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

Changes over time for: The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001

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Statutory Instruments

2001 No. 2188

FINANCIAL SERVICES AND MARKETS

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

Made

15th June 2001

Laid before Parliament

15th June 2001

Coming into force

18th June 2001

The Treasury, in exercise of the powers conferred on them by sections 349(1)(b), (2) and (3), 417(1)M1, 426, 427 and 428(3) of the Financial Services and Markets Act 2000M2, hereby make the following Regulations—

Modifications etc. (not altering text)

C7Regulations applied (with modifications) (9.2.2011) by The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xiv), 62, Sch. 3 para. 11 (with reg. 3)

Marginal Citations

M1See the definition of “prescribed".

PART IU.K. PRELIMINARY

Citation and CommencementU.K.

1.  These Regulations may be cited as the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 and come into force on 18th June 2001.

InterpretationU.K.

2.  In these Regulations—

  • [F1ACER” means the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No. 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators]

  • “the Act" means the Financial Services and Markets Act 2000;

  • F2...

  • [F3“conglomerates directive” means Directive 2002/87/EC of the European Parliament and of the Council of 16th December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate and amending Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC, 93/22/EEC, and Directives 98/78/EC and 2000/12/EC of the European Parliament and of the Council;]

  • “criminal investigation" means an investigation of any crime, including an investigation of any alleged or suspected crime and an investigation of whether a crime has been committed;

  • “dependent territory" means the Channel Islands, the Isle of Man and any territory outside the British Islands for whose external relations the United Kingdom is responsible;

  • “dependent territory regulatory authority" means an overseas regulatory authority which exercises its functions in, and in relation to, a dependent territory;

  • F4...

  • “disciplinary proceedings authority" means a person responsible for initiating prescribed disciplinary proceedings or determining the outcome of such proceedings;

  • “EEA competent authority" means a competent authority of an EEA state other than the United Kingdom for the purposes of any of the single market directives [F5or the EMIR regulation] F6... F7...;

  • “EEA regulatory authority" means an EEA competent authority or an overseas regulatory authority which exercises its functions in, and in relation to, an EEA State other than the United Kingdom;

  • [F8EMIR information” means confidential information received by one of the regulators in the course of discharging its functions as a competent authority under the EMIR regulation;]

  • [F8“the EMIR regulation” means Regulation (EU) 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories;]

  • [F9“ESRB” means the European Systemic Risk Board established by Regulation (EU) No. 1092/2010 of the European Parliament and the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board;]

  • [F9“ESAs” means the European Supervisory Authorities established by Regulation (EU) No. 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), Regulation (EU) No. 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) and Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority);]

  • “former regulated activities" means activities carried on before the coming into force of section 19 of the Act and which constitute—

    (a)

    investment business within the meaning of the Financial Services Act 1986 M3;

    (b)

    deposit-taking business within the meaning of the Banking Act 1987 M4;

    (c)

    insurance business within the meaning of the Insurance Companies Act 1982 M5; or

    (d)

    insurance business within the meaning of the Friendly Societies Act 1992 M6;

  • “former regulated person" means a person who, at any time before the coming into force of section 19 of the Act, was—

    (a)

    authorised under section 3 or 4 of the Insurance Companies Act 1982;

    (b)

    an authorised person within the meaning of the Financial Services Act 1986, or an appointed representative within the meaning of section 44 M7 (appointed representatives) of that Act;

    (c)

    an authorised institution within the meaning of the Banking Act 1987;

    (d)

    a European institution within the meaning of the Banking Coordination (Second Council Directive) Regulations 1992 M8;

    (e)

    a European investment firm within the meaning of the Investment Services Regulations 1995 M9;

    (f)

    an EC company within the meaning of the Insurance Companies Act 1982 able to carry on direct insurance business through a branch in the United Kingdom, or provide insurance in the United Kingdom by virtue of paragraph 1 or 8 of Schedule 2F to that Act M10;

    (g)

    a friendly society authorised or treated as authorised for the purposes of Part IV of the Friendly Societies Act 1992, or permitted by virtue of section 31(2) or (3) of that Act to carry on activities without authorisation under that Part; or

    (h)

    a building society authorised or treated as authorised for the purposes of the Building Societies Act 1986 M11;

  • [F10“markets in financial instruments directive information” means confidential information received by the [F11FCA or the PRA] in the course of discharging its functions as an EEA competent authority under the markets in financial instruments directive [F12or its functions in relation to the supervision of investment firms under Directive 2006/49/EC of the European Parliament and of the Council] [F13as last amended on 24th November 2010 by Directives 2010/76/EU and 2010/78 /EU of the European Parliament and of the Council];]

  • F7...

