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

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PART 4U.K.Algorithmic trading etc by members of trading venues covered by certain exemptions from the markets in financial instruments directive

Algorithmic tradingU.K.

30.—(1) A member of, or participant in, a regulated market or multilateral trading facility (“M”) that engages in algorithmic trading must comply with the requirements of this regulation if —

(a)[F1M is established in] the United Kingdom;

[F2(b)M falls within paragraph (1A); and]

(c)M does not have a Part 4A permission [F3to carry on a regulated activity which is any of the investment services and activities].

[F4(1A) M falls within this paragraph if M is—

(a)the society incorporated by Lloyd's Act 1871 known by the name of Lloyd's;

(b)an authorised person with a Part 4A permission to carry on the regulated activity of—

(i)effecting or carrying out contracts of insurance under article 10 of the Regulated Activities Order;

(ii)insurance risk transformation under article 13A of the Regulated Activities Order;

(iii)managing the underwriting capacity of a Lloyd's syndicate under article 57 of the Regulated Activities Order,

when carrying on those activities (and any other activities permitted by rules made by the FCA or the PRA under the Act);

(c)an operator (within the meaning of regulation 3(2) of the Greenhouse Gas Emissions Trading Scheme Regulations 2012), subject to compliance obligations under those Regulations who when dealing in emission allowances does not execute client orders and does not provide any investment services or perform any investment activities other than dealing on own account, provided that the operator does not apply a high-frequency algorithmic trading technique;

(d)a collective investment undertaking, pension fund or a depositary or manager of such an undertaking;

(e)a person (“P”)—

(i)dealing on own account, including a market maker, in commodity derivatives or emission allowances or derivatives thereof, excluding a person who deals on own account when executing client orders; or

(ii)providing investment services, other than dealing on own account, in commodity derivatives or emission allowances or derivatives thereof to the customers or suppliers of P's main business,

provided that in each case the activity in paragraph (i) or (ii), considered both individually and on an aggregate basis, is an ancillary activity to P's main business, when considered on a group basis, and paragraph (1B) applies.

(1B) This paragraph applies if—

(a)P's main business is not—

(i)the provision of investment services;

(ii)banking activities requiring permission under Part 4A of the Act (or banking activities which would require such permission if they were carried on in the United Kingdom); or

(iii)acting as a market-maker in relation to commodity derivatives;

(b)P does not apply a high-frequency algorithmic trading technique; and

(c)P notifies the FCA under regulation 47 that P is carrying out the activity described in paragraph (1A)(e)(i) and (ii) as an ancillary activity to P's main business and reports to the FCA upon request the basis on which P considers that this activity is ancillary to P's main business.]

(2) M must have in place effective systems and [F5risk] controls, suitable to the business it operates, to ensure that M's trading systems—

(a)are resilient and have sufficient capacity;

(b)are subject to appropriate trading thresholds and limits; and

(c)prevent the sending of erroneous orders or the systems otherwise functioning in a way that may create or contribute to a disorderly market.

(3) M must have in place effective systems and risk controls to ensure that M's trading systems cannot be used for any purpose that is contrary to—

(a)the market abuse regulation; or

(b)the rules of a trading venue to which it is connected.

(4) M must have in place effective business continuity arrangements to deal with any failure of its trading systems.

(5) M must ensure M's systems are fully tested and properly monitored to ensure that they meet the requirements set out in paragraph (2) to (4).

(6) If M engages in algorithmic trading in the United Kingdom [F6or in an EEA state] M must notify the FCA.

F7(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) M must arrange for records to be kept in relation to the matters referred to in this regulation and ensure that those records are sufficient to enable the FCA to monitor M's compliance with the requirements imposed on M by this regulation.

(9) If M engages in a high-frequency algorithmic trading technique F8... M must store accurate and time sequenced records of all its placed orders, cancelled orders, executed orders, and quotations on trading venues, in an approved form.

(10) If M engages in algorithmic trading to pursue a market making strategy M must, taking into account the liquidity, scale, and nature of the specific market and the characteristics of any financial instrument traded—

(a)carry out market making continuously during a specified proportion of the market or facility's trading hours, except under exceptional circumstances, with the result that liquidity is provided on a regular and predictable basis to that market or facility;

(b)if the specified circumstances arise, enter into a binding written agreement with the market or facility which—

(i)specifies the obligations of M under the agreement;

(ii)imposes obligations on M that are in accordance with sub-paragraph (a); and

(iii)includes the specified content; and

(c)have in place effective systems and controls to ensure that M meets the obligations under the agreement mentioned in sub-paragraph (b).

