the filing obligation.

The Decree generally reflects the language in the directive and specifies the following:

• Filing requirement: An electronic cross-border arrangement return will have to be filed with the French tax authorities (FTA).
• Information to be reported: A decree will be issued in the future that will specify the information to be reported.
• Definition of “cross-border” arrangement: A “cross-border” arrangement is defined as any arrangement in the form of an agreement, a scheme or a plan, whether or not binding on the parties and involving France and any other country, as long as one of the relevant conditions under DAC 6 is fulfilled.
• Waiver of filing requirement: When several intermediaries are involved in setting up an arrangement, an intermediary will be granted a filing waiver if he/she can prove that:
  • A cross-border arrangement return containing all of the required information has been submitted by another intermediary in France or another EU member state; or
  • The intermediary has not received the notification filed by another intermediary in France or another EU member state and the other intermediaries or the taxpayers involved in the cross-border arrangement have received the requested notification.
• Intermediary subject to legal privilege: An intermediary subject to legal privilege will be required to submit the return to the FTA only if he/she has obtained specific authorization from his/her client.
• Definition of “first step”: The first step is defined as any legal act, economic or accounting operation or tax option realized in order to set up the cross-border arrangement.
• Penalties: DAC 6 leaves it up to the member states to establish penalties for failure to comply with the mandatory disclosure rules, provided the penalties are effective, proportionate and dissuasive. The ordinance sets the penalty for failure to comply with the reporting requirements at up to EUR 10,000 per unreported or unnotified arrangement. The penalty is limited to EUR 5,000 for a first infringement for the relevant year and the three preceding years.

No penalty will apply for failure to provide the annual update regarding the use of the cross-border arrangement reported for the previous year. 

The total amount of penalties that can be imposed on a single taxpayer or single intermediary may not exceed EUR 100,000 per year.

WHAT'S NEXT?

The Decree does not become effective until 1 July 2020. However, under a transition period, reportable arrangements will have to be disclosed where the first step of implementation takes place between 25 June 2018 and 1 July 2020 by 31 August 2020.

Version française

BACKGROUND

Le 21 octobre 2019, le gouvernement français a adopté le décret 2019-1068 transposant en droit français la directive du Conseil de l’UE 2018/822/UE sur le régime fiscal transfrontalier (DAC6). 

DAC6 est entrée en vigueur le 25 juin 2018.

Conformément à la directive DAC 6 relative à l'échange automatique et obligatoire d'informations dans le domaine fiscal en rapport avec les dispositifs transfrontières devant faire l’objet d’une déclaration, les intermédiaires et les contribuables sont soumis à de nouvelles obligations de déclaration en cas de dispositifs de planification fiscale transfrontalière.

La France avait jusqu'au 31 décembre 2019 pour mettre en œuvre la directive DAC6. Le décret suit de près le champ d’application de la directive européenne, ses caractéristiques et ses obligations en matière de rapports.

WHAT'S NEW?

Le décret ajoute les articles suivants au code des impôts français:

• l'article 1649 AD, qui définit le champ d'application de l'obligation de déclaration;
• l'article 1649 AE, qui identifie les personnes soumises à l'obligation de déclaration;
• l'article 1649 AF, qui établit la règle de priorité territoriale lorsqu'un intermédiaire ou un contribuable a une obligation de déclaration dans plusieurs États membres de l'UE;
• l'article 1649 AG, qui définit les événements à l'origine de l'obligation de déclaration, ainsi que le délai de transmission des informations;
• l'article 1649 AH, qui codifie les marqueurs repris par la directive; et
• l'article 1729 C ter, qui définit les sanctions applicables en cas de non-respect de l'obligation de déclaration.

Le décret reflète globalement le contenu de la directive et précise les éléments suivants:

• Obligation de déclaration: une déclaration électronique de transaction transfrontalière devra être produite auprès des autorités fiscales françaises.
• Informations à signaler: un décret précisant les informations à signaler sera publié.
• Définition du terme "dispositif transfrontalier"
• Exemption de l'obligation de déclaration: lorsque plusieurs intermédiaires participent à la mise en place d'un dispositif, un intermédiaire se voit accorder une dispense de déclaration s'il peut prouver que:
• Une déclaration de dispositif transfrontalier contenant toutes les informations requises a été soumis par un autre intermédiaire en France ou dans un autre État membre de l'UE; ou
• L'intermédiaire n'a pas reçu la notification déposée par un autre intermédiaire en France ou dans un autre État membre de l'UE mais  les autres intermédiaires ou les contribuables impliqués dans la transaction transfrontalière ont reçu la notification demandée.
• Intermédiaire assujetti au privilège légal: un intermédiaire assujetti au privilège légal ne sera tenu de soumettre le retour à l’administration fiscale française uniquement s'il a obtenu l'autorisation expresse de son client.
• Définition de «première étape»: la première étape est définie comme tout acte juridique, opération économique ou comptable ou option fiscale réalisée dans le but de mettre en place un dispositif transfrontalier.
• Sanctions: DAC 6 laisse aux États membres le soin d’établir des sanctions en cas de non-respect des règles de divulgation obligatoire, à condition que celles-ci soient efficaces, proportionnées et dissuasives. L'ordonnance fixe la sanction du non-respect des exigences en matière de déclaration à 10 000 EUR maximum par dispositif non signalé ou non notifié. La sanction est limitée à 5 000 EUR pour une première infraction pour l'année concernée et les trois années précédentes.

