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Thursday, 20 July 2017

All Hands On Deck: UK Sailing Close To #PSD2 Deadline

The UK government has just announced its final approach to implementing the new Payment Services Directive (PSD2), along with the final version of the Payment Services Regulations 2017 that will apply from 13 January 2018. So firms don't have long to figure out whether they fall within the definitions and, if so, how to apply and comply. 

The FCA is expected to finalise its guidance and application forms by September, and can only begin accepting applications for authorisation/registration from 13 October 2017. That only leaves 3 months for the FCA to authorise/register firms who offer the newly regulated 'account information services' and 'payment initiation services' or who are losing their exemptions, as briefly explained below.

Payment initiation services

What constitutes a PIS is quite complex, but firms who are broadly in that space (including payment gateway providers) are perhaps more aware of the scope of their activities and the challenge ahead - although those relying on an exemption need to check their assumptions.  

Account information services

The new “account information service” basically involves providing information from one or more payment accounts held by the user with one or more other payment service providers. Initially, the list of services the government said might constitute account information services included some services of a much broader nature:
"• price comparison and product identification services;
• income and expenditure analysis, including affordability and credit rating or credit worthiness assessments...
[and] might include accountancy or legal services, for example”.
The government says it has heard the concerns that its interpretation was too broad and overlooked the requirement that a service must be conducted 'by way of business' in its own right, rather than merely as an ancillary part of a wider service. Examples of services that the government says that respondents were concerned about include:
"banks’ corporate functions; price comparison websites; accountants; financial advisors; legal firms; and Credit Reference Agencies (CRAs). Many of these services are currently provided via a contractual relationship between service providers, users, and ASPSPs, often referred to as Third Party Mandates (TPMs)."
The government now confirms, however, that:
"many uses of these mandates are likely to be outside of the scope of the PSDII. Examples could include power of attorney, where the services are unlikely to be undertaken ‘in the course of business’."
In addition, the FCA has already suggested this narrower view, based on the 'business test' in its own consultation on how it proposes to supervise PSD2.

Some narrower exemptions

Commercial agents can no longer act for both payer and payee. 

Firms operating gift card and other loyalty schemes not only face a stricter test of 'limited network', but must also notify the FCA if the total value of transactions executed over the preceding 12 months exceeds the amount of 1 million euros, and the FCA must then decide whether the exemption criteria. There is no allowance for transition if the service does not meet the exemption.

Technology service providers are no longer exempt if they also offer the newly regulated account information services or payment initiation services.   



Monday, 5 June 2017

The Cat Is Out Of The Bag: The EU Bars UK Financial Outsourcing

A key EU financial authority has asked EU regulators to be strict on UK firms seeking to escape the impact of Brexit. The concern is that having lost their EU passporting rights, desperate Brits will try to get authorised in Europe but continue to rely on UK managers and operations
"UK-based market participants may seek to relocate entities, activities or functions to the EU27 in order to maintain access to EU financial markets. In this context, these market participants may seek to minimise the transfer of the effective performance of those activities or functions in the EU27, i.e. by relying on the outsourcing or delegation of certain activities or functions to UK-based entities, including affiliates. It is therefore necessary to ensure that the conditions for authorisation as well as for outsourcing and delegation do not generate supervisory arbitrage risks."
ESMA even proposes a Cat o' nine tails set of 9 "principles" to prevent UK firms making the best of Brexit: 
  1. No automatic recognition of existing financial firm authorisations;
  2. Authorisation processes by the EU27 should be "rigorous and efficient";
  3. Regulators must verify the objective reasons for relocation;
  4. Regulators should avoid "letterbox" entities in the EU27 - the EU firm must perform substantial activities;
  5. Outsourcing and delegation to third countries (like the UK) is only possible under strict conditions;
  6. Substantive decision-making must occur in the EU, especially over outsourced activities;
  7. There must be sound local governance of EU entities, by resident directors/senior managers;
  8. Regulators must have the resources and data to effectively supervise and enforce EU law. 
  9. ESMA is watching and will co-ordinate to ensure adequate and consistent supervision. 
Of course, the UK could retaliate with red tape of its own. Brexit is also a challenge for 8,008 EEA firms that hold 23,532 passports (about 3 each) to cover their UK offerings.