  • “non-EEA regulatory authority" means an overseas regulatory authority other than an EEA regulatory authority or a dependent territory regulatory authority;

  • “overseas regulatory authority" means—

    (a)

    an authority in a country or territory outside the United Kingdom which exercises any function of a kind mentioned in section 195(4) of the Act; or

    (b)

    an overseas investment exchange [F14, overseas clearing house, EEA central counterparty (within the meaning of section 285(1)(c) of the Act) or third country central counterparty (within the meaning of section 285(1)(d) of the Act)];

  • “prescribed disciplinary proceedings" means the disciplinary proceedings prescribed in Schedule 3;

  • [F15“regulators” means the FCA, the PRA and the Bank of England, and “regulator” means any one of the regulators;]

  • [F15“regulator worker” means—

    (a)

    a person who is or has been employed by one of the regulators; or

    (b)

    an auditor or expert instructed by one of the regulators;]

  • “Secretary of State worker" means—

    (a)

    a person who is or has been employed by the Secretary of State; or

    (b)

    an auditor or expert instructed by the Secretary of State;

  • [F16“short selling regulation information” means confidential information received by the [F17FCA] in the course of discharging its functions as a competent authority under the short selling regulation;]

  • [F18“single market information” means confidential information received by the [F19FCA or the PRA] in the course of discharging its functions as the competent authority under any of the single market directives except for the market in financial instruments directive or the conglomerates directive and as the competent authority under Regulation (EU) No. 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), Regulation (EU) No. 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) and Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) and article 8 of Regulation (EU) No. 1092/2010 of the European Parliament and the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board;]

  • [F20“single market restrictions” means the restrictions imposed on the disclosure of information by—

    (a)

    articles 54 and 58 of the markets in financial instruments directive;

    (b)

    section 2 of Chapter 1 of Title 5 of the banking consolidation directive;

    (c)

    articles 16 and 17 of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance as amended by the conglomerates directive;

    (d)

    article 16 of the third non-life directive;

    (e)

    articles 24 to 30 of the reinsurance directive;

    (f)

    article 102 of the UCITS directive;

    (g)

    article 9 of the insurance mediation directive;

    (h)

    article 70 of Regulation (EU) No. 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority);

    (i)

    article 70 of Regulation (EU) No. 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority);

    (j)

    article 70 of Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority); F21...

    (k)

    article 8 of Regulation (EU) No. 1092/2010 of the European Parliament and the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board] [F22; and

    (l)

    article 83 of the EMIR regulation;]

  • [F23[F24"the third non-life insurance directive"] has the meaning given to it by paragraph 3 of Schedule 3 to the Act;]

  • [F25UCITS directive information” means confidential information received by the Authority in the course of discharging its functions as an EEA competent authority under the UCITS directive.]

  • F26...

  • F26...

Textual Amendments

Modifications etc. (not altering text)

Marginal Citations

M8S.I. 1992/3218; relevant amendments were made by S.I. 1999/2094.

M9S.I. 1995/3275; to which there are amendments not relevant to these Regulations.

M10Inserted by S.I. 1994/1696 and amended by S.I. 1997/2781.

PART IIU.K. DISCLOSURE OF CONFIDENTIAL INFORMATION GENERALLY

Disclosure by and to the [F27regulators], the Secretary of State and the Treasury etc.U.K.

3.—(1) A disclosure of confidential information is permitted when it is made to any person—

[F28(a)by one of the regulators or a regulator worker for the purposes of enabling or assisting the person making the disclosure to discharge any public functions of that regulator or (if different) the regulator worker;]

(b)by the Secretary of State or a Secretary of State worker for the purpose of enabling or assisting the person making the disclosure to discharge any public functions of the Secretary of State or (if different) of the Secretary of State worker;

(c)by the Treasury for the purpose of enabling or assisting the Treasury to discharge any of their public functions;

[F29(d)by one of the regulators or a regulator worker to one of the other regulators or a regulator worker employed or instructed by one of the other regulators for the purpose of enabling or assisting the recipient to discharge any public functions of the regulator or (if different) the regulator worker.]

(2) A disclosure of confidential information is permitted when it is made by any primary recipient, or person obtaining the information directly or indirectly from a primary recipient, to [F30one of the regulators], the Secretary of State or the Treasury for the purpose of enabling or assisting [F31that regulator], the Secretary of State or the Treasury (as the case may be) to discharge any of its, his or their public functions.

(3) Paragraphs (1) and (2) do not permit disclosure in contravention of any of the [F32single market restrictions].

Textual Amendments

Disclosure for the purposes of criminal proceedings and investigationsU.K.

4.  A primary recipient of confidential information, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to any person—

(a)for the purposes of any criminal investigation whatever which is being or may be carried out, whether in the United Kingdom or elsewhere;

(b)for the purposes of any criminal proceedings whatever which have been or may be initiated, whether in the United Kingdom or elsewhere; or

[F33(ba)for the purposes of any proceedings under Part 2, 3 or 4 of the Proceeds of Crime Act 2002 which have been, or may be initiated;]

(c)for the purpose of initiating or bringing to an end any such investigation or proceedings, or of facilitating a determination of whether it or they should be initiated or brought to an end.

Textual Amendments

Disclosure for the purposes of certain other proceedingsU.K.

5.—(1) Subject to paragraphs (4) and (5), a primary recipient of confidential information, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to—

(a)a person mentioned in paragraph (3) for the purpose of initiating proceedings to which this regulation applies, or of facilitating a determination of whether they should be initiated; or

(b)any person for the purposes of proceedings to which this regulation applies and which have been initiated, or for the purpose of bringing to an end such proceedings, or of facilitating a determination of whether they should be brought to an end.

(2) A person mentioned in paragraph (3) (or a person who is employed by [F34one of the regulators] or the Secretary of State) is permitted to disclose confidential information to any person for a purpose mentioned in paragraph (1)(a).

(3) The persons referred to in paragraphs (1)(a) and (2) are—

(a)[F35the regulators];

(b)the Secretary of State; and

(c)the Department of Enterprise, Trade and Investment in Northern Ireland.