(11) In paragraph (10) M pursues a market making strategy if—

(a)M is a member of, or participant in, one or more regulated markets or multilateral trading facilities;

(b)M's strategy, when dealing on M's own account, involves posting firm, simultaneous two-way quotes of comparable size and at competitive prices relating to one or more financial instruments on a single regulated market or multilateral trading facility, or across different regulated markets or multilateral trading facilities; and

(c)as a result the result liquidity is provided on a regular and frequent basis to the overall market.

(12) In this regulation—

“approved form” means a form specified as an approved form by [F9Article 28 of Regulation (EU) 2017/589;]

“exceptional circumstances” means circumstances specified in [F10Article 3 of Regulation (EU) 2017/578;]

“the specified circumstances” means the circumstances specified in [F11Article 1 of Regulation (EU) 2017/578; and]

“the specified content” means the content specified by [F12Article 2 of Regulation (EU) 2017/578.]

Textual Amendments

Provision of information to the FCA concerning algorithmic tradingU.K.

31.—[F13(1) If a member of, or participant in, a regulated market or multilateral trading facility (“M”) is subject to the requirements set out in regulation 30 the FCA may require M to provide the information specified in paragraph (2) on a regular or ad hoc basis.]

(2) The specified information for the purposes of paragraph (1) is—

(a)a description of the nature of M's algorithmic trading strategies;

(b)details of the trading parameters or limits to which M's trading systems are subject;

(c)information concerning the [F14compliance and risk controls] M has in place to ensure M meets any requirements imposed on M by regulation 30(2) to (4) (“M's [F14compliance and risk controls]”);

(d)details of M's testing of M's systems F15... for the purposes of regulation 30(5);

(e)any records M keeps for the purposes of regulation 30(8) and (9); and

(f)any further information about M's algorithmic trading and systems used for that trading.

F16(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Direct electronic accessU.K.

32.—(1) A member of, or participant in, a regulated market or multilateral trading facility that provides direct electronic access to the market or facility (“M”) must comply with the requirements set out in paragraphs (4) to (9) if condition A or B is met.

(2) Condition A is that—

(a)[F17M is established in] the United Kingdom;

[F18(b)M falls within paragraph (1A) of regulation 30; and]

(c)M does not have a Part 4A permission [F19to carry on a regulated activity which is any of the investment services and activities].

(3) Condition B is that M provides direct electronic access in accordance with the [F20law of the United Kingdom] for the purposes of Article 54.1(transitional provisions) of the markets in financial instruments regulation.

(4) M must have in place effective systems and controls which ensure—

(a)M conducts an assessment and review of the suitability of clients using the service;

(b)clients using the service are prevented from exceeding appropriate pre-set trading and credit thresholds;

(c)trading by clients using the service is properly monitored; and

(d)risk controls prevent trading by clients which—

(i)may create risks to M itself;

(ii)could create, or contribute to, a disorderly market;

(iii)could be contrary to the market abuse regulation; or

(iv)could be contrary to the rules of the regulated market or multilateral facility to which M provides direct electronic access.

(5) M must monitor the transactions made by clients to which it provides direct electronic access to a regulated market or multilateral trading facility to identify—

(a)infringements of the rules of the regulated market or multilateral trading facility;

(b)disorderly trading conditions; or

(c)conduct which may involve market abuse.

(6) If M's monitoring under paragraph (5) identifies an infringement of the rules of a regulated market or multilateral trading facility, disorderly trading conditions, or conduct which may involve market abuse M must notify the FCA.

(7) M must have a binding written agreement with each client which—

(a)details the rights and obligations of both parties arising from the provision of the service; and

(b)states that M is responsible for ensuring the client complies with the requirements of the [F21UK law on markets in financial instruments] and the rules of the regulated market or a multilateral trading facility; and

(8) M must notify—

(a)the FCA that M is providing direct electronic access services; F22...

F23(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) M must arrange for—

(a)records to be kept on the matters referred to in [F24paragraphs (4), (5), and (7)]; and

(b)records to be kept to enable M to meet any requirement imposed on them under regulation [F2533].

(10) In this regulation the provision of direct electronic access is in accordance with the [F26law of the United Kingdom] for the purposes of Article 54.1 (transitional provisions) of the markets in financial instruments regulation if it is an activity subject to the exclusion in Article 72 (overseas persons) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2000 M1.