Aucune pénalité ne sera appliquée pour l'omission de fournir la mise à jour annuelle concernant l'utilisation de dispositif transfrontalier déclaré pour l'année précédente.

Le montant total des pénalités pouvant être infligées à un contribuable ou à un intermédiaire unique ne peut excéder 100 000 EUR par an.

WHAT'S NEXT?

Le décret n'entrera en vigueur que le 1er juillet 2020. Toutefois, dans le cadre d'une période de transition, les dispositifs mis en place entre le 25 juin 2018 et le 1er juillet 2020 devront être divulgués d'ici le 31 août 2020.

On 24 October 2019, France publishes in the Official Journal Decree 2019-1078 of 22 October 2019 concerning the extension of the list of eligible counterparties to investment operations in UCITS.

This decree aims at making  investment of UCITS more attractive and modernize the legal frame of asset management. The decree  extends the list of eligible counterparties allowed to invest in UCITS over-the-counter. It also aims at extending employee's shareholding in cooperative and mutual benefit banks.

Version française

Le 24 octobre 2019, la France a publié au Journal Officiel le Décret no 2019-1078 du 22 octobre 2019 élargissant la liste des contreparties éligibles aux opérations de placement des organismes de placement collectif.

L'objet du décret est de renforcer l'attractivité des OPCVM et moderniser le cadre juridique des gestions d'actifs. Le décret élargit la liste des contreparties éligibles aux opérations conclues par des organismes de placement collectif dans leurs opérations de gré à gré. Ce texte vise également à élargir l’actionnariat aux salariés notamment dans les banques coopératives et mutualistes. 

On 17 October 2019, the Autorité des marchés financiers (AMF) published Decision of 8 October 2019 concerning amendments to the functioning rules of Book I of Euronext Growth Paris following the entry into force of Prospectus Regulation 2017/1129.

The Decision approves the amendments made to the functioning rules of Book I of Euronext Growth Paris as presented in the annex.

Version française

Le 17 octobre 2019, l'Autorité des marchés financiers (AMF) a publié la Décision du 8 octobre 2019 relative aux modifications des règles de fonctionnement du Livre I d’Euronext Growth Paris suite à l’entrée en vigueur du règlement Prospectus n° 2017/1129.

La Décision approuve les modifications des règles de fonctionnement du livre I d’Euronext Growth Paris telles qu’annexées à la présente décision.

On 17 October 2019, the Autorité des marchés financiers (AMF) published Decision of 8 October 2019 concerning amendments of functioning rules of Euronext Growth Paris following the registration of SMN Euronext Growth Paris as a growth market of small and medium enterprises. 

The Decision approves the amendments made to the functioning rules of Book I of Euronext Growth Paris, specific to SMEs as presented in the annex.

Version française

Le 17 octobre 2019, l'Autorité des marchés financiers (AMF) a publié la Décision du 8 octobre 2019 relative aux modifications des règles de fonctionnement d’Euronext Growth Paris consécutives à l’enregistrement du SMN Euronext Growth Paris en tant que marché de croissance de petites et moyennes entreprises. 

La décision approuve les modifications des règles de fonctionnement d’Euronext Growth Paris telles qu’annexées à la présente décision.

On 22 October 2019, France publishes in the Official Journal Decree 2019-1067 of 21 October 2019 modifying provisions on securities' offers to the public. 

The Decree modifies French legislation so that the Prospectus Regulation, extending the notion of securities' offers to the public of private investment and crowdfunding, does not modify the current practices.

Version française

Le 22 octobre 2019, la France publie au Journal Officiel  l'Ordonnance no 2019-1067 du 21 octobre 2019 modifiant les dispositions relatives aux offres au public de titres.

Ce décret modifie la législation française afin que le Règlement Prospectus, étendant la notion d'offres au public de titres de droit privé et d'investissement participatif, ne modifie pas les pratiques actuelles.

On 24 October 2019, the Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) published a general ruling, increasing the threshold for directors' dealings to be reported to BaFin from EUR 5 000 to EUR 20 000 per year as of 1 January 2020.

On 29 October 2019, the Hong Kong Monetary Authority (HKMA) clarifies its expectations on Authorized Institutions on consumer protection under Open Application Programming Interface (API) Framework.

As set out in the HKMA publication dated 18 July 2018 on “Open API Framework for the Hong Kong Banking Sector”, the adoption of technology by AIs, including Open API, could bring benefits and efficiency gains to the banking industry and its customers through the development and delivery of innovative and integrated banking services that improve customer experience.  To achieve this policy objective, it is important for AIs to implement consumer protection measures when implementing the Open API Framework.  This will not only protect the interests of the customers, but also enhance customer confidence in using the relevant banking services and promote the healthy development of innovative technology in the banking industry.  

The HKMA remind AIs that they are expected to uphold consumer protection principles set out in the Code of Banking Practice and comply with other applicable regulatory requirements, regardless of the underlying technology adopted for their banking products and services, and whether AIs provide the products and services themselves or in partnership with third-party service providers (“TSPs”).   

On 23 September 2019, the amended Anti-Money Laundering and Counter-Terrorist Financing Ordinance (Cap. 615) was published in Hong Kong's Official Gazette. 

