xmlns:atom="http://www.w3.org/2005/Atom" xmlns:atom="http://www.w3.org/2005/Atom"
Modifications etc. (not altering text)
C1Pt. 26 (ss. 387-396) applied (with modifications) (17.8.2001 for certain purposes otherwise 1.12.2001) by 1992 c. 40, s. 58A(6)(8) (as substituted (17.8.2001 for certain purposes otherwise 1.12.2001) by 2001/2617, arts. 2, 8, 13(1), Sch. 3 Pt. I para. 75 (with art. 13(3), Sch.5)); S.I. 2001/3538, art. 2(1)
Pt. 26 (ss. 387-396) applied (with modifications) (17.8.2001 for certain purposes otherwise 1.12.2001) by 1992 c. 40, s. 85(4B) (as inserted (17.8.2001 for certain purposes otherwise 1.12.2001) by S.I. 2001/2617, arts. 2, 8, 13(1), Sch. 3 Pt. I para. 95 (with art. 13(3), Sch. 5)); S.I. 2001/3538, art. 2(1)
Pt. 26 (ss. 387-396) applied (with modifications) (17.8.2001 for certain purposes otherwise 1.12.2001) by 1992 c. 40, s. 36A(5C)(5D) (as substituted (17.8.2001 for certain purposes otherwise 1.12.2001) by S.I. 2001/2617, arts. 2, 8, 13(1), Sch. 3 Pt. II para. 142(c) (with art. 13(3), Sch. 5)); S.I. 2001/3538, art. 2(1)
Pt. 26 (ss. 387-396) applied (with modifications) (17.8.2001 for certain purposes otherwise 1.12.2001) by 1986 c. 53, s. 46A(6)(8) (as substituted (17.8.2001 for certain purposes otherwise 1.12.2001) by S.I. 2001/2617, arts. 2, 8, 13(1), Sch. 3 Pt. II para. 148 (with art. 13(3), Sch. 5)); S.I. 2001/3538, art. 2(1)
Pt. 26 (ss. 387-396) applied (with modifications) (17.8.2001 for certain purposes otherwise 1.12.2001) by 1986 c. 53, s. 93(6A) (as substituted (17.8.2001 for certain purposes otherwise 1.12.2001) by S.I. 2001/2617, arts. 2, 8, 13(1), Sch. 3 Pt. II para. 177(d) (with art. 13(3), Sch. 5)); S.I. 2001/3538, art. 2
C2Pt. 26 applied (6.3.2008) by The Regulated Covered Bonds Regulations 2008 (S.I. 2008/346), reg. 44
C3Pt. 26 applied (with modifications) (1.5.2009 for certain purposes and 1.11.2009 otherwise) by The Payment Services Regulations 2009 (S.I. 2009/209), regs. 1(2)(b)(xiii)(c), 95, Sch. 5 para. 7 (with reg. 3) (as amended (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 155(6)(g)(h) (with Sch. 2 para. 156))
C4Pt. 26 applied (with modifications) (11.2.2010) by The Cross-Border Payments in Euro Regulations 2010 (S.I. 2010/89), reg. 19, Sch. para. 5
C5Pt. 26 applied (with modifications) (7.6.2010) by The Credit Rating Agencies Regulations 2010 (S.I. 2010/906), reg. 30
C6Pt. 26 applied (with modifications) (9.2.2011 for certain purposes and 30.4.2011 otherwise) by The Electronic Money Regulations 2011 (S.I. 2011/99), regs. 1(2)(a)(xiv)(b), 62, Sch. 3 para. 8 (with reg. 3) (as amended (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 196(5)(h))
C7Pt. 26 applied (with modifications) (15.1.2013) by The Payments in Euro (Credit Transfers and Direct Debits) Regulations 2012 (S.I. 2012/3122), reg. 1, Sch. para. 5 (as amended (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 248(6)(n)(o))
C8Pt. 26 applied (with modifications) (E.W.) (9.7.2013) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Referral Fees) Regulations 2013 (S.I. 2013/1635), regs. 1, 30(1)
C9Pt. 26 applied (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), regs. 1, 70(2)
C10Pt. 26 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services Act 2012 (Consumer Credit) Order 2013 (S.I. 2013/1882), arts. 1(1), 3(11)
