Essential corporate news – week ending April 26, 2019

CMA: Statutory Audit Services Market Study – Final Report

On April 18, 2019, the Competition and Markets Authority (CMA) published its final report following its market study of the statutory audit services market. The market study was launched in October 2018 and the CMA published its provisional findings in December 2018.

The final report considers the reasons for shortcomings in audit quality in the UK. It notes that some of the problems with the market are caused by longstanding, deep-seated and intractable features and comments that audit committees are only a partial solution to the problem of companies playing the primary role in selecting their own auditors. The CMA considers the market to be a fragile one with high barriers to entry and a lack of resilience and choice. It also believes that accounting firms are less and less focused on audit. As a result, it makes four recommendations in the final report which are intended to increase the effectiveness of audit committees across the FTSE 350, increase resilience and choice in the market and address the problems in terms of focus on quality and choice, caused by audit firms having combined audit/non-audit services structures. The final report notes that the changes will need concerted action by the government and will need to be overseen by the new regulator to be formed following the independent review led by Sir John Kingman. In addition, the final report notes that the changes it recommends should in time be complemented by what emerges from the review by Sir Donald Brydon into the quality and effectiveness of audit.

The recommendations in the final report as follows.

Recommendation 1 – Audit committee scrutiny

The CMA recommends that audit committees should come under greater scrutiny by the new regulator as this should increase their accountability and focus their selection and oversight of auditors on audit quality, while also mitigating any bias against non-Big Four firms.

The CMA recommends that the government legislate so that the new regulator should have the powers and a requirement to mandate minimum standards for the appointment and oversight of auditors. The regulator should then have the powers and the requirement to monitor compliance with these standards, including the ability to require information and/or reports from audit committees, as well as placing an observer on an audit committee if necessary. The regulator should also take remedial action where necessary, for example, by issuing public reprimands or making direct statements to shareholders in circumstances where it is unsatisfied with audit committees.

The CMA notes that this remedy could be complemented through enhancing engagement between audit committees and shareholders and it suggests that some of the recommendations of the UK government’s Department for Business, Energy & Industrial Strategy’s (BEIS) Select Committee, which published a ’The Future of Audit’ report in April 2019, could be implemented, such as, transparency of fees and requiring the auditor to present at the audited company’s annual general meeting.

The CMA notes that it considered the more radical step of moving the responsibility for selecting auditors to an independent body and while it identified legal barriers to this change, it remains of the view that this would be worth keeping under consideration in the long-term.

Recommendation 2 – Mandatory joint audit

The CMA believes that to ensure acceptable choice and improve resilience of the audit sector, between five and seven firms are needed to audit the largest companies in the UK in the medium to long term, rather than the existing four. As a result, the CMA recommends that the Secretary of State legislate to give the regulator flexible powers to implement a joint audit regime, key elements of which are likely to be the following

• At least one joint auditor should be a non-Big Four firm.
• Most FTSE 350 companies should be required to appoint joint auditors. The regulator should determine the criteria on which companies may need initially to be exempted. These are likely to cover a small number of the largest and most complex companies, as well as investment trusts.
• Any company that would otherwise fall within the scope of the remedy should also be exempt if it appoints a non-Big Four firm as its sole auditor.
• Other circumstances for exemption by the regulator should be limited, for example, where all firms outside the Big Four firms are unable to provide a service.
• The introduction of joint audit should be gradual, enabling adaptation over time. Companies should make the transition to joint audit no later than when their next tenders arise but could do so earlier if they choose.
• Other than the existing mandatory rotation requirements, individual audit committees should be free to arrange the respective timings of each joint auditor’s appointment as they see fit.
• There should be a presumption that audit committees should ensure that the work of each of the two joint auditors is substantial and relatively equal, starting with each audit firm ordinarily receiving at least 30 per cent of the audit fee.
• Joint auditors should have joint and several liability for the engagement.
• The regulator should be empowered to adapt this remedy over time, for instance, increasing or decreasing the coverage of the joint audit or peer review requirements or changing the requirements on the balance of fees between joint auditors.

So that challenger firms can gain experience and reputation with the biggest companies, the CMA recommends that the regulator should have the power to appoint peer reviewers for a selection of companies that are not included in the joint audit remedy. Apart from in exceptional circumstances, the reviewer should not be one of the Big Four, reviews should take place in real time and the peer reviewer should report to, and be accountable only to, the regulator. The peer reviewer should not sign the audit opinion and should not be liable for the accuracy of the accounts, and the regulator should consider how to select peer review targets.

The CMA considered a market share cap remedy as a potential alternative way to break down the barriers to non-Big Four firms and while it does not exclude it as a possible solution in future, depending on how the market develops, it is of the opinion that share caps present a number of problems and so has concluded, on balance, that the best route for early action lies with joint audit, plus the option for audit committees to choose between joint audit and a sole challenger auditor.

Recommendation 3 – Operational split between audit and non-audit practices of Big Four

The CMA recommends that the government put in place an operational split between the audit and non-audit practices of the biggest firms in the UK, initially only the Big Four, but with the regulator able to add other firms in later years when they have grown closer to the Big Four’s size.

The regulator should be given the powers to design the specific details of the remedy and refine it over time but key elements of the operational split are likely include the following

• No profit sharing between the audit practice and the non-audit practice, with audit partner remuneration linked to the profits of the audit practice only.
• Separate financial statements for the audit practice, consisting of a profit and loss statement for the audit practice.
• Transparency transfer pricing checked by the regulator, particularly for the use of non-audit specialists on audits.
• A separate CEO and board for the audit practice, populated by a majority of independent non-executives who should be answerable to investors in audited companies and to the public interest via the regulator.