The following provisions were updated:

• Part 2 Requirements Relating to Customer Due Diligence and Record-keeping,
• Part 3 Supervision and Investigations,
• Part 5 Regulation of Operation of Money Service,
• Schedule 1 Interpretation,
• Schedule 2 Requirements Relating to Customer Due Diligence and Record-keeping.

On 31 October 2019, the Securities and Futures Commission (SFC) issued a circular to licensed corporations on the use of external electronic data storage providers (EDSPs).

The circular sets out requirements for when regulatory records (Note 2) are kept exclusively with an EDSP without a duplicate set of records at the premises of the licensed corporation, including the need to seek approval from the SFC (Note 3). It also conveys the SFC’s expectations for the mitigation of cyber and operational risks when electronic data storage is outsourced to an EDSP, regardless of whether regulatory records are kept with it exclusively.

In particular, the circular emphasises that the authenticity, integrity and reliability of regulatory records, as well as the ability to access them promptly, are crucial if the records are required to be produced in legal proceedings initiated by the SFC or the Department of Justice.

On 18 October 2019, the Statutory Instruments No. 509 of 2019 - Consumer Protection Act 2007 (Competition and Consumer Protection Commission) Levy Regulations 2019 was published on the Irish Statute Book. These Regulations provide for a levy scheme to fund the provision of information in relation to financial services including information in relation to the costs to consumers, the risks and benefits associated with the provision of those services and promoting the development of financial education and capability, in the year 2019. 

The SI applies for the levy period starting from 01 January 2019 and is ending on 31 December 2019 for different types of firms:

• Credit Institutions: Each credit institution shall pay, in respect of its liability for the year ended 31 December 2019, a levy calculated at the rate of €0.17604 per retail customer as at 31 December 2018. A minimum levy of €500 is payable by each credit institution. 
• Investment Firms: entities engaged in the receipt and transmission of orders, and/or provision of investment advice; entities engaged in portfolio management and execution of orders; entities engaged in own account trading and underwriting on a firm commitment basis.  Each of the financial service providers in Categories D2, D3, D4 shall pay, in respect of its liability for the year ended 31 December 2019, a levy calculated at the rate of €4.208 per retail client as at 31 December 2018. A minimum levy of €50 is payable by entities in these categories.   

On 26 October 2019, Italy has issued the Legislative Decree of 4 October 2019 No 125 on the Gazzetta Ufficiale, which implements the 5th AML Directive in the national legal framework,

This amends the Legislative Decrees of 25 May 2017 No 90 and 92 transposing AMLD4.

Inter alia, the Decree aims at:

• - Laying down enhanced KYC measures for banks when dealing with high risk third countries,
• - Introducing specific measures for the mitigation of risks in high risk third countries,
• - Banning the emission and use of anonymous e-money products.

On 11 October 2019, the Commission de Surveillance du Secteur Financier (CSSF) published a communication follows up on press releases 19/41 and 19/43 with respect to the mandatory notification in the context of Brexit and the opening of dedicated eDesk portals for this purpose on 2 August 2019 for a limited period of time. The communication consists of 2 parts:

1. Communication to UK managers which have not, as of date, submitted a notification through eDesk: These UK managers will therefore be required to seek, before 31 October 2019, the approval of the investors (and as the case may be, of the bondholders) of the AIFs they manage in order to remain a third-country manager for the eligible AIFs after the occurrence of a hard Brexit.

2. Communication to UK managers which already have submitted a notification through eDesk portals:  CSSF informs that, despite the earlier notification, it will be still possible to recall the notification submitted through the dedicated portal and proceed to seek the approval of the investors (and as the case may be, of the bondholders) of the AIFs managed in order to remain as a third-country manager for each such AIF after the occurrence of a hard Brexit.

On the 1 October the CSSF published a press release regarding UCI approval through eDesk.

In this press release, the CSSF  confirms that applications for new UCI approval (UCITS, UCI Part II, SIF and SICAR not yet registered on the official list) will have to be submitted as from 1 October 2019 via its new eDesk portal.  

However, in order to allow users to become familiar with this new portal, the CSSF has decided to put in place a transition period ending on 31 October 2019 during which requests for UCI approval may be submitted:  

• via email or secured e-file channels using the current dedicated Excel form, or 
• via the eDesk/UCI approval dedicated application.  

The transition periods last until the 1 November 2019.

On 10 October 2019, the Commission de Surveillance du secteur financier (CSSF) updated Form for any notification regarding branch establishment and amendments to the information included in such a notification, as regards to Article 17 of UCITS Directive and Article 33 of AIFMD.

On the 31 October ALFI submitted to ESMA its response to the consultation paper “Guidelines on performace fees in UCITS”. 

ALFI recommends a revision of the glossary in the introduction of the guidelines, and a clear definition of all terms used.

In particular, ALFI does not agree with ESMA’s own definition of HWM as it only refers to a “pure” HWM, whereby the performance fee becomes payable where the NAV per share exceeds the highest previous value ever recorded since the fund’s launch. The IOSCO 2004 Final Report on Elements of International Regulatory Standards on Fees and Expenses of Investment Funds additionally includes the definition of a HWM model variant known as the “high-on-high” (HoH). Accordingly, the performance fee is payable only if the NAV per share exceeds the highest previous value at which the last performance fee was accrued and paid out to the fund.

