UK/EU Investment Management Update (January 2024)

1. UK —Wholesale Markets Review
2. UK —Financial Promotions 
3. UK —EMIR
4. UK —UCITS and MMFs
5. UK —Sanctions and AML
6. UK —Agreement with Switzerland
7. EU — MiFID II
8. EU — EMIR
9. EU — ESG
10. EU — PRIIPs
11. EU — AML
12. International — ESG

1. UK — Wholesale Markets Review

FCA consults on commodity derivatives regulatory framework

On 4 December 2023, the FCA published a consultation paper on reforming the commodity derivatives regulatory framework.

This consultation is part of the UK’s Wholesale Markets Review and will affect persons who trade commodity derivatives in the UK. The proposed changes are as follows:

• Setting of position limits by trading venues. The principal responsibility for setting position limits is being transferred from the FCA to trading venues, and the proposals set out the FCA’s expectations for factors to which trading venues should have regard. The FCA will retain the power, under certain circumstances, to set position limits itself.
• Applying position limits only to certain commodity derivatives contracts. The FCA is proposing to identify a set of “critical” contracts for which disorderly trading would have the greatest impact on commodity markets and their users. It proposes a regulatory framework under which trading venues will set position limits for this narrow set of critical contracts and extends the application of the position limit regime to contracts that are sufficiently related to the critical contracts.
• Enhanced position management controls and reporting. The FCA is enhancing its expectations as to the oversight and surveillance arrangements trading venues shall operate as part of their position management controls. Its proposed rules require trading venues to establish accountability thresholds and to have access to additional information, including information on positions held over the counter (OTC) by members and their clients.
• Exemptions from position limits. The FCA is proposing new exemptions for liquidity providers and for financial firms dealing with non-financial firms that are hedging risks arising from their commercial activities. It is also strengthening its rules as to the arrangements that trading venues shall operate to satisfy themselves that the use of exemptions remains consistent with the operation of orderly markets.
• Ancillary activities test (AAT). Following changes made by the Treasury to the AAT (due to come into effect at the start of 2025), the FCA proposes new guidance on what constitutes ancillary activity. Additionally, as confirmed in a statement published on 20 December 2023, firms may continue to meet the AAT for 2024–25 where they were able to rely on the exemption for 2022–23 based on trading relating to the last previous published information (2018 to 2020) on the overall size of the market.

The consultation remains open until 16 February 2024. The FCA has then proposed a transitional period of one year for firms to implement the new rules (starting from the date it makes the relevant legal instruments). However, the AAT guidance will need to commence earlier, in accordance with changes to the AAT that will come into effect at the start of 2025.

FCA publishes policy statement for the framework for the UK consolidated tape

On 20 December 2023, the FCA published its final policy on the UK consolidated tape (CT) framework for bonds, including a response to discussion paper questions on a CT for equities and a consultation on payments to data providers and forms for Data Reporting Services Providers.

This follows the FCA’s July 2023 consultation (CP 23/15) on its proposed framework for a UK CT for bond market data (on which see our earlier Sidley Update).

The finalised rules include the following:

• Historical data. In a change to the FCA’s original proposals, the Consolidated Tape Provider (CTP) will be required to offer a historical data service, available separately from the live feed of the CT.
• Value-added services. In CP 23/15, the FCA had proposed that a CTP could offer value-added services as long as these were not bundled with the core CT. In a change to its original proposal, the legal entity acting as the CTP will not be able to offer value-added services. The CTP will need to set up a separate legal entity for this.
• Governance requirements. The FCA has updated its proposals to reflect feedback supporting the view that market participants should be able to input into the operation of the CT.
• Single CTP. As originally proposed, the FCA will appoint a single bond CTP through a tender process.
• Tender process. As originally proposed, the CTP will be appointed through a two-stage tender process to seek to ensure the price for the CT is consistent with maximising access to the data.

The rules in the instrument made as part of this policy statement will come into force on 5 April 2024 if Parliament approves the Data Reporting Services Regulations 2023 (a statutory instrument laid in draft before Parliament on 27 November 2023).