(4) This regulation does not permit the disclosure of information with a view to the institution of, or in connection with, proceedings of the kind referred to in paragraph (6)(e) to the extent that—

(a)the information relates to an authorised person, former authorised person or former regulated person (“A");

(b)the information also relates to another person (“B") who, to the knowledge of the primary recipient (or person obtaining confidential information directly or indirectly from him), is or has been involved in an attempt to rescue A, or A’s business, from insolvency or impending insolvency; and

(c)B is not a director, controller or manager of A.

(5) This regulation does not permit disclosure in contravention of any of the [F36single market restrictions].

(6) The proceedings to which this regulation applies are—

(a)civil proceedings arising under or by virtue of the Act, an enactment referred to in section 338 of the Act, the Banking Act 1979 M12, the Friendly Societies Act 1974 M13, the Insurance Companies Act 1982 M14, the Financial Services Act 1986 M15, the Building Societies Act 1986 M16, the Banking Act 1987 M17, the Friendly Societies Act 1992 M18 or the Investment Services Regulations 1995 M19;

(b)proceedings before the Tribunal;

(c)any other civil proceedings to which [F37one of the regulators] is, or is proposed to be, a party;

(d)proceedings under section 7 or 8 of the Company Directors Disqualification Act 1986 M20 or article 10 or 11 of the Companies (Northern Ireland) Order 1989 M21 in respect of a director or former director of an authorised person, former authorised person or former regulated person; or

(e)proceedings under Parts I to VI or IX to X of the Insolvency Act 1986 M22, the Bankruptcy (Scotland) Act 1985 M23 or Parts II to VII or IX or X of the Insolvency (Northern Ireland) Order 1989 M24 in respect of an authorised person, former authorised person or former regulated person.

Textual Amendments

Modifications etc. (not altering text)

C13Reg. 5(6)(e) applied (with modifications) (11.2.2010) by The Cross Border Payments in Euro Regulations 2010 (S.I. 2010/89), reg. 1, Sch. Pt. 3 para. 10(c)

Marginal Citations

M201986 c. 46. Section 7 was amended by the Insolvency Act 2000 (c. 39), Sch. 4, Part I, and s. 6. Section 8 was amended by the Financial Services Act 1986 (c. 60), s. 198; the Criminal Justice (Scotland) Act 1987 (s. 41), s. 55(b); the Criminal Justice Act 1988 (c. 33), s. 145(b); the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40), s. 5, Sch. 4, para 62; the Companies Act 1989 (c. 40), s. 79; and the Insolvency Act 2000, s. 6.

Disclosure in pursuance of [F38 an EU] obligationU.K.

6.  A primary recipient of confidential information, or a person receiving such information directly or indirectly from a primary recipient, is permitted to disclose such information in pursuance of [F38an EU] obligation.

Textual Amendments

Restrictions on use of confidential informationU.K.

7.  Where confidential information is disclosed under these Regulations to a person other than [F39the FCA, the PRA,], the Secretary of State, the Treasury or the Bank of England, and the disclosure is made subject to any conditions as to the use to which the information may be put, the person to whom the information has been disclosed may not use the information in breach of any such condition, without the consent of the person who disclosed it to him.

Textual Amendments

PART IIIU.K. DISCLOSURE OF [F40SINGLE MARKET INFORMATION] F41...

Textual Amendments

[F42 Application of this PartU.K.

8.  This Part applies to—

(a)[F43single market information]; F44...

(b)markets in financial instruments directive information, where that information has been received from—

(i)an overseas regulatory authority under a cooperation agreement referred to in article 63 of the markets in financial instruments directive; or

(ii)an EEA competent authority under article 58.1 of the markets in financial instruments directive][F45; and

(c)EMIR information, where that information has been received from the competent authority of an EEA State other than the United Kingdom under the EMIR regulation.]

Textual Amendments

Modifications etc. (not altering text)

Disclosure by [F46regulators or regulator workers] to certain other personsU.K.

9.—(1) Subject to paragraphs (2) [F47(3), (3A) [F48, (3C)] [F49, (3E)] and (4)], [F50any 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.

(2) Paragraph (1) does not permit disclosure to a person specified in the first column in Part 3 of Schedule 1 unless the disclosure is provided for by a cooperation agreement of the kind referred to in—

[F51(a)article 63 of the markets in financial instruments directive;]

(b)[F52article 46] of the banking consolidation directive;

(c)[F53article 16.3 of the life assurance consolidation directive];

(d)article 16.3 of the third non-life insurance directive, F54...

(e)article [F55102.3] of the UCITS directive [F56, or

(f)article 26 of the reinsurance directive].

[F57(2A) The references in paragraph (2) to the provisions mentioned in sub-paragraphs (a), F58... (d) and (e) are to those provisions as replaced by Directive 2000/64/EC of the European Parliament and of the Council of 7 November 2000].

(3) Paragraph (1) does not permit disclosure to a person specified in the first column in Part 4 of Schedule 1—

(a)of information obtained from an EEA competent authority, unless that authority has given its express consent to the disclosure; or

(b)of information obtained in the course of an on-the-spot verification of the kind referred to in—

F59(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)[F60article 43] of the banking consolidation directive,

(iii)[F61article 11 of the life assurance consolidation directive], F62...

(iv)article 14 of the first non-life insurance directive [F63, or

(v)article 16 of the reinsurance directive]

unless the EEA competent authority of the state in which the on-the-spot verification was carried out has given its express consent to the disclosure.

