Financial Services Regulatory Update – October 2022 Round Up

Consumer Protection Code Review

On 3 October 2022, the Central Bank of Ireland (“CBI”) launched a discussion paper on the review of the consumer protection code (here). The CBI’s consumer protection code review is being conducted in three phases:

• phase 1: Discussion Paper (October 2022 - 31 March 2023);
• phase 2: Public Consultation (to be published Q4 2023); and
• phase 3: Finalisation of the revised retail conduct framework (2024).

The discussion paper focuses on two broad discussion theme: ‘Availability and Choice’ and ‘Firms Acting in Consumers’ Best Interests’ and eight further more focused themes, including, ‘Innovation & Disruption’, ‘Digitalisation’ and ‘Climate Matters’. Each discussion theme poses questions for stakeholders to consider. Stakeholders can submit responses to an online survey (here), which will inform the CBI in updating the consumer protection code. Feedback to this consultation is requested by 31 March 2023.

Ireland for Finance Strategy

On 3 October 2022, an updated version of the ‘Ireland for Finance’ strategy was published by the Government (here). The updated strategy aims to chart the future development of the international financial services sector in Ireland to the end of 2026 and provides a useful indicator of likely developments over the near to medium term. The update of the strategy focuses around the following five key themes that are intended to drive growth and employment:

• sustainable finance;
• fintech and digital finance;
• diversity and talent;
• regionalisation and promotion; and
• enhancing the operating environment.

BREXIT

On 13 October 2022, the House of Lords European Affairs Committee (the “Committee”) published the UK government's response to the Committee’s report on the UK-EU relationship in financial services (here). The UK government’s response discusses:

• Equivalence: the UK government believes that there is no competitive disadvantage for the UK due to other jurisdictions receiving more equivalence decisions from the EU;
• Regulatory co-operation: the UK government believes that further steps are needed on the EU side before the memorandum of understanding on financial services co-operation comes into effect;
• Revocation of retained EU law on financial services: the Treasury will lay an order to commence repeal of the legislation listed in Schedule 1 Financial Services and Markets Bill 2022-23 once all replacement secondary legislation and rules are in place;
• Free trade agreements: the UK government believes that these offer opportunities to seek further co-operation; and
• Data: the UK government says that service providers can adopt alternative transfer mechanisms if there are changes to the status of the EU's data adequacy decision.

Beneficial Ownership of Trusts

On 14 October 2022, Revenue updated its information on the Central Register of Beneficial Ownership of Trusts (“CRBOT”) (here). The updates relate to inspecting the CRBOT (here).

On 25 October 2022, Revenue updated the forms and guidance on material aspects of the CRBOT webpage (here). This includes helpful CRBOT FAQs (here).

Commission 2023 Work Programme

On 18 October 2022, the European Commission (the “Commission”) published its work programme for 2023 (here).

The Commission intends to further improve data access in financial services with an initiative for a framework on open finance. The Commission will also revise the Payment Services Directive to support innovation whilst ensuring easier and safer use of online payment services and better protecting users against fraud and abuse, with a legislative proposal expected in Q2 2023.

There are also several priority pending proposals related to financial services such as:

• Regulation amending the Central Securities Depositories Regulation;
• Directive on Corporate Sustainability Due Diligence;
• Regulation amending the Market in Financial Instruments Regulation (“MiFIR”);
• Directive amending the MiFID II Directive;
• Regulation amending the Regulation on European Long-Term Investment Funds (“ELTIFs”);
• Directive amending the Alternative Investment Fund Managers Directive and UCITS Directive (“AIFMD II”);
• Regulation amending the Capital Requirements Regulation (“CRR”);
• Insurance Recovery and Resolution Directive (“IRRD”);
• Directive amending the Solvency II Directive; and
• Directive on Consumer Credits.

Crowdfunding

On 21 October 2022, Commission Delegated Regulation (EU) 2022/1988 extending the transitional period for continuing to provide crowdfunding services in accordance with national law as referred to in Article 48(1) of Regulation (EU) 2020/1503 was published in the Official Journal of the European Union (the “Official Journal”) (here).

The Delegated Regulation extends the transitional period until 10 November 2023 and will apply from 11 November 2022.

Prospectus Regulation Q&A

On 12 October 2022, the European Securities and Markets Authority (“ESMA”) published the eleventh version of its Questions and Answers on the Prospectus Regulation (here). The update incorporates a new question (15.9) regarding the condition set out in Article 1(6a)(b) for the application of the prospectus exemption in connection with a takeover by means of an exchange offer.