[F27(11) References to “UK law on markets in financial instruments” are to the law of the United Kingdom which was relied on by the United Kingdom immediately before IP completion day to implement Directive 2014/65/EU and its implementing measures—

(a)as they have effect on IP completion day, in the case of rules made by the FCA or by the PRA under the Act;

(b)as amended from time to time, in all other cases.]

Textual Amendments

Marginal Citations

M1S.I. 2001/544; article 72 was amended by S.I. 2003/1476, 2006/2383 and 3384, 2009/1342, 2013/504 and 2015/910.

Provision of information to the FCA concerning direct electronic accessU.K.

33.—(1) The FCA may require a member of, or participant in, a regulated market or multilateral trading facility subject to the requirements set out in regulation 32 (“M”) to provide on a regular or ad hoc basis—

(a)a description of the systems [F28and controls] mentioned in regulation [F2932(4)];

(b)evidence that those systems [F30and controls] have been applied; and

(c)the information stored in accordance with regulation 32(9) .

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

Textual Amendments

Acting as a general clearing memberU.K.

34.—(1) A member of, or participant in, a regulated market or multilateral trading facility that acts as a general clearing member for other persons (“M”) must comply with the requirements set out in paragraph (2) if—

(a)[F32M is established in] the United Kingdom;

[F33(b)M falls within paragraph (1A) of regulation 30; and]

(c)M does not have a Part 4A permission [F34to carry on a regulated activity which is any of the investment services and activities].

(2) M must have in place effective systems and controls to ensure—

(a)M's clearing services are only provided to persons who —

(i)are suitable recipients of those services; and

(ii)meet clear criteria applied by those systems and controls regarding which persons are suitable to receive clearing services; and

(b)requirements are imposed on the persons to whom clearing services are being provided to reduce risks to M and to the market.

(3) M must have a binding written agreement with any person to whom they are providing clearing services detailing the rights and obligations of both parties arising from the provision of the service.

(4) In this regulation “clearing services” means the services provided by M in the course of acting as a general clearing member for other persons.

Textual Amendments

Synchronisation of business clocksU.K.

35.—(1) A member of, or participant in, a trading venue (“M”) must comply with the requirement set out in paragraph (2) if—

(a)[F35M is established in] the United Kingdom;

[F36(b)M falls within paragraph (1A) of regulation 30; and]

(c)M does not have a Part 4A permission [F37to carry on a regulated activity which is any of the investment services and activities].

(2) M must synchronise the business clock M uses to record the date and time of any reportable event with the business clock the trading venue uses for that purpose to the level of accuracy specified in [F38Commission Delegated Regulation (EU) 2017/574 of 7 June 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council with regard to regulatory technical standards for the level of accuracy of business clocks.]

Textual Amendments

FCA power to impose requirementsU.K.

36.—(1) The FCA may impose a requirement mentioned in paragraph (2) on a person to whom any of regulations 30 to 35 applies if it appears to the FCA that—

(a)the person has contravened, or is likely to contravene, a requirement imposed on it by or under these Regulations or the markets in financial instruments regulation;

(b)the person has, in purported compliance with any requirement imposed on it by or under these Regulations or the markets in financial instruments regulation, knowingly or recklessly given the FCA information which is false or misleading in a material particular; or

(c)it is desirable to exercise the power in order to advance one or more of the FCA's operational objectives (as defined by section 1B(3) M2 (the FCA's general duties)) of the Act.

(2) For the purposes of paragraph (2) the FCA may impose a requirement that the person—

(a)take specified action; or

(b)refrain from taking specified action.

(3) A requirement imposed under paragraph (2) may—

(a)be imposed by reference to the person's relationship with another person;

(b)be expressed to expire at the end of such period as the FCA may specify, but the imposition of a requirement that expires at the end of a specified period does not affect the FCA's power to impose a new requirement in accordance with paragraph (2); and

(c)refer to the past conduct of the person (for example, by requiring the person to review or take remedial action in respect of past conduct).

(4) If the FCA imposes a requirement under this regulation it must issue a notice to the person.

(5) A person on whom a requirement has been imposed under this regulation may refer that matter to the Tribunal.

Marginal Citations

M2Section 1B(3) was inserted by section 6(1) of the Financial Services Act 2012.

Interpretation of Part 4U.K.

[F3937.  For the purposes of this Part, a person is established in the United Kingdom if the person has its registered office, or (if it has no registered office), its head office, in the United Kingdom.]

Textual Amendments

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