Financial Services and Markets Act 2000

[F1Variation and cancellation of Part 4A permissionU.K.

Textual Amendments

F1Pt. 4A substituted for ss. 40-55 (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 11(2), 122(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(b)(c), Sch. Pts. 2, 3; S.I. 2013/423, art. 3, Sch.

55HVariation by FCA at request of authorised personU.K.

F2(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2)The FCA may, on the application of [F3an authorised person who has a Part 4A permission but is not a PRA-authorised person], vary the permission by—

(a)adding a regulated activity, other than a PRA-regulated activity, to those to which the permission relates;

(b)removing a regulated activity from those to which the permission relates;

(c)varying the description of a regulated activity to which the permission relates.

(3)The FCA may, on the application of [F4an authorised person who has a Part 4A permission but is not a PRA-authorised person], cancel the permission.

[F5(3A)The FCA may, on the application of a PRA-authorised person with a Part 4A permission, vary the permission by—

(a)adding to the regulated activities to which the permission relates the regulated activity specified in article 63S of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (administering a benchmark),

(b)removing that regulated activity from those to which the permission relates, or

(c)varying the description of that regulated activity.

(3B)The FCA must consult the PRA before exercising its power under subsection (3A).]

(4)The FCA may refuse an application under this section if it appears to it that it is desirable to do so in order to advance any of its operational objectives.

[F6(4A)The FCA may also refuse an application under this section if it appears to the FCA that the authorised person would not comply with requirements in Part 5 of the Alternative Investment Fund Managers Regulations 2013 (AIFs which acquire control of non-listed companies and issuers) that would apply to the authorised person.]

(5)If [F7on an application under subsection (2) or (3)] the applicant is a member of a group which includes a PRA-authorised person, the FCA must consult the PRA before determining the application.

(6)If as a result of a variation of a Part 4A permission under this section there are no longer any regulated activities for which the authorised person concerned has permission, the FCA must, once it is satisfied that it is no longer necessary to keep the permission in force, cancel it.

(7)The FCA's power to vary a Part 4A permission under this section extends to including in the permission as varied any provision that could be included if a fresh permission were being given by it in response to an application under section 55A.

Textual Amendments

55IVariation by PRA at request of authorised personU.K.

(1)On the application of a PRA-authorised person with a Part 4A permission, the PRA may with the consent of the FCA vary the permission by—

(a)adding a regulated activity to those to which the permission relates;

(b)removing a regulated activity from those to which the permission relates;

(c)varying the description of a regulated activity to which the permission relates

[F8but the PRA may not under this subsection add, remove or vary the description of the regulated activity specified in article 63S of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (administering a benchmark).]

(2)On the application of a PRA-authorised person with a Part 4A permission, the PRA may, after consulting the FCA, cancel the permission [F9, but the PRA may not under this subsection cancel a permission where the only regulated activity to which the permission relates is the regulated activity in article 63S of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (administering a benchmark)].

(3)On the application of an authorised person other than a PRA-authorised person, the PRA may with the consent of the FCA vary the permission by adding to the regulated activities to which the permission relates one or more regulated activities which include a PRA-regulated activity [F10, but the PRA may not under this subsection add the regulated activity specified in article 63S of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (administering a benchmark)].

(4)The PRA may refuse an application under this section if it appears to it that it is desirable to do so in order to advance any of its objectives.

(5)The FCA may withhold its consent to a proposed variation under this section if it appears to it that it is desirable to do so in order to advance one or more of its operational objectives.

(6)If as a result of a variation of a Part 4A permission under this section there are no longer any regulated activities for which the authorised person concerned has permission, the PRA must, once it is satisfied after consulting the FCA that it is no longer necessary to keep the permission in force, cancel it.

(7)The PRA's power to vary a Part 4A permission under this section extends to including in the permission as varied any provision that could be included if a fresh permission were being given by it in response to an application under section 55A.

(8)Consent given by the FCA for the purposes of subsection (1) may be conditional on the manner in which the PRA exercises its powers under section 55F(3) and (4) (as a result of subsection (7)).

Textual Amendments

55JVariation or cancellation on initiative of regulatorU.K.

(1)Either regulator may exercise its power under this section in relation to an authorised person with a Part 4A permission (“A”) if it appears to the regulator that—

(a)A is failing, or is likely to fail, to satisfy the threshold conditions for which the regulator is responsible,

(b)A has failed, during a period of at least 12 months, to carry on a regulated activity to which the Part 4A permission relates, F11...