C11Pt. 26 applied (with modifications) (12.12.2014) by The Immigration Act 2014 (Bank Accounts) Regulations 2014 (S.I. 2014/3085), regs. 1, 29
C12Pt. 26 applied (with modifications) by S.I. 2002/1775, reg. 11C(5) (as inserted (24.3.2015) by The Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015 (S.I. 2015/852), arts. 1(2), 2(2))
C13Pt. 26 applied (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), arts. 1(5), 24(2) (with Pt. 4)
C14Pt. 26 applied (with modifications) (1.1.2016) by The Small and Medium Sized Business (Finance Platforms) Regulations 2015 (S.I. 2015/1946), regs. 1(2), 41
C15Pt. 26 applied (with modifications) (1.1.2016) by The Small and Medium Sized Business (Credit Information) Regulations 2015 (S.I. 2015/1945), regs. 1(2), 44
C16Pt. 26 applied (with modifications) (13.7.2016) by The Financial Services and Markets Act 2000 (Transparency of Securities Financing Transactions and of Reuse) Regulations 2016 (S.I. 2016/715), regs. 1(2), 19
C17Pt. 26 applied (with modifications) (18.9.2016) by The Payment Accounts Regulations 2015 (S.I. 2015/2038), reg. 1(2)(b), Sch. 7 para. 4
C18Pt. 26 modified (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. 1 para. 22 (with reg. 7)
C19Pt. 26 applied (with modifications) (3.7.2017 for specified purposes, 3.1.2018 in so far as not already in force, 3.1.2018 in so far as not already in force) by The Data Reporting Services Regulations 2017 (S.I. 2017/699), regs. 1(2)(a)(b), 37
C20Pt. 26 applied (with modifications) (13.10.2017) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(3)(c), Sch. 6 para. 10 (with reg. 3)
C21Pt. 26 applied (with modifications) (1.1.2018) by The Packaged Retail and Insurance-based Investment Products Regulations 2017 (S.I. 2017/1127), reg. 1, Sch. 1 para. 6
C22Pt. 26 applied (with modifications) (27.2.2018) by The Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018 (S.I. 2018/135), regs. 1(2), 23
(1)A warning notice must—
(a)state the action which the [F1regulator giving the notice (“the regulator concerned”)] proposes to take;
(b)be in writing;
(c)give reasons for the proposed action;
(d)state whether section 394 applies; and
(e)if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it.
[F2(1A)Where the PRA is the regulator concerned and the FCA proposes to refuse consent for the purposes of section 55F, 55I or 59 or to give conditional consent as mentioned in section 55F(5) [F3, 55I(8) or 61(2D)], the warning notice given by the PRA must—
(a)state that fact, and
(b)give the reasons for the FCA's proposal.]
(2)[F4A warning] notice must specify a reasonable period (which may not be less than [F514 days]) within which the person to whom it is given may make representations to the [F6regulator concerned].
(3)[F7The regulator concerned] may extend the period specified in the notice.
[F8(3A)Where the PRA receives any representations in response to a warning notice given by it under section 55X(1) or (2) or 62(2) in a case falling within subsection (1A) it must—
(a)if the representations are in writing, give a copy to the FCA, or
(b)if they are not in writing and have not been given directly to the FCA by the person making them, provide the FCA with a record of them.]
(4)[F9The regulator concerned] must then decide, within a reasonable period, whether to give the person concerned a decision notice.
