«Summer 2014 Review of the Balance of Competences between the United Kingdom and the European Union The Single Market: Financial Services and the Free ...»
3.79 MEPs were widely recognised as having an important role to play in the policy-making process, in part due to the Parliament’s increasingly influential role as co-legislator. There was recognition of the strong and effective role that UK MEPs had played in the ECON committee. However, there were some concerns that the UK’s influence in the Parliament needed to be enhanced. For instance, the BBA noted that, ‘The decisions taken on the UK MEP’s participation in the European Parliament also continues to impact the ability of the UK to influence legislation in comparison to comparably sized Member States’.
Stakeholders also commented that UK influence in the Parliament may become more challenging after the 2014 elections.103 Figure Ten: Member State Share of Wholesale Finance in the EU Compared to Council Voting Weight and Number of MEPs 40% 35% 30% 25% 20% 15% 10% 5%
See: Sharon Bowles MEP, submission of evidence, pp5, 19; and Barclays, submission of evidence, p11.
See: IMA, submission of evidence, p6; CBI, submission of evidence, p20; and BIBA, submission of evidence, p6.
See: Sharon Bowles MEP, submission of evidence, pp5-6; and an unattributed member of the public, submission of evidence, p3.
See: CLLS, submission of evidence, p19; FCA PP, submission of evidence, p9; IRSG, submission of evidence, p15; and Lloyd’s of London, submission of evidence, p8.
WMA, submission of evidence, p14.
60 Review of the Balance of Competences between the United Kingdom and the European Union:
The Single Market: Financial Services and the Free Movement of Capital
3.80 Stakeholders had reservations about the UK’s influence with the Commission, given the latter’s significant degree of influence over the EU policy-making process, including through its sole right of initiative. In addition to calls for earlier UK engagement with the Commission, stakeholders called for more UK experts to be employed in or seconded to the Commission as well as other EU institutions:104 The BBA, among others, noted the House of Commons report on staff in the EU institutions which sets out the relative underrepresentation of UK nationals in the Commission:105 ‘The number of UK nationals on the staff of the European Commission has fallen by 24% in seven years and now stands at just 4.6% of the total, against 9.7% for France, when the UK accounts for 12.5% of the EU population’. Relatedly, stakeholders also suggested that the UK should put an appropriate emphasis on language training to ensure that rules on languages do not prevent UK nationals from taking up posts in EU institutions.106
3.81 During the Call for Evidence, industry groups also stressed the importance of securing a UK Commissioner role with a major economic portfolio in order to support the UK’s influence on financial services as well as broader economic issues. These groups also emphasised the importance of a UK Commissioner that can facilitate access and help represent UK interests across a full range of issues.
3.82 Several additional reasons were suggested in evidence as factors in the level of the UK’s influence in the EU, including the perceived failure of the ‘Anglo-Saxon model’ of more open and lightly regulated markets in light of the financial crisis, the anti-free market lobby, the current debate on the UK’s relationship with the EU and a perceived emphasis on sovereignty concerns rather than economic concerns.107
3.83 Given the importance of the financial services sector to the UK economy and the recent huge volume of legislation, largely in response to the financial crisis, it is perhaps unsurprising that there have been considerable challenges for the UK. However, notwithstanding some exceptions, such as on remuneration, stakeholders generally considered the UK’s views to be respected and its major points usually taken into account.
It was, however, generally considered that the UK needs to endeavour to influence both the high level direction and the detailed drafting of rules, an enterprise which will require careful and considered efforts to engage at different levels and with a range of different stakeholders.
See: ACT, submission of evidence, p5; BBA, submission of evidence, p14; CBI, submission of evidence, p21;
HSBC, submission of evidence, p8; IRSG, submission of evidence, p15; Lloyd’s of London, submission of evidence, p8; Nomura, submission of evidence, p3; RBS, submission of evidence, p5; and RSA, submission of evidence, p10.