The answer provided explains that ‘approval’ in Article 1(6a)(b) means the approval process applied by the relevant supervisory authorities designated in accordance with the Takeovers Directive (Directive (EU) 2004/25/EC) and that have the competence, where applicable, to review the offer document under that Directive.

Market Abuse RTS – Liquidity Contracts

On 18 October 2022, Commission Delegated Regulation (EU) 2022/1959 was published in the Official Journal (here). This Delegated Regulation contains regulatory technical standards (the “RTS”) setting out a contractual template for liquidity contracts for the shares of issuers whose financial instruments are admitted to trading on an SME growth market under the Market Abuse Regulation (“MAR”). The contractual template for liquidity contracts lays down the minimum elements that a liquidity contract should contain, including as regards transparency to the market and performance of the liquidity provisions. Parties are free to insert additional clauses to reflect the specificities of the individual case. The Delegated Regulation entered into force on 7 November 2022.

Credit Ratings Agencies

On 31 October 2022, ESMA published its Guidelines on the scope of the Credit Ratings Agencies Regulation (“CRA Regulation”) (here). The Guidelines cover the following aspects in particular:

• obligation to register;
• credit rating activities and exemptions from registration;
• private credit ratings;
• establishment of branches in third countries;
• specific disclosure recommendations for credit scoring firms and credit rating agencies established in third countries; and
• enforcement of the scope of the CRA Regulation and co-operation with national competent authorities.

These Guidelines apply from 1 May 2024.

Gas and Nuclear – SFDR RTS

On 31 October 2022, the Commission adopted a Delegated Regulation (here) (together with annexes) containing amendments to the Sustainable Finance Disclosures Regulation RTS (the “SFDR RTS”) to provide for gas and nuclear disclosures and introduce some minor amendments to the SFDR RTS.

The Commission states that “the amendments proposed in this Delegated Regulation are very limited and do not constitute real policy options, as they update the SFDR Regulation in light of the Complementary Delegated Act mainly by including references to natural gas and nuclear energy sectors”.

The Council of the EU (the “Council”) and European Parliament (the “Parliament”) will now consider this Delegated Regulation and, if neither object, the Delegated Regulation will be published in the OJ within three months and will take effect 3 days after being published.

Article 8 Taxonomy Regulation -FAQs

On 6 October 2022, the Commission published a Commission Notice on the interpretation of certain legal provisions of Commission Delegated Regulation (EU) 2021/2178 which supports Article 8 of the Taxonomy Regulation (the “Disclosures Delegated Act”) (here). Article 8 of the Taxonomy Regulation relates to the reporting of eligible economic activities and assets by undertakings covered by the Non-Financial Reporting Directive. The Commission Notice contains FAQs to support disclosures under Article 8 and aims to clarify the content of the Disclosures Delegated Act.

Reports on EU Taxonomy

On 11 October 2022, the EU Platform on Sustainable Finance (the “Platform”) published a report setting out recommendations on data and usability of the EU Taxonomy (here). This report does not address issues related to SMEs as the Platform is preparing a separate report on same. The report makes several recommendations, including:

• recommending that the Commission set up an online channel that allows the industry to suggest revisions to the existing criteria in the EU Taxonomy on the basis of implementation or usability issues;
• recommending that the Commission adopt a common approach to defining numerators and denominators across the Taxonomy reporting obligations. The Platform requests a clear and common list of assets to be excluded from the Green Asset Ratio and Green Investment Ratio; and
• asking for a review on the usability of ‘Do No Significant Harm’ criteria (“DNSH”) criteria and supplementary guidance on their use internationally.

The Platform also published a final report on minimum safeguards under the Taxonomy Regulation (here), having consulted on the draft report in July 2022. The final report provides recommendations on assessing compliance with minimum safeguards for human rights (including workers’ rights), bribery and corruption, taxation and fair competition.

LMA – ESG Disclosures

On 19 October 2022, the Loan Market Association (“LMA”) published the second edition of its guide for company advisors to ESG disclosure in leveraged finance transactions (here). The updated guide includes two new chapters:

ESG in the private debt market: provides a high-level overview of key themes and emerging issues relating to the adoption of ESG in the private debt market; and

ESG litigation: highlights potential legal risks presented by the increased volume of ESG-related transactions and disclosures.