In addition, the FCA is consulting on a proposal for payments from the bond CTP to trading venues and approved publication arrangements (APAs). While the FCA did not propose any such payments in CP 23/15, it received significant comment on the matter and has, therefore, opened a narrow consultation on the topic. It is also consulting on proposed changes to authorisation and other forms for CTPs, APAs, and approved reporting mechanisms. These proposals remain open for consultation until 9 February 2024.

FCA consults on improving transparency for bond and derivative markets

On 20 December 2023, the FCA published a consultation paper on improving transparency for the bond and derivative markets.

The changes proposed are as follows:

• Real-time transparency and calibration of deferrals. The FCA proposes to specify the classes of financial instruments for which there is a strong policy case for minimum harmonised transparency requirements applicable to trading venues and to investment firms dealing OTC. The asset classes for which it specifies these requirements are sovereign bonds, corporate bonds, and certain derivatives subject to the clearing obligation. For those financial instruments, the FCA proposes to set large in scale thresholds above which orders can benefit from pre-trade transparency waivers and trades can benefit from post-trade transparency deferrals.
• Exemptions from post-trade reporting. Investment firms dealing in instruments that the FCA has not specified will not be required to report their transactions to the public.
• Content of post-trade information. The FCA proposes a simpler and more timely post-trade transparency regime, based on shorter deferrals for bonds and OTC derivatives while ensuring that liquidity providers are sufficiently protected against undue risk.
• Definition of systematic internaliser (SI). The FCA proposes to expand on the definition of an SI in the UK Markets in Financial Instruments Regulation (MiFIR). The proposed new definition of an SI is based on qualitative criteria which aim to balance clarity for investment firms to decide whether they are SIs with the need for the definition to flexibly apply to different markets and business models. The FCA is also proposing guidance in the Perimeter Guidance Manual to help with interpretation of the new definition.

The consultation remains open for comment until 6 March 2024. The FCA proposes a one-year implementation period for firms, following publication of the new rules.

2. UK — Financial Promotions

HM Treasury publishes Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023

On 19 December 2023, the UK government published the Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (the Order), along with an explanatory memorandum, amending the Financial Services and Markets Act 2000 (Financial Promotion) Order 2000 (FPO).

This Order will affect firms that make financial promotions in the UK on the basis of the “certified high net worth individual” (Article 48, FPO) and “self-certified sophisticated investor” (Article 50A, FPO) exemptions.

As detailed in our previous Sidley Update, the Order amends the eligibility and formality requirements for the two exemptions.

The Order comes into force on 31 January 2024.

3. UK — EMIR

FCA and Prudential Regulation Authority (PRA) publish joint policy statement on EMIR

On 18 December 2023, the FCA published a policy statement (PS23/19) jointly with the PRA.

The Policy Statement is relevant to all FCA solo-regulated entities and non-financial counterparties in scope of the margin requirements under UK EMIR, among others.

The FCA and PRA confirm that they will not be implementing a supervisory pre-approval requirement at this stage for using initial margin models. The FCA will, at this stage, continue to use existing supervisory powers to engage with firms on their models, where necessary, to ensure that modelling requirements are met. To the extent that new requirements are proposed, these would be subject to the standard policy making process.

PS23/19 also contains the PRA’s and FCA’s final policy in the form of amendments to Binding Technical Standards (BTS) 2016/2251. The amendments to the BTS took effect on 18 December 2023, which is when the final technical standards instrument by the PRA and FCA came into force.

4. UK — UCITS and MMFs

FCA consults on Overseas Funds Regime (OFR) rules and guidance

On 4 December 2023, the FCA published a consultation paper (CP23/26) on rules and guidance to integrate the OFR into its Handbook and to enable recognition of overseas funds from jurisdictions approved by the Treasury.

CP23/26 is relevant to European Economic Area (EEA) UCITS management companies that currently market funds to UK investors (or plan to do so), distributors of EEA UCITS marketed to UK investors, and firms approving financial promotions on behalf of EEA UCITS.

The OFR will enable overseas collective investment schemes to market to retail investors in the UK, provided they are domiciled in jurisdictions deemed to be equivalent by the UK government.

The consultation closes on Monday, 12 February 2024, and the FCA will look to publish a final policy statement and final Handbook rules in the first half of 2024.

