Brexit : Mesures de préparation en matière de services financiers en cas de Brexit sans accord
Présentée en Conseil des ministres par Bruno Le Maire, l'ordonnance relative aux mesures de préparation au retrait du Royaume-Uni de l'Union européenne en matière de services financiers a été publiée au journal officiel de la République française. Elle comprend sept mesures qui entreront en vigueur en cas de sortie du Royaume-Uni sans accord et permettront d'assurer la continuité du financement de l'économie. Ces mesures viennent compléter des dispositions prises au niveau européen à l'initiative de la Commission européenne.
Adoption of the ordinance pertaining to measures of preparation to the United Kingdom’s withdrawal from the European Union in the area of financial services
In application of law n°2019-30 of 19th January 2019, which habilitates the French government to pass primary legislation by way of ordinance to take measures of preparation to the United Kingdom’s withdrawal from the European Union, the Government has adopted an ordinance in the area of financial services on 6th February 2019. This ordinance comprises seven measures which will enter into force in the case of the United Kingdom’s withdrawal without an agreement and will allow to secure the continued financing of the French economy. These measures complement provisions taken at the European level under the initiative of the European Commission.
A first measure guarantees the continuity of access of French entities to British payment and settlement systems as they play a major role to preserve financial markets’ stability and to reduce systemic risks. To this end, French entities are now covered by the Settlement Finality Directive’s provisions (directive 98/26/CE of 19th May 1998) when they participate in third-country systems, in order to ensure the finality of payments and settlements done through these systems.
A second measure clarifies the rules applicable to insurance contracts which entered into force before the United Kingdom’s exit with British insurers on the grounds of European passporting rights. It confirms the obligation for insurers to execute these legally underwritten contracts despite the loss of agreement recognition in France. By doing so it guarantees the right of insurance policyholders to claim and be paid compensation. Notwithstanding, in the case where such contracts are renewed or lead to the issuance of new insurance premium they are deemed null and void. In that case such nullity will not be opposable to policyholder claims.
The third measure is intended to clarify the remit of the Autorité de contrôle prudentiel et de résolution (ACPR) towards British entities that have concluded contracts on the grounds of European passporting rights.
A fourth measure carries two adaptations of French law to enable the smooth functioning of the ISDA master agreement, the most significant master agreement for derivatives contracts, in French law. These adaptations will allow actors to adopt an ISDA master agreement under French law which presents the same properties as the master agreement under English law.
A fifth measure defines a mechanism for the substitution of master agreements used for the provision of financial services. A proposal of a new master agreement will be deemed accepted insofar as the new master agreement is identical to the initial master agreement, subject to the use of French law and competence of French jurisdictions. When a master agreement is replicated into French law it will not include the back book derivative contracts that have been executed under the English law master agreement prior to Brexit. Lifecycle events under existing English law master agreements can still be performed after the United Kingdom’s exit only if they are the execution of an existing contract. They cannot be performed after the exit if they are constitutive of a new contract.
A sixth measure introduces transitioning rules in the area of collective investment schemes subject to investment ratios in European entities. United Kingdom transferable securities will remain eligible, for a limited period, to undertakings for collective investment distributed through Plan d’épargne en Actions (PEA) and Plan d’épargne en Actions dédié aux titres des PME et ETI (PEA-PME), and to private equity investment funds subject to ratios of investment in European companies.
A seventh measure designates the Autorité des Marchés Financiers (AMF) as competent authority for the supervision of securitisation activities in order to allow the securitisation market to carry on functioning with enhanced security conditions in accordance with Regulation (EU) 2017/2402 of 12th December 2017.
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