ESMA Priorities

On 27 October 2022, the ESMA announced an updated strategy for 2023-2028 (here). ESMA is changing its Union strategic supervisory priorities (“USSPs”) to include ESG disclosures alongside market data quality. ESMA intends to work with national competent authorities to enhance transparency of ESG disclosures across the sustainable finance value chain including issuers, investment managers and investment firms, and to address greenwashing.

Mortgage Lending Rules

On 19 October 2022, the CBI published its report on the mortgage measures framework review and announced several targeted changes (here).

The CBI’s mortgage measures framework will retain many of its original features, including the dual-instrument approach of using loan-to-income (“LTI”) and loan-to-value (“LTV”) rules. The targeted amendments made by the CBI relate to LTI and LTV limits for first-time buyers/second and subsequent buyers and allowances for lending above limits.

Our briefing (here) provides further detail.

On 28 October 2022, the Central Bank (Supervision and Enforcement) Act 2013 (Section 48(1)) (Housing Loan Requirements) Regulations 2022 were signed to give effect to the changes and to revoke prior regulations (here). These Regulations will apply from 1 January 2023. These Regulations set the limits for lenders on the proportion of mortgage loans that they may advance in certain categories by reference to:

• the value of the property on which the mortgage loan is or is to be secured; and
• the income of the borrower.

Regulation on TLAC and MREL (Daisy Chain Proposal)

On 25 October 2022, Regulation (EU) 2022/2036 was published in the Official Journal (here). The Regulation will make targeted amendments to provisions in the Capital Requirements Regulation (“CRR”) relating to the minimum requirement for own funds and eligible liabilities (“MREL”) and total loss absorbing capacity (“TLAC”). It will also amend the Bank Recovery and Resolution Directive (“BRRD”).

This Regulation, also referred to as the ‘Daisy Chain’ proposal, is intended to introduce targeted adjustments that will improve the resolution framework for banks. Amendments to the CRR concerning the indirect subscription of internal MREL eligible instruments within resolution groups apply from 1 January 2024. The remaining aspects of the Regulation apply from 14 November 2022.

RTS - Risk Weights and Minimum Loss Given Default

On 5 October 2022, the Commission adopted a Delegated Regulation containing regulatory technical standards (“RTS”) specifying the types of factors to be considered for the assessment of the appropriateness of risk weights for exposures secured by immovable property and the conditions to be taken into account for the assessment of the appropriateness of minimum loss given default (“LGD”) values for those exposures (here).

RTS - Own Funds and Eligible Liabilities

On 11 October 2022, the Commission adopted a Delegated Regulation on the prior permission to reduce own funds and the requirements related to eligible liabilities instruments under the CRR (here).

This Delegated Regulation amends the RTS contained in Delegated Regulation (EU) 241/2014 to:

• extend the scope of own funds RTS to cover eligible instruments; and
• reflect modifications to the CRR provisions on own funds.

RTS – Internal Model Approach

On 26 October 2022, three Commission Delegated Regulations containing RTS supplementing the CRR were published in the Official Journal:

• Commission Delegated Regulation (EU) 2022/2058 supplementing the CRR with regard to RTS on liquidity horizons for the alternative internal model approach (“A-IMA”), as referred to in Article 325bd(7) of the CRR (here);
• Commission Delegated Regulation (EU) 2022/2059 supplementing the CRR with regard to RTS specifying the technical details of back-testing and profit and loss attribution requirements under Articles 325bf and 325bg of the CRR (here); and
• Commission Delegated Regulation (EU) 2022/2060 supplementing the CRR with regard to RTS specifying the criteria for assessing the modellability of risk factors under the internal model approach (“IMA”) and specifying the frequency of that assessment under Article 325be(3) of the CRR (here).

These Delegated Regulations will enter force on 16 November 2022.

Insurance and Reinsurance Regulations

On 10 October 2022, the European Union (Insurance and Reinsurance) (Amendment) Regulations 2022 were signed by the Minister for Finance (here). These Regulations give further effect to Directive 2009/138/EC and amend Regulations 3, 4 and 140 of the European Union (Insurance and Reinsurance) Regulations 2015, from 19 October 2022.

Regulation 3 is amended by substituting a new definition of ‘large risks’.

