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3.138 The National Association of Pension Funds (NAPF) pointed out that pensions are a predominantly national market, not a cross-border one with only 82 cross-border pension schemes in the EU, of which 39 are between the UK and Ireland. Furthermore, around 61% of defined benefit schemes in the EU as a whole are in the UK and 24% in the Netherlands. NAPF commented that, ‘It seems wholly inappropriate that the 20 plus Member States with less than 1% of defined benefit liabilities should, collectively, have a greater say in relation to supervision and funding requirements for those liabilities than the UK and Netherlands; even Germany and Ireland have only 4% and 2% respectively’.
Cited in BBA, Beyond Boundaries: How to Drive Regulatory Coherence (2013).
Consumers and Consumer Protection
3.139 Reflecting the basic difference between wholesale and retail markets, the EU’s Financial Services Action Plan sets out a strategic objective for creating a single wholesale market in contrast to the goal for ‘open and secure’ retail financial markets. Reasons for the local nature of retail markets may include consumer confidence, including the extent to which consumers are willing to establish relationships with firms abroad and uncertainty about the degree to which they will be adequately protected if they do, and barriers represented by factors such as language which are not amenable to legislative intervention. This implies that Single Market measures should focus on making domestic markets more contestable and open to new entrants from other Member States or from those using new technologies or business processes, rather than seeking to harmonise the rules of a large number of local markets with different market structures, presenting somewhat different risks.
3.140 EU measures relating to consumers of financial services have addressed matters such as information disclosure and conduct of business requirements for those providing the services. Some provisions are essentially maximum harmonising and some have been minimum harmonising, allowing Member States to go further – for example, on investor protection grounds – if they see the need. But progress in creating a single market for financial services which delivers its full potential for consumers in terms of competitive products, being bought and sold on a cross-border basis, has been slow. Notwithstanding the recent PRIPs and IMD II initiatives, this is, arguably, an area that merits further consideration.
Cross border retail activity is a potential area of growth, and as a major provider of financial services it would seem relevant to the UK to encourage this business which is more likely to flourish when there are common rules building confidence.
(Sharon Bowles MEP)
3.141 Another view was that the inherently national nature of retail markets meant that consumer measures fell more naturally to the national level,166 with common approaches across the EU for retail action difficult other than at high levels of principle.167
3.142 The Northern Ireland Consumer Council was among those that drew attention to the risk that maximum harmonising legislation could impose thresholds which represent lower standards for some Member States.168 Others commented that national standards of consumer protection may be threatened by the ability of firms from jurisdictions with lower standards to passport their services.169 The Financial Services Consumer Panel saw this as one area where there is scope to raise protection at the EU level, commenting that, ‘it is imperative that companies are not able to offer services by passporting in from abroad, when they may not meet the standards of disclosure, training and professionalism required of UK advisers’.
Barclays, submission of evidence, p5.
WMA, submission of evidence, p9.
Northern Ireland Consumer Council, submission of evidence, p1.
BIBA, submission of evidence, p5.
78 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
3.143 A further dimension highlighted in evidence is the impact of digital commerce.170 Here, the national nature of retail financial services is less clear, and there may be a shift towards a European market in which consumers may not always be aware of the nationality or location of the company with which they are dealing, which may point to a need for EU-level legislation.
Subsidiarity and Proportionality
3.144 The use of EU competences is governed by the principles of subsidiarity and proportionality.171 These principles establish important parameters so that the EU does not take action, except for areas where it has exclusive competence, unless it is more effective than action taken at national level, and does not go beyond what is necessary to achieve the objectives of the Treaties. They can therefore be seen to represent a fundamental constraint on the EU in the exercise of its competences. The Fourteenth Report of the House of Lords European Union Select Committee, Session 2004-05,172 stated that, ‘The reason for introducing the principle of subsidiarity into the EU lawmaking process was to create a brake on the exercise of lawmaking powers at the Community level, in the interests of decision-making at national and sub-national level’.173 The application of these principles to EU lawmaking in financial services attracted much comment from respondents. In many cases, they were felt to be key in determining the success or otherwise of legislative interventions.
3.145 The UCITS Directive was cited as an example of well-designed legislation which delivered clear benefits.174 This Directive is the main European framework covering collective investment schemes that are suitable for retail investors, and was generally well-regarded for giving consumers access to high-quality, consistent investments and for being regulated to a high standard. As a result, UCITS can therefore be seen as a successful example of EU legislation that adheres to the principles of subsidiarity and proportionality notably by creating a global brand at an international level that would have been far more difficult, if not impossible, at a national level and is pro-trade and pro-competition.
Barclays, submission of evidence, p7.
HMG, Review of the Balance of Competences between the UK and the EU: Subsidiarity and Proportionality, published in Semester Four. This will consider the principles of subsidiarity and proportionality and their application.
House of Lords European Union Committee, Strengthening National Parliamentary Scrutiny of the EU – the Constitution’s Subsidiarity Early Warning Mechanism (HL 2004‑05, 101).
To help enforce observance of the principles, the Protocol on the application of the principles of subsidiarity and proportionality includes monitoring arrangements, notably a requirement that any draft legislative act should contain a detailed statement making it possible to appraise compliance with the principles. Protocol (No.2) under the Treaty of Lisbon established a watchdog role for national parliaments with regard to subsidiarity, with a right to object early in the process when legislation is drafted if a proposal is felt not to comply with the principle.