[F64(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—

(a)was obtained from an EEA competent authority under article 58.1 of the markets in financial instruments directive (“the directive”) or an overseas regulatory authority under a cooperation agreement referred to in article 63 of the directive, 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,

(b)the European Central Bank,

(c)the central bank of any country or territory outside the United Kingdom, F65...

(d)a body (other than a central bank) in a country or territory outside the United Kingdom having—

(i)functions as a monetary authority; or

(ii)responsibility for overseeing payment systems],

[F66(e)ESMA, or

(f)the ESRB].

[F67(3C) Paragraph (1) does not permit disclosure of UCITS directive 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 an EEA competent authority under Article 101.2 of the UCITS directive or an overseas regulatory authority under a cooperation agreement referred to in Article 102 of that directive, 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)the central bank of any country or territory 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;

(e)an EEA regulatory authority exercising functions in relation to the supervision of credit institutions, investment firms, insurance undertakings or other financial institutions.]

[F68(3E) Paragraph (1) does not permit disclosure of EMIR information to a person specified in the first column of Schedule 1 in contravention of Article 83 of the EMIR regulation.]

[F69(4) Paragraph (1) does not permit disclosure of information to persons specified in the first column in Part 5 of Schedule 1 (except to the extent that they are referred to in other parts of that Schedule) other than where—

(a)it is obtained [F70by the FCA or the PRA in the course of discharging its functions] under the banking consolidation directive;

(b)there is an emergency situation, as referred to in Article 130(1) of that directive; and

(c)such information is relevant for the performance of such persons' functions.]

Textual Amendments

Modifications etc. (not altering text)

Disclosure by Schedule 1 personU.K.

10.  A person specified in the first column in Schedule 1 is permitted to disclose information to which this Part applies for the purpose of enabling or assisting him to discharge any of the functions listed beside him in that Schedule.

PART IVU.K. DISCLOSURE OF CONFIDENTIAL INFORMATION NOT SUBJECT TO [F71SINGLE MARKET RESTRICTIONS]

Textual Amendments

Application of this PartU.K.

11.  This Part applies to confidential information other than—

(a)[F72single market information];

F73(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F74(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F75(d)markets in financial instruments directive information, where that information has been received from—

(i)an overseas regulatory authority under a cooperation agreement referred to in article 63 of the markets in financial instruments directive; or

(ii)an EEA competent [F76authority] under article 58.1 of the markets in financial instruments directive,

unless that authority has given its express consent for disclosure that is covered by this Part];

[F77(e)UCITS directive information, where that information has been received from—

(i)an overseas regulatory authority under a cooperation agreement referred to in Article 102 of the UCITS directive; or

(ii)an EEA competent authority under Article 101.2 of the UCITS directive,

unless that authority has given its express consent for disclosure that is covered by this Part];

[F78(f)EMIR information, where that information has been received from the competent authority of an EEA State other than the United Kingdom under the EMIR regulation, unless that authority has given its express consent for disclosure that is covered by this Part.]

Textual Amendments

Modifications etc. (not altering text)

Disclosure by and to a Schedule 1 or 2 person or disciplinary proceedings authorityU.K.

12.—(1) A primary recipient of information to which this Part applies, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to—

(a)a person specified in the first column in Schedule 1 or 2 for the purpose of enabling or assisting that person to discharge any function listed beside him in the second column in Schedule 1 or 2; or

(b)a disciplinary proceedings authority for the purposes of any prescribed disciplinary proceedings which have been or may be initiated, or for the purpose of initiating or bringing to an end any such proceedings, or of facilitating a determination of whether they should be initiated or brought to an end.

(2) A person specified in the first column in Schedule 1 or 2 is permitted to disclose information to which this Part applies to any person for the purpose of enabling or assisting the person making the disclosure to discharge any function listed beside him in the second column in Schedule 1 or 2.

(3) A disciplinary proceedings authority is permitted to disclose information to which this Part applies to any person for any of the purposes mentioned in paragraph (1)(b).

[F79(4) This regulation does not permit disclosure of short selling regulation information to a person specified in the first column in Part 3 of Schedule 1 unless the disclosure is in accordance with article 40 of the short selling regulation or a cooperation arrangement of the kind referred to in article 38 of the short selling regulation.]

Textual Amendments

[F8012A.  The National Lottery Commission may disclose information to which this Part applies to [F81the Comptroller and Auditor General] for the purpose of enabling or assisting the Comptroller and Auditor General to carry out an examination under Part II of the National Audit Act 1983 in relation to the Commission.]

Textual Amendments

[F82Electronic commerceU.K.

12B.  [F83The FCA or the PRA] may disclose information to which this Part applies for the purpose of publishing that information in accordance with regulation 10(8) of the Electronic Commerce Directive (Financial Services and Markets) Regulations 2002.]

Textual Amendments

[F8412C.  A primary recipient of information to which this Part applies, or a person obtaining such information directly or indirectly from a primary recipient is permitted to disclose such information to any person for the purposes of any proceedings under the Proceeds of Crime Act 2002 which have been or may be initiated.]

Textual Amendments

PART VU.K. TRANSITIONAL PROVISIONS

InterpretationU.K.

