Brexit updates - The FCA and the SEC (US Securities and Exchange Commission) have signed updated Memoranda of Understanding

The regulatory authorities of the UK and the US signed updated Memoranda of Understanding (MoUs) to ensure the continued ability to cooperate and consult with each other regarding the efficient oversight of regulated entities across national borders. The MoUs were updated as part of preparations for Brexit.

The two MoUs were originally created in 2006 and 2013 respectively. The oldest facilitates supervisory arrangements covering regulated entities that operate across national borders. The MoU was updated to cover the scope of firms covered to include firms that conduct derivatives, credit rating and derivatives trade repository business to reflect (i) post-financial crisis reforms related to derivatives and (ii) the FCA’s assumption of the responsibility from ESMA for overseeing credit rating agencies and trade repositories in the event of the UK’s withdrawal from the EU.

The more recent MoU, was required under the UK’s AIFM (Alternative Investment Fund Managers) Regulations 2013 and provides a framework of supervisory co-operation and exchange of information relating to the supervision of covered entities in the alternative investment fund industry. The updates to the MoU ensure that investment advisers, fund managers, private funds and other covered entities in the alternative investment fund industry are regulated by the SEC and the FCA will be able to continue to operate on cross-border basis without interruption, regardless of the outcome of the UK’s withdrawal from the EU.

The updated MoUs will be in effect from the date that EU legislation does not have direct effect in the UK.

Brexit updates

TPR notification period extended

Following the EU's decision to agree to a short extension to the Article 50 period, the FCA and PRA have confirmed on their respective websites that they intend to extend the notification window for firms wishing to enter the Temporary Permissions Regime will be extended from end of 28 March to the end of 11 April 2019.

The FCA’s webpage will be updated with further information, including the Directions giving effect to the extension, in due course.

Withdrawing from the TPR

On 25 March, the FCA updated its Temporary Permissions Regime (TPR) webpage to announce the publication of supplementary Directions which confirm that a firm may withdraw its notification to enter the TPR in writing to the FCA before exit day. In this case, such firm will not enter the TPR.

The PRA previously published an equivalent direction for dual authorised firms.

FCA Dear CEO letter on managing risks of DB to DC transfers

On 22 March, the FCA published a Dear CEO letter following the conclusion of its review of pension providers which was part of its work to evaluate and reduce the risks of harm to consumers arising from the transfer of funds from their defined benefit (DB) schemes to defined contribution (DC) products.

The letter sets out what the FCA expects of pension providers when designing, marketing and providing pension products in the following areas (although the expectations are likely to also be relevant for providers of non-pension products):

  • Product design and target market
  • The information given to distributors
  • Procedures to check FCA permissions of advisers
  • Management Information
  • Remuneration structures
  • Governance and risk management, and
  • Documentation and tools.

The FCA expect providers to gain assurance that they have appropriately implemented and fully comply with the recommendations of PROD, the RPPD and all relevant rules and regulations.

FCA Speech – Brexit and Beyond

Amongst many other things, in her speech delivered by to the City and Financial 4th UK Financial Services Brexit Summit on 21 March, Nausicaa Delfas, Executive Director of International at the FCA, flagged some residual risks, despite all the regulatory work seeking to avoid the ‘cliff-edge’ risk of a no-deal Brexit.

  • UK and global banks are transferring activities to EU-incorporated entities, but are to some extent dependent on their clients agreeing to move contracts to these new entities; the FCA is aware there is varying progress with this.
  • The process of migrating businesses, assets and contracts in a short period could pose operational risks.
  • The issue of contract continuity. The EU does not have a pan-European equivalent to the UK’s Temporary Permissions and Financial Services Contracts regimes. While some Member States are taking action, and firms are taking their own action, there are likely to be some remaining areas where the legal risks relating to the ongoing service of existing customers have not been fully mitigated.
  • There are the implications of a lack of equivalence in certain areas. For example, the EU’s trading obligation for shares and derivatives will require EU firms to trade these instruments on EU or equivalent venues.