Thursday, 25 May 2017

The Official Monster Raving Loony Party Is Too Normal

The OMRLP is short of candidates. Only 12 Loonies have been nominated for GE2017, the fewest since 1987. The problem is that nothing seems whacky anymore. Satire and irony are dead. There’s no competing with the idiocy of the major party manifestos, as the party political machines inhale more and more data from a population hooked on the Daily Mail.

"Shit in, shit out," as a data scientist might say, if quotes from such 'experts' were allowed.

But they're not, which is how Trump got to the White House and why Theresa May was there to sort of hold his hand. 

The "truth" is that the OMRLP could romp home in this election. It just needs to become truly loony. Here are some genuinely ‘strong and stable’ foundations on which to build: 
  • Every university that accepts UK government funding must offer Creationism as a degree course, and as a compulsory module in Archaeology, Anthropology, Education, Geography, Geology, History, Medicine, Physics, Theology and Veterinary Science;
  • All aircraft flying into or from the UK should be fitted with a ChemTrail monitor to measure the quantity of mind-control chemicals they are adding to the atmosphere (ignore these people);
  • All academic research grants should be awarded by a simply voting majority of all the UK's local councillors.
Of course, the OMRLP must also recognise that it is competing with the sheer mendacity of mainstream politicians. It should therefore utterly fail to deliver on any of these cast iron commitments. This will inspire hope that they'll manage it next time, and guarantee progressively more electoral success at GE2018, GE2019, GE2020...


Wednesday, 17 May 2017

The Long, Slow Death of UK Party Politics

Every day brings a new low as the UK's political 'leaders' scrape the bottom of the pork barrel for yet another populist gimmick to distract voters from the litter of broken promises and the stench of rotting bureaucracies. While covering the 1972 Presidential campaign, Hunter S. Thompson wrote:
“The main problem in any democracy is that crowd-pleasers are generally brainless swine who can go out on a stage and whup their supporters into an orgiastic frenzy—then go back to the office and sell every one of the poor bastards down the tube for a nickel apiece.” Fear and Loathing on the Campaign Trail '72
He must be howling in his grave.

At some point, you might think, the vast majority of their supporters will see that the Tory-led Brexit is a road to nowhere, or that the UK cannot possibly finance Labour's latest manifesto anymore than it could in the 1970s. The centre ground will re-open to any political party desperate enough to seize it. Politics will be about solving the root causes of genuine problems, rather than dogma and dog whistles for the nostalgic party faithful.

But any such moments of truth are a long way off, and by then the surrounding alternatives will be so bad that voters will have lost all perspective, anyway.

UK politics and its beleaguered public services will have to descend into total chaos before there'll be any meaningful change.


Saturday, 22 April 2017

EU Looks To CrowdInvesting To Plug Post-Brexit SME Capital Gap


The European Securities and Markets Authority (ESMA) has responded to an EU consultation on capital markets with a plea for the European Commission to focus on small businesses and investment-based crowdfunding; as well as more joined up regulatory supervision and more efficient collection of financial reporting data.

Recommendations include lighter information and reporting requirements for SMEs seeking to raise money; and EU regulation of crowd-investing to enable cross-border funding on a consistent basis.

ESMA says that only 10 of the 28 current EU member states reported the existence of regulated investment-based crowdfunding (in debt securities and equities/shares) in their territory - 99 platforms (up from 46 in 2014), of which 30 are based in the UK (up from 26 in 2014). France (23), Italy (17) and Germany (13) are fast followers. Only 12 platforms use a passport - based in either the UK or Finland (which has a total of 5 platforms). 

The various platforms are listed in the Appendix to the ESMA response. There is also a high level comparison of the various differences in terms of initial capital requirements; instruments and structures; remuneration models/levels and how these align with the interests of fundraisers/investors.

Volumes are not mentioned, but given that over half the platforms in 2014 were based in the UK, then it's likely they are still responsible for most of the volume. And the fact that ESMA bothers to push the sector at all suggests that those volumes are significant.

So this focus is not only an admission that Brexit creates a big and important capital-raising gap to fill, but it's also a big endorsement of the UK crowd-investment sector.  


Thursday, 30 March 2017

The Great Reform Bill: #Brexit Stitch-Up Begins

Brexiteers moaned that the EU gave us too much red tape, and promised there would be less of it.

