Financial Services Act 2021

9 U.K. After Article 49 insert—

“Article 49A U.K. Temporary prohibitions and restrictions: procedure

1 A temporary prohibition or restriction under Article 49(A1) takes effect—

(a) immediately, if the notice given under paragraph 3 states that that is the case,

(b) on such date as may be specified in the notice, or

(c) if no date is specified in the notice, when the matter to which it relates is no longer open to review.

2 A temporary prohibition or restriction under Article 49(A1) may be expressed to take effect immediately, or on a specified date, only if the FCA, having regard to the ground on which it is taking that action, reasonably considers that it is necessary for it to take effect immediately or (as appropriate) on that date.

3 The FCA must give written notice to a third-country firm if—

(a) it proposes to take action in relation to the firm under Article 49(A1), or

(b) it takes action in relation to the firm under Article 49(A1) with immediate effect.

4 The notice must—

(a) give details of the temporary prohibition or restriction,

(b) inform the firm when the prohibition or restriction takes effect,

(c) state the FCA's reasons for taking the action and for its determination of when the prohibition or restriction takes effect,

(d) inform the firm that it may make representations to the FCA within such period as may be specified in the notice (whether or not the firm has referred the matter to the Upper Tribunal), and

(e) inform the firm of its right to refer the matter to the Upper Tribunal.

5 The FCA may extend the period allowed under the notice for making representations.

6 The FCA must give the third-country firm written notice if, having considered any representations made by the firm, the FCA decides—

(a) to impose the proposed prohibition or restriction, or

(b) if the prohibition or restriction has been imposed, not to rescind it.

7 The FCA must give the third-country firm written notice if, having considered any representations made by the firm, the FCA decides—

(a) not to impose the proposed prohibition or restriction,

(b) to impose a different prohibition or restriction, or

(c) to rescind a prohibition or restriction that has been imposed.

8 A notice under paragraph 6 must inform the third-country firm of its right to refer the matter to the Upper Tribunal.

9 A notice under paragraph 7(b) must comply with paragraph 4.

10 If a notice informs a third-country firm of its right to refer a matter to the Upper Tribunal, it must give an indication of the procedure on such a reference.

11 A third-country firm that is aggrieved by action taken by the FCA under Article 49(A1) may refer the matter to the Upper Tribunal.

12 Part 9 of FSMA (hearings and appeals) applies in relation to references to the Upper Tribunal made under this Article as it applies in relation to references made to that Tribunal under that Act.

13 For the purposes of paragraph 1(c), section 391(8) of FSMA (matters open to review) applies as if the notice under paragraph 3 were a supervisory notice (as defined in section 395 of that Act).

Article 49B U.K. Withdrawal of registration: procedure

1 If the FCA proposes to withdraw the registration of a third-country firm in the register established in accordance with Article 48, it must give the firm a warning notice.

2 If the FCA decides to withdraw the registration of a third-country firm in that register, it must give the firm a decision notice.

3 If the FCA gives a third-country firm a decision notice under paragraph 2, the firm may refer the matter to the Upper Tribunal.

4 Part 9 of FSMA (hearings and appeals) applies in relation to references to the Upper Tribunal made under this Article as it applies in relation to references made to that Tribunal under that Act.

5 Section 387 of FSMA (warning notices) applies in relation to a warning notice given under this Article as it applies to a warning notice given by the FCA under that Act.

6 Section 388 of FSMA (decision notices) applies in relation to a decision notice given under this Article as it applies to a decision notice given by the FCA under that Act, but as if—

(a) in subsection (1)(e)(i), for “this Act” there were substituted “ Article 49B of the markets in financial instruments regulation ”, and

(b) subsection (2) were omitted.

7 Section 389 of FSMA (notices of discontinuance) applies in relation to a warning notice or decision notice given under this Article as it applies in relation to a warning notice or decision notice given by the FCA under that Act, but as if subsection (2) were omitted.

8 Section 390 of FSMA (final notices) applies in relation to a decision notice given under this Article as it applies in relation to a decision notice given by the FCA under that Act.

9 Sections 393 and 394 of FSMA (third party rights and access to FCA material) apply in relation to a warning notice or decision notice given under this Article as they apply in relation to a warning notice or decision notice given by the FCA under a provision listed in section 392 of that Act.

Article 49C U.K. Notices under Articles 49A and 49B

1 The Treasury may by regulations make provision about the procedure to be followed, or rules to be applied, in connection with the giving of notices by the FCA under Article 49A or 49B.

2 The regulations may, among other things, make provision—

(a) requiring, or allowing, a notice to be sent electronically;

(b) requiring, or allowing, a notice to be given in another manner;

(c) as to the address to which a notice must or may be sent;

(d) requiring a person to provide an address to which a notice must or may be sent;

(e) for treating a notice as having been given, or as having been received, on a date or at a time determined in accordance with the regulations;

(f) as to what must, or may, be done if the person to whom a notice is required to be given is not an individual;

(g) as to what must, or may, be done if the intended recipient of a notice is outside the United Kingdom.

3 Section 7 of the Interpretation Act 1978 (service of notice by post) has effect in relation to notices under Article 49A or 49B subject to any provision made by regulations under this Article.”

Commencement Information

I1 Sch. 10 para. 9 in force at 1.7.2021 by S.I. 2021/739, reg. 3(o)