Textual Amendments
F1Words in s. 387(1)(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F2S. 387(1A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F3Words in s. 387(1A) substituted (7.3.2016) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 12; S.I. 2015/490, art. 2(1)(b) (with savings and transitional provisions in S.I. 2015/492 (as amended by S.I. 2015/1660))
F4Words in s. 387(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(4)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F5Words in s. 387(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(4)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F6Words in s. 387(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(4)(c) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F7Words in s. 387(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F8S. 387(3A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(6) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F9Words in s. 387(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 26(7) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
Modifications etc. (not altering text)
C23S. 387 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 8(a) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
C24S. 387 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 8(a) (with reg. 1(2))
C25S. 387 applied (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 56 (with regs. 52-58)
C26S. 387 excluded (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 37(3)(a), 39(2)(a)(ii), 44(2)
C27S. 387 applied (with modifications) by 2009 c. 1, s. 83ZT(2)-(4) (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
C28S. 387 applied (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 81(4) (with regs. 8, 15, 81(5))
C29S. 387(1)-(3) applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
C30S. 387(1)(2)(3) applied (with modifications) by S.I. 2014/2879, reg. 5C(10) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))
(1)A decision notice must—
(a)be in writing;
(b)give [F10the reasons of the regulator giving the notice (“the regulator concerned”)] for the decision to take the action to which the notice relates;
(c)state whether section 394 applies;
(d)if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it; and
(e)give an indication of—
(i)any right to have the matter referred to the Tribunal which is given by this Act; and
(ii)the procedure on such a reference.
[F11(1A)Where the PRA is the regulator concerned and the FCA has decided to refuse consent for the purposes of section 55F, 55I or 59 or to give conditional consent as mentioned in section 55F(5) [F12, 55I(8) or 61(2D)], the decision notice given by the PRA must—
(a)state that fact, and
(b)give the reasons for the FCA's decision.]
(2)If the decision notice was preceded by a warning notice, the action to which the decision notice relates must be action under the same Part as the action proposed in the warning notice.
(3)[F13The regulator concerned] may, before it takes the action to which a decision notice (“the original notice”) relates, give the person concerned a further decision notice which relates to different action in respect of the same matter.
(4)[F14The regulator concerned] may give a further decision notice as a result of subsection (3) only if the person to whom the original notice was given consents.
(5)If the person to whom a decision notice is given under subsection (3) had the right to refer the matter to which the original decision notice related to the Tribunal, he has that right as respects the decision notice under subsection (3).
Textual Amendments
F10Words in s. 388(1)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 27(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F11S. 388(1A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 27(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F12Words in s. 388(1A) substituted (7.3.2016) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 13; S.I. 2015/490, art. 2(1)(b) (with savings and transitional provisions in S.I. 2015/492 (as amended by S.I. 2015/1660))
F13Words in s. 388(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 27(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F14Words in s. 388(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 27(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
Modifications etc. (not altering text)
C31S. 388 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 8(b) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
C32S. 388 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 8(b) (with reg. 1(2))
C33S. 388 applied (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 56 (with regs. 52-58)
C34S. 388 applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
C35S. 388 applied (with modifications) by 2009 c. 1, s. 83ZU(6)(7) (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
C36S. 388 applied (with modifications) (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 81(12)(13) (with regs. 8, 15)
C37S. 388 applied (with modifications) by S.I. 2014/2879, reg. 5C(10) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))
C38S. 388(1)(b)-(e) applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 52
(1)If [F15a regulator] decides not to take—
(a)the action proposed in a warning notice [F16given by it], or
(b)the action to which a decision notice [F17given by it] relates,
it must give a notice of discontinuance to the person to whom the warning notice or decision notice was given.
(2)But subsection (1) does not apply if the discontinuance of the proceedings concerned results in the granting of an application made by the person to whom the warning or decision notice was given.
(3)A notice of discontinuance must identify the proceedings which are being discontinued.
