EU UK regulatory roundup

The European Securities and Markets Authority (ESMA) issued a consultation paper setting out proposals for improvements to the MiFID II framework on best execution reports.

Article 27 of MiFID II sets out best execution requirements which aim at ensuring that investment firms take all sufficient steps to obtain, when executing client orders, the ‘best possible result’ for their clients.

Article 27(10)(a) requires ESMA to develop draft regulatory standards to determine the specific content, the format and the periodicity of data relating to the quality of execution to be published in accordance with Article 27(3), taking into account the type of execution venue and the type of financial instrument concerned. Additionally, Article 27(6) requires ESMA to develop draft regulatory technical standards (RTS) to determine the content and the format of information to be published by investment firms in accordance with Article 27(6).

On the basis of these requirements, ESMA has adopted the relevant technical standards which are commonly known as RTSs 27 and 28 and these lay down the reporting requirements intended to achieve the aforementioned best execution objectives. In particular under:

• RTS 27 execution venues have to provide quarterly comprehensive sets of relevant data to allow investment firms, professional investors and the public to assess and understand the quality of execution achieved on the venue.
• RTS 28 investment firms must publish annual reports to enable the public and investors to evaluate the quality of a firm’s execution practices.

However, in the course of the application of the MiFID II framework, issues with the best execution reporting requirements have been identified, for example in media reports and in ESMA’s exchange with stakeholders. The issues are primarily related to RTS 27 (e.g. relating to venues’ publication of lengthy reports and market participants’ limited use of this information for execution quality assessments) and to a lesser extent also relating to RTS 28 (e.g. limited use of reported information).

The consultation paper that ESMA has published seeks to receive technical input from market participants on what a reviewed best execution reporting regime could look like. Its outcome will not lead to any immediate changes toRTSs 27 and 28 but it will be taken into account by ESMA in supporting the European Commission (Commission) in its assessment of the adequacy of the best execution reporting obligations and any subsequent technical work.

The deadline for comments on the consultation paper is 23 December 2021. ESMA will consider the responses it receives to this consultation paper in Q4 2021 and plans to send proposals to the Commission, if needed, in the first half of 2022.

ESMA recommends to Commission to delay buy-in rules

ESMA published a letter it had sent to the Commission regarding the implementation of the Central Securities Depositories Regulation (CSDR), urging it to consider a delay of the mandatory buy-in regime.

As the final Commission legislative proposal for the review of the CSDR, possibly including changes to the buy-in regime, is not expected before the end of this year, ESMA is in favour of delaying the entry into force of the buy-in requirements – scheduled on 1 February 2022 – while applying the other settlement discipline requirements, such as settlement fails reporting and cash penalties regime, as planned.

ESMA issued a consultation paper on the review of the Short Selling Regulation (SSR).

In the consultation paper ESMA conducts a systematic review of the provisions of the SSR. Among other things ESMA sets out suggestions for operational improvements and policy clarifications on:

• The calculation of net short positions, the prohibition of uncovered short selling and the locate rule under which short selling trades can take place.
• The mechanism for transparency of net short positions and the proposal to publish aggregated net short positions per issuer based on all individual positions and the scope of the exemptions for shares that are more heavily traded in a third country.
• The introduction of a centralised notification and publication system to reduce reporting burdens, increase cost efficiency and foster ESMA’s monitoring capacity and coordination powers in case of potential threats at EU level.

The deadline for comments on the consultation paper is 19 November 2021. ESMA expects to publish a final report by the end of Q1 2022.

The Commission adopted a Delegated Regulation amending the SSR as regards to the adjustment of the relevant threshold for the notification of significant net short positions in shares.

The objective of the Delegated Regulation is to adjust the relevant threshold for the notification to Member State competent authorities of significant net short positions in shares set out in Article 5, paragraph (2) of the SSR from 0.2 % to 0.1 % (and each 0.1 % above that).

The Delegated Regulation enters into force on the twentieth day following that of its publication in the Official Journal of the EU (OJ).

The Commission adopted the following Delegated Regulations containing RTS relating to prudential requirements for investment firms under the Investment Firm Regulation (IFR):

• Commission Delegated Regulation (EU) of 24.9.2021 supplementing the IFR with regard to RTS specifying the amount of total margin for the calculation of the K-factor “clear margin given”.
• Commission Delegated Regulation (EU) of 24.9.2021 supplementing the IFR with regard to RTS specifying the notion of segregated accounts to ensure client money’s protection in the event of an investment firm’s failure.
• Commission Delegated Regulation (EU) of 22.9.2021 supplementing the IFR with regard to RTS specifying the methods for measuring the K-factors referred to in Article 15 of that Regulation.