13.  In this Part—

  • [F85“the Authority” means the Financial Services Authority;]

  • “pre-commencement information" means information which is subject to restrictions (with or without qualifications or exceptions) on disclosure by virtue of a pre-commencement provision;

  • “pre-commencement provision" means—

    (a)

    any provision in—

    (i)

    Schedule 2B to the Insurance Companies Act 1982 M25;

    (ii)

    Part VIII of the Financial Services Act 1986 M26;

    (iii)

    Part V of the Banking Act 1987 M27; or

    (iv)

    SRO rules;

    which imposes restrictions on the disclosure of information, or creates exceptions or qualifications to such restrictions; or

    (b)

    regulation 48 of the Investment Services Regulations 1995 M28;

  • “recognised self-regulating organisation" means a body which immediately before the coming into force of section 348 of the Act was a recognised self-regulating organisation within the meaning of section 8(1) of the Financial Services Act 1986, or a recognised self-regulating organisation for friendly societies within the meaning of Schedule 11 to that Act;

  • “SRO rules" means the rules of a recognised self-regulating organisation;

  • “transitional information" means information which immediately before the coming into force of section 19 of the Act was subject to restrictions on disclosure by virtue of a pre-commencement provision.

Textual Amendments

Marginal Citations

M28S.I. 1995/3275. Regulation 48 was amended by Regulation 11 of S.I. 1996/1669.

Disclosure of pre-commencement informationU.K.

14.—(1) Before the coming into force of section 19 of the Act, each pre-commencement provision is to be treated as permitting the disclosure of pre-commencement information—

(a)in accordance with regulation 3(1) as if it were confidential information;

(b)to the Authority, the Secretary of State or the Treasury for the purpose referred to in regulation 3(2);

(c)to any person for the purposes referred to in regulation 4; and

(d)to—

(i)a person mentioned in regulation 5(3) for the purpose referred to in regulation 5(1)(a); or

(ii)any person for the purposes referred to in regulation 5(1)(b),

but only if the proceedings in question are of the kind referred to in regulation 5(6)(a), (b) or (c).

(2) Paragraph (1) is not to be taken as—

(a)precluding disclosure of pre-commencement information where that is otherwise permitted under the pre-commencement provision in question; or

(b)permitting disclosure in contravention of any of the [F86single market restrictions].

Textual Amendments

Disclosure of transitional informationU.K.

15.—(1) After the coming into force of section 19 of the Act, sections 348, 349 and 352 of the Act apply in relation to transitional information in the same way as they apply in relation to confidential information within the meaning of section 348(2) of the Act.

(2) Paragraph (1) does not apply to transitional information which—

(a)has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purposes for which, disclosure is not precluded by section 348 of the Act or a pre-commencement provision; or

(b)satisfies the criterion set out in section 348(4)(b) of the Act.

(3) For the purposes of sections 348 and 349 of the Act as they apply by virtue of paragraph (1)—

(a)a person who holds transitional information is to be treated as a primary recipient of the information if he—

(i)obtained it as mentioned in paragraph 1(2) or 5(1)(a) of Schedule 2B to the Insurance Companies Act 1982 M29;

(ii)was a primary recipient of the information for the purposes of section 179 of the Financial Services Act 1986 M30;

[F87(iia)obtained or received it as mentioned in subsection (5) of that section;]

(iii)received it as mentioned in section 82(1)(a) of the Banking Act 1987 M31; or

(iv)received it as mentioned in regulation 48(1) of the Investment Services Regulations 1995 M32;

(b)any other person who holds transitional information is to be treated as having obtained the information directly or indirectly from a primary recipient.

(4) Transitional information which is subject to [F88single market restrictions] F89... is to be treated for the purposes of these Regulations as [F90single market information] F89....

(5) Part IV of these Regulations does not apply to transitional information which is subject to [F91single market restrictions] imposed by [F92article 107.3] of the listing particulars directive.

Textual Amendments

Marginal Citations

M29Paragraphs 1(2) and 5(1)(a) were modified by S.I. 1997/2781, art. 8, Sch. paras. 53 and 57(a)(i).

M32S.I. 1995/3275. Regulation 48 was amended by Regulation 11 of S.I. 1996/1669.

Disclosure by recognised self-regulating organisationsU.K.

16.  If a recognised self-regulating organisation discloses any information to the Authority for the purpose of enabling or assisting the Authority to discharge functions corresponding to functions of the organisation, the disclosure is not to be taken as a contravention of any duty to which the organisation is subject.

[F93Investment services directive information: transitional provisionU.K.

17.  In these Regulations confidential information received by the Authority in the course of discharging its functions as an EEA competent authority under Council Directive 93/22/EEC of 10th May 1993 on investment services in the securities field shall be deemed to have been received by the Authority in the course of discharging its functions as an EEA competent authority under the markets in financial instruments directive.]

Textual Amendments

Gordon Brown

David Jamieson

Two of the Lords Commissioners of Her Majesty’s Treasury

15th June 2001

Regulations 9, 10 and 12

SCHEDULE 1U.K. DISCLOSURE OF CONFIDENTIAL INFORMATION WHETHER OR NOT SUBJECT TO [F94SINGLE MARKET RESTRICTIONS]

Textual Amendments

Modifications etc. (not altering text)

PART 1U.K.