Regulation 4 is amended by the substitution of a paragraph which sets out the conditions, all of which must be met, for the Regulations not to apply to an undertaking (other than an undertaking carrying on reinsurance only).

Regulation 140 is amended by the substitution of a new paragraph setting the monetary value of absolute floors for the ‘Minimum Capital Requirement’ in the case of non-life insurance undertakings, life insurance undertakings, and a reinsurance undertaking.

Unit-linked Insurance Products Methodology

On 31 October 2022, EIOPA published methodology to assess value for money in the unit-linked market (here). The methodology is for national competent authorities primarily. However, EIOPA also hopes to provide more clarity for insurance manufacturers and distributors on the supervisory approach to addressing value for money risks when supervising product oversight and governance (“POG”) requirements.

The methodology contains a three-layer analysis:

Layer I: market wide assessment where NCAs identify products requiring higher scrutiny;

Layer II: enhanced supervision where NCAs assess different indicators and determine whether products offer value; and

Layer III: assessment of POG documents for those products for which enhanced supervision performed does not indicate products clearly offering (or not offering) value for money, but results in identifying products that may offer value only to some target markets.

Client Asset Report – Guidance Note

On 5 October 2022, the CBI published a guidance note for investment firms on the monthly client asset report (“MCAR”) (here). The MCAR is a return that investment firms subject to the client asset requirements are required to complete and submit to the CBI via the online reporting system (the “ONR”). The guidance note discusses how to complete the return fields in the revised MCAR template.

Supervision of ESG Risk

On 24 October 2022, the EBA published a report on incorporating ESG risks in the supervision of investment firms (here). This report considers the integration of ESG factors and risks under all main supervisory review and evaluation process (“SREP”) elements including:

• business model analysis;
• assessment of internal governance and risk management; and
• assessment of risks, covering risk to capital and liquidity risk.

The EBA acknowledges the challenges presented by the assessment of ESG risks in light of current data and methodological constraints and recommends that supervisory processes follow a gradual approach. These processes should prioritise the recognition of ESG risks in investment firms’ strategies and governance arrangements, and later incorporate ESG risks in the assessments of risks to capital and liquidity.

The EBA expects supervisory assessment practices to develop over time, alongside the expected improvements in the availability of ESG data as well as the development of methodologies to assess the impact of ESG factors on financial risks.

Filing Process - SFDR Level 2 Disclosures

On 4 October 2022, the CBI issued a notice entitled: ‘Process clarifications for UCITS and AIFs precontractual documentation updates in relation to the Level 2 measures in relation to the Sustainable Finance Disclosure Regulation’ (the “Notice”) (here).

This Notice details the CBI’s ‘streamlined’ filing process to assist firms in meeting the impending deadline of 1 January 2023 in respect of pre-contractual updates required under the SFDR RTS. The deadline for filings is 1 December 2022.

Our briefing (here) provides further detail.

AIFMD Q&As

On 5 October 2022, the CBI updated its AIFMD Q&As (here).

A new Q&A, ID 1154, relates to the investment limit calculation where a QIAIF invests more than 50% of net assets in another investment fund and whether the reference to ‘net assets’ can be understood to refer to committed capital.  A new Q&A, ID 1155, relates to the leverage calculation of a loan-originating QIAIF and whether ‘net asset value’ can be understood to refer to committed capital.

Both Q&A confirm that ‘net assets’ can be understood to refer to committed capital provided that:

• the QIAIF remains closed for redemptions during the capital commitment period;
• the start date and the end date of the capital commitment period is disclosed to the investors; and
• the calculation methodology can only be applied for six months following the completion of the capital commitment period.

MMF - Reporting Requirements

On 17 October 2022, the CBI published a guidance note on reporting requirements for fund management companies of money market investment funds (“MMFs”) (here). The guidance note provides information and direction for fund managers completing MMF reporting, including, information in respect of the reporting of MMF returns, ad-hoc stress test reporting, other ad-hoc reporting and daily reporting for MMFs.

UCITS/AIF - Reporting Requirements

On 25 October 2022, the CBI published guidance on regulatory reporting requirements for UCITS management companies (here) and AIFMs (here).

The guidance for both UCITS management companies and AIFMs outline the requirements for financial reporting, capital reporting, other scheduled ONR returns and ad-hoc returns.