On 14 October 2019, the Commission de Surveillance du Secteur Financier (CSSF) issued press release 19/49, informing stakeholders of the results of the 2018 EMIR IFM questionnaire. 

In August 2018, the CSSF had addressed a questionnaire on Regulation (EU) n°648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (EMIR) to the investment fund managers (IFM) under its prudential supervision. The aim of this questionnaire was to collect a self-assessment from the IFM on the existence of adequate EMIR monitoring and oversight procedures to ensure that the IFM, and the funds under their management, comply with EMIR obligations. 

The review of the questionnaires revealed that generally, IFM need to improve the supervision and oversight of their EMIR obligations, with a small portion of IFM having potentially significant deficiencies. 

The CSSF specifically found a lack of formalization, the absence of adequate oversight when EMIR obligations are delegated to another entity, the misperception that derivative contracts concluded for hedging purposes would not be subject to EMIR obligations although they are, and the wrong conclusion by some registered AIFMs that they are out of scope of EMIR.

On 15 October 2019, the Commission de Surveillance du Secteur Financier (CSSF) has published an updated Fit & Proper declaration form for natural persons, which is to be used by significant institutions and follows a document published by the European Central Bank (ECB). 

The form shall support new management body  and authorized management applications submitted by Significant Institutions (SI). 

The appointee and the institution are jointly responsible for providing the CSSF and the ECB with complete and accurate information regarding the proposed appointment. Some of the statements to be provided in this declaration require that the institution and the appointee work together in close cooperation. If inaccurate or incomplete information is provided, this will lead to delays in the assessment or may make it impossible to take a positive decision. In addition to the specified information, both the appointee and the institution have a responsibility to disclose all matters that may be relevant to the assessment.

On 7 October 2019, the Commission de Surveillance du Secteur Financier (CSSF) updates its Q&As on the statuses of Professionals of the financial sector (PFS), as follows:

1. Question 6: Who is in charge of the daily management of a PFS which has the legal form of S.à r.l. (limited liability company)? 

Answer: In principle, the management board [conseil de gérance] of an S.à r.l. (limited liability company) exercises the daily management and is responsible for it. Nevertheless, the management board [conseil de gérance] may, in accordance with Article 710-15(4) of the Law of 10 August 1915 as amended by the Law of 10 August 2016, delegate the daily management to persons that do not necessarily have to be members of the management board [conseil de gérance].

2. Question 7: Can a legal person become a member of the board of directors or the management board [conseil de gérance] of a PFS? 

Answer: A legal person may become a member of the board of directors or the management board [conseil de gérance] of a PFS. Where a legal person is a member of the board of directors of a PFS, it must designate a permanent representative (Article 59a of the Law of 10 August 1915 on commercial companies; cf. Question 8 below).  A legal person may also become a member of the management board [conseil de gérance] of a PFS provided that the daily management of the PFS is entrusted to at least two other natural persons. The identity of the permanent representative, or, where such a representative was not designated, of all the persons representing the legal person in the management board [conseil de gérance] shall be communicated to the CSSF.  The natural persons representing a legal person shall fulfil the same conditions of professional standing as those of the legal person they represent.  A natural person may not be, at the same time, director in his own name and permanent representative, shareholder or economic beneficiary of a legal person director of an investment firm.

On 29 September 2019, the Grand-Ducal Regulation of 26 October 2019 amending the amended Grand-Ducal Regulation of 21 December 2017 concerning fees to be collected by the CSSF was published on Luxembourg's official journal.

Regarding the 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, and repealing Directive 2003/71/EC, the CSSF is the competent authority for the approval of prospectus for securities in Luxembourg. The fees be collected by the CSSF regarding this approval has been amended as folllowings:

• universal registration document: 5.000 euros. - a universal registration document which has been filed with the CSSF without prior approval under Article 9 (2) (2) of Regulation (EU) 2017/1129 shall be considered as officially deposited for approval, when it is used as a constituent part of a prospectus submitted to the CSSF for approval.
• summary regarding the third subparagraph of Article 26 (4) of Regulation (EU) 2017/1129: 700 euros: where (1) several supplements of the same issuer, or of several issuers belonging to the same group are officially deposited on the same day for the approval of the CSSF, (2) supplements are substantially identical, both in substance and in form, a fee of EUR 250 is due at the official filing of any supplement following that of the first supplement.
• with respect to each guarantor: 1.500 euros for prospectus to be published when securities are offered to the public or admitted to trading on a regulated market.

On 3 October 2019, the Decree of 9 September 2019 amending the Implementing Decree Wwft 2018 which transposes the 4th European Anti-Money Laundering Directive (AMLD 4) into Dutch law was published in the Official Gazette. 

This Decree revokes the obligation to report each transaction by or on behalf of a (legal) person residing or established or having his registered office in a high-risk third country (as designated under AMLD 4). The reason for this amendment is the burden of the reporting obligation, which would result in a huge increase in reports to the Dutch Financial Intelligence Unit (FIU). 

The Decree will enter into force at a time to be determined by Royal Decree, whereby an early entry into force of this change would be desirable according to the Minister of Finance.