As regards the third bullet in particular, the FCA is encouraging firms to take the steps they can to act lawfully and consistent with local regulators’ expectations, and equally to ensure their decisions are guided by what is the right outcome for consumers, recognising that it will often be a poor outcome for consumers if firms simply stop servicing them.

Nausicaa’s overriding message was that we will continue to work in pragmatic way with firms, and firms should raise any concerns or issues with the FCA, as early as possible.

FCA fines The Carphone Warehouse £29 million for insurance misselling

On 13 March 2019, the FCA published its final notice to The Carphone Warehouse Ltd (CPW), fining it £29,107,600 for failings that led to the misselling of its mobile phone insurance and technical support product, 'Geek Squad'.

The FCA found that, between 1 December 2008 and 30 June 2015, CPW breached Principle 3 (Management and control), Principle 6 (Customers' interests) and Principle 9 (Customers: relationships of trust) of the FCA's Principles for Businesses. During the relevant period, CPW made regulated sales of Geek Squad policies worth c. £445 million.

CPW operated an advised sales process for Geek Squad, but failed to equip its sales consultant properly to establish the customer’s demands and needs and to undertake an assessment of whether Geek Squad was suitable for the customer. In particular:

  • The focus of the training given to sales consultants was on selling Geek Squad. They were not trained to properly assess a customer’s demands and needs and to make a suitable recommendation. Instead, they were trained to ask questions in order to help identify reasons why the customer 'needed' Geek Squad, in order to persuade them to purchase it.
  • Insufficient guidance was provided to sales consultants on circumstances where it may not be appropriate to recommend Geek Squad.
  • Sales consultants were trained in 'objection handling', which undermined the advised sales process, and to encourage customers to purchase Geek Squad and to cancel it within 14 days if they found that they did not need it. This created a risk that customers would purchase insurance that they did not need and would be exposed to the risk of paying for it if they did not cancel in time.
  • Sales consultants were not trained to tell customers that they were making a personal recommendation, or that there was only one kind of insurance policy that they could sell, despite an obligation to do so. As a result, there was a risk that customers would not understand that they should disclose relevant information to help the sales consultant provide proper advice, and they would not have been aware of the limitations on the scope of the advice that the sales consultant was able to give.

These failings created a risk that CPW’s sales consultants would fail to give suitable advice to customers. It is evident from cancellation calls received by CPW that this risk crystallised during the relevant period with customers confirming that they had been pressured into purchasing Geek Squad, told it was compulsory or sold on the basis that it could be cancelled at a later date. For example, one customer stated “I just want to cancel the policy. I had to take it on because when I got a new phone…it was shop policy to get it and I’ve been told I can cancel it if I needed to”.

A committee of CPW’s Board was ultimately responsible for the compliance of CPW’s advised sales of Geek Squad. It relied on MI which was flawed, and as a result the Committee was not provided with sufficient information to be able to identify and/or address the risk of mis-selling.

Furthermore, CPW’s systems and controls for handling complaints were defective, and CPW did not properly investigate and fairly consider complaints.

Brexit update – FCA Briefings

This week we attended the FCA’s London Brexit Briefing. The FCA covered the following aspects of its approach to managing the impact of Brexit and how it may affect firms:

  • passporting rights
  • the Temporary Permissions regime and the Financial Services Contracts Regime
  • Investment Funds
  • UK branches of overseas firms
  • MiFID, GDPR and the Shareholder’s Rights Directive II
  • the FCA’s transitional powers
  • consumers
  • trading venues.

The key takeaways for firms from the FCA were as follows:

  • know how your firm will be affected and take legal advice if necessary
  • understand all issues that will affect your firm
  • clearly communicate any changes to affected customers.

If we can assist in your firms’ preparations for Brexit, please do let us know.

Dear CEO Letter: Loan-based P2P crowdfunding platforms asked to review wind-down arrangements

The FCA has written a Dear CEO letter to firms operating loan-based peer-to-peer ("P2P”) crowdfunding platforms requesting they review their wind-down arrangements.

