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Financial Services and Fintech Updates

Malta Financial Services Authority (MFSA) Updates

MFSA Publication on the Supervision of Credit Institutions

The MFSA has issued the first volume of its publication ‘The Nature and Art of Financial Supervision’, which details how the Authority regulates and supervises the Maltese banking sector and credit institutions, in particular.

While providing for an analysis of the Authority’s supervisory work carried out over the past year, the publication also summarises crucial findings and risks identified, and further establishes the Authority’s expectations. Indeed, the MFSA sets out recommendations based on business models and stress testing analyses, as well as potential AML/CFT and credit risks. 

It is thus recommended that credit institutions refer to this publication and usher a self-assessment exercise in light of the recommendations made in the document. Credit institutions should identify any weaknesses and risks, and subsequently address such weaknesses. 

For more information: https://www.mfsa.mt/news-item/mfsa-publishes-document-on-the-supervision-of-credit-institutions/

MFSA publishes Revised Loan Funds Rules Framework

The MFSA has updated its ‘Standard Licence Conditions Applicable to Investment Schemes Authorised to Invest Through Loans’. The revised MFSA Loan Funds Rules seek to achieve a balance between the need for a sound, pragmatic and accessible regulatory framework and the current economic scenario.

In its ‘Circular on the Restructuring of the MFSA Loan Funds Regime’, on 10 November 2020, the Authority’s restructured framework provides the funds industry with a practical and comprehensive regime. Summarily, the Authority has revised its rules relating to:

  • Fund structures
  • Investment strategies
  • Service providers
  • Target loan recipients
  • Self-managed schemes
  • Liquidity management
  • Risk management
  • Exposure limits; and
  • Cash borrowing and leverage limits

It is to be noted that the restructured Loan Fund Rules became applicable as from the issue of the circular on 10th November.

The previous Loan Fund Rules shall still remain available for current collective investment schemes that have been established in terms of such previous rules and are licensed up to the date of the Circular. When these licensed funds opt to amend any of their current applicable requirements vis-à-vis the updated Rules, regulatory approval is to be sought and investors duly notified.

Any potential issues arising as a result of the revised Loan Fund Rules which, in turn, require action by the licensed scheme, are to be addressed by 1 November 2021. Licence holders are thus encouraged to contact the Securities and Markets Supervision should any assistance be needed in this regard.

For more information: https://www.mfsa.mt/news-item/mfsa-publishes-revised-loan-funds-rules-framework/

Updating of MiFID II and MiFIR Investor Protection and Intermediaries Topics

The MFSA has reminded stakeholders that the European Securities and Markets Authority (ESMA) has published an updated version of its Q&A on the implementation of investor protection requirements under the MiFID II and MiFIR.

The updated Q&A sheds new light on product governance. Indeed, those firms manufacturing financial instruments are to ensure that: (a) financial instruments’ costs and charges are compatible with the needs, objectives and characteristics of the target market; (b) costs and charges do not undermine the financial instruments’ return expectations; and (c) the charging structure of the financial instrument is appropriately transparent for the target market, in turn ensuring that it does not disguise charges or that it is not too complicated to comprehend.

The Q&A further provides information on the manner in which firms manufacturing financial instruments are required to ensure that financial instruments’ costs, and charges, are identified and qualified as part of their product approval process.

While the updated Q&A is not exhaustive and does not constitute new policy, it is a comprehensive tool in the application of MiFID II and MiFIR principles to investor protection topics.

For more information: https://www.mfsa.mt/publication/esma-qa-on-mifid-ii-and-mifir-investor-protection-and-intermediaries-topics/

European Securities and Markets Authority (ESMA) Updates

ESMA sets out Union Strategic Supervisory Priorities

ESMA has identified the costs and performance for retail investment products and market data quality as the Union Strategic Supervisory Priorities for National Competent Authorities (NCAs).

In its recent press release, ESMA set out the specific topics on which NCAs are to undertake supervisory action in 2021, which are as follows:

  1. Costs and fees charged by fund managers; and
  2. Improving the quality of transparency data reported under the MiFIR.

Since costs and performance are a crucial aspect of investor protection, ESMA opines that problems linked to this area are a result of lack of transparency and undue costs or differences in the application of MiFID requirements across Member States. It further believes that investment firms and fund managers are to have their clients’ best interests at heart and make certain that costs and charges are proportionate and disclosed in a thorough and transparent manner.

ESMA also believes that improving data quality is essential to investors, market participants and regulators.

For more information: https://www.esma.europa.eu/sites/default/files/library/esma71-99-1438_press_release_union_strategic_supervisory_priorities.pdf

ESMA Consultation Paper on Draft Advice under Article 8 of the Taxonomy Regulation

Non-financial undertakings and asset managers as under Article 8 of the Taxonomy Regulation (Regulation EU 2020/852), as well as investors and other users of non-financial information have been invited to contribute to ESMA’s public consultation regarding its Draft advice to the European Commission under Article 8 of the Taxonomy Regulation.

The Commission has requested guidance on the implementation of the delegated act which it is to adopt, particularly:

  1. On the manner in which three (3) key performance indicators by non-financial undertakings are to be specified; and
  2. The information asset managers subject to the Non-Financial Reporting Directive are to disclose the manner in which their activities are directed to fund environmentally sustainable economic activities.

