Our podcast on ICOs will be available online on our website at: www.cummingslaw.com. This podcast is the first in a two-part series discussing ICOs.  If you would like further information about ICOs and the work that Cummings Law are doing in this area, please e-mail Claire Cummings at [email protected].

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Several sets of guidelines have recently been published by the Article 29 Working Party.  The Working Party adopted several key working documents and guidelines following its February 2018 plenary meeting. This included its working documents and guidelines on Adequacy Referential, Binding Corporate Rules for Processors and Controllers, Guidelines on Personal data breach notification, and Guidelines on Automated individual decision-making and Profiling.  WP29 also recently published several consultations on adopted guidelines including concerning derogations for specific situations relating to the transfer of personal data to “third countries”.  UK practitioners are likely to welcome the assistance provided by the guidelines, given the current lack of clarity concerning whether the EU is likely to grant an adequacy decision in respect of personal data transfers from the EU to the UK.

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The Sanctions and Anti-Money Laundering Bill was debated in the House of Commons for the first time.  As part of the process of leaving the EU, the UK will repeal the European Communities Act of 1972 and thus will need to establish a national sanctions policy.  The Bill establishes a national sanctions legal framework, and will also provide for updating the national anti-money laundering regime, much of which is also based on international collaboration.  There may be a transitional period during which the UK must continue to implement EU law in sanctions and AML. The transitional period will not, however, be as significant as in some policy areas because the Government has indicated that it aims to continue to coordinate with the EU even after the end of any transition.

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The Financial Action Task Force (FATF) held a plenary meetin in Paris on 21 – 23 February.  The report on the outcomes has now  been published and notes the following main issues of consideration:  (i) combatting terrorist financing, including the adoption of a new counter-terrorist financing operational plan and a statement on the actions taken under the 2016 counter-terrorist financing strategy; (ii) adoption of a report to the G20 Finance Ministers and Central Bank Governors on FATF’s progress on counter terrorist financing; (iii)  as updating FATF Guidance on Counter Proliferation Financing, amending recommendations on national co-operation and co-ordination and publishing two public documents identifying jurisdictions that may pose a risk to the international financial system; improving the understanding of virtual currencies risks; and (iv) improving global AML compliance.

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ESMA has published a speech by Steven Maijoor, ESMA Chair on FinTech.  In his speech Mr Maijoor discussed the two strands to ESMA’s approach, these being: (i) monitoring innovations diligently and intelligently and (ii) taking action in a manner which carefully considers how best to act, weighing risks and benefits in an objective fashion.  When discussing the challenges and opportunities for regulator, Mr Maijoor noted that FinTech is a priority for financial market regulators and referred to the European Commission’s work in this area and  the Commission’s consultation on FinTech.  The Commission has proposed specific new tasks for the European Supervisory Authorities relating to FinTech would include four areas, including . pursuing convergence on licensing requirements, clarifying and updating the supervisory outsourcing frameworks, co-ordinating national technological innovation hubs and work relating to cybersecurity. Mr Maijoor confirmed that that if the Commission’s proposals are adopted, it will provide a clear roadmap to meet the relevant challenges and opportunities.

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On 27 February 2018, the European Commission published an Implementing Regulation laying down implementing technical standards on forms and procedures for co-operation between national competent authorities under the Market Abuse Regulation.  The Commission adopted the Implementing Regulation will enter into force on 19 March 2018.

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The Late Payment of Commercial Debts (Amendment) Regulations 2018 have been passed and come into force.  The new regulation clarifies that certain representative bodies are able to challenge the use of grossly unfair payment contract terms and practices in, or in relation to, contracts.  The policy objective of the new Regulations is to expand the existing ability for representative bodies to challenge contractual terms on behalf of SMEs. This aims to address the imbalance of power between SMEs and larger firms when entering into a contract by making it more likely that unfair payment terms will result in a challenge. It will allow any business to approach representative bodies for assistance and such bodies will have the flexibility to decide whether or not to take a case forward.  

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The government issued a consultation on possible reform of the taxation of intangible fixed assets.  The aim is maximising the regime’s competitiveness while ensuring “value for money” (maximising UK investment while minimising Exchequer cost). The consultation considers the exclusion of pre-2002 assets and the restriction on relief for goodwill and customer-related intangibles. Including pre-2002 assets could make the UK more competitive and follows the Office of Tax Simplification’s suggestion. However, the government would need convincing of the economic case and, if pursued, the recognition value and transitional provisions (for example, avoiding stranded capital losses) would need consideration. On goodwill and customer-related intangibles, the government is exploring the impact of the restriction, international approaches and the cost of relaxation.  The consultation also considers the degrouping rules.  The government seeks views on how to make these less onerous “affordably”.  The consultation also considers the elective fixed rate of relief. The government considers the current rate internationally competitive but seeks views on whether it merits revision.  The government is also interested in other changes that could meet the consultation’s aim and how the regime could be made more cost effective, such as expanding the assets attracting relief but restricting relief to income from the same asset.  

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02 03 2018