Textual Amendments
F15Words in s. 389(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 28(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F16Words in s. 389(1)(a) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 28(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F17Words in s. 389(1)(b) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 28(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
Modifications etc. (not altering text)
C39S. 389 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 8(c) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
C40S. 389 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 8(c) (with reg. 1(2))
C41S. 389 applied (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 56 (with regs. 52-58)
C42S. 389 applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
C43S. 389 applied (with modifications) by 2009 c. 1, s. 83ZV (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
C44S. 389 applied (with modifications) (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 82 (with regs. 8, 15)
C45S. 389 applied (with modifications) by S.I. 2014/2879, reg. 5C(10) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))
(1)If [F18a regulator] has given a person a decision notice and the matter was not referred to the Tribunal within the [F19time required by Tribunal Procedure Rules], [F20the regulator] must, on taking the action to which the decision notice relates, give the person concerned and any person to whom the decision notice was copied a final notice.
(2)If [F21a regulator] has given a person a decision notice and the matter was referred to the Tribunal, [F22the regulator] must, on taking action in accordance with any directions given by—
(a)the Tribunal, or
[F23(b)a court on an appeal against the decision of the Tribunal,]
give that person and any person to whom the decision notice was copied [F24the notice required by subsection (2A)].
[F25(2A)The notice required by this subsection is—
(a)in a case where the regulator is acting in accordance with a direction given by the Tribunal under section 133(6)(b), or by the court on an appeal from a decision by the Tribunal under section 133(6), a further decision notice, and
(b)in any other case, a final notice.]
(3)A final notice about a statement must—
(a)set out the terms of the statement;
(b)give details of the manner in which, and the date on which, the statement will be published.
(4)A final notice about an order must—
(a)set out the terms of the order;
(b)state the date from which the order has effect.
(5)A final notice about a penalty must—
(a)state the amount of the penalty;
(b)state the manner in which, and the period within which, the penalty is to be paid;
(c)give details of the way in which the penalty will be recovered if it is not paid by the date stated in the notice.
(6)A final notice about a requirement to make a payment or distribution in accordance with section 384(5) must state—
(a)the persons to whom,
(b)the manner in which, and
(c)the period within which,
it must be made.
(7)In any other case, the final notice must—
(a)give details of the action being taken;
(b)state the date on which the action is to be taken.
(8)The period stated under subsection (5)(b) or (6)(c) may not be less than 14 days beginning with the date on which the final notice is given.
(9)If all or any of the amount of a penalty payable under a final notice is outstanding at the end of the period stated under subsection (5)(b), [F26the regulator giving the notice] may recover the outstanding amount as a debt due to it.
(10)If all or any of a required payment or distribution has not been made at the end of a period stated in a final notice under subsection (6)(c), the obligation to make the payment is enforceable, on the application of [F27the regulator giving the notice], by injunction or, in Scotland, by an order under section 45 of the M1Court of Session Act 1988.
Textual Amendments
F18Words in s. 390(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(2)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F19Words in s. 390(1) substituted (6.4.2010) by The Transfer of Tribunal Functions Order 2010 (S.I. 2010/22), arts. 1(2)(e), 5(1), Sch. 2 para. 47(a)
F20Words in s. 390(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(2)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F21Words in s. 390(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(3)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F22Words in s. 390(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(3)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F23S. 390(2)(b) substituted (6.4.2010) by The Transfer of Tribunal Functions Order 2010 (S.I. 2010/22), arts. 1(2)(e), 5(1), Sch. 2 para. 47(b)
F24Words in s. 390(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(3)(c) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F25S. 390(2A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F26Words in s. 390(9) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F27Words in s. 390(10) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 29(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
Modifications etc. (not altering text)
C46S. 390 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 8(d) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
C47S. 390 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 8(d) (with reg. 1(2))
C48S. 390 applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
C49S. 390 applied (with modifications) by 2009 c. 1, s. 83ZV (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
C50S. 390 applied (with modifications) (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 82 (with regs. 8, 15)
C51S. 390 applied (with modifications) by S.I. 2014/2879, reg. 5C(10) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))
C52S. 390(3)(4)(7) applied (1.12.2001) by S.I. 2001/3592, arts. 1(2), 110(7) (with art. 23(2))
C53S. 390(3)-(5)(8)(9) applied (1.12.2001) by S.I. 2001/3592, arts. 1(2), 85(5)(b) (with art. 23(2))
C54S. 390(3)-(5)(7)-(9) applied (1.12.2001) by S.I. 2001/3592, arts. 1(2), 61(7) (with art. 23(2))
C55S. 390(7) applied (1.12.2001) by S.I. 2001/3592, arts. 1(2), 115(5), 122(4), 129 (with art. 23(2))
Marginal Citations
[F28(1)In the case of a warning notice falling within subsection (1ZB)—
(a)neither the regulator giving the notice nor a person to whom it is given or copied may publish the notice,
(b)a person to whom the notice is given or copied may not publish any details concerning the notice unless the regulator giving the notice has published those details, and
(c)after consulting the persons to whom the notice is given or copied, the regulator giving the notice may publish such information about the matter to which the notice relates as it considers appropriate.