On 17 October 2019, the Decree of 4 October 2019 determining the time of entry into force of the Decree of 9 September 2019 amending the Implementing Decree Wwft 2018 which transposes the 4th European Anti-Money Laundering Directive (AMLD 4) into Dutch law was published in the Official Gazette. 

The Decree of 9 September 2019 revokes the obligation to report each transaction by or on behalf of a (legal) person residing or established or having his registered office in a high-risk third country (as designated under AMLD 4). 

The current Royal Decree now determines that the Decree of 9 September 2019 will enter into force on 18 October 2019.

On the 21 October the Dutch Ministry of Finance published a Decision implementing the EMIR amending regulation.

This decision is intended to amend the Decree on the implementation of EU regulations on financial markets. The changes to this Decree include the designation of De Nederlandsche Bank (DNB) and the Netherlands Authority for the Financial Markets (AFM) as competent authorities with regard to the new provisions that will be included in the EMIR Regulation after the EMIR Amendment Regulation enters into force. In connection with this, the amendments to this Decree make it possible for DNB and the AFM to impose an order subject to a penalty or an administrative fine if the new provisions of the EMIR Regulation are violated.

On the 21 October the Dutch Ministry of Finance published a decree determining the time of entry into force of the Financial Markets Amendment Act 2019.

This decree regulates the further entry into force of the Financial Markets Amendment Act 2019. A number of elements have already entered into force on the day after the law was published. This involved parts A, E, G and I of Article I (see Article V, second paragraph, of the Act). For the rest, the law, with the exception of Article III, parts A and B, will enter into force at the fixed moment of change of January 1, 2020.

On 11 October 2019, the Dutch Banking Association (Nederlandse Vereniging van Banken, NVB) issued a press release in which it reports on the new possibility for American-Dutch people to prevent  a possible closing of their bank account due to new rules under the Foreign Account Tax Compliance Act (FATCA) of the US.

People with the American and Dutch nationality must pass on an American Social Security Number (SSN) or US  Individual Taxpayer Identification Number (TIN) to their bank. Yet, if American-Dutch people do not possess such SSN or TIN, they now also have the option to start a procedure for renouncing the American nationality. They can do so without having to file a tax return or having an SSN. Yet, to prevent a possible closing of the bank account, it is necessary to take action before the end of the year.

On 3 October 2019, the De Nederlandsche Bank (DNB) informs the public of the replacement of the e-Line DNB reporting portal by the new digital reporting portal "Digitaal Loket Rapportages" (DLR). 

The reporting for Alternative Investment Funds (AIFM) as required by the European Directive (the AIFMD) will migrate to the new reporting portal from 31 December 2019, i.e. the data for the fourth quarter of 2019 must be reported via the new portal. 

On 7 October 2019, the Swiss Federal Council informed the public that the Federal Tax Administration (FTA) has exchanged information on financial accounts with 75 countries. 

The exchange took place within the framework of the global standard on the automatic exchange of information (AEOI). 

Switzerland has committed itself to adopting the global standard for the international automatic exchange of information in tax matters. The legal basis for the implementation of the AEOI in Switzerland came into force on 1 January 2017.

Identification, account and financial information is exchanged, including name, address, state of residence and tax identification number, as well information concerning the reporting financial institution, account balance and capital income.

Next year, Switzerland's network of AEOI partner states will expand further, to around 90 countries. The OECD Global Forum on Transparency and Exchange of Information for Tax Purposes (Global Forum) reviews the implementation of the AEOI.

Version française

Le 7 octobre 2019, le Conseil Fédéral suisse informe le public que l'Administration fédérale des contributions (AFC) a échangé des renseignements sur des comptes financiers avec 75 États. L'échange s'inscrit dans le cadre de la norme mondiale sur l'échange automatique de renseignements (EAR).

La Suisse s'est engagée à adopter la norme mondiale pour un échange automatique des informations dans le domaine fiscal. Les bases légales régissant la mise en œuvre de l'EAR en Suisse sont entrées en vigueur le 1er janvier 2017. 

Les renseignements échangés comprennent des données d'identification, des données de comptes et des données financières, dont le nom, l'adresse, l'État de résidence et le numéro d'identification fiscale, ainsi que des indications sur l'institution financière déclarante, le solde du compte et les revenus du capital.

Le réseau de la Suisse sera encore étendu l'année prochaine et comptera alors 90 États partenaires. La mise en œuvre de l'EAR fait l'objet d'un examen mené par le Forum mondial sur la transparence et l'échange de renseignements à des fins fiscales de l'Organisation de coopération et de développement économiques.

On 18 October 2019, Der Bundesrat informs on a desire to strengthen the venture capital market and exchanges knowledge with the European Investment Fund.

On 18 October 2019, an exchange of knowledge between the European Investment Fund EIF and Swiss pension funds took place in Bern. The event was organized by the State Secretariat for Economic Affairs SECO in cooperation with the Federal Social Insurance Office (BSV) and the Swiss pension fund association ASIP to strengthen the venture capital market.

The EIF provided the pension funds with strategic and operational know-how about its investment policy. The pension funds may in future have a more significant role in the Swiss venture capital market. There is a growing interest in this asset class.

Version française

Le 18 octobre 2019, le Conseil fédéral a notifié sa volonté de renforcer le marché du capital-risque et de pratique un échange de connaissances avec le Fonds européen d’investissement.

