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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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Updated privacy policy for Cummings Law

Cummings Law has updated its privacy policy in relation to the GDPR, which comes into force on the 25th May 2018.  Our privacy policy can be found on our website at the following link: https://cummingslaw.com/privacy-policy.


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Data Protection Bill

The Data Protection Bill 2017-19 has received Royal Assent to become the Data Protection Act 2018 (DPA 2018). 

The DPA 2018 will ensure that the standards set out in the General Data Protection Regulation ((EU) 2016/679) (GDPR) will have effect in the UK and, as such, repeals and replaces the Data Protection Act 1998 as primary data protection legislation.  It is also intended to ensure that the data protection regimes of both the UK and the EU will be aligned post-Brexit in order that the UK can continue to be able to freely exchange personal data with the EU.


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FCA and BofE evidence to Treasury Committee digital currencies inquiry

The House of Commons Treasury Committee updated its webpage on its digital currencies inquiry to link to the written evidence it has received, which includes responses from the FCA and the BoE in which they outline their work in this area. For further discussion, please see our Legal Long on this topic, which can be found on our website at https://cummingslaw.com/legal-shorts. 


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FCA updates webpage on remuneration

The FCA recently updated its webpage on remuneration.  The changes primarily reflect the requirements in Chapter 19F of the FCA's Senior Management Arrangements, Systems and Controls sourcebook (SYSC), which implements the requirements on staff incentives and the remuneration of sales staff and advisers under MiFID. The FCA reminded all firms that are subject to SYSC 19F to ensure that their remuneration policies and practices: (i) do not remunerate or assess the performance of staff in a way that conflicts with their duty to act in the best interests of the firm's clients; and (ii) ensure that client interests and the right to be treated fairly are not impaired by the remuneration practices adopted by the firm in the short, medium or long term.  SYSC 19F does not contain an equivalent concept of proportionality and thus applies in its entirety to all firms within scope. 


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ICO expands its GDPR guidance on right of access and right to object

ICO recently announced that it had updated its Guide to GDPR in relation to the right of access and right to object.  The expanded Guide now covers: (i) how to recognise a subject access request and how requested information should be presented to the individual making the request. It also covers time limits for compliance and when it is possible to charge a fee; and (ii) when the right to object will apply and how organisations can recognise an objection by an individual to the processing of their personal data. The expanded guidance also deals with when it is appropriate to ask the person objecting for ID in order to confirm their identity.


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ICO publishes final guidance on DPIAs

ICO recently published detailed guidance on data protection impact assessments (DPIAs) following its consultation on the draft guidance in March 2018. The guidance sits alongside the ICO's Guide to the GDPR and is intended to help organisations undertake such assessments as part of their "data protection by default and by design" approach. 

The guidance: (i) emphasises the importance of DPIAs in relation to organisations' accountability requirements under the GDPR and as part of the "data protection by design and default" approach; (ii) confirms that when considering the likelihood of "high risk", the focus should be on any potential harm to individuals including any intangible harms, such as "significant economic or social disadvantage"; and (iii) lists high risk types of processing the ICO feels merit a DPIA, including when using new technologies, processing biometric data or targeting children or other vulnerable individuals.  


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FCA speech on use of FinTech and disrupt criminal activity

The FCA has published a speech by Megan Butler, FCA Executive Director of Supervision - Investment Wholesale and Specialists on how data and technology can help to detect and disrupt criminal activity.  In her speech Ms Butler states that while the FCA recognises the benefits of firms investing in technology to deal with financial crime, the efficacy of new technologies over expenditure is key, adding that firms will not be "let off the hook" for financial crime compliance failings because they have new technology.  She also asks firms to share methods, innovations and technologies aimed at combatting financial crime with the regulators, referring to the FCA's analysis of room for crime in transaction monitoring, onboarding, maintenance, client screening and reporting. The FCA believes that it will become increasingly necessary to apply intelligent technologies such as artificial intelligence, natural language processing and machine learning to identify suspicious transactions. 


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European Commission publishes factsheet on draft ePR

The EC published a factsheet on the draft E-Privacy Regulation (“ePR”).  The ePR was proposed on 10 January 2017 and is currently in the legislative process in the European Parliament and Counsel.  The factsheet covers: (i) application of the proposed draft ePR to electronic communications, including internet-based voice and internet messaging services; (ii) the benefits of the new rules for citizens and businesses; and (iii) the relationship between the draft ePR and the GDPR  It is proposed that the ePR will: (1) cover electronic communications and the integrity of the information on one’s device, independently whether it is personal or non-personal data; (ii) protect the right to the privacy and confidentiality of communications; and (iii) ensure that mobile apps or internet services through which you communicate cannot intercept, record, listen into, or tap in your communications.


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ECB opinion on proposed Regulation amending ESMA Regulation and proposed Directive amending MiFID II and Solvency II

The ECB recently published an opinion on a proposed Regulation amending the ESMA Regulation and a proposed Directive amending MiFID II and the Solvency II Directive.  The proposed Regulation and Directive form part of the European Commission's legislative proposals for reforms to the European System of Financial Supervision (ESFS). In November 2017, the Council of the EU requested an opinion from the ECB on the proposed Regulation and Directive.  The opinion includes the following points: (i) as a general observation, consideration could be given to the role of the ECB as supervisor of credit institutions under the Single Supervisory Mechanism Regulation; (ii) to attain the long-term goal of deepening and integrating EU capital markets, the ECB considers that single supervision of, at least, specific market segments within the capital markets union  needs to be envisaged; and (iii) the ECB supports the need to revise ESMA's governance structure. It also considers it vital to include one representative of the ECB, under the monetary policy mandate, as a permanent non-voting member of the board of supervisors.


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ECON votes to adopt draft report on proposed EMIR Refit Regulation

The European Parliament recently published a press release announcing that ECON has voted to adopt a draft report on the proposal for a Regulation of the European Parliament and of the Council of the EU amending EMIR.  EMIR has encompassed key reforms aiming at addressing systemic risks on the derivatives market that had been revealed by the financial crisis of 2007-2008.  With the inclusion of EMIR in the Commission’s Regulatory Fitness and Performance programme, the Commission aims to make this legislation simpler, lighter, more efficient, more transparent and to eliminate disproportionate costs and burdens on certain derivatives counterparties.  The proposal intends to reduce significantly the reporting burden and costs for non-financial counterparties by: (i) introducing single-sided reporting in certain cases; (ii) exemption of intra-group transactions from reporting when one of the counterparties is a non-financial counterparty; and (iii) removing the backloading obligation.  


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Joke of the week

“Do you know a good GDPR consultant?”

“Yes”

“Can you give me their email address?”

“No”
 


 

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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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