Now they introduce the deceptively titled "Great Reform Bill" which simply translates all the red tape into UK law

This 'gold-plating' is precisely how the UK has created a rod for its own back for decades.  In fact, it's busy doing the same thing with the new Payment Services Directive (PSD2).

EU courts do not intepret the law to the letter. They consider a law's purpose when applying it. 

But UK courts interpret UK law to the letter. 

UK courts are entitled to take a purposive interpretation to EU law, but tend not to do so once the EU law has been absorbed into UK law.  

So, the UK will actually have a worse form of red tape after Brexit than it does as an EU member.


Wednesday, 29 March 2017

May Commits Political Suicide

Well, I thought she would've U-turned, but there you have it. The UK's un-elected Prime Minister has pressed ahead with the Tories' plan to leave the EU without knowing the terms and in defiance of all danger signals.

Leave voters will be as quick as anyone to blame this cabal of Little Englanders for any bad news to follow, even though they knowingly sacrificed their economic future for illusions of 'border control' and 'sovereignty' that will disappear as quickly as the offer to spend "savings" of "£350m a week" on the NHS. 

No wonder the Tories are declining to call an early General Election!


Wednesday, 25 January 2017

Should Parliament Perpetuate The #Brexit Scam?

The Supreme Court judgment on the UK Government's plans to ignore the constitution is a good read. 

The Government's case was that "the 2015 [referendum] Act was enacted on the assumption that the result of the referendum would be decisive."  

Er, that's it.

That was plainly not the case, merely outrageous political positioning by the Brexiteers.

The Supreme Court judgment explains why the referendum could not be decisive (at paras 91-92) and why the 2015 referendum Act was flawed (at 118-119).  

Basically, if the Tories had wanted the Brexit referendum to be decisive (i.e. for Brexit to proceed immediately on a 'Yes' result), they would need to have included in the 2015 Act the detailed changes to the law to permit that to happen.  The 1975 EC referendum Act, for example, had no such details and was therefore properly presented by ministers at the time as being only advisory. They knew that more complex legislation had to follow if the UK were to join. Indeed, so did Cameron's government. The Supreme Court found that in 2011 the government had agreed with the proposition that "Under the UK’s [constitution] Parliament must be responsible for deciding... action in response to a referendum..." (see para 125).

Clearly, the Brexiteers concluded they had little chance of being able to frame the necessary detailed legislation to leave the EU, and just wanted to snatch a quick result. So they decided to copy the original 'simple' EC referendum Act of 1975 and claim (however wrongly) that the referendum on this occasion would be decisive. Others clouded that issue by 'promising' to abide by the outcome, even though the referendum result could only have political significance, rather than any legal status. They then drove around in their big red bus, blithely misleading people about the alleged benefits, and dismissing expert analysis of the major problems associated with leaving the EU.  No doubt they did this in part to secure their own electoral future(s), but you can tell from where they are now that the lead Brexiteers were not roundly congratulated by their Tory colleagues for their conduct and its consequences.  As the Supreme Court noted (at para 124):
"...the referendum of 2016 did not change the law in a way which would allow ministers to withdraw the United Kingdom from the European Union without legislation... unless and until acted on by Parliament, its force is political rather than legal."
The question now is whether Parliament should perpetuate the scam. 

There is much hand-wringing about the 'will of the people' (well, 52% of them, anyway) but little apparent appetite among MPs for recognising that the 48% were not fully informed and calling a halt to plans to trigger Article 50 unless and until the government can explain the detail.  MPs are best at ducking issues, not addressing them.

But the fact that Brexit continues to divide the country should tell them all they need to know: when in doubt, don't do it.  They might vote it through, but no one will thank them for the consequences.


Wednesday, 11 January 2017

Meet The Schadenfreuders

As the majority of voters in the western liberal democracies - ironically labelled the "liberal elite" - work their way along the 'change curve' after shocks like Brexit and the rise of Corbyn, Trump and others, their initial shock, denial, anger and blame is giving way to resignation and acceptance... and with it a little pleasure at the growing misfortunes of the 'winners'.