(c)it is desirable to exercise the power in order to advance—

(i)in the case of the FCA, one or more of its operational objectives,

(ii)in the case of the PRA, any of its objectives [F12, or

(d)in the case of the FCA, A has failed to comply with a requirement in Part 5 of the Alternative Investment Fund Managers Regulations 2013 (AIFs which acquire control of non-listed companies and issuers), or it is for some other reason desirable to exercise the power for the purposes of ensuring compliance with such a requirement].

(2)The FCA's power under this section is the power—

(a)to vary the Part 4A permission by—

(i)adding a regulated activity other than a PRA-regulated activity to those to which the permission relates,

(ii)removing a regulated activity from those to which the permission relates, or

(iii)varying the description of a regulated activity to which the permission relates in a way which, if it is a PRA-regulated activity, does not, in the opinion of the FCA, widen the description, or

(b)to cancel the Part 4A permission.

(3)The PRA's power under this section is the power—

(a)in the case of a PRA-authorised person, to vary the Part 4A permission in any of the ways mentioned in section 55I(1) or to cancel it;

(b)in the case of an authorised person who is not a PRA-authorised person, to vary the Part 4A permission by adding a PRA-regulated activity to those to which the permission relates and, if the PRA does so, to vary the Part 4A permission in any of the other ways mentioned in section 55I(1).

(4)The FCA—

(a)must consult the PRA before exercising its power under this section in relation to—

(i)a PRA-authorised person, or

(ii)a member of a group which includes a PRA-authorised person, and

(b)in the case of a PRA-authorised person, may exercise the power so as to add a new activity to those to which the permission relates or to widen the description of a regulated activity to which the permission relates, only with the consent of the PRA

[F13, but paragraph (b) does not apply in relation to the regulated activity specified in article 63S of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (administering a benchmark).]

(5)The PRA—

(a)must consult the FCA before exercising its power under this section, and

(b)may exercise the power so as to add a new activity to those to which the permission relates or to widen the description of a regulated activity to which the permission relates, only with the consent of the FCA.

(6)Without prejudice to the generality of subsections (1) to (3), a regulator may, in relation to an authorised person who is an investment firm, exercise its power under this section to cancel the Part 4A permission if it appears to it that any of the conditions in section 55K is met.

[F14(6A)Without prejudice to the generality of subsections (1) to (3), the FCA may, in relation to an authorised person who is a full-scope UKAIFM, exercise its power under this section to cancel the Part 4A permission if it appears to it that any of the following conditions is met—

(a)the person has failed, during a period of at least six months, to carry on the regulated activity of managing an AIF;

(b)the person obtained the Part 4A permission to carry on the regulated activity of managing an AIF by making a false statement or by any other irregular means;

(c)in a case where the Part 4A permission includes permission to [F15carry on the management of portfolios of investments in accordance with mandates given by investors on a discretionary, and client-by-client, basis], the person no longer complies with [F16the capital requirements regulation or [F17any enactment (as amended from time to time) that immediately before IP completion day implemented provisions of the capital requirements directive]];

(d)the person no longer meets the conditions that a person must meet in order to obtain a Part 4A permission to carry on the regulated activity of managing an AIF;

(e)the person has seriously or systematically infringed—

[F18(i)an AIFMD requirement;]

F19(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F19(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F20(iv)an ELTIF requirement; or]

[F21(v)an MMF requirement.]]

[F22(6AA)For the purposes of subsection (6A)(e)—

(a)an AIFMD requirement is a provision of—

(i)the Alternative Investment Fund Managers Regulations 2013,

(ii)any EU regulation, originally made under the alternative investment fund managers directive, which is retained direct EU legislation,

(iii)any provision made by or under this Act that immediately before IP completion day implemented provisions of the alternative investment fund managers directive (as that implementing provision is amended from time to time), or

(iv)any subordinate legislation (within the meaning of the Interpretation Act 1978) which is made under a power substituted for a power of an EU entity to make a directly applicable regulation under the alternative investment fund managers directive by regulations made under section 8 of the European Union (Withdrawal) Act 2018;

(b)an ELTIF requirement is a provision of—

(i)Regulation (EU) No. 2015/760 of the European Parliament and of the Council of 29th April 2015 on European Long-term Investment Funds (“the ELTIF Regulation”),

(ii)any EU regulation, originally made under the ELTIF Regulation, which is retained direct EU legislation, or

(iii)any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the ELTIF Regulation on or after IP completion day;

(c)an MMF requirement is a provision of—

(i)the MMF Regulation,

(ii)any EU regulation, originally made under the MMF Regulation, which is retained direct EU legislation, or

(iii)any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the MMF Regulation on or after IP completion day.]