Le 18 octobre 2019 le Fonds européen d’investissement (FEI) et les caisses de pensions suisses se sont rencontrés à Berne pour un échange de connaissances. Cet évènement a été organisé par le Secrétariat d’État à l’économie (SECO) en collaboration avec l’Office fédéral des assurances sociales (OFAS) et l’Association suisse des institutions de prévoyance (ASIP) dans le but de renforcer le marché du capital-risque.

Le FEI a transmis aux caisses de pensions un savoir-faire stratégique et opérationnel sur sa politique d’investissement. Les caisses de pensions pourraient à l’avenir assumer un rôle plus important sur le marché du capital-risque en Suisse en ce que cette catégorie de placement suscite en effet un intérêt croissant.

On 7 October 2019, the Swiss Funds & Asset Management Association (SFAMA) informed its stakeholders that a new brochure, produced by Swiss Sustainable Finance (SSF) in a joint project with Swiss Bankers Association (SBA), Swiss Funds & Asset Management Association (SFAMA) and Swiss Insurance Association (SIA), was published.

The brochure provides a comprehensive overview of Switzerland’s unique strengths in sustainable finance. It further illustrates how Switzerland is well-positioned to continue clearing a path for innovative products and solutions within the Swiss financial center.

Version française

Le 7 octobre 2019, la Swiss Funds & Asset Management Association (SFAMA) a informé les parties prenantes qu'une nouvelle brochure produit conjointement par la Swiss Sustainable Finance (SSF), la Swiss Funds & Asset Management Association (SFAMA) et l'Association suisse des banquiers (ASB) a été publiée.

La brochure présente en détail les atouts de la Suisse dans le domaine de la finance durable. Cette brochure montre à quel point la place financière suisse est remarquablement positionnée pour ouvrir davantage encore la voie vers des solutions innovantes et durables.

On 21 October 2019, the UK Government updated the advisory notice regarding the risks posed by unsatisfactory money laundering and terrorist financing controls in a number of jurisdictions.

The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (MLRs 2017) require firms to put policies and procedures in place in order to prevent activities related to money laundering and terrorist financing.

On 15 October 2019, the Information Commissioner’s Office (ICO) published further information on its ongoing Call for Input on developing the ICO framework for auditing AI. The publication discusses the challenges organisations may face in implementing mechanisms in AI systems that allow data subjects to exercise their rights of access, rectification and erasure, in particular:

• Rights relating to training data
• Right of access 
• Right to rectification
• Right to erasure 
• Rights relating to personal data involved in AI systems during deployment
• Rights relating to the model itself
• Fulfilling requests about data contained by design 
• Fulfilling requests about data contained by accident.

On 11 October 2019, the Financial Conduct Authority (FCA) ssued an update on steps certain firms need to take regarding MiFID, which provides important information to help firms prepare for a possible no-deal Brexit on 31 October.

Firms should consider these issues as part of their contingency planning:

• Brexit and MiFID transaction reporting: It is a crucial part of the FCA’s approach to market oversight, firms that are not able to comply fully with the regime at the time of the UK’s withdrawal from the EU will need to be able to back-report missing, incomplete or inaccurate transactions. This should be competed as soon as possible after 31 October 2019.
• Operation of the MiFID Transparency Regime post-exit: The FCA has provided an update to explain how the MiFID transparency regime will work if the UK leaves EU on 31 October at 23.00 without a deal. This statement covers FITRS, the DVC, equity and non-equity transparency, systematic internalisers, and tick sizes. It takes account of the most recent ESMA statement published on 7 October, which provides detail on the operation of ESMA databases and the performance of MiFID II calculations in the event of a no-deal Brexit. 
• Industry testing - FCA FITRS: As part of the development of the post-exit MiFID regime, industry testing for FCA FITRS (Financial Instruments Transparency System) will open on 10 October. 

On 11 October 2019, the Financial Conduct Authority (FCA) issued an update on steps certain firms need to take regarding the Temporary Permissions Regime (TPR).

If the UK leaves the EU without a deal, passporting will end. Any EEA passporting firm wishing to continue operating in the UK will need to notify the FCA by 30 October that they wish to enter the Temporary Permissions Regime (TPR). Fund managers have until 16 October 2019 to inform the FCA if they want to make changes to their existing notification. 

After exit, firms who notified the FCA of their intention to use the TPR will be contacted and provided with a landing slot when they will need to submit their application for full UK authorization. Upon authorization, FCA will generally expect firms to have a physical presence in the UK to help ensure effective supervision. FCA will be consulting on its approach and expectations shortly.

Credit institutions and insurers should note that it is no longer possible to submit a notification to enter the regime.

On 24 October 2019, the statutory instrument S.I. 2019 No. 1390 - Financial Services (Miscellaneous) (Amendment) (EU Exit) (No. 3) Regulations 2019 was published on UK legislation.

The statutory instrument provides miscellaneous amendments to:

• Criminal Justice Act 1993 
• Insider Dealing (Securities and Regulated Markets) Order 1994
• Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017
• Data Reporting Services Regulations 2017
• Electronic Commerce and Solvency 2 (Amendment etc.) (EU Exit) Regulations 2019 
• Equivalence Determinations for Financial Services and Miscellaneous Provisions (Amendment etc) (EU Exit) Regulations 2019
• Financial Regulators’ Powers (Technical Standards etc.) (Amendment) (EU Exit) Regulations 2018 
• Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 
• Money Market Funds (Amendment) (EU Exit) Regulations 2019
• Solvency 2 and Insurance (Amendment, etc.) (EU Exit) Regulations 2019
• Securitisation (Amendment) (EU Exit) Regulations 2019
• Public Record, Disclosure of Information and Co-operation (Financial Services) (Amendment) (EU Exit) Regulations 2019 
• Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019.