The FCA is concerned that some operators of P2P platforms have inadequate wind-down arrangements which could cause considerable harm to consumers if the operator ceased to provide management and administration services for existing P2P agreements. In such an eventuality, investors might not receive some or all of the loan repayments or might otherwise need to recover repayments directly from the borrowers (which may not be economically viable where the investor has P2P agreements with a large number of borrowers).

The FCA reminds firms of their obligations under SYSC 4.1.8AR to take reasonable steps to ensure they have arrangements in place to ensure that P2P agreements will continue to be managed and administered if the platform ceases to operate. The FCA has identified the following three main areas requiring urgent attention:

  1. Systems and controls relating to wind-down: The FCA believes that some firms are not taking reasonable steps to put wind-down arrangements in place. The FCA recommends that firms consider the FCA’s Wind-down Planning Guide when reviewing its wind-down plans (“WDPs”). As part of its planning, firms should (amongst other things) develop realistic scenarios in which its business would no longer be viable and identify and monitor the triggers that would invoke an orderly wind-down.
  2. Platform funding and remuneration models: Firms should consider how their WDPs will be funded. The FCA is concerned that some platforms are likely to experience a dwindling amount of fee and spread income from the loan books they manage. Consequently, it may make it difficult to sell the P2P platform to potential buyers and ensure the continued management and administration of existing P2P agreements. The FCA therefore expects all WDPs to include how expenses of a wind-down will be covered.
  3. Third-party permissions required for wind-down: Where WDPs include entering into an arrangement with another firm to take over the management and administration of P2P agreements, the FCA expects the firm to consider both (i) what regulated activities the other firm would be carrying out if the wind-down arrangements were initiated and (ii) whether the other firm has the appropriate permissions to carry out those activities.

The Dear CEO Letter follows the FCA’s consultation last year on loan based and investment based crowdfunding platforms (CP 18/20), in which the FCA expressed some concerns over wind-down arrangements. The FCA’s policy statement is expected in the second quarter of this year.


The FCA provides some clarity on Brexit requirements following CPs

Following the recent flurry of CPs, in the run up to the 29 March 2019 ('Exit Day') the FCA has published PS19/5, its Brexit policy statement, to provide some additional clarity on what would happen for UK financial services if the UK leaves the EU without a withdrawal deal or implementation period (i.e. 'no-deal'). The PS also adds in some additional changes required to ensure the Handbook is operable on Exit Day. The FCA have provided that they are continuing to maintain the same approach, i.e. 'treating the EU and its Member States in the same was as non-EU or third countries after exit day.'

As a recap on the CPs that have been issued prior to this PS, the FCA has published the following CP to consult on the impact of Brexit to date:

  • CP18/28 - Brexit – Changes to Handbook and Binding Technical Standards ('BTS')
  • CP18/29 - TPR for inbound firms and funds
  • CP18/34 - Regulatory fees and levies for 2019/20
  • CP18/36 - Brexit – Changes to Handbook and BTS
  • CP19/2 - Brexit and contractual continuity.

A theme of the responses the FCA received was the concern that there was insufficient time to comply with the requirements and the lack of clarity on the transitional relief available for certain parties. In addition, there are other practical changes that will need to be made to the Handbook such as removing references to sharing information with European Supervisory Authorities, references to the official language of the Member State or to information being submitted in languages other than English etc. Apart from certain matters that were not dealt with by the CPs, the PS provides confirmation that the majority of proposals raised in the CPs will be proceeded with.


CMA consults on expanding scope of market investigation to include pre-paid funeral plans

On 28 February 2019, the CMA published a consultation seeking views on whether, if it decided to make a market investigation reference, the scope of that reference should funeral services supplied by funeral directors in the United Kingdom arising from the redemption of pre-paid funeral plans.

Originally the market study notice issued by the CMA (1 June 2018) was not intended to include such services but following feedback that the CMA has received it is seeking views on whether the review should be opened up to also include them. The CMA is requesting responses on this point up until the 13 March 2019.

The reason for the original market study notice was concerns regarding: high funeral prices; significant price increases; price differentials; lack of transparency about pricing; difficulties in comparing funeral packages; and consumer protection concerns in relation to pre-aid funeral plans. On 29 November 2018, the CMA published its interim report; it considered that the statutory test for a market investigation reference are met.

