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Welcome to Euro Shorts, a short briefing on some of the week’s developments in the financial services industry in Europe.

If you would like to discuss any of the points we raise below, please contact me or one of our other lawyers.  

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Claire Cummings

020 7585 1406
claire.cummings@cummingslaw.com
www.cummingslaw.com


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EVENTS


Claire Cummings is to take part in the radio show N@ked Short Club on Resonance FM on Monday 12 February Claire Cummings will lead a discussion about cryptocurrencies/blockchain on the N@ked Short Club on Monday 12 February.  The radio programme will be hosted by Dr. Stu between 9 and 10pm on Resonance FM (join on 104.4FM or online via www.resonancefm.com).
 
Cummings Law will be holding a roundtable teach-in and discussion exploring how to prepare for the GDPR and giving an update on the progress of MiFID II to date.  The roundtable will be held on Wednesday, 21 February 2018 at our offices at 42 Brook Street.  If you would like more details on this event, please e-mail Claire Cummings at claire.cummings@cummingslaw.com or Sandra Bishop at sandra.bishop@cummingslaw.com.

On Thursday 8 March 2018, Cummings Law will be hosting a roundtable to discuss digital assets, including cryptocurrencies and initial coin offerings (“ICOs”). The discussion will cover basics of ICOs and cryptocurrencies and FCA regulatory issues such as whether tokens, cryptocurrencies and ICCs are regulated by the FCA, how are tokens subscribed for in a fund offering and how they can be converted into a fiat currency as well as the potential benefits and drawbacks of using these new technologies.  If you would like more details on this event, please e-mail Claire Cummings at claire.cummings@cummingslaw.com or Sandra Bishop at sandra.bishop@cummingslaw.com.


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FCA and ICO Joint Update on GDPR
 

The FCA and ICO published a joint update on the GDPR.  The update explains that firms have asked about their ability to comply with both the GDPR and the FCA's rules. It also explains that compliance with the GDPR is now a board level responsibility, and firms must be able to produce evidence to demonstrate the steps that they have taken to comply.  The FCA and ICO believe the GDPR does not impose requirements that are incompatible with the rules in the FCA Handbook and that a number of requirements are common to both. The requirement to treat customers fairly is also central to both data protection law and the financial services regulatory framework. When it makes rules, the FCA takes into account how its requirements will affect the privacy interests of individuals such as firms' customers and employees.  While the ICO will regulate the GDPR, the FCA will also consider compliance with the GDPR requirements under its rules.  The FCA and ICO recognise that there are still ongoing discussions to ensure specific details of the GDPR can be implemented consistently within the wider regulatory landscape.  The FCA and ICO state that they will continue to collaborate in the coming months to address firms' concerns and support their preparations for the introduction of the GDPR in May 2018.


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Alternative Investment Fund Managers (Amendment) Regulations 2018 Published

Recently, the Alternative Investment Fund Managers (Amendment) Regulations 2018 were published making minor changes to the procedures to be followed for applying to register as a manager of a European social entrepreneurship fund or of a European venture capital fund, and for the refusal and revocation of a registration. The Amending Regulations also provide for a registration of a European social entrepreneurship fund or of a European venture capital fund by an AIFM, and for the refusal and revocation of a registration.


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House of Commons European Scrutiny Committee Considers Fifth Money Laundering Directive


The House of Commons European Scrutiny Committee’s report outlines it’s views on the proposed Directive to amend the Fourth Money Laundering Directive.  The report sets forth several points of interest. First, although the date when most of MLD5 is due to take effect after the UK’s scheduled date of exit from the EU in March 2019, it now appears likely the government will agree to a post-Brexit transitional arrangement during which the UK would effectively stay in the single market. Subsequently, the Committee considers it likely that most, if not all, of MLD5 will have to be transposed in the UK as a matter of law.  Second, the likelihood that MLD5 will be applied in the UK has several important legal implications. These include whether it means that the government will have to invest in a centralised retrieval system for information on bank accounts. This would be a significant change to current practice, which involves the National Crime Agency accessing bank account information via credit reference agencies and individual banks.  Third, the Committee is disappointed that the exemption from enhanced due diligence for low-risk domestic politically exposed persons was not included in the final text of MLD5.  Finally, as the government is broadly content with the final text of MLD5, and given its imminent adoption by the European Parliament and the Council of the EU, the Committee clears it from scrutiny.


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ESMA Final Report on Draft ITS on Forms and Procedures for Co-operation Under MAR


ESMA published its final report on draft implementing technical standards (ITS) on forms and procedures for co-operation.  The draft ITS aim to facilitate the communication between the EU authorities, agencies, entities and public bodies where the information that has been provided to them, further to a request for assistance, is intended to be used for purposes not stated in the request, but falling under MAR, or the Regulation on wholesale energy market integrity and transparency.  In particular, the draft ITS describe the specific procedures to be followed by ESMA and national competent authorities for making, acknowledging, processing and replying to requests for assistance as well as when unsolicited assistance is provided. They also describe ESMA's co-ordination and facilitation role, particularly in cross-border investigations and inspections.  The ITS have been submitted to the EC for endorsement and the EC has three months to decide whether to endorse them.


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ESMA Updates Q&As on Benchmarks Regulation


ESMA published an updated version of its Q&As on the implementation of the Benchmarks Regulation on indices used in financial instruments and financial contracts or to measure the performance of investment funds.
Two new Q&As have been added, relating to: (i) commodity benchmarks: how the threshold in the exemption under Article 2(2)(g) of the BMR should be calculated and (ii) definition of a benchmark and investment funds: what types of investment funds are considered to be using an index for the purpose of "tracking the return of [an] index".


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ESMA Updates Q&As on EMIR Implementation


ESMA published an updated version of its Q&As on the implementation of EMIR.  A new Q&A has been added regarding the timelines for trade repositories to provide data and to validate a request for access to data. The new Q&A addresses how TRs should comply with these timelines in the case of (i) scheduled maintenance that impacts TR services related to authorities' access to data and (ii) non-scheduled maintenance at the TR.


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ESMA Updates Q&A on Short Selling Regulation


ESMA published an updated version of its Q&As on the implementation of the Short Selling Regulation. The answer to Q&A 10.6 has been expanded to explain that rights to subscribe for new shares cannot be used to cover a short sale in accordance with EU regulation where, at the time of entering into the short sale, there is uncertainty as to whether the new shares subscribed for will be available for settlement in due time.


 
 

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We have taken great care to ensure the accuracy of this version of Euro Shorts. However, Euro Shorts is written in general terms and you are strongly recommended to seek specific advice before taking any action based on the information it contains. No responsibility can be taken for any loss arising from, action taken or refrained from on the basis of this publication. If you would like to be removed from the mailing list of this publication please click unsubscribe below. Nothing within this communication may be copied, re-printed or similar without prior written consent from Cummings.

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Cummings

Tel: + 44 20 7585 1406
Mob: + 44 7734 057 327

Cummings Law
42 Brook Street
London Greater London W1K 5DB
United Kingdom

www.cummingslaw.com

14 12 2018

 
 

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