Modifications etc. (not altering text)

PersonFunctions
The Bank of England, the European Central Bank or the central bank of any country or territory outside the United Kingdom

(a)Its functions as a monetary authority

(b)Its functions in relation to overseeing payment systems [F95and clearing and settlement systems]

[F96The FCAThe functions conferred on it by or under the Act]
[F97The PRAThe functions conferred on it by or under the Act]
A body (other than a central bank) in a country or territory outside the United Kingdom having (a) functions as a monetary authority or (b) responsibility for overseeing payments systemsIts functions as such
A recognised investment exchange (other than an overseas investment exchange)Its functions as such
The body known as the Panel on Takeovers and MergersAll of its functions
The Society of Lloyd’sIts regulatory functions
The Director General of Fair Trading

(a)His functions under the Act

(b)His functions under any other enactment in so far as they relate to the supervision of:

(i)former authorised persons or persons who have carried on former regulated activities; or

(ii)persons carrying on, or who have carried on, regulated activities [F98; or

(iii) financial organisations within the meaning of [F99article 47(a)] of the banking consolidation directive]

The Competition Commission

(a)Its functions under the Act

(b)Its functions under any other enactment in so far as they relate to the supervision of:

(i)former authorised persons or persons who have carried on former regulated activities; or

(ii)persons carrying on, or who have carried on, regulated activities [F100; or

(iii) financial organisations within the meaning of [F101article 47(a)] of the banking consolidation directive]

An official receiver appointed under section 399 of the Insolvency Act 1986 M33, or an official receiver for Northern Ireland appointed under article 355 of the Insolvency (Northern Ireland) Order 1989 M34

His functions under enactments relating to insolvency, in so far as they relate to:

(i)former authorised persons or persons who have carried on former regulated activities; or

(ii)persons carrying on, or who have carried on, regulated activities

The scheme managerIts functions under Part XV of the Act
A body responsible, in an EEA State other than the United Kingdom, for administering a deposit-guarantee scheme recognised in accordance with directive 94/19/EC M35, or an investor-compensation scheme recognised in accordance with Directive 97/9/EC M36Its functions as such
A designated professional body within the meaning of Part XX of the ActIts functions as such
A body which was, immediately before the coming into force of section 19 of the Act, a recognised professional body within the meaning of the Financial Services Act 1986 M37Its functions as such under that Act or under the Act
A person appointed to make a report under section 166 [F102or 166A] of the ActHis functions as such
A person appointed to conduct an investigation under section 167 or section 168(3) or (5) of the ActHis functions as such
An auditor exercising functions conferred by or under the ActThose functions
An auditor of an authorised person appointed under or as a result of an enactment (other than the Act)His functions as such
An actuary exercising functions conferred by or under the ActThose functions
A person appointed as an inspector under section 49 of the Industrial and Provident Societies Act 1965 M38His functions as such
A person appointed as an inspector under section 18 of the Credit Unions Act 1979 M39His functions as such
A person appointed to make a report under section 52(5)(d) of the Building Societies Act 1986 M40His functions as such
A person appointed as an investigator under section 55 of the Building Societies Act 1986 or as an inspector under section 56 of that Act M41His functions as such
A person appointed to make a report under section 62(3)(d) of the Friendly Societies Act 1992 M42His functions as such
A person appointed as an investigator under section 65 of the Friendly Societies Act 1992 M43 or as an inspector under 66 of that ActHis functions as such
A recognised supervisory body within the meaning of [F103Part 42, Chapter 2 of the Companies Act 2006]

(a)Its functions as such a body under that Part

(b)Its functions in relation to disciplinary proceedings against auditors

A qualifying body as defined by [F104section 1220 of the Companies Act 2006]Its functions as such
The Institute of Actuaries or the Faculty of Actuaries [F105Their supervisory functions in relation to the exercise by an actuary of his professional duties, including the conduct of disciplinary proceedings and determining whether to institute or terminate such proceedings]
A recognised professional body within the meaning of section 391 of the Insolvency Act 1986 or article 350 of the Insolvency (Northern Ireland) Order 1989

(a)Its functions as such a body under that Act or that Order

(b)Its functions in relation to disciplinary proceedings against insolvency practitioners

The Department of Enterprise, Trade and Investment in Northern Ireland

(a)Its functions under Part V of the Companies (No. 2) (Northern Ireland) Order 1990 (financial markets and insolvency) M44

(b)Its functions under Part XII of the Insolvency (Northern Ireland) Order 1989

(c)Its functions under any other enactment in so far as they relate to the supervison of:

(i)former authorised persons or persons who have carried on former regulated activities; or

(ii)persons carrying on, or who have carried on, regulated activities

[F106The Pensions Regulator]

[F107Its functions as such] in so far as they relate to the supervision of:

(i)former authorised persons or persons who have carried on former regulated activities; or

(ii)persons carrying on, or who have carried on, regulated activities

The Charity Commissioners for England and Wales

Their functions under any enactment in so far as they relate to the supervision of:

(i)former authorised persons or persons who have carried on former regulated activities; or