[F23(6B)Without prejudice to the generality of subsections (1) to (3), the FCA may, in relation to an authorised person who is a mortgage intermediary and who has a Part 4A permission to carry on a relevant mortgage activity, exercise its power under this section to cancel the Part 4A permission or to vary the Part 4A permission by removing a relevant mortgage activity from the activities to which the permission relates, if it appears to the FCA that any of the following conditions is met—

(a)during a period of at least six months, the person has not carried on a relevant mortgage activity;

(b)the person obtained the Part 4A permission to carry on a relevant mortgage activity by making a false statement or by any other irregular means;

(c)the person no longer meets the conditions which the person was F24... required to meet in order to be granted a Part 4A permission to carry on a relevant mortgage activity; or

(d)the person has seriously or systematically infringed any provision made by or under this Act which [F25sets] the operating conditions for mortgage intermediaries F26....

(6C)In subsection (6B) “relevant mortgage activity” means—

(a)an activity of a kind specified in article 25A (arranging regulated mortgage contracts), article 53A (advising on regulated mortgage contracts) or article 53DA (advising on regulated credit agreements the purpose of which is to acquire land) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, or

(b)an activity of a kind specified in article 36A of that Order (credit broking) which is referred to in Article 33(1)(a) of the mortgages directive.]

F27(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F28(7ZA)Without prejudice to the generality of subsections (1) and (2), if it appears to the FCA that there has been a serious failure, by a person with permission to carry on the regulated activity specified in article 51ZA of the Financial Services and Markets Act (Regulated Activities) Order 2001 (managing a [F29UK] UCITS), to comply with the requirements imposed—

(a)by or under this Act in pursuance of the UCITS Directive, F30...

(b)by the Undertakings for Collective Investment in Transferable Securities Regulations 2011, [F31or]

[F32(c)an MMF requirement,]

the FCA may exercise its powers under this section to vary the Part 4A permission of the person concerned by removing that activity from those to which the permission relates, or to cancel the person’s Part 4A permission.]

(7ZB)Without prejudice to the generality of subsections (1) and (2), the FCA may, in relation to an authorised person who is an investment firm, exercise its power under this section if it appears to it that the authorised person has failed to comply with a requirement [F33imposed by—

(a)the market abuse regulation,

(b)any EU regulation, originally made under the market abuse regulation, which is retained direct EU legislation, or

(c)any subordinate legislation (within the meaning of the Interpretation Act 1978) made under the market abuse regulation on or after IP completion day.]

[F34(7ZC)Without prejudice to the generality of subsections (1) and (2), if it appears to the FCA, in relation to a person who has a permission to carry on the regulated activity specified in article 63S of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (administering a benchmark), that the conditions in Article 35(1) of the EU Benchmarks Regulation 2016 are met, the FCA may exercise its powers under this section—

(a)to vary the Part 4A permission by removing that activity from those to which the permission relates, or

(b)to cancel the Part 4A permission.]

[F35(7A)Without prejudice to the generality of subsections (1) and (3), if it appears to the PRA that there has been a serious failure by a PRA-authorised person who is an insurance undertaking or reinsurance undertaking to comply with requirements imposed by or under this Act in pursuance of the Solvency 2 Directive, the PRA may exercise its powers under this section to cancel the undertaking’s Part 4A permission.

(7B)If it appears to the PRA that the conditions in section 55KA are met in relation to a PRA-authorised person who is an insurance undertaking, reinsurance undertaking or third-country insurance undertaking, the PRA must—

(a)in relation to the undertaking’s Part 4A permission so far as the permission relates to the regulated activity of effecting contracts of insurance as principal (“activity A”), exercise the PRA’s powers under this section by varying the permission—

(i)where the permission relates to activity A in relation to both contracts of long-term insurance and contracts of general insurance and the conditions in section 55KA are met only in relation to the business of the undertaking so far as relating to contracts of one of those kinds, so as to remove activity A so far as relating to contracts of that kind from the regulated activities to which the permission relates, and

(ii)in any other case, so as to remove activity A from the regulated activities to which the permission relates;

(b)in relation to the undertaking’s Part 4A permission so far as the permission relates to the regulated activity of carrying out contracts of insurance as principal (“activity B”), exercise the PRA’s powers under this section, if it appears to the PRA to be necessary to do so to protect the interests of the undertaking’s policyholders, by varying the Part 4A permission—

(i)where the permission relates to activity B in relation to both contracts of long-term insurance and contracts of general insurance and the conditions in section 55KA are met only in relation to the business of the undertaking so far as relating to contracts of one of the those kinds, so as to remove activity B so far as relating to contracts of that kind from the regulated activities to which the permission relates, and

(ii)in any other case, so as to remove activity B from the regulated activities to which the permission relates.