Alongside the CMA review the Government consulted in June 2018 on reviewing and strengthening the regulation in the sector by bringing all pre-paid funeral plans into the remit of the FCA. The matters that the Government intend to focus on are: (i) how the pre-paid funeral plan market currently operates; (ii) the potential risk of consumer detriment under the current regulatory framework; and (iii) the initial policy proposal to amend the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (RAO) to allow for additional regulation of the sector by the FCA.


Ban on cold-calling for pensions

The Privacy and Electronic Communications (Amendment) (No.2) Regulations came into force in January 2019. They introduce a ban for cold calling in relation to pensions, with certain exclusions.

In particular the regulations introduce restrictions on ‘calls for direct marketing in relation to pension schemes’. This includes:

  • the marketing of a product or service to be acquired using funds held, or previously held, in a pension scheme
  • the offer of any advice or other service that promotes, or promotes the consideration of, the withdrawal or transfer of funds from a pension scheme
  • the offer of any advice or other service to enable the assessment of the performance of a pension scheme (including its performance in comparison with other forms of investment).

‘Public electronic communications services’ cannot be used to make unsolicited calls for the purposes of direct marketing in relation to pension schemes, except in certain situations.

Such situations include:

  • if the caller is an authorised person or a person who is the trustee or manager of a pension scheme
  • the recipient has previously notified the caller that for the time being she/he consents to such calls being made by the caller on that line
  • if there is an existing client relationship with the caller such that the recipient might reasonably envisage receiving unsolicited calls for the purpose of direct marketing in relation to pension schemes; and the recipient of the call has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal).

Failure to comply with these new requirements in relation to cold calling, may be liable to pay compensation to the victim and may be subject to enforcement action by the Information Commissioner’s Office under the Data Protection Act 1998. Potential fines for breach extend to £500,000 and an enforcement notice.

Please read more regarding the pensions cold calling ban in the following article: The long awaited ban on cold-calling in relation to pensions comes into force.


Brexit update – Insurance

On 19 February 2019, EIOPA published recommendations providing guidance to national competent authorities (NCAs) on the treatment of UK and Gibralta insurers and distributors providing cross-border services in the EU in the event of a no-deal Brexit.

The general objective of the recommendations is to foster convergence and consistent supervisory approaches in the treatment of UK insurance undertakings and distributors across Member States by setting out guidance on the application of the existing legal framework considering arrangements between EU and non-EU counterparties.

The recommendations relate to such matters as:

Orderly run-off - NCAs should provide a legal mechanism to facilitate the orderly run-off of cross-border business, or they should require the insurers to become authorised in the EU. NCAs should prevent UK insurers from undertaking new cross border business without authorisaton. This is without prejudice to policyholder rights to exercise an option or right in an existing insurance contract to realise their pension benefits.

NCAs should make every effort to supervise the cross-border business of UK insurance undertakings in their jurisdictions. The supervision should be risk-based and take into account proportionality.

Authorisation of third-country branches - UK insurance undertakings may seek authorisation to carry out cross-border business through a branch in a Member State. In assessing whether the legal conditions for the authorisation of such a branch are fulfilled, NCAs should apply the principle of proportionality and take into account that the UK insurance undertaking was subject to Solvency II requirements before the UK’s withdrawal. Where it would accelerate the authorisation procedure, NCAs should consider restricting the authorisation of the branch to the run-off of existing business.

Portfolio transfers – NCAs should allow the finalisation of portfolio transfers from UK to EU27 insurance undertakings, provided that it was initiated before the withdrawal date.

Change in the residence or establishment of a policyholder - Where a UK policyholder concluded a life insurance contract (or a general insurance contract, other than buildings, contents or motor) with a UK insurance undertaking and afterwards changed its residence to a EU27 Member State, NCAs should take into account in the supervisory review that the insurance contract was concluded in the UK and the UK insurance undertaking did not provide cross-border services for the EU27 for this contract.

