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.

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