European Banking Authority

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Subcontractors, security, and audit and termination rights will require special consideration under forthcoming EBA outsourcing guidelines.

Richard Butterwick, Deborah J. Kirk, Fiona M. Maclean, Samantha Peacock, Kirsty Watkins, and Catherine Campbell

Recent growth in divestiture and carve-out deals in the M&A landscape, including the financial sector, has brought renewed focus to transitional services agreements (TSAs), which typically feature in such deals. TSAs can facilitate an M&A deal by allowing a seller to continue to provide services to the divested business for a period after closing, providing operational continuity while the parties seek to untangle joint operations and effect integration with the buyer or to establish the target as a stand-alone business.

In our view, deal teams are increasingly aware of both the challenges of structuring a successful TSA and the burdens on parties of relying on such agreements long term. Parties are seeking to address issues prior to closing, and if a TSA is unavoidable, to establish a clear action plan and timeline for executing the necessary steps to exit the TSA in a timely manner. However, as buyers and sellers look to create efficient TSAs, both sides should understand the potential impact of the European Banking Authority (EBA) Guidelines.

The guidelines create new obligations for financial, payment, and electronic money institutions that will impact cloud outsourcing and deployment of FinTech.

By Fiona M. Maclean and Laura Holden

On 25 February 2019, the European Banking Authority (EBA) published a final report on its draft guidelines on outsourcing arrangements (Guidelines). The report followed the EBA’s publication of draft guidelines in June 2018 (Draft Guidelines) and the ensuing public consultation in September 2018 (Public Consultation).

The Guidelines replace the 2006 Committee of European Banking Supervisors (CEBS) Guidelines on Outsourcing (CEBS Guidelines) and replace and incorporate the EBA’s final recommendations on outsourcing to cloud service providers (Cloud Recommendations). Financial institutions will now only need to consult one set of guidelines for cloud and non-cloud outsourcing.

The Guidelines apply to a wider range of entities (Covered Entities for the purpose of this article) than the CEBS Guidelines and the Cloud Recommendations, including payment or electronic money institutions. The Guidelines now apply to all financial institutions that are:

  • Within the scope of the EBA’s mandate, including credit institutions
  • Investment firms subject to Directive (EU) 2013/36 IV (Capital Requirements Directive)
  • Payment institutions
  • Electronic money institutions

As a result, a wider range of companies, such as FinTech companies, will now face the challenge of remaining agile and competitive in fast-moving markets, whilst managing the administrative and practical challenges of maintaining compliance with the Guidelines.

The Guidelines come into force on 30 September 2019. Any outsourcing arrangements entered into, reviewed, or amended by Covered Entities after that date must comply with the Guidelines. Covered Entities must also update all existing outsourcing arrangements in line with the Guidelines by 31 December 2021. For Covered Entities that are already subject to the Cloud Recommendations, these deadlines will not have any effect on their obligation to comply with the cloud specific requirements – these requirements will continue to apply as they did prior to publication of the Guidelines. An overview of the status of the Cloud Recommendations, per jurisdiction, can be found here.

While “critical and important functions” are subjected to stricter rules, the Guidelines generally apply to all outsourcings by Covered Entities, including intragroup outsourcings, representing a further widening of scope when compared with the CEBS Guidelines. Covered Entities will therefore face additional administrative burdens that they must balance with the need to stay ahead of the competition. Following concerns raised at the Public Consultation, the EBA clarified in the Guidelines that regulators will not consider every outsourcing to a cloud solution as critical or important; rather the same test applies as with other non-cloud service providers, taking into account “cloud specificities”.

Under the Guidelines, the definition of “outsourcing” is based on the Commission Delegated Regulation (EU) 2017/565 and defined as: “an arrangement of any form between an institution, a payment institution or an electronic money institution and a service provider by which that service provider performs a process, a service or an activity that would otherwise be undertaken by the institution, the payment institution or the electronic money institution itself”.

The Guidelines define “critical or important functions” based on the wording of MiFID II and the Commission Delegated Regulation (EU) 2017/565, which includes functions that “if a defect or failure were to occur, would materially impair the continuing compliance of the firm’s activities and obligations”.

To outsource banking and payment services to a third country (i.e., non-EU) service provider, the Guidelines require the competent authorities responsible for supervising each party to have a co-operation agreement in place. Therefore, post-Brexit, the UK’s Financial Conduct Authority will need to agree a co-operation agreement with EU regulators to ensure that cross-border outsourced arrangements can continue between the UK and the EU27.

By Fiona Maclean, Stuart Davis and Charlotte Collins

Cloud services come with the promise of many benefits for the financial services sector. Cloud computing offers large-scale and cost-effective solutions for data storage and efficient processing and is also the underlying technology for many FinTech platforms. As with a lot of new technology, however, financial institutions are struggling to see how they can embrace cloud services fully in the context of the current regulatory landscape. This is particularly so given that use of cloud services is often considered a material outsourcing, meaning that banks and investment firms must follow strict rules in order to ensure that the risks posed by migrating data to the cloud are mitigated appropriately.

Cloud Regulatory Guidance: Clear Skies?

Current guidance on outsourcing for banks and investment firms is from the Committee of European Banking Supervisors (CEBS) and dates from 2006 (the CEBS Outsourcing Guidelines), so is overdue for review. The European Banking Authority (EBA) has recognised this and, amidst concerns that firms simply may not use cloud service providers because they cannot reconcile how to do this in line with the regulatory requirements, published some new draft guidelines on outsourcing to cloud services (Draft Cloud Guidelines) for consultation on 17 May 2017.

The final guidance resulting from the public consultation (the Final Cloud Guidelines) will supplement, rather than replace, the existing CEBS Outsourcing Guidelines, so both will need to be read in parallel. Essentially, as the CEBS Outsourcing Guidelines are short and principles-based, the new guidelines seek to add more detail as to how a firm’s regulatory obligations may be met in the specific context of outsourcing to a cloud service provider, based upon discussions the EBA has had with firms and their regulators.

By Christian McDermott, Calum Docherty, Stuart Davis and Anne Mainwaring

The European Banking Authority (EBA) has published its consultation document on security measures for operational and security risks under the revised Payment Services Directive (PSD2).

Technology - dreamstime_xxl_19374657The WannaCry ransomware attack that swept across the globe last week revealed the destructive and indiscriminate nature of cyber threats. It attacked hospitals, telecoms networks and universities, seizing hold of important data and leaving users and systems administrators temporarily powerless. These are precisely the risks that the payments industry wants to avoid as it braces for the revised PSD2, which will come into force across the EU from 13 January 2018. As such, the EBA has published a consultation paper on security measures for operational and security risks under PSD2, setting out proposed requirements for payment services providers (PSPs) to mitigate the concomitant payment processing risks.

The consultation paper is one of the EBA’s three security mandates in PSD2, complementing the Regulatory Technical Standards on Strong Customer Authentication and Common and Secure Communication (submitted to the European Commission for adoption 23 February 2017), and the Guidelines on Major Incidents Reporting (which recently finished its consultation).