RTS – Mandatory Buy-In Regime

On 13 October 2022, Commission Delegated Regulation (EU) 2022/1930 amending the RTS in respect of those provisions relating to the operational details of the mandatory buy-in process was published in the Official Journal (here). The Delegated Regulation, which entered into force on 2 November 2022, defers the application of those provisions until 2 November 2025.

CSDR Q&As

On 20 October 2022, ESMA published an updated version of its Q&As on the implementation of the Central Securities Depositories Regulation (“CSDR”) (here). ESMA has included new Q&As concerning the calculation, scope, costs and processes of cash penalties under Article 7(2) CSDR.

Review of Securitisation Regulation

On 10 October 2022, the Commission published its report to the Parliament and the Council on the functioning of the Securitisation Regulation (Regulation (EU) 2017/2402) (here).

The Commission acknowledges there are shortcomings in the Securitisation Regulation, but concludes that improvements could be implemented without amending the text of same. As such, the Commission does not include any legislative proposals with this report. The Commission does provide clarifications on the jurisdictional scope of the Securitisation Regulation and also considers topics, including, sustainable securitisation and due diligence and transparency. This report does not cover the prudential treatment of securitisations which is the subject of a separate review by the European Supervisory Authorities (the “ESAs”).

ITS - STS Notification for Synthetic Securitisations

On 13 October 2022, Commission Implementing Regulation (EU) 2022/1929 was published in the Official Journal (here). This Implementing Regulation amends the implementing technical standards (the “ITS”) as regards the templates for the provision of information in accordance with the STS notification requirements for on-balance-sheet synthetic securitisations.

Annexes I and II of the Implementing Regulation set out the content and format of the notification templates for on-balance-sheet synthetic STS securitisations. The Implementing Regulation entered into force on 2 November 2022.

Temporary Exemptions for Intragroup Contracts

On 25 October 2022, the Commission adopted two Delegated Regulations containing RTS extending until 30 June 2025 the temporary exemptions regime for intragroup contracts under EMIR:

• Commission Delegated Regulation amending the RTS laid down in Delegated Regulations (EU) 2015/2205, (EU) 2016/592 and (EU) 2016/1178 as regards the date at which the clearing obligation takes effect for certain types of contracts (here); and
• Commission Delegated Regulation amending the RTS laid down in Delegated Regulation (EU) 2016/2251 as regards the date of application of certain risk management procedures for the exchange of collateral (here).

The Delegated Regulations will be subject to review by the Council and the Parliament and, if neither object, shall enter after force the day after publication in the OJ.

Our briefing (here) provides further detail.

RTS and ITS -Reporting Requirements

On 7 October 2022, six Delegated Regulations and Implementing Regulations containing RTS and ITS relating to EMIR reporting requirements were published in the Official Journal:

• Commission Delegated Regulation (EU) 2022/1855 supplementing EMIR with regard to RTS specifying the minimum details of the data to be reported to trade repositories (“TR”) and the type of reports to be used (here). This Delegated Regulation applies from 29 April 2024;
• Commission Delegated Regulation (EU) 2022/1856 amending the RTS laid down in Delegated Regulation (EU) 151/2013 by further specifying the procedure for accessing details of derivatives as well as the technical and operational arrangements for their access (here). Article 1(4), points (c) and (d) of this Delegated Regulation apply from 29 April 2024;
• Commission Delegated Regulation (EU) 2022/1857 amending the RTS laid down in Delegated Regulation (EU) No 150/2013 as regards the details of the applications for registration as a TR and for applications for extension of registration as a TR (here). Article 1(1) of this Delegated Regulation applies from 29 April 2024;
• Commission Delegated Regulation (EU) 2022/1858 supplementing EMIR with regard to RTS specifying the procedures for the reconciliation of data between TRs and the procedures to be applied by the TR to verify the compliance by the reporting counterparty or submitting entity with the reporting requirements and to verify the completeness and correctness of the data reported (here). This Delegated Regulation applies from 29 April 2024;
• Commission Implementing Regulation (EU) 2022/1859 amending the ITS laid down in Implementing Regulation (EU) 1248/2012 as regards the format for applications for registration as TRs and for applications for extension of registration as TRs (here); and
• Commission Implementing Regulation (EU) 2022/1860 laying down ITS for the application of EMIR with regard to the standards, formats, frequency, and methods and arrangements for reporting (here). This Implementing Regulation applies from 29 April 2024.