HM Treasury publishes draft regulations on MMFs

On 6 December 2023, HM Treasury published a policy note and draft regulations on MMFs.

Among other things, the draft regulations set out that unauthorised alternative investment funds (AIFs) will no longer be able to be authorised as MMFs. However, any funds currently using this route will, in perpetuity — subject to complying with regulatory obligations — be treated as though they are authorised MMFs and subject to the same legislative framework, limiting the impact of this change.

HM Treasury is inviting comments on the draft regulations until 24 January 2024 and will set out a further timeline once responses have been considered.

5. UK — Sanctions and AML

FCA and the Office of Financial Sanctions Implementation (OFSI) enter into an information-sharing agreement

On 1 December 2023, the FCA published a Memorandum of Understanding (MoU) that it has entered into with the OFSI, effective 21 November 2023. This MoU replaces an MoU from April 2019 and sets out updated arrangements for co-operation and information sharing between the parties related to suspected or actual sanctions breaches.

The information that may be shared, proactively or on request, includes the following:

• information relating to suspected or actual sanctions breaches identified by OFSI, which suggest weaknesses in an FCA-supervised firm’s systems and controls for preventing sanctions breaches;
• information relating to asset freeze notifications and designated persons reports submitted to OFSI which relate to, or were submitted by, an FCA-supervised firm;
• information relating to suspected or actual sanctions breaches identified by the FCA that fall within OFSI’s competencies, which the FCA has reasons to believe that OFSI may not be aware of; and
• information relating to suspected or actual breaches of financial sanctions identified by either party, where there is reason to believe that joint investigations would benefit enforcement of those sanctions.

This development is a further example of the efforts to strengthen UK sanctions intelligence-gathering, investigation, and enforcement measures, particularly in respect of Russia sanctions under the Russia (Sanctions) (EU Exit) Regulations 2019 (as amended) (the Russia Sanctions Regulations).

Investment managers should note that, in addition to this MoU, (a) on 11 December 2023, the UK government announced the creation of the Office of Trade Sanctions as a complement to OFSI, which will be responsible for the civil enforcement of trade sanctions, including those against Russia; (b) on 26 December 2023, new amendments to the Russia Sanctions Regulations will enter into force, which introduce a new designated person’s reporting obligation and means that OFSI will obtain increased information flow in respect of frozen assets; and (c) on 15 November 2023, OFSI and the US Office of Foreign Assets Control (OFAC) published a review of their year in official “partnership”, which included renewed commitments to share more data between jurisdictions on sanctions implementation.

The MoU is additional evidence of the FCA’s “super-charged” focus on financial crime and its ongoing assessment of firms’ sanctions screening systems and policies. For information on the FCA’s recent statements on this issue, please see our Updates from May, June, and October 2023.

Investment managers should review their systems, controls, and policies to ensure continued alignment and compliance with the UK sanctions regulatory regime. In particular, regulated firms should remain mindful of their existing reporting obligations regarding frozen assets or sanctions breaches to both the FCA and OFSI; the MoU does not change the obligation for firms to report to each regulator separately, where required. Firms should also consider where such a notification may prompt other obligations, for example, under the UK Money Laundering, Terrorist Financing, and Transfer of Funds (Information on the Payer) Regulations 2017 and the Proceeds of Crime Act 2002. Finally, the close OFSI-OFAC collaboration means that managers should ensure that reporting in one jurisdiction is aligned with reporting in the other, including voluntary disclosures or other notifications.

UK government amends rules for due diligence on domestic politically exposed persons (PEPs)

On 14 December 2023, the UK government published the Money Laundering and Terrorist Financing (Amendment) Regulations 2023, along with an explanatory note.

The UK money-laundering regulations (MLRs) stipulate that financial institutions and other regulated firms must apply enhanced due diligence (EDD) to PEPs as well as their relatives and close associates (RCAs). However, the MLRs have not distinguished between domestic and non-domestic PEPs.

Following this change, the MLRs will be clear that domestic PEPs and their RCAs must be subject to a lesser extent of EDD in the absence of other risk factors unrelated to their position as a domestic PEP.

The new regulations enter into force on 10 January 2024.