On 30 October 2019,  the Financial Conduct Authority (FCA) published its statement that UK’s exit from the EU has been delayed.

The EU and the UK have agreed to extend the date for the UK’s departure from the EU. As a result, firms do not need to take action to implement Brexit contingency plans for 31 October.

The FCA will be extending the date by which firms and funds should notify it for entry into the temporary permissions regime (TPR) to 30 January 2020. Fund managers will have until 15 January 2020 to inform the FCA if they want to make changes to their existing notification.

Firms should continue to comply with existing regulatory requirements, including those relating to MiFID transaction reporting and EMIR trade reporting requirements. The arrangements described in our press release of 11 October are suspended and we expect firms to continue to report as normal.

On 30 October 2019, the Financial Conduct Authority (FCA) published the revised direction for Collective Investment Schemes. The direction amends the previous versions in the FCA Handbook and extend the notification period for firms wanting to enter the temporary permissions regime to 30 January 2020.

On 30 October 2019, the Financial Conduct Authority (FCA) published the revised direction for EEA Firms with Passport Rights. The direction amends the previous versions in the FCA Handbook and extend the notification period for firms wanting to enter the temporary permissions regime to 30 January 2020.

On 30 October 2019, the Financial Conduct Authority (FCA) published the revised direction for Alternative Investment Fund Managers. The direction amends the previous versions in the FCA Handbook and extend the notification period for firms wanting to enter the temporary permissions regime to 30 January 2020.

On 4 October 2019, the Prudential Regulation Authority (PRA) published Policy Statement PS23/19 - Enforcement: Changes to the PRA’s settlement policy - PS23/19.

This PS is relevant to PRA-authorised persons, qualifying parent undertakings, persons who are or have been auditors or actuaries of a PRA-authorised person, senior managers and certified employees at firms, and all individuals involved in providing financial services to PRA-authorised persons. 

In the CP the PRA proposed, by way of amendment to the SoP, to:

• simplify the PRA’s settlement discount scheme (by retaining a 30% penalty discount for early settlement and removing the 20% and 10% discounts available for settlement in later stages of an enforcement action); and
• clarify and make more transparent the PRA’s procedures for settlement.

On 7 October 2019, the Prudential Regulation Authority (PRA) published the Occasional Consultation Paper CP25/19 which proposes minor amendments to Prudential Regulation Authority (PRA) Rulebook Parts, supervisory statements (SSs), statements of policy (SoPs) and the relevant templates.

These amendments are relevant to different firms, as follows:

• Chapters 2 and 5 - all firms to which CRD IV applies, and Chapter 2 additionally to building societies;
• Chapter 3 - UK banks, building societies, credit unions, PRA-designated investment firms, UK Solvency II insurance firms, third country insurance branches within the scope of the PRA’s rules transposing the Solvency II Directive, and the Society of Lloyd's and managing agents; and
• Chapter 4 – Reporting updates; UK banks, building societies and PRA-designated investment firms.

The chapters contained in this CP, the Rulebook Parts, SSs, SoP, and relevant templates they propose to change, and the appendices containing the draft policy, such as:

• Removing references to LIBOR
• Senior Managers regime – updating references and corrections
• Reporting updates for Capital+ and Ring?fenced bodies
• Retirement interest-only mortgages

The consultation period:

• for Chapter 4 of this CP: by Monday 18 November 2019. This would allow the PRA to make the proposed changes to the templates and allow firms time to implement them before they would take effect on Sunday 1 March 2020 and Monday 1 June 2020 (see Appendix 5).
• for the remaining chapters: by Monday 9 December 2019.

On 14 October 2019, the Financial Conduct Authority (FCA) published feedback for the new data collection platform replacing Gabriel system.

The feedback highlighted these key areas for improvements:

1. Accessing Gabriel – the feedback focused on the need for improvements to the speed of the system and support when accessing the system.
2. Viewing Gabriel reporting schedule – largely related to the need for changes in the layout of the schedules and in viewing previous data submissions.
3. Submitting data –  included the need for better guidance when making a data submission and advancements to the system’s data validation processes.

The new platform will allow FCA to fix issues quicker and sooner. FCA will also improve the support guidance to make it easier to know where to go for help. Users will be able to see previous submissions made in Gabriel and FCA is exploring ways to improve validations.

On 29 October 2019, the UK Parliament introduced the  Financial Services Duty of Care Bill 2019-20 which requires the Financial Conduct Authority to make rules for authorized persons

to owe a duty of care to consumers in their regulated activities.

According to this Bill, the Financial Services and Markets Act 2000 will include one more session on FCA general rules- duty of care, in which:

• The power of the FCA to make general rules includes the power to introduce a duty of care owed by authorized persons to consumers in carrying out regulated activities under this Act.
• “Duty of care” means an obligation to exercise reasonable care and skill when providing a product or service.