RTS - Commodity Derivatives Clearing Thresholds

On 18 October 2022, the Commission adopted a Delegated Regulation (here) amending RTS laid down in Delegated Regulation (EU) No 149/2013 relating to the value of the clearing threshold for positions held in OTC commodity derivative contracts and other OTC derivative contracts under EMIR.  This Delegated Regulation increases the clearing threshold for commodity derivatives in Delegated Regulation (EU) 149/2013 from €3 billion to €4 billion.

The Council and the Parliament will now consider the draft Delegated Regulation and, if neither object, the Delegated Regulation will be published in the Official Journal. The Delegated Regulation will enter into force the day following its publication in the Official Journal.

RTS - Collateral Requirements

On 21 October 2022, the Commission adopted a Delegated Regulation amending the RTS laid down in Delegated Regulation (EU) 153/2013 regarding temporary emergency measures on collateral requirements under Article 46(3) of EMIR (here).

This Delegated Regulation amends Articles 39 and 62 of, and Annex I to, Delegated Regulation (EU) 153/2013 to temporarily expand the pool of eligible collateral that central counterparties can accept to include uncollateralised bank guarantees for non-financial counterparties acting as clearing members and public guarantees for all types of counterparties.

The Council and the Parliament will now consider the Delegated Regulation and, if neither object, it will come into force on the day following its publication in the Official Journal. The temporary amendments the Delegated Regulation makes will expire 12 months after this entry into force.

Safe Deposit Box, Bank and Payment Accounts Register

On 26 October 2022, the CBI published information on the Ireland Safe Deposit Box, Bank and Payment Accounts Register (“ISBAR”), including:

• scope and reporting guidelines (here);
• file, schema and record validation rules (here); and
• frequently asked questions (here).

IMF Technical Note on AML/CFT

On 21 October 2022, the International Monetary Fund (“IMF”) published a technical note on anti-money laundering/combating the financing of terrorism (“AML/CFT”) in Ireland (here). The note provides a targeted review of Ireland’s AML/CFT regime in the context of the 2022 Financial Sector Assessment Program and highlights key developments and progress made by Irish supervisory authorities in three important AML/CFT areas:

• understanding of ML/TF risks including in relation to transnational flows; 
• risk-based supervision of banks, solicitors, accountants, and trust and company service providers (“TCSPs”); and 
• availability of beneficial ownership information of legal persons and arrangements.

The note outlines that while domestic money laundering threats are well understood by Irish authorities, Ireland faces significant and increasing threats from foreign criminal proceeds. Hence, the IMF recommends that priority should be given to enhancing the breadth and depth of data gathering and analysis of ML/TF risks in order to support the AML/CFT risk-based supervision of financial institutions. The main recommendations made by the IMF relate to understanding risks and AML/CFT priorities, AML/CFT supervision and entity transparency.

Eighth EU sanctions package targeting Russia

On 6 October 2022, the EU published the eighth package of sanctions in response to Russia’s actions in Ukraine (here). The Commission has produced FAQs concerning the eighth package of sanctions (here). Of particular note is that existing prohibitions on crypto assets have been tightened by banning all crypto-asset wallets, accounts, or custody services, irrespective of the amount of the wallet (previously up to €10,000 was allowed). Similarly, the package widens the scope of services that can no longer be provided to the Russian government or legal persons established in Russia, now including IT consultancy, legal advisory, architecture and engineering services.

The legislation containing the sanctions is as follows:

• Council Decision (CFSP) 2022/1907 of 6 October 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (here);
• Council Decision (CFSP) 2022/1908 of 6 October 2022 amending Decision (CFSP) 2022/266 concerning restrictive measures in response to the recognition of the non-government controlled areas of the Donetsk and Luhansk oblasts of Ukraine and the ordering of Russian armed forces into those areas (here);
• Council Decision (CFSP) 2022/1909 of 6 October 2022 amending Decision 2014/512/CFSP concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine (here);
• Council Implementing Regulation (EU) 2022/1906 of 6 October 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (here);
• Council Regulation (EU) 2022/1903 of 6 October 2022 amending Regulation (EU) 2022/263 concerning restrictive measures in response to the recognition of the non-government controlled areas of the Donetsk and Luhansk oblasts of Ukraine and the ordering of Russian armed forces into those areas (here);
• Council Regulation (EU) 2022/1904 of 6 October 2022 amending Regulation (EU) No 833/2014 concerning restrictive measures in view of Russia's actions destabilising the situation in Ukraine (here); and
• Council Regulation (EU) 2022/1905 of 6 October 2022 amending Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (here).