Communication to policyholders and beneficiaries - UK insurance undertakings with cross-border business in the EU27 must disclose to the policyholders and beneficiaries of those contracts, the consequences of Brexit on their rights and obligations. NCAs should remove the UK insurance undertakings from the national register of insurance undertakings on Exit Day and inform the public about the legal framework applicable to the cross-border business of UK insurance undertakings.

Distribution activities – NCAs should ensure that UK intermediaries and entities which intend to continue or commence distribution activities to EU27 policyholders and for EU27 risks after the UK’s withdrawal are established and registered in the EU27 in line with the relevant provisions of the IDD. NCAs should ensure that intermediaries demonstrate an appropriate level of corporate substance, proportionate to the nature, scale and complexity of their business; they should not be empty shells. Moreover, the professional and organisational requirements of the IDD must be met on a continuous basis. This is without prejudice to the right of the Member States to introduce special provisions in their national law for third country intermediaries, provided that equal treatment of intermediaries on the respective market is guaranteed.


Brexit update – FCA Briefings

The FCA is hosting two briefings in March for regulated firms in preparation for Brexit. These will take place in London and Edinburgh with live webcasts.

Nausicaa Delfas, Executive Director of International, will explain how the FCA has been preparing for Brexit and its expectations of firms, and there will be a panel Q&A session. Two representatives per firm may attend in person, but there is no limit to the numbers who can attend the webcast.

You can register to attend, either in person or via a webcast (where you can also submit questions in advance for the Q&A session).

We will be attending so watch this space for further updates.


Berkeley Burke granted permission to appeal

On 13 February 2019, the Court of Appeal updated its civil appeals case tracker to indicate that permission to appeal the High Court's decision in Berkeley Burke SIPP Administration Ltd v Financial Ombudsman Service Ltd [2018] EWHC 2878 has been granted.

You will recall that the High Court dismissed Berkeley Burke’s claim for judicial review of the final FOS decision a regarding a complaint against it, which related to Berkeley Burke’s acceptance of its customer’s (Mr Charlton’s) instruction to invest in (it later emerged) a fraudulent 'green oil' scheme in Cambodia. The FOS upheld Mr Charlton’s complaint that Berkeley Burke had not acting fairly and reasonably by accepting Mr Charlton’s instruction. Berkeley Burke subsequently applied for judicial review of the FOS’s finding, which was dismissed in October.


The latest on the Senior Managers & Certification Regime – CP19/4

On 23 January the FCA published a further consultation paper on SM&CR, designed to provide extra clarity on the regime and set out the feedback received to DP16/4 (its discussion paper entitled 'Overall responsibility and the legal function').

FCA made ‘near-final’ rules on the SM&CR in July 2018. When consulting the FCA identified certain areas where further change was needed; the proposals for those changes are now set out in CP19/4.

In summary, the changes relate to:

  • clarifying the application of the SM&CR to the Legal Function
  • amending the intermediary revenue criterion for the Enhanced Regime
  • amendments to the Certification Regime
    • amending the scope of the Client Dealing Function
    • clarifying the application of the Certification Regime to systems and controls roles along with several more minor proposed amendments to the SM&CR (including changes to align the SM&CR regime for solo-regulated firms with the equivalent regime for insurers).

When SM&CR was introduced for banking firms, there was a lack of clarity (and, it has to be said, some concern) about how the concept of Overall Responsibility and the SMF18 applied to the legal function, if at all. You may recall our article on this from 2016. In CP19/4, FCA has confirmed that, having considered the responses to DP16/4, it proposes to exclude the Head of Legal from the requirement to be approved as a Senior Manager. The rules in CP19/4 won’t come into force until 9 December 2019, but insurers and banking firms can rely on the FCA’s statement on the Legal Function when considering how overall responsibility applies to their legal function until then.

The deadline for responses to CP19/4 is 23 April 2019.


Brexit update – temporary transitional power

The Treasury has published draft legislation that would temporarily empower the FCA and the PRA to make transitional provisions if the UK leaves the EU without an agreement in place.

