CMS Cameron McKenna Olswang LLP – Written evidence (EGC0012)

 

Introduction

I am a partner in CMS Cameron McKenna Olswang LLP (CMS). I have been in the firm’s Financial Markets team since 1988 and, together with my partners advise a wide range of UK and overseas financial institutions on regulatory matters, including in relation to market conduct, systems and controls, governance, and responding to regulatory concerns. I have represented firms in over 500 regulatory and enforcement proceedings brought by the UK PRA and FCA, their predecessors and overseas regulators.

This response is submitted on behalf of CMS, the international law firm with offices in over 40 countries and 5,000+ lawyers worldwide and leading practices in many of the global financial centres.

We are submitting our evidence to show the regulatory approach taken across multiple jurisdictions, including those of various UK regulators, to draw comparisons with the FCA’s proposed approach to announcing investigations.

Response

We are writing in response to the call for evidence by the Financial Services Regulation Committee on the FCA’s CP24/2 “Our Enforcement Guide and publicising enforcement investigations – a new approach” with regard to the FCA’s comparison of approaches taken by other regulators, both international and domestic.

In paragraphs 2.18 - 2.24, the FCA states that its proposed approach to announcing investigations aligns with the practices adopted by three UK regulators, and one international regulator. The FCA links this approach to its objectives aiming to increase transparency, accountability, and public confidence, whilst reducing harm to consumers and markets. Additionally, the FCA affirms the proposals are compatible with its secondary objective of advancing the international competitiveness of the UK economy and its growth in the medium to long-term.

We have considered this issue in conjunction with our overseas offices and are writing to set out our findings. In summary:

        1. The FCA’s reference to overseas regulators does not reflect our findings, especially regarding the Monetary Authority of Singapore (MAS), whom the FCA specifically cites, which rarely announces investigations.
        2. The FCA’s reference to domestic regulators is narrow and does not reflect the approach taken by most regulators in the UK, which is to only  announce investigations in very limited circumstances.
        3. We do not agree with the FCA’s statement that the proposals are compatible with its new secondary objective as we believe that the adverse impact of the proposals is likely to significantly outweigh this.

We consider that the FCA’s proposed position cannot be sustained for the following reasons.  

  1. Taking this approach would make the FCA an international outlier

We contacted colleagues in 26 jurisdictions to enquire whether their financial regulators routinely announce details of investigations started against firms. We include Table A below summarising their responses, accompanied by the brief and informal commentary they provided to assist with our understanding.

In summary, no jurisdiction routinely makes such announcements in the way the FCA proposes.  Spain, South Africa and Singapore occasionally make such announcements. This indicates to us that there is no general regulatory policy of announcing investigations other than in three jurisdictions that do so infrequently.  If these proposals are implemented, the FCA will diverge significantly from international norms.

In CP24/2, the Singapore regulator is given as exemplar. Due to restricted information available online, we cannot determine how many investigations are announced by MAS when opened, but it seems to be very few. Specifically, as at April 2024:

a)    In the ten years from January 2014, MAS announced the start of nine separate investigations into individual firms, groups or connected individuals via its News webpage.  None of these nine investigations is solely MAS-led but is a joint investigation with the Singapore Police Force or with the Commercial Affairs Department of the Singapore Police Force.

b)   MAS mentioned four of these investigations in its July 2020 – December 2021 Enforcement Report, describing them as “major” ongoing cases.

c)    MAS’ latest Enforcement Report states that 136 cases were opened between January 2022 and June 2023, of which we note that only one has been announced. 

This indicates to us that the FCA’s proposals diverge significantly from MAS practice, which cannot be relied upon by the FCA to justify its proposed approach.

 

  1. Taking this approach would differ from majority domestic regulatory practice

Table B below informally evaluates 15 UK regulators. In summary:

a)    six regulators routinely publish such announcements; and

b)   nine regulators do not routinely publish this information (including the PRA, who may change its approach, but this approach is significantly narrower than the FCA’s).

We consider that the FCA’s reference to the small number of domestic regulators who emulate its proposals does not present an accurate picture of the wider regulatory landscape where investigations are only announced in very limited circumstances.  It thus seems that the FCA’s proposed approach would deviate substantially from the prevailing UK regulatory consensus, with little explanation or evidence as to why the FCA should be different.

  1. This proposal is not in line with the FCA’s secondary international competitiveness and growth objective.

The FCA views international competitiveness as a measure of the UK's appeal to businesses, investors, and consumers and measures how well the UK economy as a whole achieves sustainable, positive economic outcomes, attracts international businesses to the UK, and enables UK-based firms to compete effectively in international markets (source). We believe that the present proposal is inconsistent with the FCA’s objective to maintain the UK's global standing and international competitiveness.

