By Alan McIntyre, senior BA and industry relations Lead (Europe) for RegTek Solutions

Within the realm of European Trade and Transaction reporting, ESMA and the 28 EU nations NCAs already had EMIR (3 updates to the Q&A so far this year, as well as an update to the Validation rules), MiFIR (2 updates to the Q&A, the FIRDS rollout, the SI calculations) and the not so small matter of SFTR. Throw in Brexit and the uncertainty on both sides of the English Channel around what agreements may or may not be in place by the 29th of March and that remit just got even tougher.

If you’ll forgive a quick digression, Brexit won’t actually happen on the 29th of March. The 29th of March is amongst other things a Friday, so in practise, any new Transaction Reporting rules or arrangements will really kick in on the following Monday, which very fittingly happens to be the 1st of April.

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Many of the most recent Brexit notifications issued by the FCA and other regulators have been caveated with: “We are preparing for a number of different scenarios”. One such announcement, and one of the most detailed to date, was published by the UK’s FCA on the 10th of October:

Brexit: proposed changes to the Handbook and Binding Technical Standards – first consultation

Input to the consultation closes on the 7th of December.

Same-Same but Different

One interesting aspect is that the UK government will be adopting all EU law onto the UK lawbooks as part of the European Union Withdrawal Act (EUWA) So the level 1 (legislation) and level 2 (Regulatory & Implementation Technical Standards – RTS/ITS) will become UK law and be adopted wholesale for both EMIR and MiFIR.

Two questions I’ve pondered. What about SFTR? And what about the level 3 measures (such as Q&As, opinions, reporting instructions and additional guidance)?

For SFTR, and in keeping with the ongoing mystery of Brexit, no one really knows yet.

Coming back to the question of the Level 3 guidance, the FCA consultation paper sheds little more light as it sets out how it will tackle these. The FCA makes the following statements:

we recognise the value of existing Level 3 material within the current regulatory structure and consider that this material will continue to be relevant after exit day

we expect financial institutions and other market participants to continue to apply ESA Guidelines and recommendations as they did before exit day

We will not carry out a detailed, line-by-line review of all existing Level 3 materials to identify and resolve provisions which no longer have their intended effect. Instead, we expect financial institutions and other market participants to interpret all EU Level 3 material sensibly and purposively

Essentially, the Level 3 guidance issued to date by ESMA will still be considered to apply (unless specifically stated otherwise) but won’t be legally binding. This approach isn’t all that different to the current situation where the Level 3 texts inhabit a bit of a grey area on the periphery of the legislation.

More guidance is expected though as the consultation paper also makes the commitment that the FCA intends to publish:

non-Handbook guidance on our approach after exit day to existing Level 3 material

Doing it by the book

As well as covering the FCA Handbook and Binding Technical Standards (BDS) changes to areas outwith my trade reporting purview such as Credit Rating Agencies, Capital Requirements, Fund Management, and Short Selling, the consultation paper also discusses EMIR and MiFIR.

For EMIR, the paper addresses the BTS relating to the registration and supervision of Trade Repositories (TRs), another constituency additionally burdened by the Brexit process. Indeed TRs now need to decide if they wish to provide services for UK trade reporting under EMIR, for EU (27 remaining EU countries reporting) under EMIR, or for both. They then need to apply to the FCA or ESMA to ensure they are registered and authorised to do so, in line with their chosen business models.

The three biggest EMIR Trade Repositories (DTCC, UnaVista, and REGIS TR) have all started applications to ensure they would be able to offer support for both the UK ‘FCA’ flavour of EMIR and the European ‘ESMA / remaining EU27’ flavour. CME, thanks to its acquisition of NEXs Post Trade business, finds itself with the luxury of already owning two TRs – CME ETR and NEX Abide. The CME ETR will become the UK TR for EMIR and Stockholm-based Abide will take on the continental duties. ICE Tradevault appears to be bucking the trend and may only offer UK TR support for reporting to the FCA. Finally, Poland’s KDPW with its distinctly Eastern European focus is unlikely to seek registration in the UK.

For MIFIR, the consultation paper contains a lot more information. It states that there are 44 BTSs related to MiFID II and commits the FCA to provide more detail on some of those in due course. If we focus on RTS 22 and Transaction reporting, the FCA makes the following points:

UK trading venues will have to report transactions on their venue by EEA firms as they will become third-country firms and will not have an obligation to report to the FCA. They should not, however, report for UK branches of EEA firms as after exit day these should be reporting to the FCA. Trading venues will therefore need to distinguish trading by the UK branch from elsewhere where the branch is not executing

A UK firm will no longer be able to meet the conditions for transmission if they transmit orders to an EEA firm. They will therefore have to either report transactions themselves or ensure their transmission arrangements are with firms that have obligations to report to the FCA

The FCA will publish consolidated data on instruments traded on UK

Whilst the burden is shared with the regulators, the first two items result in more heavy lifting for the reporting firms as they will have to be the ones to revisit and probably revise their reporting arrangements in both cases. The last item however entails a lot of work for the FCA as it now needs to collate and publish this data. But coincidently, reporting firms will need to make arrangements to consume this data from either the FCA, ESMA or both depending on their trading footprints.

This is an edited version of a blog by Alan McIntyre for RegTek Solutions.