With negotiations still ongoing and the date of withdrawal rapidly approaching, firms face the difficult task of planning for multiple scenarios. Brexit is obviously a complex matter impacting many cross border industries. In respect of financial services, some key issues to consider include:
- How markets will be accessed;
- Firm authorisation and relocation issues;
- Passporting rights, third party status and equivalence regimes;
- Immediate changes to UK regulation and legislation;
- Central counter parties and euro-denominated clearing;
- How funds will be marketed and sold cross border.
The UK authorities have stated that they are confident there will be an implementation period agreed between the UK and the EU which will come into effect after the UK leaves the European Union. This would mean that for a fixed period financial services firms would be able to trade on the same basis as they do today and will also need to comply with any new EU law which comes into effect before 31 December 2020.
Conversely, the EU authorities have not outwardly committed to any such plans. In fact Andrea Enria, the Chairman of the EBA, has warned that “firms cannot take for granted that they continue to operate as at present nor can they rely on as yet unrealised political agreements or public policy interventions. Risks, capacity and legal implications must be examined and addressed.”
The UK authorities have a number of contingency plans including a new temporary permissions and recognition regime. This should allow non UK financial services firms to continue their activities in the UK for a time limited period after the UK has left the EU in the event there is no transition period, and provide sufficient time to apply for authorisation in the UK.
For UK firms looking to continue business in the EU, the European Commission has stated that in the event of a no deal scenario the UK would be treated as a third country firm for the purposes of financial services where such regimes already exist.
Financial services firms operate across European borders – whether it’s a UK firm with European customers, a pan-European group or non-EU firms with subsidiaries in the region. Brexit will have a material impact and management need to be aware of how their firm, services and clients could be impacted. Firms need to plan for the range of possible outcomes which could come their way. Business-critical decisions need to be taken and plans drawn up so make sure you keep an eye on the latest developments.
We can help
Bovill can help you operate in the UK and EU in the longer term. We can help with authorisations, governance reviews, prudential challenges, training and long term regulatory planning. We can also help you identify what you will need to do to be able to operate in the EU after Brexit and implement any changes – whether that is understanding how to operate within private placement regimes or helping you get authorisation in specific EU states. Wherever you are in the process give us a call.
Key statements and papers:
The EU (Withdrawal) Bill (EUWA) will:
- repeal the European Communities Act 1972 on exit day
- transfer EU law into UK domestic legislation, where appropriate
- create powers to make secondary legislation, where necessary, to correct existing laws and implement a withdrawal agreement (this is expected to involve between 800 and 1000 pieces of secondary legislation)
- maintain the current scope of devolved decision making powers in areas currently covered by EU law.
HM Government white paper – 12 July 2018
Sets out views on the future relationship between the UK and the EU. This includes their proposals in relation to financial services where they state that they will seek, amongst other things, “a new economic and regulatory arrangement for financial services.”
HM Treasury statement – 27 June 2018
Approach to the implementation period – assumption that firms will be able to trade on the same terms as they do now until December 2020 and must also comply with any new EU legislation which comes into effect during that period.
Bank of England statement – 27 June 2018
Confirms they will soon consult on proposed changes to onshored Binding Technical Standards (BTS) and rules in the autumn. These changes will largely come into effect on 29 March 2019 if there’s no implementation period in place. It does not expect firms to have to prepare to implement these changes now, as it will allow regulators to use transitional relief.
FCA statement – 27 June 2018
Later in 2018 FCA will amend the Handbook and onshored BTS – general approach is that EU member states will be treated as third countries. Handbook changes will be limited so it remains functional after Brexit. There will be no broader policy changes. They plan to consult on the temporary permissions regime. They will also publish information for EU entities that do business in the UK without passporting rights.
Brexit updates from August:
|Financial Markets Law Committee (FMLC) report on the uncertainty of financial contracts after Brexit||Report||07.08.18|
|FCA “Dear CEO” letter on cross-border booking arrangements post Brexit||Letter||09.08.18|
|UK Government publishes UK-EU partnership financial services Brexit Framework||Framework||21.08.18|
|HMT guidance on financial services in the event of Brexit “no deal”||Guidance||24.08.18|
|European Parliament resolution regarding equivalence of financial services sector of third countries||Report||30.08.18|