6. UK — Agreement With Switzerland

UK and Switzerland sign Berne Financial Services Agreement

On 21 December 2023, the UK signed a first-of-its-kind financial services agreement with Switzerland (the Agreement).

The Agreement uses outcomes-based mutual recognition of domestic laws and regulations to enable cross-border trade in financial services to wholesale and sophisticated clients. Among other things, the Agreement enables the following:

• The agreement builds on the highly liberalised access UK firms already have into the Swiss investment services market by introducing commitments designed to stabilise the access routes currently available to service institutional and professional clients, including high net worth individuals.
• Swiss investment services firms will also have access to the UK market, similar to Article 47 of UK MiFIR, with two improvements:

(i)  Swiss firms will have the choice of continuing to rely on the overseas persons exclusion or using the Agreement to service firms in the UK.
(ii) Swiss firms can deal with sophisticated high net worth investor clients, subject to provision of appropriate disclosures.

• Swiss asset managers will be able to serve British clients with assets of more than £2 million directly from Switzerland and can apply Swiss law while doing this.
• The Agreement ensures that the UK’s ability to market funds to Swiss professionals and high net worth clients will remain stable.
• Portfolio delegation channels between the UK and Switzerland are already open, and the Agreement maintains the same commitment to continue.
• UK and Swiss counterparties to OTC derivative contracts will be free to make a choice on whether to rely on either recognised UK or Swiss risk mitigation rules.

7. EU — MiFID II

European Securities and Markets Authority (ESMA) updates Q&As on MiFID II and MiFIR investor protection and intermediaries

On 15 December 2023, ESMA published an updated version of its Q&As on MIFID II and MiFIR investor protection and intermediaries.

The updated Q&As clarify the basis on which costs should be aggregated when providing costs and charges information to clients as well as the level of aggregation that firms need to apply.

They also set out how investment firms should indicate the parts of the total costs and charges paid in or represented in an amount of foreign currency in their ex-ante and ex-post costs and charges disclosure.

ESMA publishes discussion paper on MiFID II investor protection topics

On 14 December 2023, ESMA published a discussion paper (DP) on MiFID II investor protection topics linked to digitalisation.

The DP topics include online disclosures (specifically, exploring ways in which this information can be improved by making use of techniques available to create more bespoke and interactive information to investors). It also covers sections on marketing communications and practices used by firms, including through the use of affiliates. Finally, the DP explores various digital engagement practices that are or can be used by firms (e.g., nudging techniques and design of choice architecture, the use of gamification techniques, push notifications, and possible dark patterns to be aware of).

8. EU — EMIR

ESMA publishes guidelines on position calculation under EMIR

On 18 December 2023, ESMA published a final report setting out its guidelines on position calculation under EMIR.

The final report contains the assessment of the feedback received from stakeholders and the proposed updates to the ESMA Guidelines on position calculation under EMIR Refit. The Guidelines provide clarification on the time of calculations, the scope of the data to be used in calculations, and the calculation methodologies under the new EMIR Refit standards. The final report also clarifies the way forward for trade repositories to adopt for managing the six-month EMIR Refit transition period.

The Guidelines will apply from 28 October 2024, and the original guidelines (ESMA70-151-1350) will be repealed six months prior to the date of application.

Council of the European Union adopts mandate to start EMIR 3 negotiations

On 6 December 2023, the Council of the European Union published a press release on its adoption of a mandate to start negotiations with the European Parliament on a review of EMIR, while the European Parliament published two reports on the European Commission’s proposals.

The proposed review contains legislative measures to streamline and shorten procedures for EU clearing services, improve consistency between rules, strengthen central counterparty supervision, and require market participants subject to a clearing obligation to clear a portion of certain products through active accounts at EU CCPs (the active account requirement, or AAR).

The AAR includes operational elements (such as the ability to handle the counterparty’s transactions at short notice if need be) and activity elements (so that the account is effectively used). It will require counterparties above a certain threshold to clear trades in the most relevant sub-categories of derivatives of substantial systemic importance, as defined in terms of class of derivative, size, and maturity.

9. EU — ESG

ESMA publishes update on adoption of guidelines on sustainability-related fund names

On 14 December 2023, ESMA published a public statement providing an update on its guidelines on funds’ names using ESG or sustainability-related terms.