On 5 October 2022, Council Regulation (EU) 2022/1848 of 4 October 2022 amending Regulation (EU) No 692/2014 concerning restrictive measures in response to the illegal annexation of Crimea and Sevastopol was published in the Official Journal (here).

On 20 October 2022, the Council of the EU added three Iranian individuals and one Iranian entity to the list of persons subject to restrictive measures regarding Ukraine due to their role in developing and delivering unmanned aerial vehicles to Russia for use in Ukraine. Those designated are subject to an asset freeze and EU citizens and companies are forbidden from making funds available to them. The sanctions are contained in:

• Council Decision (CFSP) 2022/1986 of 20 October 2022 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (here); and
• Council Implementing Regulation (EU) 2022/1985 of 20 October 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (here).

The Commission updated its sanctions information to reflect the eighth package of sanctions (here) and continues to publish updated consolidated versions of its FAQs (here).

Instant Payments

On 26 October 2022, the Commission adopted a proposed Regulation amending the Single Euro Payments Area (“SEPA”) Regulation and the Cross-Border Payments Regulation as regards instant credit transfers in euro (here).  The Commission’s proposal is intended to make instant payments universal, affordable and secure.

Our briefing (here) provides further detail.

SEPA scheme Instant Credit Transfer Rulebook

On 28 October 2022, the European Payments Council (“EPC”) announced a new entry-into-force time set for 19 November 2023 at 03:30:00.000 CET for SEPA Instant Credit Transfer rulebook (here). The new entry-into-force time will be preceded by a 30 minute SEPA-wide downtime period.

The EPC also published revised versions of the following SEPA rulebooks, guidelines and related documents:

• 2023 SEPA Instant Credit Transfer Scheme Rulebook version 1.1 (here);
• Maximum Amount for Instructions under the 2023 SEPA Instant Credit Transfer Rulebook version 1.1 (here);
• SEPA Instant Credit Transfer Inter-PSP Implementation Guidelines 2023 version 1.1 (here);
• SEPA Instant Credit Transfer Customer-to-PSP Implementation Guidelines 2023 version 1.1 (here);
• Guidance on the migration to the 2019 version of the ISO 20022-based XML messaging standard version 2 (here);
• Guidance on the use of structured addresses under the SEPA payment schemes as of November 2025 (version 1.0) (here); and
• 2021 SEPA Instant Credit Transfer rulebook version 1.2 (here).

Selected Consultations, Discussion Papers, Speeches and Reports Published

CBI – Speech by Darragh Rossi, Head of Funds Supervision, “Funds supervisory strategy and outlook” (here)

CBI - Markets Update (here)

Commission – Communication from the Commission on Guidelines for a best-execution process for sales of nonperforming loans on secondary markets (here)

Commission – Report from the Commission to the Parliament and the Council on the assessment of the risk of money laundering and terrorist financing affecting the internal market and relating to cross-border activities (here)

Council - Information note attaching a letter sent to the Chair of the Parliament Economic and Monetary Affairs Committee relating to the proposed Regulation on Markets in Crypto-Assets (here)

Council - Information note attaching a letter sent to the Chair of the Parliament Economic and Monetary Affairs Committee relating to the proposed Regulation on information accompanying transfers of funds and certain crypto-assets (here)

Council - Provisional political agreement with the Parliament on the proposed Regulation containing amendments to the Regulation on European long-term investment funds (here)

EBA - Report - Analysis of the EU dependence on non-EU banks and of EU banks’ dependence on funding in foreign currency (here)

EBA – Report on the monitoring of TLAC-/MREL-eligible liabilities instruments of European Union institutions – update (here)

EBA – Report on the peer review on ICT risk assessment under the SREP (here)

EBA – Thematic note – residential real estate exposures of EU banks: risks and mitigants (here)

EBA – Call for Input on the 2017 Joint Guidelines to prevent the abuse of fund transfers for ML/TF purposes (here)

EBA – 2023 European Supervisory Examination Programme (ESEP) for prudential supervisors (here)

EBA – 2023 European Resolution Examination Programme (EREP) for resolution authorities (here)

EBA - Repeal of three Guidelines regarding disclosure requirements in the CRR (here).