The Treasury has already introduced various transitional regimes and arrangements within financial services legislation made under the EU (Withdrawal) Act 2018; the FCA previous stated that it did not expect firms to prepare now to implement changes under the Act from exit day. The new temporary transitional power will allow the regulators to make transitional provisions connected to these changes. The intention is for this power to be used broadly to ensure that firms and other regulated entities can generally continue to comply with their regulatory obligations as they did before exit day for a temporary period.

However, the FCA has identified some areas where such transitional relief will not be granted and as such, firms should begin preparing to comply with changed obligations now. 


Brexit update - passporting

Incoming EEA firms

As you will all know, the UK and the EU agreed on an implementation period as part of the draft withdrawal agreement, during which time (from exit day until the end of December 2020), EU law (including the passporting regimes) would continue to apply in the UK. However, in the event that a withdrawal agreement cannot be agreed and we face a no-deal Brexit, the passporting regimes will no longer apply to the UK.

As such, a temporary permissions regime (TPR) has been put in place, which will allow incoming firms who plan to continue to do business in the UK to continue to use their passports for a limited period (likely three years) while they seek full UK authorisation. It will also allow funds with a passport to continue temporary marketing in the UK. Incoming firms which wish to enter the TPR must notify the FCA. The notification window opened on 7 January and closes at the end of 28 March. FCA has also consulted on the rules it intends to apply to incoming firms and funds in the regime (see CP18/29 and CP18/36) and so those wishing to enter the TPR should start to consider any changes they might need to make in this event.

For incoming firms planning not to continue business in the UK after Brexit, the Financial Services Contracts Regime may be relevant. The regime is a set of run-off mechanisms that will allow incoming firms who will not write any new business in the UK to service their existing clients for a limited period (of up to five years) after Brexit.

Outgoing UK firms

UK investment firms providing services to professional clients or eligible counterparties in the Netherlands will be pleased to know that the Dutch Ministry of Finance has announced its own temporary permissions regime which will allow such firms to continue servicing their clients in the event of a no-deal Brexit. As in the UK, a notification will need to be submitted to the Netherlands Authority for the Financial Markets if a firm wishes to enter this regime.

We understand Italy has also announced it is preparing a similar regime for UK banks, insurers and other financial services firms who passport into Italy.


Permitted Links

The FCA has published consultation CP18/40 regarding changes to the existing permitted links framework to allow investment in 'patient capital'. The current rules can be found in COBS 21 and apply to insurers providing linked long-term contracts of insurance. The deadline for responses to CP18/40 is 28 February 2019.

Patient capital is the name given to investment in illiquid assets such as infrastructure, corporate loans and venture capital that aim to deliver long-term returns. They, in theory, should be a popular form of investment for pension schemes, but the current permitted links rules have had the consequence of preventing investors from accessing such assets via linked insurance contracts such as trustee investment plans (or TIPs).

Insurers providing investments for registered pension schemes and wishing to expand their offering following the introduction of the new rules may want to take into account the requirements in the relevant pensions legislation, which apply at the pension scheme level. Even with these restrictions, the proposed FCA changes will represent a significant expansion of the investment options available.

You can find our fuller briefing on the changes proposed here.


Transparency Taskforce Symposium

On Wednesday 16 January, we were delighted to host the Transparency Taskforce’s symposium on the Competition and Markets Authority’s (CMA) final report on the Investment Consulting and Fiduciary Management Markets. The aim of the Transparency Taskforce is to increase the level of transparency in financial services around the world by bringing interested parties together to discuss problems affecting the industry.

Representatives from the CMA, the FCA, the Pensions Regulator, the financial services and pension industries, and investors were all in attendance. A welcome speech from Chris Worrall kicked off a day of talks and discussion on the CMA’s report, including a presentation from the CMA on the findings of its investigation into the investment consultancy and fiduciary management industries and its proposed remedies for dealing with obstacles to fair competition. Considerable debate across a number of roundtables followed on more controversial areas of the CMA’s report, such as whether all trustee tenders for fiduciary managers be open-ended.

You can find more information here.

You can also read our summary article on the CMA’s final report here.