An announcement of an investigation brings with it negative connotations and often misleading and incorrect news reporting. Much news is disseminated on social media that uses ‘clickbait’ methods, rather than ensuring that the nuances are appropriately communicated. The UK may become a less appealing jurisdiction if the FCA routinely announces investigations, and in particular businesses may wish to avoid the associated risks of negative publicity and the possible resulting chain reaction of unsettled markets, heightened litigation risk, and increased consumer costs.  This has the potential to result in unfavourable outcomes for consumers.

Additionally, this proposal may burden consumers, who may not understand the significance (or otherwise) of the commencement of an investigation.  They will also need regularly to monitor investigation updates to stay informed about the position regarding individual firms. Consumers cannot not be expected to perform such research, staying alert for announcements and updates. This proposal has the potential to result in confusion, misunderstanding and mistrust in financial services in the UK.

While we acknowledge the FCA's aim to discourage misconduct, we contend that the adverse impact on economic expansion and global competitiveness could outweigh any benefits.

 

8 October 2024


Table A: Jurisdictional Responses

 

Note: this information has been compiled from CMS offices worldwide (or from other firms where there is no CMS office) who were asked to respond to the question whether the financial regulator in that jurisdiction publicly announced the commencement of an investigation.   

Jurisdiction

Public announcement of  investigation?

Additional information provided with the response

  1. Austria

No

The Austrian Financial Market Authority (“FMA") would not routinely announce that it commences investigations against an institution under its supervision. As a general rule (and unless there is a specific basis for acting otherwise), the FMA would rather be restricted by law from making such announcements.

The following exemptions to this rule seem to be noteworthy:

  • Information of the public about certain (rather severe) regulatory measures adopted, e.g. where the distribution of profits or capital has been prohibited, where the continuation of business has been prohibited or where a receiver-type manager has been appointed. This is a right (not an obligation) of the FMA and will usually refer to situations where severe irregularities have been detected that represent a threat to bank creditors and/or where the bank is close to resolution or a withdrawal of its license. By its very nature, this would not refer to the beginning of an investigation, but implies that certain regulatory measures have already been taken in reliance of the results of previous investigations (but may of course be at the beginning of further investigations, taking account of the new circumstances).
  • The right of the FMA (of which it frequently makes use) to warn investors about unlicensed service providers (informing about the fact that a certain person or entity is not entitled to conduct a certain licensed financial services activity). This would, however, concern unlicensed and unsupervised entities, not entities already under supervision;
  • “Naming and shaming” provisions (most commonly having an EU law background). Those provisions, however, would mostly apply after a certain sanction has been imposed on that institution (i.e. representing the result rather than the beginning of an investigation).
  1. Australia

No

Regulators take slightly different approaches in relation to the publication of information around investigations commenced against firms, but other than the Australian Transaction Reports and Analysis Centre (“AUSTRAC”) do not routinely or regularly publish such investigations.

ASIC

The Australian Securities and Investments Commission (“ASIC”) is Australia's integrated corporate, markets, financial services and consumer credit regulator.

ASIC’s Information Sheet 152 (“Info 152”) indicates that ASIC may comment on an investigation when it is in the public interest to do so. Info 152 also sets out the factors that ASIC will consider in determining whether it is in the public interest to comment. Info 152 also indicates that:

  • where ASIC confirms the existence of an investigation, it will generally make no further comment until the investigation is concluded; and
  • ASIC will only provide updates on the progress of the investigation if it is in the public interest to do so.

We note that Info 152 does not deal with the announcement of an investigation (as opposed to commenting in relation to an ongoing investigation), but in our view the same principles will apply.

For the sake of completeness, we note that ASIC indicates the number of investigations commenced and ongoing during a 6 month period as part of its summary of enforcement actions,  and provides a yearly summary within its annual ASIC Corporate Plan.  Further, ASIC maintains a "Key matters" page which it updates regularly when "important steps" are taken in relation to a handful of matters of public interest.  However, we are not aware of ASIC announcing the commencement of specific investigations against specific firms as a general practice.  They will from time to time indicate that they are undertaking industry-wide surveillance on particular issues, or publish a media release when they have commenced court proceedings.

APRA

The Australian Prudential Regulation Authority (“APRA”) is Australia’s prudential regulator of banks, insurance companies and most superannuation funds.

APRA’s Enforcement Approach (“APRA Enforcement Approach”) indicates that APRA will publicise the enforcement actions it takes on a case by case basis.