House of Commons Foreign Affairs Committee, The UK Staff Presence In The EU Institutions (HC 2013-14, 219).
Evidence from the All-Party Parliamentary Group on Modern Languages highlights the need to ensure UK
The EU’s Approach to Third Countries
3.84 One area where the UK needs to exert more influence is EU policy towards Third Countries. The EU’s approach to whether and how firms located in Third Countries can access EU markets is of critical importance to the UK’s national interest. Indeed, without open access to market participants from all countries, the global markets that operate from the UK would move outside the EU. Third Country access is a key issue that arises during the negotiation of many pieces of financial services legislation.
3.85 Evidence highlighted the UK’s traditional, liberalised approach to trade in financial services as a key factor in its development into a leading global financial centre.
London has long acted as a natural bridge for Third Countries accessing the EU’s large financial market, given its track record for facilitating international trade in financial and professional services [...] Currently there are over 1,400 financial services firms in the UK that are majority foreign-owned, from around 80 countries.108
The UK is the leading recipient of financial services foreign direct investment in Europe:
over 40% of financial institutions new to locating in Europe chose London as their headquarters in the past seven years.109 (IRSG)
3.86 Evidence also drew attention to the important relationship between the EU and the UK in accessing markets in non-EU countries: the UK’s position as a leading global financial centre means it acts as a gateway for firms to passport into and trade with other Member States; while the EU’s approach to Third Country regimes and negotiating free trade agreements can facilitate the UK’s ability to trade with the rest of the world.110
3.87 Evidence from Royal Sun Alliance (RSA) highlighted that, ‘with 90% of global growth happening outside the EU [...] the Single Market needs to become more competitive and be open to business from outside its borders’.111 Evidence from Fresh Start similarly drew attention to the fact that, ‘Whilst in 2005 the UK, Germany, France, Spain and Italy accounted for 27% of global banking assets, PriceWaterhouseCoopers projects that in 2050 that will have decreased to 12.5%. PWC also projects that Brazil, Russia, China and India will see their share of global banking assets leap to 32.9% in 2050 from the 2005 figure of 7.9%’.112 City of London, An Indispensable Industry: Financial Services in the UK (2013). Available at: www.cityoflondon.
gov.uk/about-the-city/what-we-do/Documents/an-indispensable-industry.pdf, accessed June 2014.
Michel Barnier, European Commission Speech/13/636 The Single Market in Financial Services: We Need the UK On Board 12 July 2013 (2013). Available at: europa.eu/rapid/press-release_SPEECH-13-636_en.htm, accessed on 12 June 2014.
See: Sharon Bowles MEP, submission of evidence, p2; BVCA, submission of evidence, p 12; CBI, submission of evidence, p10; CLLS, submission of evidence, p14; and IRSG, submission of evidence, p13.
TheCityUK, UK and the EU: A mutually beneficial relationship (2013), p4.
PWC, The World in 2050 – The Accelerating Shift of Global Economic Power: Challenges and Opportunities (2011). Available at:www.pwc.com/en_GX/gx/world-2050/pdf, ACCESSED ON 12 June 104. See also the updated report at: www.pwc.com/en_GX/gx/world-2050/assets/pwc-world-in-2050-report-january-2013.pdf, accessed on 10 June 2014.
62 Review of the Balance of Competences between the United Kingdom and the European Union:
The Single Market: Financial Services and the Free Movement of Capital
3.88 Given the UK’s role as an international financial centre and the level of growth expected to take place outside the EU, especially in emerging market economies, stakeholders strongly emphasised that placing an appropriate value on access to global markets and avoiding a closed or protectionist approach to external trade would be to the EU and UK’s mutual benefit.113
3.89 Traditionally, EU law allowed each Member State to decide whether, and on what terms, firms from Third Countries could access its markets.114 This was based on the fact that the costs of financial system failure are borne by national, not EU, budgets and that Member States have financial industries of vastly different size and sophistication with
differing customer needs. Two broad approaches have been followed by Member States:
one based on a policy preference for liberalised, open markets; the other based on the principles of equivalence and reciprocity.115
3.90 However, since the financial crisis, there has been a shift in the Commission’s policy from allowing each Member State to determine for itself the level of access for Third Country firms to enforcing a common approach based on the principles of equivalence and reciprocity. These principles raise a number of complex issues, including the degree of equivalence that is deemed sufficient and the kind of obstacles reciprocal treatment needs to consider, such as legal barriers, anti-competitive market practices and private sector monopolies.
