ESA Joint Board of Appeal rules on Swedish shadow rating cases

On 13 March 2019 the Joint Board of Appeal of the European Supervisory Authorities ( ESA’s; ESMA, EIOPA and EBA) published its decision in the Nordic banks’ appeals from the decisions of the Board of Supervisors of ESMA in the “shadow ratings” cases

The appeals were brought by four Swedish banks, Svenska Handelsbanken AB, Skandinaviska Enskilda Banken AB, Swedbank AB, and Nordea Bank Abp, from decisions of the Board of Supervisors of ESMA.

The ESMA Board of Supervisors found that the Credit Rating Agencies Regulation (CRAR) had been negligently infringed by the banks by including “shadow ratings” in their credit research reports. It adopted supervisory measures in the form of public notices and fines of EUR 495,000 on each bank.

Skandinaviska Enskilda Banken AB applied to suspend the decision of the ESMA Board of Supervisors as far as it applied to it, but the Board of Appeal refused that application by its Decision of 30 November 2018.

In deciding the appeals, and in summary, the Board of Appeal upheld the decision of the ESMA’s Board of Supervisors on the central question, which was whether the banks’ credit research reports fell within CRAR, but held that the banks (which had voluntarily desisted during the course of ESMA’s investigation) had not acted negligently.

Vide the joint press release: https://eba.europa.eu/documents/10180/2545547/Press+Release+TEXT+-+shadow+ratings+appeals_FINAL.pdf

EBI Global Conference on Banking Regulation

On 21 and 22 February 2019 the European Banking Institute (EBI) organized its 3rd  Global Annual Conference on Banking Regulation at the Goethe University in Frankfurt. The conference was jointly organized with the European Stability Mechanism (ESM) and the Institute for Monetary and Financial Stability (IMFS).

Distinguished speakers from the academia, regulators and the banking industry discussed topics like Banking Markets and prudential regulation, Bank failure and resolution and corporate governance of financial institutions.

Thank you so much EBI, ESM, IMFS and Goethe University for your hospitality.

ESMA sets out use of UK data in ESMA databases under a no-deal brexit

The European Securities and Markets Authority (ESMA) has published a statement on the use of UK data in ESMA databases and the performance of MiFID II calculations under a no-deal Brexit. 

ESMA is issuing this statement in relation to the impact on ESMA’s databases in a no-deal scenario, whereby the United Kingdom’s Financial Conduct Authority (FCA) will cease sending data to ESMA and will no longer have access to ESMA’s IT applications and databases. Under a no-deal Brexit, no new UK-related data will be received and processed by ESMA nor published on the ESMA website from 30 March 2019.

Vide:https://www.esma.europa.eu/press-news/esma-news/esma-sets-out-use-uk-data-in-esma-databases-under-no-deal-brexit

Cassatielunch

Op 7 februari 2019 vond de maandelijkse cassatielunch van de Haagse cassatiebalie weer plaats. Dit keer waren wij te gast bij AantjesZevenberg te Rijswijk. Spreker was Marcus Wagemakers over de prejudiciële procedure bij het Hof van Justitie van de Europese Unie (HvJEU)

White collar crime

On 5 February 2019 Marcus held a lecture at the Erasmus University Rotterdam about white collar crime in the financial regulatory environment. Topics like the nature of – and drivers behind white collar crime were treated. Furthermore, Marcus elaborated on the criminal and regulatory enforcement mechanisms.

ESMA reports on accepted market practices under MAR

The European Securities and Markets Authority (ESMA) has published on 16 January 2019 its annual report on the application of accepted market practices (AMP) in accordance with the Market Abuse Regulation (MAR). AMPs are a defence against allegations of market manipulation. In particular, dealings in financial markets which are carried out for legitimate reasons and in conformity with an established AMP will not constitute market manipulation.

Vide: Market Abuse Regulation

Mediation in conflicten met financiële instellingen door Franse AMF

Mediation door de AMF

Problemen met een financiële tussenpersoon of uitgevende instelling? De AMF Ombudsman en haar team staan tot uw beschikking om uw geschil in der minne op te lossen binnen een redelijke termijn. AMF Mediation is een gratis openbare dienst waarin de Franse wet voorziet.

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Vous rencontrez une difficulté avec un intermédiaire financier ou un émetteur ? Le Médiateur de l’AMF Français et son équipe sont à votre disposition pour résoudre, à l’amiable, votre différend dans un délai raisonnable. La Médiation de l’AMF est un service public gratuit prévu par la loi.

Zie/voire: AMF

Brexit. Financial Conduct Authority (FCA): introducing temporary permissions regime

The British Government announced that it might introduce a temporary permissions regime for inbound passporting EEA firms and funds.

If there is not an implementation period and the passporting regime falls away when the UK leaves the EU, the temporary permissions regime will provide a backstop to ensure firms and funds can continue their business with minimal disruption.

It will allow inbound firms to continue operating in the UK within the scope of their current permissions for a limited period after exit day, while seeking full UK authorisation. It will also allow funds with a passport to continue temporarily marketing in the UK.

Vide the Announcement of the FCA

Poland must immediately suspend the application of the provisions of national legislation relating to the lowering of the retirement age for Supreme Court judges

On 2 October 2018 the Commission brought an action for failure to fulfil obligations before the Court of Justice.

The Commission argues that (i)  by lowering the retirement age and applying that new retirement age to judges appointed to the Supreme Court up until 3 April 2018 and (ii) granting the President of the Republic of Poland the discretion to extend the active judicial service of Supreme Court judges, Poland has infringed EU law.

On 3 April 2018 the new Polish Law on the Supreme Court (‘the Law on the Supreme Court’) entered into force. Under that Law, the retirement age for Supreme Court judges has been lowered to 65.

The new age limit applies as from the date of entry into force of that Law, including with regard to judges of that court appointed before that date. It is possible for Supreme Court judges to continue in active judicial service beyond the age of 65 but this is subject to the submission of a statement indicating the desire of the judge concerned to continue to perform his duties and a certificate stating that his state of health allows him to serve and must be consented to by the President of the Republic of Poland.

In giving that consent, the President of the Republic of Poland would not be bound by any criterion and his decision would not be subject to any form of judicial review.

The Court grants the Commission’s request for interim measures.

Vide the  Decision in French