However, APRA will typically make public announcement in the following circumstances:

  • administrative enforcement actions taken by APRA, such as formal directions and licence conditions or infringement notices;
  • acceptance of an enforceable undertaking received from a regulated entity or an individual;
  • disqualifications of accountable persons under the Bank Executive Accountability Regime, or other responsible persons under the prudential framework; and
  • court-based enforcement actions commenced by APRA.

While the APRA Enforcement Approach does not specifically discuss announcements in relation to investigations commenced against firms (and which generally initiates a potential enforcement action), it has on at least one occasion announced the commencement of an investigation and have also commented on it as ongoing investigation.  However, we note that this related to a matter which AUSTRAC had already announced that it was conducting a an investigation so this does not reflect APRA's normal practice.

ACCC

The Australian Competition and Consumer Commission (“ACCC”) is Australia's national competition, consumer, fair trading and product safety regulator.

The ACCC Media Code of Conduct (“Code of Conduct”) outlines the ACCC’s approach in relation to publication of enforcement actions (including investigations).  According to the Code of Conduct, the ACCC will refrain from commenting on its investigations, unless it is in the public interest to do so. The ACCC will take a range of factors (specified in the Code of Conduct) into account when considering whether making a statement about an investigation is in the public interest.

Although the ACCC publishes the inception of public inquiries (for example the public inquiry into telco services) we are not aware of any specific publications made by the ACCC in relation to an investigations commenced against firms in the sense referred to in your email below.  

AUSTRAC

AUSTRAC is the Australian government agency that oversees anti-money laundering and counter-terrorism financing laws and regulations in Australia.

AUSTRAC has not published a specific approach in relation to the publication of commencement of investigations, however it will from time to time announce the commencement of investigations, see for example this media release.

For completeness, we note that a comprehensive list of AUSTRAC enforcement actions is also published on its website . 

  1. Belgium

No

The details of investigations started against firms are not announced.

  1. Brazil

No

Financial and payment institutions are regulated and supervised by the Central Bank of Brazil (“BCB”), and the capital (stock) market, by the Securities and Exchange Commission of Brazil (“CVM”). Some institutions, such as securities brokers, are supervised by both authorities.

According to Supplementary Law No. 105/2001 (Banking Secrecy Act), neither the BCB nor the CVM may disclose the information they obtain during the supervisory work, regardless of type, except when justified by law/regulation or through a court order. Thus, these authorities will not disclose to the general public when they start investigating an institution. However, they can and often do mention to the public that they are investigating specific themes, without mentioning any institutions or individuals by name.

Law No. 13.506/2017, which regulates administrative penalty procedures conducted by the BCB and CVM, does allow for the decisions handed down in the sanctioning proceedings to be published, along with the final judgment, and including general dispositions when institutions choose to enter into a term of commitment to avoid heftier fines. Details of the investigations that led to the decision/term, however, as well as the documents annexed to the procedure, are kept confidential.

It must be noted that the penalty procedures start only after the investigative procedures finish. Thus, in most cases, the general public will not even know that an institution was investigated, because most procedures do not end in prosecution.

  1. Canada

No

There are a number of regulators that could be in play, and they have different approaches. 

OSFI (the prudential regulator), the FCAC (the federal consumer protection regulator) and Fintrac (the AML regulator) do not publish anything until they have reached a final finding (and in OSFI’s case, usually not then either), whereas the Competition Bureau and securities regulators might or might not announce an investigation, depending on the circumstances.

  1. Czech Republic

No

The Czech National Bank (“CNB”) does not publicly announce details of investigations started against firms. CNB has its internal plan of on-site inspections, but this is not publicly available. Usually the respective firm is notified a few weeks before the on-site inspection, but this is not publicly available information.

After the inspection is finished, the inspections results are published by the CNB on its websites.

  1. France

No

The AMF does not advertise this. In extreme cases, it may leak to the market that it is in fact investigating but there are no public announcements.

  1. Germany

No

  1. The BaFin (Federal Financial Supervisory Authority) publishes certain measures it imposes on institutions or managing directors. It publishes on its website every unappealable fine decision and every measure, that has become final and that has been issued due to an infringement of certain regulations. The type and nature of the offence are also published. Anonymous publication of the decision may be necessary for reasons of data protection or proportionality.
  2. If and as long facts justify the assumption or it is established that a company is conducting unauthorized banking business or providing financial services, the BaFin informs the public of this suspicion or this finding, stating the name or company. Investigations against the suspected companies are also published in this context. Additionally, the BaFin publishes its formal prohibition orders on its website. However, the company must be heard prior to the decision to publish the information in order to verify the claims. These publications are intended to uncover fraudulent banking transactions and serve, among other things, to protect consumers.
  1. Hong Kong

No

 

It is not the practice of the Hong Kong Securities and Futures Commission (“HKSFC”) to publicly announce an investigation.  In fact, there is a statutory provision in the Securities and Futures Ordinance which requires all persons assisting a HKSFC investigation to maintain secrecy (secrecy provision here).

