What laws and regulations have recently come into effect?
- On January 1, 2022, Article 11 SFDR and Articles 5, 6 and 7 of the Taxonomy Regulation came into force.
- As of January 1, 2022, the transition period on the transition to alternative interest rate benchmarks has been largely completed within the EU.
- As of January 1, 2022, several amendments were made to the Benchmark Regulation through Delegated Regulation 2019/2175.
- On February 2, 2022, the guidelines issued by ESMA on marketing communications for funds entered into force.
Updated guidelines on stress test scenarios under the MMF
On February 14, 2022, the European Securities and Markets Authority (ESMA) published its Final report on Guidelines on stress test scenarios under the MMF Regulation. The guidelines set common reference parameters for stress test scenarios to be included in stress tests. Managers of MMFs are expected to measure the impact of the common reference stress test scenarios. Based on these measurements, they must complete the reporting template referred to in Article 37 and ITS 2018/7084 of the MMF Regulation and send it to the regulator.
The updated guidelines set the new parameters for 2021. These are to be applied after the guidelines enter into force. Until then, the parameters set in the 2020 Guidelines apply.
The adjusted guidelines will (in all likelihood) enter into force in the second or third quarter of 2022.
Adjustment of delegated regulation to PRIIPS Regulation
Delegated Regulation 2021/2268 makes amendments to Delegated Regulation 2017/653, which addresses the content of the Essential Information Document (EID) under the PRIIPS Regulation. The most important changes are listed below.
- New methodologies for calculating performance scenarios and a new presentation method for these scenarios;
- Revisions regarding cost indicators and the way cost information is presented;
- Adjustments to the methodology for calculating transaction costs;
- Adjustments to the rules for multi-option products (MOPs);
- The incorporation of standards that already apply to investment firms into the PRIIPS framework, as such investment firms will also be subject to the PRIIPS Regulation with respect to EID; and
- A requirement for certain types of investment vehicles and insurance-based investment products to include information on past performance.
Firms that already offer products covered by the PRIIPS Regulation and are required to have an EID available should apply the new requirements as of July 1, 2022. Managers of UCITS and retail AIFMD funds, to whom the EID requirement does not currently apply, must have an EID that meets all (new) requirements by January 1, 2023.
Amendment to the Bftk regarding supplement due to intended transition
From 8 January to 21 January 2022, the Ministry of Social Affairs and Employment consulted on amending the Financial Assessment Framework (Pension Funds) Decree in connection with ‘indexation due to intended transition’ for pension funds and administrators.
This amendment decree enables pension funds to index in 2022, subject to safeguards, at a policy coverage ratio of 105%. The decree amends the Bftk by adding a new Section 15c. The amendment is expected to take effect on July 1, 2022.
Modified guidelines on the data collection exercise regarding high earners (CRR/IFD)
From January 21 to March 21, 2022, the European Banking Authority (EBA) conducted a consultation on the amendment of the guidelines on the data collection exercise regarding high earners at Category 1 or 2 investment firms. High earners are staff members who earn more than €1 million per year.
The revised guidelines include a new reporting format. It should be used for the annual collection of data on high earners, starting for the fiscal year ending in 2022. No later than August 31, 2023, the information must be submitted to the regulator using the new format.
For fiscal year 2021, data collection for high earners will be conducted under the existing guidelines for both institutions and investment firms, unless they are small and unrelated. It is expected that the guidelines will take effect by the end of 2022.
FATF updates risk-based guidance for the real estate sector
In June 2021, the FATF agreed that its risk-based guidance for the real estate sector should be updated to reflect the evolution of money laundering and terrorist financing (ML/TF). The guidance includes:
- Examples aimed at banks that provide services that may facilitate real estate transactions, as well as other entities that provide financing for real estate;
- Information on how the risk-based approach should be implemented in the industry;
- Examples of relevant risk indicators for money laundering and terrorist financing to inform supervisors and practitioners when seeking to implement a risk-based approach; and
- Case studies and specific examples of private sector and supervisory practices designed to illustrate and enhance the assessment and understanding of sector-specific risks.
This guidance document is intended to outline the principles and benefits of a risk-based approach to money laundering and terrorist financing. The document should be read alongside the FATF Recommendations (2012). The guidance is expected to enter into force by the end of 2022.
EBA Guidelines on benchmarking of remuneration and pay gaps (IFD)
On January 21, 2022, EBA published a consultation paper setting out a new reporting format for benchmarking remuneration and gender pay gaps. The document sets out the intended manner in which the regulator will collect remuneration and gender pay gap data from investment firms (which fall within the scope of the IFD).
The new reporting format is expected to apply for data collection in 2023 for fiscal year 2022. For the gender pay gap, the first data collection will be for the 2023 reference year.
SFDR provisions still to come into force
The SFDR (Sustainable Finance Disclosure Regulation) is largely applicable in the Netherlands since March 10, 2021 and applies to financial market participants and financial advisors. The remaining provisions (in combination with the Taxonomy Regulation) will be coming into force in phases, starting in January 2022.
On April 6, 2022, the European Commission (EC) adopted the Delegated Regulation containing the Technical Standards (RTS) that elaborate the SFDR at a detailed level. The RTS specify the exact content, methodology and presentation of the information to be disclosed, thereby improving its quality and comparability. Based on these rules, financial market participants will have to provide detailed information on how they address and reduce any negative impacts of their investments on the environment and society at large. In addition, these new requirements will help to assess the sustainability performance of financial products.
This delegated regulation is now awaiting the approval of the European Parliament and the Council and will enter into force (in stages) on January 1, 2023.
Revision of Delegated Regulation 153/2013 (EMIR)
In Q1 2022, ESMA launched a consultation to revise the EMIR Anti-Procyclicality Margin Measures for Central Counterparties. EMIR contains rules for the settlement of derivatives by a central counterparty (CCP) and an authorization requirement for those CCPs/CTP. The revision of Delegated Regulation 153/2013 is therefore relevant for CCPs and its clearing members.
The consultation paper contains proposals to amend the EMIR RTS that aim to further harmonize CCP policies on margin changes and the use of anti-procyclicality margin measures in the EU. After analyzing the public consultation, ESMA will publish a final report with the amended draft RTS and submit it to the EC for approval.
The amendments will not enter into force before 2023.
What other upcoming laws and regulations should you be aware of? In our next Regulatory update article, we will explain the following developments in more detail:
- The EC is considering standardizing the collection of client profile information and its translation into an asset allocation. It is expected that any new rules will not come into force before 2024.
- On February 23, 2022, the EC published its ‘Directive on corporate sustainability due diligence (CSDD)’. This proposal is now under review by the European Parliament and the Council and is expected to enter into force in 2023 at the earliest.
- Under Delegated Regulation (EU) 2021/1253, the suitability test must be adjusted to include the client’s sustainability preferences as of August 2, 2022.
Tailor-made Regulatory Update
We hope this article has given you an idea of the regulatory changes in Q2 2022. Do you want to make sure not to overlook any developments? Then you can request a tailor-made Regulatory Update (available in Dutch and English). Each quarter you will receive a comprehensive report with current developments, legislative changes, publications by regulators and consultations. This report will be fully tailored to your organization and activities. This way, you will remain up to date with upcoming legislative changes and you will never be unpleasantly surprised.
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