(ii)persons carrying on, or who have carried on, regulated activities

[F108The investigator appointed under section 84 of the Financial Services Act 2012]His functions as such
[F109A person appointed by the Treasury to hold an inquiry into matters relating to financial services (including an inquiry under [F110section 68 of the Financial Services Act 2012]), or an officer or member of staff of such an inquiry His functions in carrying out the inquiry and reporting to the Treasury]
[F111An investment exchange which has its head office in an EEA State other than the United Kingdom, and which is recognised as an investment exchange under the law of that state Its functions as a supervisor of financial markets]
[F112A person upon whom functions are conferred by or under Part 2, 3 or 4 of the Proceeds of Crime Act 2002Those functions]
[F113A person authorised by the Secretary of State for the purposes of [F114section 456 of the Companies Act 2006]His functions as such]
[F115Any body carrying on activities concerned with any of the matters set out in section 16(2) of the Companies (Audit, Investigations and Community Enterprise) Act 2004 Its functions as such]
[F115Any body carrying on activities concerned with any of the matters set out in section 14 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 Its functions as such]
[F115The Financial Reporting Council and its operating bodies Their supervisory functions in relation to the exercise by an actuary of his professional duties, the conduct of disciplinary proceedings and determining whether to institute or terminate such proceedings]
[F116ACERIts functions under Regulation (EU) No. 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency]
[F116ESAs Their functions under Regulation (EU) No. 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), Regulation (EU) No. 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) and Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority)]
[F116ESRBIts functions under Regulation (EU) No. 1092/2010 of the European Parliament and the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board]

Textual Amendments

Marginal Citations

M35OJ No. L135, 31.5.1994, p. 5.

M36OJ No. L084, 26.3.1997, p. 22.

M41Sections 55 and 56 were amended by the Building Societies Act 1997, Sch. 7, paras 21 and 22 (respectively).

PART 2U.K.

PersonFunctions
An EEA regulatory authority

(a)Its functions as an EEA competent authority

(b)Its functions corresponding to any of the functions specified in the second column of Part 1 of this Schedule

PART 3U.K.

PersonFunctions
A dependent territory regulatory authorityIts functions as such
A non-EEA regulatory authorityIts functions as such

PART 4U.K.

PersonFunctions
An inspector appointed under Part XIV of the Companies Act 1985His functions as such
A person authorised to exercise powers under section 447 of the Companies Act 1985 M45His functions as such
A person authorised under section 84 of the Companies Act 1989 to exercise on behalf of the Secretary of State powers conferred by section 83 of that Act M46His functions as such
The Department of Enterprise, Trade and Investment in Northern Ireland

(a)Its functions under Part XV of the Companies (Northern Ireland) Order 1986 M47 (investigation of companies and their affairs; requisition of documents)

(b)Its functions under Part III of the Companies (Northern Ireland) Order 1990 (eligibility for appointment as company auditor)

(c)Its functions under the Companies (Northern Ireland) Order 1989 M48 (disqualification of company directors)

F117. . .F117. . .
F118. . .F118. . .
A recognised clearing house (other than an overseas clearing house [F119, an EEA central counterparty (within the meaning of section 285(1)(c) of the Act) or a third country central counterparty (within the meaning of section 285(1)(d) of the Act)])Its functions as a clearing house in so far as they are exercisable in relation to defaults or potential defaults by market participants
A person included on the list maintained by [F120the Bank of England] for the purposes of section 301 of the ActHis functions under settlement arrangements to which regulations made under that section relate
A person approved under the Uncertificated Securities Regulations 1995 M49 as an operator of a relevant system (within the meaning of those Regulations)His functions as such in so far as they are exercisable in relation to defaults or potential defaults by market participants
[F121A clearing house or other similar body which has its head office in an EEA State other than the United Kingdom, and which is recognised under the law of that state as a provider of clearing or settlement services Its functions in relation to defaults or potential defaults by market participants]
[F122An EEA central counterparty (within the meaning of section 285(1)(c) of the Act) Its functions in relation to defaults or potential defaults by market participants]

Textual Amendments

Marginal Citations

M45Section 447 was amended by the Companies Act 1989, s. 63 and Sch. 24, and by the Youth Justice and Criminal Evidence Act 1999 (c. 23), Sch. 3, paras. 4 and 6.

M46Section 83 was amended by the Youth Justice and Criminal Evidence Act 1999, Sch. 3, para. 21.

M49S.I. 1995/3272, amended by S.I. 1996/2827, 1997/251, 1999/506, 2000/311 and 2000/1682.

[F123PART 5U.K.

Textual Amendments

PersonFunctions
A central government department in another EEA state, responsible for legislation on the supervision of credit institutions, financial institutions, investment services and insurance companiesIts functions as such]

Regulation 12

SCHEDULE 2U.K. DISCLOSURE OF CONFIDENTIAL INFORMATION NOT SUBJECT TO [F124SINGLE MARKET RESTRICTIONS]

Textual Amendments

PersonFunctions
The Bank of EnglandAll its public functions (so far as not mentioned in Schedule 1)
The International Monetary FundAll its functions
The Director General of Fair TradingHis functions under any enactment (so far as not mentioned in Schedule 1)
The Competition CommissionIts functions under any enactment (so far as not mentioned in Schedule 1)
F125. . .F125. . .
A local weights and measures authority in Great BritainIts functions as such under any enactment
An EEA regulatory authorityIts functions as such (so far as not mentioned in Schedule 1)
The Department of Enterprise, Trade and Investment in Northern Ireland

(a)Its functions under Part V of the Companies (No. 2) (Northern Ireland) Order 1990 M50 (Financial Markets and Insolvency)

(b)It functions under Part XII of the Insolvency (Northern Ireland) Order 1989 M51

(c)Its functions under any other enactment (so far as not mentioned in Schedule 1)