3.91 Evidence emphasised strong concerns that a ‘one-size-fits-all’ approach, which relies on strict or ‘line-by-line’ equivalence whereby the rules in other jurisdictions need to be effectively identical to the EU’s rules, could create tensions with Third Countries, including key emerging markets, increase uncertainty and inhibit competitiveness for firms, and be damaging to the interests of end-users and consumers in all Member States given that this approach does not take account of sectoral nuances.116
3.92 Responses also called for the greater use of mutual recognition and ‘substituted compliance’ with a focus on equivalent, but not identical, regulatory and supervisory outcomes. In other words, that the EU should rely more on Third Country laws, instead of EU requirements, where the outcomes are broadly the same.117 See: Bank of America Merrill Lynch, submission of evidence, p3; Barclays, submission of evidence, p6; CBI, submission of evidence, p10; CLLS, submission of evidence, p14; FCA PP, submission of evidence, p7; IMA, submission of evidence, p4; IRSG, submission of evidence, p13; and RSA, submission of evidence, p9.
A Member State could not, however, offer a Third Country firm better access than one from another Member State.
Equivalence means that firms only have access to the EU where their home state has regulatory standards that are equivalent to those of the particular Member State. Reciprocity means that firms from the Member State need to be granted equal access to the markets of the Third Country.
See: AFB, submission of evidence, p4; BBA, submission of evidence, p10; Business for Britain, submission
Third Country Access Provisions in MiFID II The Third Country regime in MiFID II, agreed in early 2014 by co-decision, will improve the way in which Third Country firms access the single market in investment services. Many Third Country firms who provide investment services in the EU will avoid having to seek separate authorisations in every individual Member States in which they do business, and will instead be able to register with ESMA to provide investment services in any Member State directly from its home jurisdiction or from one of its EU-based branches. While ESMA registration will require that the firm is from an ‘equivalent’ Third Country jurisdiction, the equivalence test should be focussed on regulatory outcomes. If a firm is not registered by ESMA, for instance because the Commission has not yet conducted the relevant equivalence assessment, it will still be able to provide investment services within the UK subject to UK rules.
This is a significant improvement on the Commission’s original proposal, which would not have allowed national regimes to continue alongside the proposed EU-level regime. The original proposal also included stricter ‘line-by-line’ equivalence assessments and a fixed four year period for carrying out these assessments. The UK government expressed serious concerns over the practicality of this proposal, given the UK alone trades in investment services with over 100 different jurisdictions.
The City of London Law Society Regulatory Law Committee (CLLS) commented that this ‘amounts to a significant new approach’ that the UK should support strongly in future EU legislation. The Association of Foreign Banks (AFB), however, noted that ‘the time taken to arrive at a satisfactory European solution regarding MiFID/MiFIR has created some uncertainty and may have caused Third Country firms to delay business decisions, or indeed, alter them’.
3.93 There were also strong concerns around the use of reciprocity, whereby access to the Single Market by firms in a Third Country is only granted if firms from the Member State are granted equal access to the markets of the Third Country.118 For instance, the CLLS considered that an EU requirement for reciprocity ‘would adversely affect the ability of UK firms to trade internationally’.119 It was suggested in some evidence, however, that reciprocity has the potential to be useful as a negotiating tactic when seeking to prevent non-EU countries imposing extraterritorial measures on the EU.120