Sometimes the HKSFC do publicly announce the fact that an investigation has been commenced / is ongoing.  This is mostly done in cases where there is a keen public interest (for example, because there is a large number of fraud victims) or where the investigation is already public knowledge (for example, because a high profile raid has been conducted or related enforcement actions have already been taken).  A recent example can be found here against two former directors.

  1. Hungary

No

As a general rule, the financial regulator does not announce neither the mere fact of starting an investigation against a regulated entity, nor the details of any such investigation. The only exception is that in a market surveillance procedure (i.e. when unauthorised services or any market abuse is suspected) the regulator may order, as a temporary measure, to prohibit access to electronic data. This measure will be published on the website of the regulator and it may imply to the public the starting of an investigation.

  1. Italy

No

There is no such rule or practice and we note it may give rise to a lot of issues including possible claims for damages by investigated firms against the regulator in case such announcements cause reputational issues or even loss of business or decrease of their shares value and eventually no violations are found.

Normally the result of investigations (and relevant sanctions) are disclosed only once they are concluded.

  1. Ireland

No

The Central Bank of Ireland (the “Central Bank”) does not publicly announce details of investigations commenced against firms. We are not aware of any intention of the Central Bank to change its approach.

The Central Bank regards all investigations as confidential, and all information and material related to an investigation as confidential information. When an investigation is commenced by the Central Bank a notice of investigation is issued to the firm or individual who is the subject of the investigation.

Once the investigation phase is complete, and a decision is made to hold an inquiry, the details of the notice of inquiry (which includes details of the suspected prescribed contravention), however, are made public and are published on the Central Bank’s website.   

Where there is an early resolution by way of settlement, the details of the enforcement actions concluded by way of settlement will also be made available on the Central Bank website.

  1. Israel

No

 

There is no provision in the law which imposes an obligation on the Israel Securities Authority (“the ISA”) to publish information to the public as soon as it opens investigative procedures against entities (save only as to certain notifications to be given to specific officials, as detailed below). However, the ISA is obliged to publish on its website information concerning enforcement measures it has decided to impose on entities, and information regarding Arrangements (as detailed below).

As a general rule, according to Section 9b of the Securities Law, 1968 (the "Law"): "The Authority [ISA] will publish its decisions which it believes are of fundamental importance".

According to section 52tv(a) of the Law, if an entity violated one of specific provisions listed in the Law and applicable to it, the ISA may impose a financial sanction on it in the amounts specified in the Law.  According to section 52kz of the Law, after delivering a payment demand to the violator, the ISA will publish on its website its decision to impose the financial sanction, the nature of the violation, its circumstances, the name of the violator, and if the violator is an interested party in a corporation or holds a senior position in it, also the name of the corporation, and the amount of the financial sanction.  In addition, the Chairman of the ISA (the “Chairman”) may order certain violating entities to notify their customers about the violation, its circumstances and the amount of the financial sanction imposed on them.

The ISA has an Administrative Enforcement Committee, consisting of six members, whose role is to discuss and decide how to treat violations relating to securities. According to section 52mb of the Law, the ISA will report to the Attorney General, once a year, on the decisions of the Committee mentioned above, the report shall include details as directed by the Attorney General and shall also be published on the ISA's website.

According to section 52md of the Law, if the Chairman of the ISA has reasonable grounds to believe that an act or omission has been committed, for which a criminal investigation or administrative investigation can be held, it will decide on holding such investigations in accordance with specific considerations listed in the Law. According to sections 52mh and 52mv of the Law, if the chairman of the ISA believes that a violation has been committed, it may decide to open an administrative enforcement procedure and appoint a panel of the Administrative Enforcement Committee to discuss that violation; the chairman of the panel shall deliver to the panel and to the violator a notice of the opening of the administrative enforcement procedure. Under section 52n of the Law, the panel shall prepare a protocol of every hearing, and the violator is entitled to receive a copy of it at the end of each hearing or shortly thereafter.