(d)Its functions as a weights and measures authority for Northern Ireland

A recognised clearing house (other than an overseas clearing house [F126, an EEA central counterparty (within the meaning of section 285(1)(c) of the Act) or a third country central counterparty (within the meaning of section 285(1)(d) of the Act)])Its functions as such (so far as not mentioned in Schedule 1)
A person approved under the Uncertificated Securities Regulations 1995 as an operator of a relevant system (within the meaning of those regulations)His functions as such (so far as not mentioned in Schedule 1)
The scheme operatorIts functions as such
The Chief Ombudsman appointed in accordance with paragraph 5 of Schedule 17 to the Act, and any other member of the panel of ombudsmen appointed in accordance with paragraph 4 of that ScheduleTheir functions as such
An inspector appointed under section 284 of the ActHis functions as such
A person appointed in accordance with regulations made under section 262(1) of the Act to carry out an investigation in relation to an open-ended investment companyHis functions as such
[F127The Pensions Regulator] [F128Its functions as such] (so far as not mentioned in Schedule 1 to these Regulations)
The Charity Commissioners for England and WalesTheir functions under any enactment (so far as not mentioned in Schedule 1)
The Commissioners of Customs and ExciseTheir functions under any enactment
[F129Office of Communications Its functions under the Postal Services Act 2011]
The Pensions OmbudsmanHis functions under the Pension Schemes Act 1993 and the Pensions Act 1995
[F130The National Lottery Commission All its public functions]
[F131A person upon whom functions are conferred by or under the Proceeds of Crime Act 2002Those functions]
[F132The Gambling Commission Its functions as such]
[F133The Claims Management Regulator Its functions as such]
[F134The Gas and Electricity Markets Authority Its functions under any enactment]

Textual Amendments

Marginal Citations

Regulation 2

SCHEDULE 3U.K. PRESCRIBED DISCIPLINARY PROCEEDINGS

The following disciplinary proceedings are prescribed for the purposes of section 349(5)(d) of the Act—

(a)disciplinary proceedings relating to the exercise by a barrister, solicitor, auditor, accountant, valuer or actuary of his professional duties;

(b)disciplinary proceedings relating to the discharge of his duties by an officer or servant of—

(i)the Crown;

(ii)[F135any of the regulators];

(iii)the body known as the Panel on Takeovers and Mergers;

(iv)the Charity Commissioners for England and Wales;

(v)the Director General of Fair Trading;

(vi)the Competition Commission;

(vii)the Insolvency Practitioners Tribunal in relation to its functions under the Insolvency Act 1986 M52;

(viii)the Occupational Pensions Board in relation to its functions under the Social Security Act 1973 M53 and the Social Security Acts 1975 to 1986 M54;

(ix)the organs of the Society of Lloyd’s being organs constituted by or under Lloyd’s Act 1982 M55 in relation to their functions under Lloyd’s Acts 1871–1982 M56 and the byelaws made thereunder of the Society of Lloyd’s;

(x)the National Lottery Commission in relation to their functions under the National Lottery etc. Act 1993 M57.

Textual Amendments

Marginal Citations

M5634 Vict c. xxi, 1&2 Geo V c. lxii, 14&15 Geo VI c. viii, 1982 c. 14.

Explanatory Note

(This note is not part of the Regulations)

These Regulations specify the circumstances in which confidential information, within the meaning of the Financial Services and Markets Act 2000 (c. 8) (“the Act"), can be disclosed. Section 348 of the Act provides that—except as permitted by such regulations—confidential information must not be disclosed by a primary recipient, or by any person obtaining the information directly or indirectly from a primary recipient, without the consent of the person from whom the primary recipient obtained the information and (if different) the person to whom it relates. “Confidential information" is defined as information which—

(a)  relates to the business or other affairs of any person; andU.K.

(b)  was received by the primary recipient for the purposes of, or in the discharge of, any functions of the Financial Services Authority (“the FSA"), the competent authority for the purposes of Part VI of the Act (official listing—currently the FSA) or the Secretary of State, under any provision made by or under the Act.U.K.

But information is not “confidential information" if it has previously been lawfully made available to the public, or is in the form of a summary or collection of information which is so framed that it is not possible to ascertain from it information relating to any particular person.

“Primary recipients" of confidential information are the FSA, the Secretary of State; persons employed by them, or auditors or experts instructed by them; or a person appointed to make a report under section 166 of the Act (reports by skilled persons).

Disclosure of confidential information in breach of section 348, or use of such information in breach of the Regulations, is an offence under section 352 of the Act.

Part II of these Regulations sets out the circumstances in which confidential information may be disclosed by or to the FSA, the Secretary of State or the Treasury; for the purposes of criminal proceedings and investigations; for the purposes of certain civil proceedings; or in pursuance of a Community obligation. Regulation 7 provides that where information is disclosed subject to a restriction on use, it may not be used in breach of that condition without the consent of the person who disclosed it.

Part III makes provision for the disclosure of information which is subject to restrictions on disclosure in the EC directives relating to financial services. Such information—subject to the provisions of regulation 9—may be disclosed to or by the persons listed in Schedule 1, for the purposes of the functions indicated there.

Part IV makes provision for the disclosure of information which is not subject to directive restrictions. Such information may be disclosed by or to the persons listed in Schedules 1 and 2, for the purposes of the functions indicated there; or for the purposes of certain disciplinary proceedings, as set out in Schedule 3.

Part V makes transitional provision about information obtained under former financial services legislation (to be repealed under the Act). Before the repeal of that legislation, information obtained under it may be disclosed for certain purposes permitted by these Regulations (regulation 14). After the repeal of that legislation, such information is to be treated in the same way as “confidential information" under the Act, and is to be subject to the provisions on disclosure in these Regulations (regulation 15).

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