The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001

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Changes over time for: Section 9

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Disclosure by [F1regulators or regulator workers] to certain other personsU.K.

9.—(1) Subject to paragraphs (2) F2...[F3 , (3A) [F4, (3C)]F2... F2... F2... [F5, F6...][F7(4) and (5)]], [F8any of the regulators or a regulator worker] is permitted to disclose information to which this Part applies to a person specified in the first column in Schedule 1 for the purpose of enabling or assisting that person to discharge any of the functions listed beside him in the second column in that Schedule.

[F9(1A) A regulator or a person who is employed by a regulator may disclose confidential information if it is necessary to do so in order to publish the outcome of a stress test conducted in respect of a credit institution or investment firm F10....]

(2) Paragraph (1) does not permit disclosure to a person specified in the first column in Part 3 of Schedule 1 unless [F11the conditions in paragraphs (2ZA), (2B) [F12or (2C)] are met].

[F13(2ZA) The condition in this paragraph is that the disclosure is provided for by a cooperation agreement of the kind referred to in—

(a)[F14article 88] of the markets in financial instruments directive;

[F15(b)article 55 of the capital requirements directive;]

[F16(c)article 66 of the Solvency 2 Directive;]

F17(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)article 102.3 of the UCITS directive; F18...

F17(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F19reading the relevant provisions in those directives as if—

(i)requirements imposed on a Member State or an EU entity are to be read as if they are requirements imposed on the United Kingdom or, where relevant, a primary recipient;

(ii)a restriction on the disclosure of confidential information to a person in a third country applies to any disclosure of confidential information to any person in a country or territory outside the United Kingdom;

(iii)a requirement to seek the consent of an EU entity only applies where an equivalent requirement applies in relation to an equivalent entity in a third country; and

(iv)for the purposes of sub-paragraph (ii) a reference to a person in a third country, which is a third country regulatory authority, is to be read as including an ESA and the ESRB.]

F20(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F21(2B) The conditions in this paragraph are that—

[F22(a)the disclosure is made in accordance with Chapter V of the [F23UK GDPR];][F24and]

(b)the regulator or regulator worker is satisfied that the disclosure is necessary for the purpose of complying with

[F25(i)requirements imposed on the regulator in the exercise of its functions under the Act which correspond to the functions under the Alternative Investment Fund Managers Regulations 2013;

(ii)EU tertiary legislation (within the meaning of section 20 of the European Union (Withdrawal) Act 2018) made under the alternative investment fund managers directive which forms part of retained EU law; and

(iii)rules made by the FCA under the Act that were in force immediately before IP completion day to implement the alternative investment fund managers directive.]

F26(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F27(2C) The condition in this paragraph is that—

(a)the disclosure is of recovery and resolution information;

(b)the disclosure is to a third country resolution authority;

(c)the third country resolution authority is subject to restrictions on the disclosure of confidential information at least equivalent, in the opinion of the Bank of England, to the restrictions on the Bank of England in relation to its functions under Part 1 of the Banking Act 2009 [F28, the Bank Recovery and Resolution (No. 2) Order 2014 or Schedule 11 to the Financial Services and Markets Act 2023]; and

(c)the information—

(i)is necessary for the performance by the third country resolution authority of its functions in relation to a third country resolution action (within the meaning of section 89H of the Banking Act 2009 [F29or within the meaning of paragraph 145 of Schedule 11 to the Financial Services and Markets Act 2023, as appropriate]) including planning for such action, corresponding to one or more of the functions exercisable by the Bank of England pursuant to Part 1 of the Banking Act 2009 [F30, the Bank Recovery and Resolution (No. 2) Order 2014 or Schedule 11 to the Financial Services and Markets Act 2023]; and

(ii)is not used for any other purpose.]

F31(2D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F32(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F33(3A) Paragraph (1) does not permit disclosure of markets in financial instruments information to a person specified in the first column of Schedule 1 other than a person listed in paragraph (3B) where that information—

[F34(a)was obtained from a third country regulatory authority under a cooperation agreement; and]

(b)that authority indicated at the time of communication that such information must not be disclosed,

unless that authority has given its express consent to the disclosure.

