The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013

PART 7 Investigatory powers of ESMA with regard to trade repositories

Records of telephone and data traffic: Article 62(1)(e) of the EMIR regulation

16.—(1) ESMA must obtain authorisation from the High Court before any official of, or person authorised by, ESMA requests any records of telephone or data traffic under Article 62(1)(e) of the EMIR regulation from a person domiciled or established in the United Kingdom.

(2) The FCA must obtain authorisation from the High Court before requesting on behalf of ESMA any records of telephone or data traffic under Article 62(1)(e) of the EMIR regulation.

(3) The High Court may grant authorisation under paragraph (1) or (2) if satisfied, on an application made to the High Court in accordance with rules of court by ESMA or the FCA, that—

(a) ESMA has initiated an investigation under Article 62(1) of the EMIR regulation; and

(b) requiring the records of telephone or data traffic would be neither arbitrary nor excessive having regard to the subject matter of the investigation.

(4) The High Court must conduct the assessment referred to in paragraph (3) in accordance with Article 62(6) of the EMIR regulation, and may exercise the powers conferred by that paragraph for the purposes of making its assessment.

Inspections: Article 63 of the EMIR regulation

17.—(1) ESMA must obtain authorisation from the High Court before any official of, or person authorised by, ESMA carries out an Article 63 inspection.

(2) Where ESMA requires the FCA to carry out an Article 63 inspection on its behalf, the FCA must obtain authorisation from the High Court before carrying out that inspection.

(3) The High Court may grant authorisation for the purposes of paragraph (1) or (2) if satisfied, on an application made to the High Court in accordance with rules of court by ESMA or the FCA, that—

(a) ESMA has initiated an Article 63 inspection; and

(b) the Article 63 inspection would be neither arbitrary nor excessive having regard to the subject matter of the inspection.

(4) The High Court must conduct the assessment referred to in paragraph (3) in accordance with Article 63(9) of the EMIR regulation, and may exercise the powers conferred by that paragraph for the purposes of making its assessment.

(5) The High Court may issue a warrant if satisfied on information on oath given by or on behalf of ESMA or the FCA that there are reasonable grounds for believing that—

(a) the premises specified in the warrant are the business premises of any legal person referred to in Article 61(1) of the EMIR regulation; and

(b) the person referred to in sub-paragraph (a) has failed to comply with an Article 63 inspection, or would fail to comply with such an inspection if a warrant were not issued under this paragraph.

(6) A warrant issued under paragraph (5) shall authorise a constable—

(a) to enter the premises specified in the warrant;

(b) to search the premises for such records, data, procedures or other material as may be examined under Article 63(1) of the EMIR regulation, or such records of telephone or data traffic as ESMA or the FCA has been authorised to request under regulation 16(3), or to take, in relation to any such records, data, procedures or other material, any other steps which may appear to be necessary for preserving them or preventing interference with them;

(c) to take copies of, or extracts from, any such records, data, procedures or other material;

(d) to seal any business premises and books or records in accordance with Article 63(2) of the EMIR regulation;

(e) to require any person on the premises to provide an explanation of any document or information appearing to be of the relevant kind or to state where it may be found; and

(f) to use such force as may be reasonably necessary.

(7) A warrant under this regulation may be executed by any constable.

(8) The warrant may authorise a named official of ESMA or the FCA and any other official or person authorised by ESMA or the FCA to accompany any constable who is executing it.

(9) The powers in paragraph (6) may be exercised by a person authorised by the warrant to accompany a constable; but that person may exercise those powers only in the company of, and under the supervision of, a constable.

(10) In England and Wales, sections 15(5) to (8) and 16(3) to (12) of the Police and Criminal Evidence Act 1984(1) (execution of search warrants and safeguards) apply to warrants issued under this regulation.

(11) In Northern Ireland, Articles 17(5) to (8) and 18(3) to (12) of the Police and Criminal Evidence (Northern Ireland) Order 1989(2) apply to warrants issued under this regulation.

(12) In the application of this regulation to Scotland, for the references to information on oath substitute references to evidence on oath.

(13) In this regulation, an “Article 63 inspection” means an inspection initiated by decision of ESMA under Article 63 of the EMIR regulation.

Retention of documents taken under regulation 17

18.—(1) Any document of which possession is taken under regulation 17 (“a seized document”) may be retained so long as it is necessary to retain it (rather than copies of it) in the circumstances.

(2) A person claiming to be the owner of a seized document may apply to a magistrates’ court or (in Scotland) the sheriff for an order for the delivery of the document to the person appearing to the court or sheriff to be the owner.

(3) If on an application under paragraph (2) the court or (in Scotland) the sheriff cannot ascertain who is the owner of the seized document the court or sheriff (as the case may be) may make such order as the court or sheriff thinks fit.

(4) An order under paragraph (2) or (3) does not affect the right of any person to take legal proceedings against any person in possession of a seized document for the recovery of the document.

(5) Any right to bring proceedings (as described in paragraph (4)) may only be exercised within 6 months of the date of the order made under paragraph (2) or (3).

Offences: Article 63 inspections

19.  Any person who intentionally obstructs the exercise of any rights conferred by a warrant under regulation 17(5) is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.

(1)

1984 c.60. Sections 15(5) to (8) and 16(3) to (12) were amended by paragraph 281 of Schedule 8 to the Courts Act 2003 (c.39), sections 113 and 114 of the Serious Organised Crime and Police Act 2005 (c.15) and S.I. 2005/3496.

(2)

S.I. 1989/1341 (N.I. 12), amended by S.I. 2007/288 (N.I. 2).