The advice is due for the end of February 2021. 

For more information: https://www.esma.europa.eu/press-news/consultations/consultation-paper-draft-advice-ec-under-article-8-taxonomy-regulation

ESMA Consultation on the Guidelines on MiFID II/MiFIR obligations on Market Data

Consumers of market data, trading venues, APAs and SIs are encouraged to contribute to ESMA’s public consultation relating to its Guidelines on MiFID II/MiFIR obligations on market data.

The Guidelines seek to establish a uniform application of MiFID II/MiFIR obligations. ESMA has presented its evaluation and suggestions on:

  1. The development of prices for market data and the application of the main MiFID II/MiFIR provisions which aim to mitigate the cost of market data;
  2. The requirement to publish market data on a reasonable commercial basis (RCB);
  3. The requirement to make market data available free of charge fifteen (15) minutes after publication; and
  4. The requirement to provide market data in a disaggregated format.

Submissions shall be considered until 11 January 2021.

For more information: https://www.esma.europa.eu/press-news/consultations/consultation-paper-guidelines-mifid-ii-mifir-obligations-market-data

ESMA Publishes First Reports on CSDR implementation

ESMA’s first two reports on the Central Securities Depositories Regulation (CSDR), which respectively focus on central securities depositories’ cross-border services and handling of applications, and internalised settlement, were finally published on 5 November 2020. 

Report on Cross-Border Services and Application Handling

The crux of this report relates to the provision of services by CSDs across Member States. The report also comprises data gathered by the Authority to evaluate and determine the importance of a CSD for host Member States.

While no major differences in the provision of cross-border services have been identified since the CSDR’s implementation, respondents anticipate an increase in the coming years. Many respondents have also encountered challenges related to the application process to provide notary and central maintenance services in relation to securities constituted under the laws of other Member States, as per the CSDR. ESMA thus goes on to recommend a few measures to uncomplicate the existing process in the Report.

Report on Internalised Settlement

Findings in this report related to settlement activities which do not take place through a securities settlement system operated by a CSD in the EEA and failed to identify potential risks.

Nonetheless, NCAs have come forward with some key risks related to this activity. Indeed, operational risk and custody risk have been the most common obstacle identified and could thus be reduced through adequate identification of the necessary client accounts, as well as an improvement of operational processes.

For more information: https://www.esma.europa.eu/press-news/esma-news/esma-publishes-its-first-reports-csdr-implementation

ESMA Consultation on Guidelines on Marketing Communications for CIS

ESMA has launched a consultation paper relating to guidelines on marketing communications under the Regulation on facilitating cross-border distribution of collective investment undertakings (Regulation [EU] 2019/1156).

The draft guidelines specify the requirements for marketing communications sent to investors, to go on to promote UCITS and AIFs. These requirements lay out that the material shall:

  • Comprise information which is clear, fair and unambiguous;
  • Detail the risks and benefits of purchasing units or shares of an AIF or units of a UCITS in an equally prominent manner; and
  • Clearly be identifiable as marketing material.

Stakeholders are thus invited to submit their feedback on the proposed guidelines by 8 February 2021.

For more information: https://www.esma.europa.eu/press-news/esma-news/esma-consults-guidance-funds%E2%80%99-marketing-communications

ESMA Report on Preparedness of Investment Funds

ESMA has published a report on the preparedness of investment funds with significant exposures to corporate debt and real estate assets, to counter possible adverse liquidity and valuation shocks.

Funds exposed to corporate debt and real estate funds have, ESMA found, maintained their activities in light of redemption pressures or moments of valuation uncertainty. However, some funds have encountered potential liquidity mismatches to their liquidity set up, and concerns centering the valuation of portfolio assets have also come to light.

In response to such findings, the report establishes five main areas of action, which would improve the preparedness of these fund categories. These areas have been identified as follows:

  1. Ongoing supervision of liquidity risk assessment
  2. Continuous supervision of the alignment of the funds’ investment strategy
  3. Fund liquidity profile reporting
  4. Increase of the availability and use of Liquidity Management Tools; and
  5. Supervision of valuation processes in a context of valuation uncertainty

ESMA opines that the above priority areas should reduce the risk and impact of collective selling by funds on the financial systems, by tackling the liquidity and valuation risks at the level of the investment fund.

For more information: https://www.esma.europa.eu/press-news/esma-news/esma-tells-fund-managers-improve-readiness-future-adverse-shocks

European Insurance and Occupational Pensions Authority (EIOPA) Updates

Survey on the application of the Insurance Distribution Directive

The EIOPA has launched a survey on the application of the Insurance Distribution Directive (IDD). The survey seeks to collect feedback from stakeholders on their experience with applying the IDD in practice, and thus aims to gather feedback on the improvement of quality of advice and selling methods.

The survey also seeks to analyse the impact of the IDD on small and medium-sized businesses, as well as identify other potential improvements the IDD may have brought about.

Stakeholders are asked to submit their feedback to EIOPA by no later than 1 February 2021.

For more information: https://www.eiopa.europa.eu/content/survey-application-insurance-distribution-directive_en

For more information on the updates above please contact Dr Ian Gauci and Dr Cherise Abela Grech.

This article is not intended to impart legal advice and readers are asked to seek verification of statements made before acting on them.