See: IMA, submission of evidence, p7; Standard Life, submission of evidence, p4; and Fresh Start, submission
3.146 However, the EU’s observance of the principles of subsidiarity and proportionality in the field of financial services legislation also attracted criticism. A general concern was voiced by the CLLS with respect to the need to look beyond individual pieces of legislation in order to gauge the full impact: ‘there has been little or no attempt to assess the cumulative impact of the full range of European legislative initiatives on the entities that are subject to them. This makes any true assessment of proportionality very difficult’.
3.147 The General Council of the Bar of England and Wales (the ‘Bar Council’) commented that, ‘EU legislation since the 2008 crisis has tended increasingly to encroach on Member States’ competences, and towards prescriptive, centralised decision making. This gives rise to cause for significant concerns about subsidiarity and the balance of competences, as well as legal basis and institutional balance’. It cited as examples of this the powers of the ESAs to take decisions binding on national competent authorities, in particular the power of ESMA ‘to prohibit, impose conditions on, or require disclosure of, short positions’ held on UK markets as part of the Short Selling Regulation. ‘Such intervention,’ it argued, ‘is hard to square with the principle of subsidiarity, and arguably also the principle of proportionality, and the accepted balance of powers between the EU and Member States, as well as between the EU institutions themselves’.
3.148 The EU’s use of Single Market competences was also questioned in evidence from NAPF:
Pensions policy is a matter for Member States under the principle of subsidiarity, but the EU has used the Single Market competence to develop a series of interventions in the pensions area.
3.149 Many respondents considered that EU policy-making also failed to consider the principle of proportionality adequately and highlighted individual pieces of legislation considered unnecessary or disproportionate in their impact.175 The Alternative Investment Fund Managers Directive (AIFMD) was specifically cited by several respondents as an example of legislation which is disproportionate in its impact and coverage, and without clear cross-border benefits that might have justified its introduction on subsidiarity grounds (see box).176 See: ACT, submission of evidence, p3; BPF, submission of evidence, p2; BCCL, submission of evidence, p5;
BIBA, submission of evidence, p4; WMA, submission of evidence, p2; BVCA, submission of evidence, p5; and CLLS, submission of evidence, p13.
See: CLLS, submission of evidence, p3; BVCA, submission of evidence, p6; and Lord Flight, submission of evidence, p1.
80 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 Alternative Investment Fund Managers Directive (AIFMD) In 2009 the Commission proposed the AIFMD as a response to the financial crisis, describing it as the first attempt anywhere to create a comprehensive framework for the regulation and supervision of the alternative fund industry. It was published without pre-consultation or discussion with expert groups. Although the AIFMD, as finally adopted, was an improvement over the original proposal, it was viewed by a number of respondents as exhibiting significant shortcomings as regards the scope, proportionality and quality of legislation.
The Directive’s requirements apply to all funds that are not UCITS, including private equity, investment trusts and real estate funds. Standard Life commented that it created, ‘a regulatory environment that covers many product types in which no issues of consumer detriment occurred’, adding that, ‘It is not obvious that the additional requirements will bring improved customer protection to investors in investment trusts’. Respondents also criticised the proportionality of the proposal. The CLLS commented that, while the de Larosière report found that the hedge fund industry did not cause the financial crisis, the Directive imposed a costly regulatory structure that would be proportionate only if it had. The BVCA commented that, ‘Efforts which would otherwise be focused on raising funds and investing those funds in the real economy are instead being diverted to satisfy administrative arrangements which will offer little (if any) increase in investor protection’. It added that, ‘Many of the Directive’s requirements are not only unduly onerous when applied to firms pursuing PE/VC [private equity/venture capital] strategies (as opposed to other strategies) but are impossible to reconcile with the way in which such firms conduct business’.
The CLLS expressed concerns that a rushed process in putting together and negotiating the Directive resulted in poorly drafted legislation with certain key concepts left undefined. It noted that a survey of asset managers published by Deloitte in June 2012 found that 72% of respondents viewed the AIFMD as a threat to their business and 68% suggested that the AIFMD would reduce the competitiveness of the funds industry in Europe and lead to fewer non-EU managers operating there, putting at risk more than 100,000 jobs at a cost to the economy of some €21.5bn.
Problems with the AIFMD’s broad approach have also been recognised in other Member States. In an interview with Dutch financial newspaper Het Financieele Dagblad, a senior official in the Dutch Financial Supervisory Authority commented that firms in the Netherlands are struggling to implement AIFMD, mostly because it applies a single set of rules onto a very diverse set of fund managers.
3.150 Solvency II, a fundamental review of the capital adequacy regime for the European insurance industry, is intended to establish a revised set of EU-wide capital requirements and risk management standards with the aim of increasing protection for policy-holders.
Though supporting its broad aims, respondents raised concerns about the challenge presented by the process of developing and agreeing the new regime, and the outcome in terms of subsidiarity and proportionality.177
3.151 EMIR was also widely criticised for requiring all businesses to report all derivative trades to a trade repository, and for not providing a threshold or an exemption for intra-group derivatives. Evidence from the Association of Corporate Treasurers (ACT) pointed out that, ‘Virtually all derivatives done by non-financial companies are likely to be non-systemically important so the entire non-financial corporate reporting infrastructure and burden is pointless’. However, the Commission and others have argued that it is necessary to understand the activity of all firms, including individual firms that are not systemic, in order
to gain a picture of the entire market and that the purpose of the reporting obligation is to support this approach.