UK To Give EEA Firms 3 Years Temporary Permission Post-Brexit

The UK proposes to grant temporary permissions to EEA firms currently operating in the UK under EU financial services 'passports' to continue their UK activities, for three years after Brexit day. 

HM Treasury states that the regime will ensure that: 

• EEA firms can continue to carry out business as before, writing new contracts and servicing existing contracts entered into before exit day for the temporary period after exit day;
• EEA firms have appropriate time to prepare for and submit applications for UK authorisation and complete any necessary restructuring; and
• The PRA and the FCA can manage the expected applications for UK authorisation from EEA firms in a smooth and orderly manner.

The draft regulations are here and the explanatory information is here.

The FCA has published its own webpage on how it will implement the temporary permission regime (TPR).

Firms wishing to use the TPR must notify the FCA online between early January 2019 and at a date (not yet specified) prior to exit day. Such firms will be allocated a period within which they must submit their application for UK authorisation. The FCA expects the window to be October to December 2019 and the last to be January to March 2021. The FCA intends to consult in autumn 2018 on the rules that will apply to firms and funds in the TPR and a policy statement and final rules early in 2019.

FCA Update On Cloud and Other IT Outsourcing

The FCA has revised its earlier guidance on outsourcing to 'cloud' and other IT service providers.

This is to reflect the implementation of the General Data Protection Regulation, and the European Banking Authority's December 2017 recommendations (so does not apply to a bank, building society, designated investment firm or IFPRU investment firm covered by those recommendations).

New FCA Consultation on P2P Lending and CrowdInvesting

The FCA is consulting on proposed changes to the regulation of P2P lending and crowd-investment platforms. Firms have until 27 October 2018 to respond. While the Treasury recently insisted at EU level (for what that's worth, post-Brexit) that it sees a significant distinction between P2P lending and crowd-investment platforms, the FCA's proposals severely erode any such distinction.

The FCA is concerned that investors may not:

• be given clear or accurate information, leading to the purchase of unsuitable financial products;
• understand or be aware of the true investment risk they are exposed to;
• be remunerated fairly for the risks they are taking;
• understand what may happen if the platform administering their loan fails;
• understand the costs they are paying for the services the platform provides; or 
• may pay excessive costs for a platform’s services

As a result, the FCA proposes to:

• set out the minimum information that P2P platforms need to provide to investors; 
• clarify what systems and controls platforms need to have in place to support the outcomes platforms advertise - particularly on credit risk assessment, risk management and fair valuation practices; 
• ensure arrangements are in place that take account of the practical challenges that platforms could face in a wind-down scenario; 
• extend marketing restrictions that already apply to investment-based crowdfunding to P2P platforms; 
• to apply Mortgage and Home Finance: Conduct of Business sourcebook (MCOB) and other Handbook requirements to P2P platforms that offer home finance products, where at least one of the investors is not an authorised home finance provider - to address a potential gap in protections for home finance customers who undertake transactions through a P2P platform.

The Cost Of My Professional #Brexit Preparations - £9,000 in Year 1

Few politicians will talk about the plight of the UK's trade in services after Brexit, presumably because they don't understand how it works, much less care. Yet services represent 80% of the UK economy, while UK firms and individuals exported £245 billion in services in 2016. But the UK had an overall trade deficit of -£67 billion with the EU in 2017, because a surplus of £28 billion on trade in services (exporting more than we imported) was outweighed by a deficit of £95 billion on trade in goods. The affected service providers will be hoping for this insane project to stop, but in the meantime we must prepare for the worst, whatever that might be...

Services affected by Brexit include, say, a British architect designing a building for a German client; the Manchester hotel catering for Italian tourists; or the Edinburgh accountants advising a French exporter.

Financial services and other business services (legal, accounting, advertising, research and development, architectural, engineering and other professional and technical services) made up 52% of UK service exports to the EU. And, of course, many businesses in those categories supply services to each other. 

So, the fact that financial licences won't work across the EU after Brexit, for example, means UK finance firms are moving their EU-facing operations into a remaining EU27 country and serving the rest of Europe from those offices.

Similarly, the fact that my UK legal qualifications won't be recognised in the EU means that I'll need to set up an additional presence somewhere in the EU27 (Ireland, in my case) just to keep advising my financial services clients on their EU-facing operations.

So, for me personally, the cost of doing business as usual after Brexit is at least £9,000 in fees the first year, and £6,000 each year after that, excluding any travel and accommodation. That's a big investment to make on the assumption that local lawyers elsewhere in the EU27 don't simply take my EU-related work away from me. But it's also money that will be spent in Euros in Ireland and not in the UK. Ireland is the winner here.

But this is not just a sob story about financial institutions and their professional advisers. The British woman, based in France, who drives skiers from Geneva airport to Morzine in her UK minibus on her UK bus licence won't be able to do that anymore, either.  Courier firms are also horrified, not just about vehicle or driver licensing issues and the higher costs and complexity involved in the movement of goods, but also because they employ EU staff with language skills and other key knowledge who may simply want to leave. 

What hoteliers make of all this is anyone's guess, it seems, but PWC suggests the biggest problem will be the ability to recruit and retain staff with the right language skills and experience. Based on the impact on financial and other business services, perhaps the movement of EU-facing operations into the EU may also mean less need for UK management and staff to travel to EU offices.

Of course, a market should develop around the need for advice on how to prepare for the worst. But for that to happen, we need to be much clearer on the impact of Brexit on services in the first place.