This follows ESMA’s consultation on draft guidelines in November 2022 (as summarised in our previous Sidley Update).

ESMA will no longer retain the proposed threshold of 50% in sustainable investments for the use of sustainability-related words in funds’ names. Instead, it considers it more appropriate that, for a fund to use sustainability-related terms in its name, it should

• apply the 80% minimum proportion of investments used to meet the sustainability characteristics or objectives;
• apply the Paris-aligned Benchmark exclusions; and
• invest meaningfully in sustainable investments defined in Article 2(17) Sustainable Finance Disclosure Regulation, reflecting the expectation investors may have based on the fund’s name.

ESMA also intends to create a new category for transition-related terms, separate environmental from social- and governance-related terms, and set out measurability requirements for funds using impact- and transition-related terms.

ESMA plans to adopt the Guidelines shortly after the date of entry into force of the amended legal texts of the Alternative Investment Fund Managers Directive (AIFMD) and UCITS Directive, which is currently anticipated to be in early 2026. The Guidelines will apply three months after the date of their publication on ESMA’s website in all EU official languages.

Managers of new funds would be expected to comply with the Guidelines (in respect of those funds) from the date of their application. Managers of funds existing before the date of application of the Guidelines will be granted a six-month implementation period from the application date.

European Parliament and Council of the EU agree final text of Corporate Sustainability Due Diligence Directive (CS3D)

On 14 December 2023, the European Parliament and the Council of the EU announced that they had reached a provisional agreement on the final text of the CS3D. We have published our analysis of the final text in our Sidley Update New EU ESG Legislation Will Affect Non-EU Companies With Significant EU Revenues.

European Commission publishes draft FAQs on Taxonomy Regulation Delegated Disclosures Act

On 21 December 2023, the European Commission published a Draft Commission Notice containing responses to frequently asked questions on the interpretation and implementation of certain legal provisions of the Disclosures Delegated Act under Article 8 of the EU Taxonomy Regulation on the reporting of Taxonomy-eligible and Taxonomy-aligned economic activities and assets (third Commission Notice).

The Commission Notice includes responses to general questions relevant to financial undertakings, covering the following topics:

• the scope of covered entities;
• the scope of consolidation of disclosures;
• Taxonomy-assessment of exposures to individual undertakings;
• Taxonomy-assessment of groups (including key performance indicators to be reported by parent undertakings and the Taxonomy assessment of exposures to parent undertakings);
• Taxonomy assessment of specific exposures (including questions on entities subject to Articles 19a or 29a of the Accounting Directive, exposures to special purpose vehicles, public authorities, EU undertakings and non-EU undertakings not subject to Articles 19a or 29a of the Accounting Directive, real estate, exposures to specific economic activities, and economic activities contributing to multiple environmental objectives);
• verification/assurance/evidence of compliance with the technical screening criteria; and
• compliance with minimum safeguards.

The Commission Notice also contains a number of questions related to specific financial undertakings.

The draft notice was approved in principle by the European Commission on 21 December 2023, and its formal adoption in all the official languages of the European Union will take place as soon as the language versions are available.

ESMA publishes consultation on draft guidelines on enforcement of sustainability information

On 15 December 2023, ESMA published a consultation on its draft Guidelines on Enforcement of Sustainability Information (the GLESI).

The Corporate Sustainability Reporting Directive, published in the Official Journal of the EU on 16 December 2022, mandates ESMA to issue guidelines on the supervision of sustainability reporting by national competent authorities, and the GLESI has been prepared in response to this mandate.

The proposed guidelines within the GLESI cover basic concepts, enforcers’ internal organisation, selection of issuers whose sustainability information will be examined, examination of sustainability information, enforcement actions in case an infringement is discovered during the examination, and European coordination of enforcement.

The deadline responses to the consultation on the GLESI is 15 March 2024, and ESMA expects to publish its final guidelines in Q3 2024.

10. EU — PRIIPs

ESAs update consolidated Q&As on PRIIPs Key Information Document (KID)

On 5 December 2023, the European Supervisory Authorities (ESAs) updated its consolidated Q&A on the PRIIPs KID.