EBA - Guidelines specifying criteria for the identification, evaluation, management and mitigation of the risks arising from potential changes in interest rates and of the assessment and monitoring of credit spread risk, of institutions' non-trading book activities (here)

EBA - Draft RTS specify standardised and simplified standardised methodologies to evaluate the risks arising from potential changes in interest rates that affect both the economic value of equity and the net interest income of an institution's non-trading book activities in accordance with Article 84(5) of CRD IV (here)

EBA - Draft RTS specify supervisory shock scenarios, common modelling and parametric assumptions, and what constitutes a large decline for the calculation of the economic value of equity and of the net interest income in accordance with Article 98(5a) of CRD IV (here).

EBA - Opinion on the Commission's amendments relating to the draft ITS on prudential disclosures relating to ESG risks under Article 449a of the CRR (here).

EIOPA – Follow-up on peer review of propriety of AMSB members and qualifying shareholders (here)

EIOPA - Report (here) and factsheet (here) outlining the findings from its thematic review on the functioning of the EU market for credit protection insurance products sold via banks, acting as insurance intermediaries

EIOPA - Updated representative portfolios to be used for calculating the volatility adjustments to the relevant risk-free interest rate term structures for October 2022 under the Solvency II Directive (here) and technical information on the symmetric adjustment of the equity capital charge for Solvency II with reference to the end of September 2022 (here)

ESMA – Strategy 2023-2028 (here)

ESMA - Final report containing draft RTS that amend Delegated Regulation 153/2013 to temporarily expand the pool of eligible collateral that CCPs can accept so that it includes uncollateralised bank guarantees for non-financial counterparties acting as clearing members and public guarantees for all kinds of counterparties (here)

ESMA – 2023 Annual Work Programme (here)

ESMA – Virtual Conference of the Working Group on Euro Risk-Free Rates (here)

ESMA - Memorandum of understanding entered into with the People's Bank of China relating to central counterparties established in China (here)

ESMA - Central counterparty supervisory committee of ESMA strategic objectives for 2023-2025 (here).

ESMA – Withdrawal of recognition decisions of six Indian CCPs in accordance with EMIR (here).

EU Agency for the Cooperation of Energy Regulators - Announcement that it is establishing a joint task force with ESMA to strengthen their co-operation to further improve information exchange and avoid potential market abuse in the EU's spot and derivative markets (here).

ISDA – ‘In Review’ Newsletter October 2022 - A compendium of links to new documents, research papers, press releases and comment letters published by ISDA (here)

Parliament’s Economic and Monetary Affairs Committee - Draft report on the Commission's legislative proposal for a Regulation amending the Central Securities Depositories Regulation (here)

Single Resolution Board - Announcement that it and the European Central Bank (“ECB”) have reached an ‘in principle’ agreement on margin for redemptions of eligible liabilities (here)

Corrigendum to Commission Delegated Regulation (EU) 2022/1299 supplementing MiFID II regarding RTS specifying the content of position management controls by trading venues was published in the Official Journal (here).

You may also be interested in:

McCann FitzGerald regularly publishes briefings on topics relevant to financial services briefings, among others. You may be interested in the following briefings:

Final Extension for the Pension Schemes’ Clearing Exemption (here)

Discovery – Court’s approach to commercial confidentiality applied to sensitive private or personal material (here)

The Court of Appeal examines the definition of “public authority” under the AIE Regulations (here)

Overhaul of Irish Data Retention Laws (here)

LIBOR Transition:  FCA Announcement on Final Publication Dates (here)

You’ve been served!  Service of judicial and extrajudicial documents between Member States under the new EU Service Regulation (here)

1 November 2022: First Steps towards Residential Zoned Land Tax (here)

EU Sanctions Targeting Russia: Authorisations seeking release of Frozen Funds or Economic Resources are the Preserve of the Central Bank (here)

Central Bank’s Tracker Mortgage Examination and Investigation – Firm level investigations draw to a close (here)

Financial Services Regulatory Update – September 2022 Round Up (here)

Directors’ duty to have regard to the interests of creditors: Irish and English law contrasted (here)

Extension of Debt Warehousing Scheme to May 2024 (here)

(Re)Insurance: Five Key Areas of Regulatory Focus (here)

Administrative Fines under Article 83 GDPR (here)

Common interest privilege (here)

Greenwashing: Which adverts get hosed down? (here)

Security for costs - the price of limited liability? (here)

The way forward is circular (here)

AIE appeal explores presidential immunity under the Irish Constitution (here)