According to section 52na of the Law, the decision of the panel at the end of the enforcement procedure will be in writing and will be sent to the violator. Under Section 52nb of the Law, if a panel finds that a violation has been committed, it may impose on the violator one or more of the enforcement measures specified in the Law (for example, a financial sanction, payment to the victim of the violation, taking actions to cure the violation and prevent its recurrence, cancelling or suspension of a license or permit, etc.). Under section 52s of the Law, the ISA must publish the decision of the panel on its website, at the effective date of such decision (but the panel may decide in a reasoned written decision, at the request of the violator, not to publish its decision or postpone its publication until a date to be determined).  If the panel decided to impose enforcement measures on certain violating entities, such as banking corporations, the Chairman may order them to inform their customers of the nature of the violation, its circumstances, and the enforcement measures imposed on them.

According to section 52sv(a) of the Law, the Chairman must inform: (i) the Supervisor of Banks of his decision to open an administrative inquiry procedure against a senior office holder of a banking corporation; or (ii) the Commissioner of the Capital Market, Insurance and Savings of his decision to open an administrative inquiry against a senior office holder of an institutional body – i.e. an insurer and a company licensed to manage provident funds. In addition, under certain sections of the Law, the Chairman may appoint an investigator, an employee of the ISA, who may have various powers such as search and seizure, interrogation, detention, delay and release from detention.  According to section 56c2 of the Law, if the ISA investigator exercises these powers in connection with certain securities offenses listed in the Law, the Chairman (or an authorised person) is required to notify the Inspector General of the Israel Police.

(i)     Subject to certain limited exceptions, under section 54c of the Law, the ISA is required to publish on its website each of the following cases: Notice of entering into an arrangement to avoid taking proceedings or to stop proceedings, subject to conditions (the "Arrangement"). The notice shall detail the content of the Arrangement;

(ii)  Notification of the violation of an Arrangement by a suspect;

(iii) Notice of taking proceedings against a suspect who violated a condition of the Arrangement or that obtained the Arrangement fraudulently.

Notwithstanding the above, the Chairman may, for special reasons to be recorded, not publish the matters listed above or postpone their publication until a date to be determined. In addition, the Chairman may instruct certain entities, such as banking corporations, to notify their customers about the Arrangements that apply to them, or to publish the wording of the Arrangements and their content, in a manner to be determined by the Chairman.

  1. Luxembourg

No

The regulator would definitely announce a theme for investigation (e.g. internal governance, AML, MiFID, ESG) but would not announce that it will be investigating X or Y firm on a specific subject. This would not be public information. However, the investigated firm would be forewarned in case of an on-site inspection as to the subject of this on-site investigation.

  1. Monaco

No

The Monaco Financial Regulator ( the “CCAF”) does not disclose information to the public about pending enquiries. The only information disclosed are the CCAF decision (sanction) against entities (upon discretionary decision of the CCAF). They are published on the regulator’s website and/or in the legal gazette.

  1. Netherlands

No

The Dutch financial regulators (DNB and AFM) do occasionally announce market-wide investigations they commence (so for example an investigation under all payment services providers in the Netherlands or under payment services providers randomly picked whether they comply with certain AML/KYC requirements), but the Dutch financial regulators do not announce investigations it commences against a specific financial institution. Normally publication by the Dutch financial regulators will in principle take place as soon as an enforcement decision following such specific investigation has become irrevocable.

  1. Norway

No

The Norwegian Financial Supervisory Authority (“FSA”) (the sole financial regulator) does not routinely announce details of investigations started against firms. The FSA is subject to freedom of information-related regulations which in practice make the existence of an investigation public. The details will usually be subject to a relevant exception, making only the title, date and recipient (and certain other metadata) public. There are exceptions to this, but in general the metadata is published in the electronic repository of all official correspondence a few business days after sending a letter, and the metadata will usually reveal the initiation of an investigation. While the details may vary, the metadata will usually not reveal any details on the subject matter of the investigation.  

The FSA routinely publishes the report of an investigation in full (with certain details redacted) when the investigation is complete. The press will from time to time through freedom of information requests receive intermediate documents and focus on the investigation before completion.

  1. Peru

No

The banking regulator (SBS) and also the capital markets regulator (SMV) do not make public statements in regards of ongoing investigations, those are threated with reserve. Once there is a final resolution, they issue the statement and published the corresponding sanctions, etc.

  1. Poland

No

Such proceedings are – as a rule – covered by the professional/administrative secrecy (i.e. the Polish FSA is not informing the whole market about such proceedings in order to avoid the situation where the rules on the professional/administrative secrecy would not be followed; sometimes – i.e. in the cases where the Polish FSA is of the opinion that the criminal offences may be involved – the Polish FSA is not even informing the financial institution being directly engaged about the PFSA`s actions and the proceeding itself).