Among other things, the updated Q&A include a new question 5 at Section XI on Investment Funds. This asks whether, in the case of a UCITS or AIF, the manufacturer of a PRIIP can be an entity to which collective portfolio management functions, or other functions, have been delegated to by the fund, management company, or AIFM.

The updated Q&A confirms that even if the fund delegates functions to third parties, the PRIIP manufacturer can only be the management company or the AIFM of the fund (or, in the case of a self-managed UCITS or internally managed AIF, the fund itself).

The Q&As also provide new updates on general topics, market risk assessment, performance scenarios, and multi-option products.

11. EU — AML

European Commission removes Cayman Islands from EU AML list

On 12 December 2023, the European Commission adopted a Delegated Regulation amending the list of high-risk third countries under the EU AML Directive (Directive (EU) 2015/849) (the EU AML List).

Since the removal of the Cayman Islands from the Financial Action Task Force “grey list” in October (on which see our previous Sidley Update), it has been anticipated that the Cayman Islands would also be removed from the EU AML List.

This Delegated Regulation confirms the removal of Cayman Islands from the EU AML List. This means Cayman AIFMs will be able to continue to market (and Cayman AIFs continue to be marketed) into the EU once new AIFMD II rules come into force.

Council of the EU and European Parliament agree to create new AML authority

On 13 December 2023, the Council of the EU announced that it had reached a provisional agreement with the European Parliament on creating a new European authority, AMLA, for countering money laundering and the financing of terrorism (AML/CFT).

AMLA will have direct and indirect supervisory powers over high-risk obliged entities in the financial sector. Additionally, to ensure compliance, in cases of serious, systematic, or repeated breaches of directly applicable requirements, the AMLA will impose pecuniary sanctions on the selected obliged entities.

The provisional agreement adds powers to the AMLA to directly supervise certain types of credit and financial institutions, including cryptoasset service providers, if they are considered high-risk or operate against borders. Initially, the AMLA will supervise up to 40 groups and entities. For non-selected obliged entities, AML/CFT supervision will remain primarily at national level.

AMLA will carry out a selection of credit and financial institutions that represent a high risk in several member states. The selected obliged entities will be supervised by joint supervisory teams led by AMLA that will, among other, things carry out assessments and inspections. The agreement entrusts the authority to supervise up to 40 groups and entities in the first selection process.

For non-selected obliged entities, AML/CFT supervision would remain primarily at the national level.

12. International — ESG

IOSCO publishes Final Report on Supervisory Practices to Address Greenwashing

On 4 December 2023, the board of IOSCO published a final report on supervisory practices to address greenwashing.

The report provides an overview of the initiatives undertaken in various jurisdictions to address greenwashing in line with the IOSCO recommendations published in 2021 and the subsequent call for action. It also provides a mapping of the regulatory and supervisory approaches and practices (current or planned) by regulators to address greenwashing in the areas of asset managers and ESG ratings, and data product providers, including challenges and data gaps hindering the implementation of the 2021 IOSCO recommendations.

The report makes the following findings:

• Greenwashing. Most jurisdictions do not specifically define greenwashing in their respective legislation, especially in legally binding provisions. However, many authorities have provided guidance on the identification of greenwashing and the risks associated with it.
• Supervision. Most jurisdictions have in place supervisory tools and mechanisms to address greenwashing in the area of asset managers and their products.
• Knowledge. Educational, awareness measures and capacity-building activities are also used as proactive tools to prevent greenwashing, with some regulators establishing requirements or guidance about the knowledge asset management staff are expected to have for handling and for offering sustainable finance products to retail investors.
• ESG ratings and data products. Although the market for ESG ratings and data products is growing rapidly, the market for these firms remains largely unregulated.
• Labelling. IOSCO Affiliate Members Consultative Committee members are taking steps to improve the consistency of terminology, which could lead to better classification of funds and labelling.
• Enforcement. Enforcement measures have been applied to greenwashing cases (including infringement notices, monetary fines, revocation of license, suspension of business, other public reprimands and even potential civil or criminal liability).
• Cross-border co-operation. Securities regulators have put in place different mechanisms and tools (bilateral and multilateral) to assist one another throughout the regulatory cycle in relation to sustainable finance investments.