Amendments to Part 26 (notices)
46. After section 391C(1) (publication: special provisions relating to the UCITs directive), insert—
“Publication: special provisions relating to the markets in financial instruments directive
391D.—(1) This section applies where a supervisory notice, decision notice or final notice relates to the imposition of a sanction or measure to which Article 71 of the markets in financial instruments directive applies.
(2) Where a regulator publishes information under section 391(4) or (5) about a matter to which a supervisory notice or decision notice relates and the person to whom the notice is given refers the matter to the Tribunal, the regulator must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3) Subject to subsections (4), (5), and (8) where a regulator gives a final notice, it must, without undue delay, publish on its official website information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4) Subject to subsection (7) and (8), information about a matter to which a final notice relates must be published in accordance with subsection (5) where—
(a)a regulator considers it to be disproportionate to publish the identity of a legal person on whom the sanction or measure is imposed following an assessment by the regulator of the proportionality of publishing the person’s identity;
(b)a regulator considers it to be disproportionate to publish the personal data of an individual on whom the sanction or measure is imposed following an assessment by the regulator of the proportionality of publishing the personal data; or
(c)the publication of information under subsection (3) would jeopardise the stability of the financial markets or an ongoing investigation.
(5) Where subsection (4) applies, a regulator must—
(a)defer the publication of the information about a matter to which a final notice relates until such time as subsection (4) ceases to apply; or
(b)publish the information on an anonymous basis if publication on that basis would ensure the effective protection of any anonymised personal data in the information.
(6) Where subsection (5)(b) applies, the regulator may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction or measure is imposed.
(7) The regulator may make arrangements for the postponed publication of any personal data that is anonymised in information it publishes under subsection (5)(b) if—
(a)publication of the data is postponed for a reasonable period of time; and
(b)the regulator considers that subsection (5)(b) will no longer apply in respect of that data at the time of the postponed publication.
(8) Information about a matter to which a final notice relates must not be published if publication in accordance with subsection (5) is considered by the regulator insufficient to ensure—
(a)that the stability of the financial markets would not be put in jeopardy; or
(b)that the publication of the information would be proportionate with regard to sanctions or measures which are considered by the regulator to be of a minor nature.
(9) Where a regulator publishes information in accordance with subsections (2) to (7), the regulator must—
(a)ensure the information remains on its official website for at least five years, unless the information is personal data and the Data Protection Act 1998(2) requires the information to be retained for a different period; and
(b)promptly report the information to ESMA.”.
Section 391C was inserted by S.I. 2016/225.