22 November 2021

FT: Brussels to curb banks’ use of ‘cross-border’ permissions to access EU

Brussels plans to crack down on a patchwork of national arrangements that allow banks outside the EU to sell services into the bloc, dealing a blow to lenders in London that rely on the arrangements to cushion the impact of Brexit.

The proposal would stop almost all cross-border selling from non-EU countries into the bloc’s single market. Banks are keen on cross-border access to the EU because it is cheaper and simpler to do some trade from their main international centres rather than moving capital and staff. The cross-border clampdown is part of an attempt to streamline how global banks operate in the EU, with Brussels also wanting to give regulators more power to make banks turn some branches into more closely supervised subsidiaries.

It is part of the European Commission’s capital requirements directive, which will give a legal basis to the latest global bank capital standards and end discrepancies in what different national regulators allow. It still has to be agreed by Europe’s parliament and council. European Central Bank officials have become concerned about a recent sharp increase in the post-Brexit use of national arrangements and waivers to conduct cross-border business, as banks continued to serve EU clients from London.

Cross-border permissions have long been used by banks based in the US, Switzerland and Asia for some of their activities in the EU. Edouard Fernandez-Bollo, a member of the board of the ECB’s supervisory arm, warned in September that banks should not use cross-border regimes “as a means to carry out large volumes of activities in the EU in a business-as-usual environment”.

“The direction of travel since Brexit has clearly been that the European authorities are looking to get more hands on supervision and financial services and banking activities inside the EU,” said Peter Bevan, a lawyer at Linklaters. “There’s obviously been an increasing scepticism about services that are provided from the UK.” He said it was “difficult to see” how national regimes granting cross-border access could be compatible with the commission’s proposals.

The new measure put forward by Brussels limits cross-border activity from non-EU countries to “reverse solicitation”, where a client approaches a bank without any marketing by the institution. “Most of western Europe has some kind of cross-border licensing regime,” said Caroline Dawson, a lawyer at Clifford Chance. The new measure would “repeal all of them”, she said, adding that reverse solicitation was difficult to prove and could not be done at scale...

much more at FT

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