I'm the first to admit that the premise of "Lipstick on a Pig" was that 'people power' would be wielded more wisely than the power of the institutions they topple.  Yet I also pointed out that we are badly short of scepticism, that democracy should be a messy process, and that greed and stupidity are still winning. Pragmatism, after all, is not a destination but represents the constant struggle of "intelligent practice versus uninformed, stupid practice".

So it's all part of the familiar trends toward greater personal control that the Brexiteers can't agree what Brexit means; Corbyn is not proving the electoral champion that his supporters had believed; and Trump has had to concede that the US will in fact pay for any 'Wall' along its southern border, in the hope that Mexico will pay later... 

In other words, the recent populist 'victories' have merely wrung the same old institutional failings out of the same old political parties. And those who fell for the latest examples of 'stupid practice' will need to learn that lesson before we will begin to see the triumph of intelligent practice from genuine 'facilitators'. 

The question is how many more opportunities for schadenfreude there will be in the meantime...

I love the Germans. They've got a word for everything (as Nigel Farage will surely know).


Tuesday, 10 January 2017

Rolling Out The #Brexit Pork Barrel?

While Brexit confusion continues to reign, most people seem focused on how the UK plans to negotiate with the EU, rather than what the government plans to do for those in the UK who will suffer.

Size matters in trade negotiations, and it's clear that the EU and many other trading partners will simply set their own terms in any deal with Little Britain. 

That's why Theresa May keeps using the weasel words 'the best possible deal'. She doesn't know what terms will be offered and won't be able to change them anyway.

That's also why, when faced with acting as the Tories' human shield in such futile discussions, the UK's chief negotiator quit.

So it's the resulting domestic negotiations over who bears the impact of Brexit which should be occupying most people's attention now. 

The Tories may have blundered into Brexit, but they regard continuing anti-EU sentiment and the total meltdown among opposition parties as a vast political opportunity.  Word has it they've come up with a political list of about 50 sectors and related regions, ranked by how badly they'll be affected by Brexit and their need for pork barrelling financial support if the Tories are to win the next General Election:
216... "Lord Bridges confirmed the Government was carrying out such an analysis. The Government had looked at over 100 production sectors. It had then consolidated its analysis into 51 sectors, taking into account “the size and contribution that each of these sectors makes to the economy”, and “the way those sectors are treated in EU law and how future negotiations might bear down on them”. The 51 sectors were not necessarily “the most important or the biggest”, but focusing on them had helped the Government to get the information into “a manageable format”" [emphasis added]
Car makers/workers are clearly very high on the list, for example, because they employ a lot people (soon to be robots anyway?) assembling cars from imported components, so they were urgently promised total government support.  Since Leavers are against even remaining in the EU Customs Union, that open promise means taxpayers will pay the car makers' additional import/export costs - which could be a lot of pork from the barrel a big subsidy. 

Now that the lid is off, you can bet that plenty of others are rushing to Downing Street (by car, not train) for their share, hence the Tories desire to avoid a 'running commentary' on their Brexit plans.  They'll want to 'hold all the cards' and 'keep them close to their chest' - setting the lobbyists against each other and distracting everyone else by re-announcing old trade deals and hinting at 'negotiations' with Brussels.

Meanwhile, Rome will continue to burn as the domestic issues queue up like so many strike-bound trains and A&E patients. But the Tories will blame the EU for those, too, just as they did with their 'promise' to "spend the £350m a week on the NHS".  Rest assured it'll be the EU's "harsh trade terms" that are the cause of all the May-hem...

In fact, I'm sure the Tories hope they'll never have to mention an opposing political party again.  From now on it'll be the Tories v Brussels, and any potentially shaky non-beLeavers will simply get a little meat from the barrel see the benefits of "the best possible deal for Britain".

Or will they?

The biggest challenge to the Tories' plans is hard economics, not Brussels or the Corbynistas. There's been 'no money' available in the UK public sector since 2010. So a worse trade deal with the EU means having to find extra money for the pork barrel to compensate those hit by Brexit.  

But writing blank cheques to uncompetitive industries is not sustainable, and certainly won't go down well with pesky foreign bondholders or the IMF. Remember 1976 and the eventual battles with the coal miners? Or the fury over the bank bailouts? If you're looking for a current case study, keep your eye on developments in Greece.

So maybe those hoping for a bit of R&R by topping the Tories' Brexit Pork Barrel Support list should indulge in a little "Relocation and Retraining" instead...

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