The CMA also suggests that, as suggested by the BEIS Select Committee, a cooling-off period could be introduced after the end of an audit, during which the firm would not be allowed to carry out any non-audit work for the company concerned. It suggests that this be considered by the regulator in the context of its existing review of its Ethical Standard.

Recommendation 4 – Five-year review of progress by new regulator

The CMA recommends that after five years of full implementation, the new regulator should review progress and assess the effectiveness of the overall package of remedies.

Other possible measures

There are a number of other ideas that the CMA is not including as part of its recommended package of remedies but which it suggests merit careful consideration by the government and/or the regulator. They include remuneration deferral and clawback for audit partners, audit firm ownership rules, technology licensing, measures to improve information for shareholders, notice periods and non-compete clauses that act as barriers to challenger firms growing and introducing different requirements on tendering and rotation periods.

Early implementation

The CMA suggests that the Secretary of State should take forward these recommendations at the earliest opportunity. The CMA has decided to make recommendations rather than a market investigation reference, partly because recommendations enable the sector to move forward without delay, while a market investigation could take up to two years from the point at which it starts and might conclude with recommendations in any event.

(CMA, Statutory Audit Services Market Study, Final summary report, 18.04.2019)

(CMA, Statutory Audit Services Market Study, Final report, 18.04.2019)

European Parliament: Resolution on proposal for a regulation to promote use of SME growth markets

In May 2018, the European Commission published a proposed regulation to amend both the Market Abuse Regulation (MAR) and the new Prospectus Regulation in relation to the promotion of the use of SME growth markets. On April 18, 2019, the European Parliament resolved at first reading to adopt, with amendments, the European Commission’s proposed regulation.

The provisional version of the adopted texts includes a number of changes to the European Commission’s proposals, including the following

• Amending Article 18(2) of MAR to clarify that the obligation to establish insider lists rests with issuers and persons acting on their behalf or on their account
• Giving member states the option to require SME growth market issuers to provide more extensive insider lists of all persons with access to information in an ESMA-developed format in amended Article 18(6) of MAR
• Introducing into the new Prospectus Regulation, new Article 1(6a) and (6b) to require a non-listed issuer which seeks admission to trading following an exchange offer, merger or division to draft a prospectus
• Enabling issuers (other than SMEs) offering shares to the public at the same time as seeking the admission of those shares to an SME growth market, to be able to opt to draw up an EU growth prospectus provided they have no shares already admitted to trading on an SME growth market and the product of the two stipulated components is less than €200m.

(European Parliament: Legislative resolution on proposal for regulation as regards promotion of the use of SME growth markets, P8_TA-Prov (2019) 0439, 18.04.2019)

European Parliament: Resolution on proposal for directive regarding cross-border conversions, mergers and divisions

In April 2018, the European Commission published a proposal for a directive amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions. On April 18, 2019, the European Parliament resolved at first reading to adopt, with amendments, the European Commission’s proposal.

According to the provisional version of the adopted texts, changes to the European Commission’s proposal include the following

• In relation to cross-border conversions, a number of alterations are made to the conditions for carrying out a cross-border conversion so not all insolvency proceedings will be an automatic bar. Other changes relate to the scope of the independent expert’s report, amended provisions concerning the protection of members and creditors, additional provisions concerning employees’ information and consultation and the replacement of measures to ensure that the relevant transaction is not an artificial arrangement so as to ensure that cross-border conversions are not used to evade or circumvent national or EU law or for criminal purposes.
• In relation to cross-border mergers, comparable alterations to the conditions and provisions for carrying out such mergers made in respect of cross-border conversions are included, as well as the deletion of proposed provisions relating to an accounting date and the addition of provisions relating to the transmission of the pre-merger certificate and registration.
• In relation to cross-border divisions, comparable alterations to the conditions and provisions for carrying out cross-border divisions made in respect of cross-border conversions are included, as well as the deletion of proposed provisions relating to an accounting date.

(European Parliament, Resolution on proposal for directive as regards cross-border conversions, mergers and divisions, P8_TA-Prov (2019) 0429, 18.04.2019)

European Parliament: Resolution on proposal for directive as regards use of digital tools and processes in company law

In April 2018, the European Commission published a proposal for a directive amending Directive (EU) 2017/1132 regarding the use of digital tools and processes in company law. On April 18, 2019 the European Parliament resolved at first reading to adopt, with amendments, that proposal.

Based on the provisional version of the adopted texts, the changes to the European Commission’s proposal include the following

• Amendments clarifying that the amending Directive applies to the online formation, rather than simply the registration, of companies.
• Various amendments to the proposed new Article 13g concerning online company formations.
• Various amendments to the proposed new Article 13i concerning disqualified directors.
• Amendments to the proposed new Article 13j concerning the online filing of company documents and information.

(European Parliament, Resolution on proposal for a directive as regards use of digital tools and processes in company law, P8_TA-Prov (2019) 0428, 18.04.2019)

New Streamlined Energy and Carbon Reporting Regime in UK

The UK’s Streamlined Energy and Carbon Reporting (SECR) framework was introduced on April 1, 2019. This simplifies existing energy and carbon reporting policies while reducing the administrative burden imposed on companies. SECR replaces the Carbon Reduction Commitment Energy Efficient Scheme. This Norton Rose Fulbright briefing summarises the SECR.