At the same time the situation when there would be the public disclosure about the investigation is permissible but it is used very rarely (there was one case in which such pubic disclosure has been made in order to protect the Polish capital market).

  1. Singapore

Yes

 

While the MAS routinely announces enforcement actions following the conclusion of investigations, its approach to announcing investigations which are yet to be concluded is more nuanced. The abiding principle appears to be whether it is in the public interest in making an announcement of an investigation, and it will also consider whether an announcement will jeopardise the investigation or prejudice court proceedings.  The MAS’ approach to announcing investigations is set out in section 7 of the attached Enforcement Monograph.

There is no publicly available data (as far as we are aware) on the number of investigations which have been announced by MAS prior to their conclusion, although these will generally be on the “News” section of the MAS website. In the ten years from January 2014, MAS announced the start of nine separate investigations into individual firms, groups or connected individuals. In relation to enforcement actions, MAS’ enforcement monograph states that MAS will not announce every enforcement action (s. 7.10 of the monograph).

Empirically, the announcement of investigations which are ongoing and not yet concluded is rare, and is not something which the MAS routinely does.  MAS does publish an Enforcement Report every 18 months (or so). There have been four reports issued to date, and the latest two reports contain status reports of “Major Ongoing Cases”, so will supplement any announcements of investigations which are yet to be concluded. MAS mentioned four ongoing investigations in its Jul 2020 – Dec 2021 Enforcement Report as “major” ongoing cases, suggesting what type of investigations are announced.

Further, MAS’ latest Enforcement Report states that 136 cases were opened between January 2022 and June 2023, of which we see that only one was announced.

None of these nine investigations is solely MAS-led but is a joint investigation with the Police or with the Commercial Affairs Department (CAD) which is a department of the Singapore Police Force.

  1. South Africa

Yes

 

The financial services regulator, the Financial Sector Conduct Authority (“FSCA”) takes the approach of announcing the investigations that it commences against entities. In addition, it provides periodic updates on the status of its investigations. Investigations are announced on this webpage as well as public warnings. However, there is only one investigation commencement announcement since the start of 2020 (link).

A similar approach is followed by South Africa’s data privacy regulator, the Information Regulator of South Africa.

  1. Spain

Yes

 

 

Yes, the Spanish securities regulator (CNMV) is entitled to announce the enforcement proceedings it has initiated, to the extent there are reasons for doing that.

Article 336 of the Spanish securities markets law reads as follows (Deepl translation into English):

Article 336. Publication of resolutions to initiate sanctioning proceedings.

The CNMV may make public the resolutions to initiate sanctioning proceedings once they have been notified to the interested parties, after deciding, where appropriate, on the confidential aspects of their content and after dissociating the personal data referred to in article 4.1 of Regulation (EU) No. 2016/679 of the European Parliament and of the Council of 27 April 2016, except with regard to the names of the offenders. Publication shall be decided after a sufficiently reasoned balancing of the public interest, taking into account the overall favourable effects on the improved transparency and functioning of securities markets and the protection of investors, against the detriment caused to the offenders.

Announcements

  • 11 January 2024, CNMV disclosed that they were investigating Deutsche Bank for some mis-selling of complex financial products to Spanish clients (please find attached the English language statement in case helpful. Copy in column to the left).
  • 8 November 2023, CNMV disclosed they will bring disciplinary proceedings against Miolo Desarrollos, stating this has been announced as it is the first disciplinary case to be opened for non-compliance regarding regulating the advertisement of cryptoassets
  • 11 July 2023, CNMV issued proceedings against two individuals – not named – part of Grupo Ecoener for financial assistance in Group’s floatation.
  • 23 February 2021, CNMV agreed to initiate disciplinary proceedings against Abengoa and the members of its Board of Directors.
  1. Switzerland

No

 

As a general principle, FINMA is bound by law to keep official matters secret (art. 14 FINMASA, attached).

However, art. 22 FINMASA provides for the rules related to information, to be made available to the general public by FINMA related to "proceedings".

Furthermore, FINMA has published the following related thereto: (i) General Information (ii) On enforcement proceedings (iii) Rulings (iv) Case Reports (v) Court Decisions and (vi) Warning list (unauthorized service providers).

  1. UAE

No

None of the main UAE regulators (Central Bank, DFSA or FSRA) routinely publish details of ongoing investigations.

  1. Ukraine

No

Normally, such investigations are not announced publicly, unless the issue is of particular public importance and/or was initiated by a public association or group. 

It is quite a rare practice for the Ukrainian financial services regulator – the National Bank – to publicly announce its investigations of alleged violations.