(3B) The persons are—

(a)the Bank of England,

F35(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the central bank of any country or territory outside the United Kingdom, F36...

(d)a body (other than a central bank) F37... outside the United Kingdom having—

(i)functions as a monetary authority; or

(ii)responsibility for overseeing payment systems],

F38(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F39(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F40(3C) Paragraph (1) does not permit disclosure of UCITS F41... information to a person specified in the first column of Schedule 1 other than a person listed in paragraph (3D) where that information—

(a)was obtained from [F42a third country regulatory authority] under a cooperation agreement referred to in Article 102 of [F43the UCITS directive, reading the provisions in Article 102 of that directive as if the requirements imposed on a Member State were requirements imposed on the regulator], and

(b)that authority indicated at the time of communication that such information must not be disclosed,

unless that authority has given its express consent to the disclosure.

(3D) The persons are—

(a)the Bank of England;

(b)[F44a central bank] outside the United Kingdom;

(c)a recognised investment exchange;

(d)an auditor exercising functions conferred by or under the Act in relation to insurance undertakings, credit institutions, investment firms or other financial institutions;

F45(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F46(3E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F47(3EA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F48(3F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F49(3G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F50(4) Paragraph (1) does not permit disclosure in breach of any restriction on the disclosure of confidential information in Section 2 of Chapter 1 of Title 7 of the capital requirements directive reading those provisions in that directive as follows—

(a)the requirements imposed on a Member State or an EU entity are to be read as if they are requirements imposed on the United Kingdom or, where relevant, a primary recipient;

(b)a restriction on the disclosure of confidential information to a person in a third country applies to any disclosure of confidential information to any person in a country or territory outside the United Kingdom;

(c)a requirement to seek the consent of an EU entity applies only where an equivalent requirement applies in relation to an equivalent entity in a third country; and

(d)for the purposes of sub-paragraph (b) a reference to a person in a third country, which is a third country regulatory authority, is to be read as including an ESA and the ESRB.]

[F51(4A) Paragraph (4) does not apply where regulation 10C applies to the disclosure of confidential information.]

[F52(5) Paragraph (1) does not permit the disclosure of recovery and resolution F53... information to any person unless the assessment required in regulation 10B has been carried out.]

[F54(6) In this regulation, “the UK GDPR” has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(10) and (14) of that Act).]

Textual Amendments

F1Words in reg. 9 heading substituted (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 47(6)(a)

F2Words in reg. 9(1) omitted (31.12.2020) by virtue of The Public Record, Disclosure of Information and Co-operation (Financial Services) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/681), regs. 1(3), 4(8)(a); 2020 c. 1, Sch. 5 para. 1(1)

F3Words in reg. 9(1) substituted (31.12.2010) by The Capital Requirements (Amendment) Regulations 2010 (S.I. 2010/2628), reg. 1, Sch. 2 para. 3(3)(a)

F4Word in reg. 9(1) inserted (1.7.2011) by The Undertakings for Collective Investment in Transferable Securities Regulations 2011 (S.I. 2011/1613), regs. 1, 5(3)(a)

F5Word in reg. 9(1) inserted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 18(4)(a)

F6Word in reg. 9(1) omitted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 3 para. 4(4)(a) (with reg. 7)

F7Words in reg. 9(1) substituted (10.1.2015) by The Bank Recovery and Resolution (No. 2) Order 2014 (S.I. 2014/3348), art. 1(2), Sch. 3 para. 8(4)(a)

F8Words in reg. 9(1) substituted (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 47(6)(b)

F9Reg. 9(1A) inserted (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), reg. 1(2), Sch. 2 para. 55(3)(a)

F10Words in reg. 9(1A) omitted (31.12.2020) by virtue of The Public Record, Disclosure of Information and Co-operation (Financial Services) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/681), regs. 1(3), 4(8)(b); 2020 c. 1, Sch. 5 para. 1(1)

F11Words in reg. 9(2) substituted (10.1.2015) by The Bank Recovery and Resolution (No. 2) Order 2014 (S.I. 2014/3348), art. 1(2), Sch. 3 para. 8(4)(b)