On 3 October 2019, the Financial Conduct Authority (FCA) published its Guidance consultations GC19/4 for:

• The amendment of one existing technical note: FCA/TN/409.1 - Master-feeder structures
• The addition of one new technical note: FCA/TN/411.1 - Class testing changes to an investment management agreement where there are unquantifiable benefits

This guidance is likely to be of most relevance to issuers of transferable securities and their advisers, investors and other persons who interact with FCA.

FCA will receive comments on these proposal by 14 November 2019.

On 18 October 2019, the Financial Conduct Authority (FCA) published a letter on its expectations on the application of the Suspicious Activity Reports (SARs) and Suspicious Transaction and Order Reports (STORs) regimes to firms, which was sent to the UK Finance on 6 September 2019. The letter concerns about:

• Responsible authorities: FCA receives STORs from firms, while National Crime Agency (NCA) is responsible for receiving SARs.
• Relevant offences: There is significant overlap between MAR's definition of market abuse and certain financial crimes. It is therefore common that a firm becomes aware of, or reasonably suspects, both the civil offence of market abuse (as described by MAR) and financial crime through a single suspicious order or transaction.
• Reporting requirements: The requirement to notify the FCA applies to firms which are registered or have their head office in the UK or, in case of a branch, where the branch is in the UK and only applies to suspected breaches of MAR. 
• Guidance: FCA's Financial Crime Guide.

On 4 October 2019, the Financial Conduct Authority (FCA) published its Technical Guide for the Financial Instruments Transparency System, which provides instructions on access and download of full and delta transparency files.

The purpose of this document is to provide:  

• details on the files containing UK only transparency calculation results that FCA will publish; and  
• instructions on how to access these files. 

The FCA FITRS transparency results files are calculated from transparency data collected from:  

• UK trading venues; and 
• UK approved publication arrangements (APAs). 

On 4 October 2019, the Financial Conduct Authority (FCA) published the plan for industry tests of FCA FITRS (Financial Instrument Transparency System) which will run from 10 October to 25 October 2019.

If the UK leaves the EU without an implementation period, UK trading venues and Approved Publication Arrangements (APAs) must continue to send the FCA daily quantitative and/or reference data (depending on which of these applies to firms). The timing and the format of data submissions will not change after Brexit.

For all transactions that meet the scope of the UK onshored regulations, FCA also expects UK firms to use the UK-specific transparency results found in FCA FITRS ??????instead of the ESMA FITRS system.

On 24 October 2019, the Financial Reporting Council (FRC) published the final UK Stewardship Code 2020, which sets high expectations of those investing money on behalf of UK savers and pensioners. In particular, the new Code establishes a clear benchmark for stewardship as the responsible allocation, management and oversight of capital to create long-term value for clients and beneficiaries leading to sustainable benefits for the economy, the environment and society.

The Code consists of 12 Principles for asset managers and asset owners, and six Principles for service providers. These are supported by reporting expectations which indicate the information that should be publicly reported in order to become a signatory. 

Organisations wanting to become signatories to the Code will be required to produce an annual Stewardship Report explaining how they have applied the Code in the previous 12 months. The FRC will evaluate Reports against our assessment framework, and those that meet the reporting expectations will be listed as signatories to the Code. To be included in the first list of signatories, organisations must submit a final report to the FRC by 31 March 2021.

On 24 October 2019, the Financial Conduct Authority (FCA) published Feedback statements FS19/7: Building a regulatory framework for effective stewardship., which responds to the views FCA received for the related Discussion Paper DP 19/1.

This FS will be of interest to those directly engaged in stewardship or with an interest in the outcomes of these activities. These include: 

• FCA-regulated asset management firms and life insurers 
• pension providers, pension scheme operators and pension scheme trustees 
• current and future signatories to the UK Stewardship Code 
• proxy advisors, investment consultants and other service providers 
• public companies, issuers of debt and their advisors 
• policy-makers and regulatory bodies 
• industry groups, trade bodies, consumer groups, individual consumers, charities and civil society groups, industry experts and commentators, academics and think tanks.

FCA's actions build on existing initiatives, some of which were announced in its Feedback Statement on climate change and green finance (FS19/6). They include:

• Examining how asset owners set and communicate their stewardship objectives and taking actions to promote arrangements between asset owners, asset managers and service providers that support these objectives.
• Helping to address regulatory, informational and structural barriers to effective stewardship practices, including by consulting on rule changes to enhance issuers’ climate change disclosures.
• Considering further the role of firms’ culture, governance and leadership in both the management of climate risks and the exercise of stewardship.
• Pursuing a number of actions to promote better disclosure of firms’ stewardship practices and outcomes.

FCA will consider the need for any further actions as the UK Stewardship Code 2020 takes effect, so that the regulatory framework continues to support effective stewardship.

On 24 October 2019, the Financial Action Task Force (FATF) published Best practices on Beneficial Ownership for Legal Persons to help countries get rid of the cloak of secrecy concerning the ultimate owner of a company, foundation, association or any other legal person, and prevent their misuse for crime and terrorism as anonymous shell companies are one of the most widely used methods for laundering the proceeds of crime and corruption. 

The report identifies the most common challenges that countries face in ensuring that the beneficial owner(s) of legal persons is identified, and suggests key features of an effective system. The paper also suggests options for jurisdictions to obtain beneficial ownership information of overseas entities.