At the same time, it is worth mentioning that the regulator publicly announces its intentions and specifies the financial institutions it will inspect annually to ensure regulatory compliance on the financial market, applying a risk-oriented approach.

  1. USA

No

Generally, SEC and CFTC investigations are non-public. The SEC, for instance, may call or send an email, asking for documents or to speak. They may also send a subpoena, which will be non-public / confidential. Generally, the public will find out only if a party under investigation discloses the fact of the investigation or once there is an action filed or an announced settlement. They will publicise the outcome of an enforcement action on their websites.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Table B: UK Regulator approach

 

Note: this information has been compiled from the websites of the below regulators and supporting material, such as policy documents and reports.

Regulator

Public announcement of investigation?

Approach to announcements and information on announcements

 

Example of announcements

1. Advertising Standards Agency (ASA)

No

The ASA states that details of cases must be kept confidential until publication. It will publish final rulings every week and parties will be notified as to when it will be published.

N/A

2. Bank of England (BoE)

No, except in special circumstances

Policy Statement 1/24 notes that unless and until the BoE decides whether to issue a Warning Notice, it will not ordinarily make public the fact that it is investigating a particular matter, or details of the matter, or its findings or conclusions of an investigation . In determining whether to make a public announcement, the BoE may regard the extent to which publicity would (i) advance its statutory objectives (ii) assist the investigation; or (iii) deter more widespread breaches of regulatory requirements. It will also consider potential prejudice risk of unfairness/ disproportionate damage. It may publicise the fact that the investigation is in existence if the investigation has entered the public domain and the BoE concludes no further action is warranted, or the action it proposes to take is materially different to that which entered the public domain.

The BoE may exercise its discretion in making public certain categories of Warning Notices only.

Unless publication would be (i) unfair to the persons concerned; (ii) prejudicial to the safety and soundness of relevant bodies; or (iii) detrimental to the stability of the UK financial system, the BoE states that it will ordinarily publicise enforcement action when a matter has led to the issue of a Decision Notice or a Final Notice.

The BoE does provide statistics on open investigations conducted by the Bank in its capacity as the Prudential Regulation Authority (PRA) and investigations by the Bank into financial market infrastructures and service providers in relation to a recognised payment system.

In a speech made in June 2023, Oliver Dearie stated that since April 2013 the Bank “launched more than 70 enforcement investigations and published 25 outcomes against 14 firms and 11 individuals

N/A

3. Payment Systems Regulator (PSR)

No

The PSR states it will not usually publish the fact it has opened an enforcement case in respect of a particular matter at the time a case is opened. However, it may consider doing so where, for example, the matter relates to a matter of significant strategic importance to it and/or to industry.

None found

4. Prudential Regulation Authority (PRA)

No, except in special circumstances. It may do so going forwards

The PRA and the BoE consulted on the approach to enforcement.

Policy Statement 1/24 notes the PRA will not normally make public the fact it is investigating a particular matter, or the identity of any subject, or its findings or conclusions of an investigation. In determining whether to make a public announcement the PRA may regard the extent to which publicity would (i) advance its statutory objectives (ii) assist the investigation; or (iii) deter more widespread breaches of regulatory requirements. The PRA will consider potential prejudice risk of unfairness/ disproportionate damage. It may publicise the fact that the investigation is in existence if the investigation has entered the public domain and the PRA concludes no further action is warranted, or the action it proposes to take is materially different to that which entered the public domain.

It may exercise its discretion in making public certain categories of Warning Notices only.

Unless publication would be (i) unfair to the persons concerned (ii) prejudicial to the safety and soundness of PRA-authorised persons, or (iii) prejudicial to securing the appropriate degree of protection for policyholders, the PRA states that it will ordinarily publicise enforcement action when a matter has led to the issue of a Decision Notice or a Final Notice.

 

Appendix 1 to PS1/24

5. Solicitors Regulation Authority (SRA)

No, except in special circumstances

The SRA states that investigations are generally conducted confidentially and therefore it does not routinely publish details of ongoing investigations or decisions before any review period has expired or been determined/withdrawn.

SRA rules do allow it to publish details regarding ongoing investigations, when it is in the public interest to do so. An example of this is an ongoing investigation into those involved in the Post Office scandal. The SRA has not named any individuals or firms.

Example and Update statement

6. Civil Aviation Authority (CAA)

No, except in special circumstances

The CAA states that it will not normally publish information about ongoing enforcement action, or where the matter was concluded voluntarily.

There are circumstances where it might be appropriate to publicly comment whilst a process is underway e.g. where there is risk of immediate harm to consumers.

Complete enforcement actions against organisations will typically be published, but consideration will be given to certain matters, for example human rights issues.