(7C)If the effect of a variation required by subsection (7B) is to remove all the regulated activities to which the Part 4A permission relates, the PRA must instead cancel the permission.]

(8)If, as a result of a variation of a Part 4A permission under this section, there are no longer any regulated activities for which the authorised person concerned has permission, the regulator responsible for the variation must, once it is satisfied that it is no longer necessary to keep the permission in force, cancel it.

(9)Before cancelling under subsection (8) a Part 4A permission which relates to a person who (before the variation) was a PRA-authorised person, the regulator must consult the other regulator.

(10)The power of either regulator to vary a Part 4A permission under this section extends to including in the permission as varied any provision that could be included if a fresh permission were being given in response to an application to that regulator under section 55A.

(11)Consent given by one regulator for the purpose of subsection (4)(b) or (5)(b) may be conditional on the manner in which the other regulator exercises its powers under section 55E(4) and (5) or 55F(3) and (4) (as a result of subsection (10)).

(12)The power of the FCA or the PRA under this section is referred to in this Part as its own-initiative variation power.

[F36(13)In this section “enactment” has the meaning given by section 3T.]

Textual Amendments

F23S. 55J(6B)(6C) inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 1(3) (with Pt. 4)

F30Word in s. 55J(7ZA)(a) omitted (28.6.2018 for specified purposes, 21.7.2018 in so far as not already in force) by virtue of The Money Market Funds Regulations 2018 (S.I. 2018/698), regs. 1(2), 2(2)(b)(i)

F31Word in s. 55J(7ZA)(b) inserted (28.6.2018 for specified purposes, 21.7.2018 in so far as not already in force) by The Money Market Funds Regulations 2018 (S.I. 2018/698), regs. 1(2), 2(2)(b)(ii)

Modifications etc. (not altering text)

55KInvestment firms: particular conditions that enable cancellationU.K.

(1)The conditions referred to in section 55J(6) are as follows—

(a)that the firm has failed, during a period of at least 6 months, to carry on a regulated activity which is an investment service or activity for which it has a Part 4A permission;

(b)that the firm obtained the Part 4A permission by making a false statement or by other irregular means;

(c)that the firm no longer satisfies the requirements for authorisation F37... in relation to a regulated activity which is an investment service or activity for which it has a Part 4A permission;

(d)that the firm has seriously and systematically infringed [F38any retained direct EU legislation, or any provision made by or under this Act, which sets the operating conditions] in relation to a regulated activity which is an investment service or activity for which it has a Part 4A permission;

[F39(e)that the firm has seriously or systematically infringed the markets in financial instruments regulation.]

(2)For the purposes of this section a regulated activity is an investment service or activity if it falls within the definition of “investment services and activities” in section 417(1).

Textual Amendments

F39S. 55K(1)(e) inserted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 2 para. 4 (with reg. 7)

Modifications etc. (not altering text)

[F4055KA.Insurance undertakings, reinsurance undertakings and third-country insurance undertakings: particular conditions that enable cancellationU.K.

(1)The conditions referred to in section 55J(7B) are—

(a)that the insurance undertaking, reinsurance undertaking or third-country insurance undertaking has failed to comply with the appropriate capital requirement; and

(b)that any of the following applies—

(i)the insurance undertaking, reinsurance undertaking or third-country insurance undertaking has failed to submit [F41, in accordance with requirements imposed by or under this Act, a finance scheme for restoring compliance with the appropriate capital requirement;]

(ii)the insurance undertaking, reinsurance undertaking or third-country insurance undertaking has submitted to the PRA a finance scheme that is manifestly inadequate; or

(iii)after the PRA has approved a finance scheme submitted to it, the undertaking has failed to comply with the finance scheme within a period of three months beginning with the date when the undertaking first became aware that it had failed to comply with the appropriate capital requirement to which the scheme relates.

(2)In subsection (1) “the appropriate capital requirement” means—

(a)except in a case within paragraph (b) or (c), the minimum capital requirement;

(b)in the case of an insurance undertaking or reinsurance undertaking whose Part 4A permission relates to both contracts of long-term insurance and to contracts of general insurance, requirements imposed by or under this Act in pursuance of Article 74(2) of the Solvency 2 Directive;

(c)in the case of a third-country insurance undertaking whose Part 4A permission relates both to contracts of long-term insurance and to contracts of general insurance, requirements imposed by or under this Act in pursuance of Articles 74(2) and 166 of the Solvency 2 Directive.]]

Textual Amendments