The Council of the EU and the European Parliament will now scrutinise the Delegated Regulations. If neither object, they will enter into force 20 days after their publication in the OJ.

While the overall conclusion of the report is that the regulatory framework for algorithmic trading as set out by MiFID II and MiFIR has delivered its objectives, ESMA makes some recommendations for targeted amendments to the regime. Some of these should be of particular interest to those market participants engaging in algo/HFT on European trading venues but who themselves are located outside the EU – including in the UK.

In terms of next steps, the report will be submitted to the Commission for its consideration in the context of a broader upcoming MiFID II and MiFIR review.

The call for evidence follows a letter that ESMA received from the Commission in July this year asking for assistance in the preparation of legislative proposals implementing aspects of the retail investment strategy. More specifically, the Commission invited ESMA to provide advice on a number of focused areas including disclosures, digital disclosures and digital tools and channels.

ESMA will consider all comments received by 2 January 2022.

ESMA will hold a public hearing in Q4 2021 and registration for the hearing will be available in the relevant section of the ESMA website in due course.

The views received will feed into ESMA’s technical advice to the Commission on the development of its retail investment strategy. ESMA is due to deliver its technical advice by 30 April 2022.

Article 26(1) of MAR requires the competent authorities of Member States where necessary to conclude cooperation arrangements with supervisory authorities of third countries concerning the exchange of information and the enforcement of obligations arising under that Regulation in third countries. In concluding new cooperation arrangements and updating existing cooperation arrangements with third-country authorities, the competent authorities where possible are to use the template document adopted pursuant to Article 26 of MAR.

The Annex to the Delegated Regulation sets out the requirements for the template document: introduction; definitions; content of the assistance to be provided; general provisions – denial of assistance; sending and processing requests for assistance; permissible uses of information; confidentiality restrictions; general provisions – identification of a contact point; general provisions – revision clause; and other provisions – miscellaneous.

The Delegated Regulation enters into force on 31 October 2021.

Highlights in the speech include:

• Culture remains central to how the FCA supervises the firms it regulates. The importance of an authentic, embedded purpose, visible leadership and an inclusive environment where staff feel safe to speak up is paramount
• The FCA believes that firms with healthy cultures are less prone to misconduct.
• Hybrid working brings opportunities and challenges. Firms need to find approaches that give due regard to safeguarding their purpose and values, the wellbeing of staff and effective oversight.
• During the pandemic, the FCA has seen leaders engaging more directly and openly with people in their businesses. This is an important gain that should not be lost. But it will need thought and care to keep it in a hybrid workplace. This is even more important when thinking about a workplace where people can speak up and feel included.
• Diversity and inclusion is an aspect of culture where the investment management sector has considerable ground to make up. The FCA welcomes the initiatives led by the Investment Association but lasting change will only come from firms looking at their own culture and taking action.
• Firms in the investment management sector have a huge sphere of influence on ESG, both to improve their own ESG performance and to drive positive change through their investments. The FCA looks to firms in the sector to be effective stewards.

In particular, the Dear CEO letter covers:

• Culture in financial services (including diversity and inclusion).
• Fraud, investment scams and market abuse.
• Financial resilience and disorderly firm failure.
• Costs and charges.
• Brexit.

CBEST is a framework for intelligence-led penetration testing which focuses on an organisation’s security controls and capabilities when faced with a simulated cyber-attack. The simulated attacks used in testing are tailored to the threat and vulnerability profile of each organisation and represent an evidence-based and robust testing approach.

The letter sets out the results of the latest CBEST assessment so that the relevant SMF holder may ensure that their firm is able to benefit from the identification of the weaknesses found and thereby address potential similar weakness in their firm. The relevant SMF holder should also raise awareness in their senior executive team and use the letter to inform the work of their firm’s risk and internal audit functions.

For firms that have participated in the latest CBEST cycle, the remediation plans that have been agreed with supervisors will remain the primary focus for addressing their cyber resilience issues. The thematic feedback included in the letter may provide additional information that can be incorporated in these plans.

The expectations on the webpage apply to existing firms, firms applying to be regulated and firms proposing to submit further applications, such as a waiver, variation of permission, change of control etc.

In relation to existing firms the webpage explains that firms considering remote or hybrid working will be evaluated by the FCA on a case-by-case basis. Firms should consider how they operate their business and be able to prove that the lack of centralised location or remote working does not or is unlikely to cause detriment to consumers or impact its ability to meet the threshold conditions. Firms must also prove that there is satisfactory planning. This includes that there is a plan in place, which has been reviewed before making any temporary arrangements permanent and is reviewed periodically to identify new risks.