Complete enforcement actions against individuals will only be published when there is a strong rationale to do so, i.e. when there is a risk to of harm posed to consumers.

Example 1 investigation into Heathrow after airline complaint.

Example 2 with very limited information.

7. Environment Agency (EA)

No, except in special circumstances

The EA states it will publish limited information on live criminal investigations but that it generally will not publish information on civil proceedings until an appeal has been determined, or the time for appealing has passed. The enforcement action register only shows formal action taken against firms, and not ongoing investigations.

Example of criminal investigation (jointly led with Ofwat)

 

 

8. Gambling Commission (GC)

No, except in special circumstances

The GC states that it will not normally publish details of any information or conclusions reached while its investigations are ongoing and will only publicly announce an investigation in exceptional circumstances. An exception may be made where there is speculation in the public domain and/or where those involved have made public statements which need to be responded to in order to avoid misconceptions arising.

When investigating criminal matters, the Commission states it will generally consider making a public announcement when suspects are arrested, when search warrants are executed and when charges are laid.

None found

 

No detail in annual reports or enforcement reports.

9. Pensions Regulator (PR)

No, except in special circumstances

The PR will publish very limited information on some ongoing criminal investigations.

Otherwise, the PR states it will generally only publish the outcomes of investigations. It may not publish all outcomes, but will consider its aims, together with the public interest, such as (i) transparency (ii) education and guidance and (iii) deterrence.

Ongoing criminal investigations

 

Example 1

 

10. Financial Reporting Council (FRC)

Yes

The FRC states in its:

  1. Audit Enforcement Procedure Publication Policy that it has a discretionary power to publish the commencements of investigations. Decisions to exercise this discretion are taken by the Conduct Committee who take into account whether publication is necessary factors such as: whether publication will result in potential prejudice, help maintain public confidence, protect users of financial statements and investors, prevent malpractice, help contain speculation and contribute to public interest.
  2. Accountancy and Actuarial Schemes Publicity Policy that:
    1. referrals from Accountancy Scheme Participants to commence an investigation have a presumption in favour of publication (unless it is not in the public interest)
    2. referrals from Actuarial Scheme Participants to commence an investigation have no presumption in favour of publication.

In the six Annual Enforcement Reviews that the FRC has published to date (each of which covers the year ending 31 March), there were:

  • 2024: 6 new investigations opened and a total of 35 current investigations.
  • 2023: 10 new investigations opened and a total of 38 current investigations.
  • 2022: 15 new investigations opened and a total of 47 current investigations.
  • 2021: 16 new investigations opened and a total of 49 current investigations.
  • 2020: 14 new investigations opened and a total of 42 current investigations.
  • 2019: 15 new investigations opened and a total of 41 current investigations.

We note that there are currently 25 open investigations dating back to 21 November 2018. This indicates that the FRC tends to publish a considerable number, though not all, of announcements regarding the initiation of investigations into auditors, accountants and/or actuaries under the Audit Enforcement Procedure and Accountancy and Actuarial Schemes.

Ongoing investigations webpage

 

Example 1

Example 2

Example 3

11. Charity Commission for England and Wales (CC)

Yes

The CC states that it is normal practice to issue a public statement confirming that an inquiry has been opened.

It is generally in the public interest to do so, however there may be times it is not considered so.

 

Investigations are published on this webpage. There have been fifteen statements so far in 2024, twenty-two in 2023, twenty-one in 2022 and eleven in 2021.

Example 1

12. Ofcom

Yes

Ofcom states that it typically publishes details about ongoing investigations, provides updates on key milestones and publishes non-confidential versions of final decisions. Ofcom may decide not to publish only in exceptional cases where it may have a detrimental impact on third parties.

Example 1

Example 2

13. Ofgem

Yes

Ofgem states it will publish every case that it opens on its website and may make media announcements, unless it would adversely affect the investigation.

In all cases, Ofgem will usually inform the company concerned before publication or making an announcement and it makes clear that opening an investigation does not imply any findings have been made.

Ongoing investigation webpage

Example 1

Example 2

Example 3

14. Ofwat

 

Yes

Ofwat states it will publish information on any investigations and actions it takes.

Ongoing investigation webpage

 

Example 1

Example 2

15. Competition and Markets Authority (CMA)

Yes

The CMA states that once a formal investigation is opened and the parties have been informed of this, it will generally publish a notice of investigation on its webpages as soon as practicable after the formal investigation has been opened and updated thereafter, as appropriate. However, the CMA will generally not publish or update any notice where doing so may prejudice the investigation (including a criminal investigation).

Investigations are published on this webpage.