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Financial Services and Fintech Updates

Malta Financial Services Authority (‘MFSA’) Updates

Update to Rulebooks for Investment Service Providers

The MFSA has updated certain sections of the Investment Service Rules for Investment Service Providers.

The Rules have been amended in several sections, namely in relation to:

  1. The MiFID Rules
  2. The UCITS ManCo Rules
  3. The AIFM Rules
  4. The Custodian Rules
  5. The UCITS Rules
  6. The AIF Rules

These amendments have been implemented to transpose Commission Implementing Regulation (EU) 2018/1212, as well as to align the Rules to provisions from Directive (EU) 2017/828 (‘SRD II’).

For more information: https://www.mfsa.mt/publication/update-to-investment-services-rulebooks/

Circular to Investment Services Licence Holders and Collective Investment Schemes

The MFSA has updated its Circular on the Fitness and Properness Assessment of Committee Members involved with Investment Services Licence Holders and Collective Investment Schemes to incorporate information on online personal questionnaires (PQ) and the notification on the process for non-approved roles. Thus, as of 5th October 2020, Committee Members and/or Valuation Officers shall no longer be required to submit a PQ form.

The License Holder (‘LH’) portal now features amendments pertaining to the online PQ form.

Prospective officials of ISLHs and/or CISs, whose role is subject to regulatory approval, are now to be aware that the dropdown list under the field ‘Proposed Positions(s)’ shall only include roles which require the submission of a PQ and therefore, any other involvement type which does not fall under this category is excluded.

For more information: https://www.mfsa.mt/publication/circular-to-investment-services-licence-holders-and-collective-investment-schemes-on-mfsas-licence-holder-portal/

MFSA Implements Changes in line with Insurance Distribution Directive

On 30th July 2019 the EIOPA issued a report on the requirement of Article 11(5) of Directive (EU) 2016/97 (‘IDD’), entitled Insurance Distribution Directive – Report Analysing National General Good Rules. General good rules are provisions which form part of the host Member State’s legal system and establish further requirements to address specificities of the respective EU markets. Such provisions must be adhered to by those undertakings authorised in a Member State and which carry out cross-border activities in another Member State.

The MFSA, to better accommodate IDD requirements relating to the imposition of general good requirements and which reserve the matters pertaining to professional and organisational requirements to the home member state, shall be withdrawing the general good requirement of Chapter 8 of the Insurance Distribution Rules from Chapter 16 of the Insurance Distribution Rules.

Chapter 8, therefore, shall no longer pertain to European insurance intermediaries which establish a branch in Malta in terms of Chapter 16 on the Freedom of Establishment and Freedom to Provide Services by a European Intermediary issued under the Insurance Distribution Rules.

For more information: https://www.mfsa.mt/wp-content/uploads/2020/10/Circular-on-the-amendments-to-the-Annexes-to-Chapter-16-of-the-Insurance-Distribution-Rules-and-in-the-Annexes-to-Chapter-9-of-the-Insurance-Rules.pdf

European Securities and Markets Authority (‘ESMA’) Updates

Call for Evidence on the review of transparency requirements for equity and non-equity instruments

Through its recent Call for Evidence (‘CfE’) vis-à-vis the review of transparency requirements for equity and non-equity instruments, ESMA is striving to collect input and views on practical issues related to the application of RTS 1 and RTS 2 that market participants may have encountered since the application of MiFID II/MiFIR.

ESMA moreover is seeking to receive feedback regarding any technical issues, policy gaps and unclear provisions that market participants may have experienced at implementation level. Furthermore, the CfE aims to collect input from stakeholders on the application of pre- and post-trade transparency requirements.

Participants are to send in their responses through the ESMA website by 31 October 2020.

For more information: https://www.esma.europa.eu/press-news/consultations/call-evidence-review-transparency-requirements-equity-and-non-equity

European Insurance and Occupational Pensions Authority (EIOPA) Updates

EIOPA finalises guidelines on information and communication technology security and governance

In  its finalised Guidelines on Information and Communication Technology (ICT) Security and Governance, EIOPA seeks to provide guidance to national supervisory authorities and market participants on how regulation regarding operational risks under Directive 2009/138/EC and the Commission’s Delegated Regulation 2015/35, is applied in case of ICT security and governance.

The guidelines establish that operational resilience is a crucial tool to protect insurance and reinsurance undertakings’ digital assets. Particularly, the guidelines:

  • Aim to provide clarification and transparency to market participants on the minimum expected information and cyber security capabilities (security baseline);
  • Promote supervisory harmonisation regarding expectations and processes applicable in relation to ICT security and governance as a tool to properly maintain ICT and develop better security risk management; and
  • Avoid potential regulatory arbitrage.

These guidelines are to start applying to national supervisory authorities as from 1 July 2021.

For more information: https://www.eiopa.europa.eu/content/eiopa-finalises-guidelines-information-and-communication-technology-security-and-governance_en

EIOPA’s approach to the effective supervision of product oversight and governance

As of 8th October 2020, the EIOPA has adopted a new approach to the supervision of product oversight and governance (POG) requirements. EIOPA indeed seeks to support insurance manufacturers and distributors when implementing their own POG policies and, moreover, make their communication with national supervisors easier.

Insurance manufacturers and distributors are advised to consider their business model, product complexity, as well as the characteristics of the target market in their policies and processes. Supervisors are now to focus on how insurers and distributors go about ensuring customer-tailored business product design, approval and distribution process with adequate systems and measures in place, by:

  • Determining whether target markets for each product are sufficiently defined;
  • Evaluating whether product testing sufficiently assesses the fairness and the value of each product; and
  • Establishing whether distribution strategies are adequate.

EIOPA further aims to provide better transparency for insurance manufacturers and distributors on what to expect from the supervisory approach to POG requirements.

For more information: https://www.eiopa.europa.eu/content/effective-supervision-product-oversight-and-governance-crucial-driving-good-outcomes_en

EIOPA Calls on Insurance Sector to Complete Preparations for the End of the UK Transition Period

EIOPA is presently recommending that the insurance sector finalises preparations and implements suitable and sustainable contingency plans prior to the elapsing of the UK transition period. As per the Withdrawal Agreement, the UK transition period is set to end on 31 December 2020 and thereafter, all Union primary and secondary law, such as the Solvency II Directive and the Directive on Insurance Distribution, will no longer apply to the UK.

EIOPA expects (re)insurance undertakings to implement measures to prevent insurance activity without authorisation and ensure service continuity of cross-country business. Moreover, insurance undertakings and intermediaries must inform customers about the potential impact of the UK’s withdrawal from the EU vis-à-vis insurance contracts.

For more information: https://www.eiopa.europa.eu/content/eiopa-calls-insurance-sector-complete-preparations-end-uk-transition-period_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.