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The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017

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The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017, CHAPTER 2 is up to date with all changes known to be in force on or before 08 July 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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CHAPTER 2U.K.Third country investment firms

Third country firms with an EEA branch: provision of servicesU.K.

F19.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

FCA power to intervene in relation to third country firms with an EEA branchU.K.

F210.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Third country firms registered with [F3the FCA]: provision of servicesU.K.

11.—[F4(1)]  A third country firm registered with [F5the FCA] is not to be regarded as carrying on a regulated activity if it carries on the activity in the course of exercising rights under Article 46.1 (general provisions) of the markets in financial instruments regulation.

[F6(2) For the purposes of this regulation, third country firms which are included on the register with ESMA immediately before IP completion day under Article 46.2 of the markets in financial instruments regulation are to be treated after exit day as being registered with the FCA.]

Textual Amendments

FCA power to intervene in relation to third country firms registered with [F7the FCA] U.K.

12.—(1) The FCA may exercise its power of intervention in relation to a third country firm registered [F8with it] where it considers that —

(a)the firm has acted, or is acting, in a manner which is clearly prejudicial to the interests of investors or the orderly functioning of the markets; or

(b)the firm has seriously infringed provisions—

(i)applicable to the firm in the country in which it is established; and

[F9(ii)on the basis of which—

(aa)the Commission has adopted a decision in relation to the country under paragraph 1 of Article 47 of the markets in financial instruments regulation before IP completion day; or

(bb)the Treasury have made regulations in relation to the country under that paragraph after IP completion day;]

(2) Section 197 (procedure on exercise of power of intervention) applies to the exercise by the FCA of its power of intervention under paragraph (1) [F10as it applied] to the exercise by the FCA [F11before IP completion day] of its power of intervention under Part 13 of the Act generally.

(3) Where it appears to the FCA that the power of intervention is exercisable under paragraph (1) in relation to a third country firm registered [F12with it] the FCA must give—

F13(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the firm written notice of its concerns which—

(i)requires the firm to put an end to the conduct which gives rise to the concern;

(ii)states that the FCA's power of intervention will become exercisable in accordance with this regulation; and

(iii)indicates any requirements that the FCA proposes to impose on the firm in exercise of its power of intervention in the event the power becomes exercisable.

(4) The FCA may then only exercise its power of intervention under paragraph (1) if—

(a)the FCA considers a reasonable time has elapsed since it gave the written [F14notice] under paragraph (3); [F15and]

(b)the firm has not put an end to the concerning conduct;

F16(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F16(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F17(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F17(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Third country firms: provision of services to eligible counterparties or clients considered to be professionalsU.K.

13.  A third country firm is not to be regarded as carrying on a regulated activity if it carries on the activity in the course of exercising rights under the third paragraph of Article 46.5 (general provisions) of the markets in financial instruments regulation.

Third country firms: financial promotionsU.K.

14.—(1) The communication, in the course of business, of an invitation or inducement to engage in investment activity is not to be regarded as a communication for the purposes of section 21(1) (restrictions on financial promotion) of the Act if it is made in the course of exercising rights under Title 8 of the markets in financial instruments regulation.

(2) For the purposes of paragraph (1) a communication is made in the course of exercising rights under Title 8 of the markets in financial instruments regulation if it is made—

(a)by a third country firm registered with [F18the FCA] to eligible counterparties or to clients considered to be professionals in the course of exercising rights under Article 46.1 (general provisions) [F19of the Regulation]; [F20or]

(b)by a third country firm to eligible counterparties or to clients considered to be professionals in the course of exercising rights under Article 46.5 of the Regulation provided that—

(i)the counterparty or client has initiated at his or her own exclusive initiative the provision by the firm of an investment service or activity under that Article to the counterparty or client; and

(ii)the communication is in respect of the investment service or activity; F21...

F22(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) An order made by the Treasury under section 21(5) of the Act does not apply to a person who, in the course of business, communicates an invitation or inducement to engage in investment activity if—

(a)the communication is made in the course of providing investment services or performing investment activities with or without ancillary services to eligible counterparties or clients considered to be professionals; and

(b)the person is—

(i)established in a country which is subject to an equivalence [F23determination]; or

(ii)permitted to provide those services under Article 46.5 of the markets in financial instruments regulation.

(4) For the purposes of paragraph (3)—

[F24(a)“equivalence determination” means—

(i)a decision adopted by the Commission in relation to a country under paragraph 1 of Article 47 of the markets in financial instruments regulation before IP completion day which has not been withdrawn by a subsequent decision adopted by the Commission under that Article before exit day; or

(ii)regulations made by the Treasury in relation to a country under that paragraph after IP completion day which have not subsequently been revoked;]

[F25(b)a country is subject to an equivalence determination if a period of more than three years has elapsed since—

(i)the adoption of the decision by the Commission, beginning on the day after the date of the adoption of the decision; or

(ii)the making of the regulations by the Treasury, beginning on the day after the day on which the regulations were made;]

Textual Amendments

Interpretation of Chapter 2U.K.

15.  In this Chapter—

“clients considered to be professionals” means professional clients (as defined by [F26Article 2(1)(8) of the markets in financial instruments regulation]) who fall within [F27Part 2 of Schedule 1 to that regulation];

[F28“power of intervention” means the power of the regulator to impose any requirement in relation to the firm in respect of which the power is exercisable which the regulator could impose if—

(a)

the firm's permission was a Part 4A permission, within the meaning of the Act; and

(b)

the regulator was entitled to exercise its power under section 55L(3) or 55M(3) of the Act;]

“third country firm” has the same meaning as in [F29Article 2.1.42 of the markets in financial instruments regulation];

“third country firm registered with [F30the FCA]” means a third country firm which—

(a)

is registered in the register of third-country firms kept by [F30the FCA] in accordance with [F31Article 48 (register) of the markets in financial instruments regulation]; and

(b)

has the right under Article 46.1 (general provisions) [F32of the markets in financial instruments regulation] to provide investment services or perform investment activities with or without any ancillary services to eligible counterparties and to clients considered to be professionals;

F33...

Textual Amendments

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