The EU Short Selling Regulation (EU No 236/2012) comes into effect on 1 November, 2012. As a Regulation it will be directly applicable and, as such, will have direct effect in UK law in its own right with no general need for implementing measures in domestic legislation and FSA rules to apply its provisions. However, there are various issues associated with the implementation of the Regulation which are left to the discretion of Member States or where Member States need to put in place operational procedures to ensure that market participants can comply with their obligations under the Regulation.
This edition of Market Watch is intended to provide advance notice of the FSA’s approach in these areas to help those subject to the Regulation in their preparations for its coming into effect. This note is not guidance as defined by the Financial Services and Markets Act. All proposed changes to the FSA Handbook connected with the implementation of the Regulation will be the subject of a formal consultation exercise shortly. Further updates will also be provided on the procedural aspects of the Regulation’s implementation.
The Regulation requires Member States to establish rules on penalties and administrative measures for infringements of the Regulation. A policy is required in relation to penalties concerning breaches of FSMA provisions and the regulator expects that it will be placed under a similar requirement for those concerning infringements of the Regulation. On the assumption that this will be the case, the FSA's preliminary view is that the existing FSA penalties policy, consulted on in 2009 and set out in the Decisions Procedure and Penalties module of the FSA Handbook, sets out the appropriate considerations for penalties under the Regulation. The regulator will therefore be consulting on whether it is appropriate to apply this policy for breaches of the short selling regime.
The Regulation requires that net short positions of 0.5 per cent or above in shares should be publicly disclosed. The information needs to be posted on a central website operated by or supervised by the relevant competent authority. The FSA intends to use the first option and publish the disclosures on the FSA website. The regulator is developing a web-based solution that parties with disclosable net short positions in UK shares should due to make their disclosures. From 1 November, disclosures of net short positions through a Regulatory Information Service will no longer be required. The FSA will provide further details of the new web-based solution as soon as possible.
Market Watch
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