(1ZA)In the case of a warning notice not falling within subsection (1ZB), neither the regulator giving the notice nor a person to whom it is given or copied may publish the notice or any details concerning it.
(1ZB)A warning notice falls within this subsection if it is given under—
(a)section 63B;
(b)section 67;
(c)section 87M;
(d)section 88B;
(e)section 89K;
(f)section 89R;
(g)section 92;
(h)section 126;
(i)section 131H;
(j)section 192L;
(k)section 207;
(l)section 312G;
(m)section 345B (whether as a result of section 345(2) or 345A(3) or section 249(1) [F29or 261K(1)]).]
[F30(1A)A person to whom a decision notice is given or copied may not publish the notice or any details concerning it unless the [F31regulator giving the notice] has published the notice or those details.]
(2)A notice of discontinuance must state that, if the person to whom the notice is given consents, the [F32regulator giving the notice] may publish such information as it considers appropriate about the matter to which the discontinued proceedings related.
(3)A copy of a notice of discontinuance must be accompanied by a statement that, if the person to whom the notice is copied consents, the [F33regulator giving the notice] may publish such information as it considers appropriate about the matter to which the discontinued proceedings related, so far as relevant to that person.
(4)[F34The regulator giving a decision or final notice] must publish such information about the matter to which [F35the notice] relates as it considers appropriate.
[F36(4A)Subsection (4) is subject to [F37sections 391A [F38, 391B [F39, 391C and 391D]]].]
(5)When a supervisory notice takes effect, the [F40regulator giving the notice] must publish such information about the matter to which the notice relates as it considers appropriate.
[F41(5A)Subsection (5) does not apply in relation to a notice given in accordance with section 137S(5) or (8)(a) (but see section 137S(11)).]
[F42(6)The FCA may not publish information under this section if, in its opinion, publication of the information would be—
(a)unfair to the person with respect to whom the action was taken (or was proposed to be taken),
(b)prejudicial to the interests of consumers, or
(c)detrimental to the stability of the UK financial system.
(6A)The PRA may not publish information under this section if, in its opinion, publication of the information would be—
(a)unfair to the person with respect to whom the action was taken (or was proposed to be taken),
(b)prejudicial to the safety and soundness of PRA-authorised persons, or
(c)in a case where section 2C applies, prejudicial to securing the appropriate degree of protection for policyholders.]
(7)Information is to be published under this section in such manner as the [F43regulator] considers appropriate.
[F44(7A)Where [F45a regulator] publishes information under subsection (4) or (5) in respect of a final notice or a supervisory notice which relates to a contravention of a requirement falling within subsection (7B) at the same time as it publishes the information it must notify ESMA that it has done so.
(7B)A requirement falls within this subsection if it is imposed—
F46(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F46(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c)by or under any provision made by or under this Act which implements the markets in financial instruments directive, F47...
(d)by [F48or under] any directly applicable EU regulation made under the markets in financial instruments directive [F49; or
(e)by or under the markets in financial instruments regulation and any directly applicable EU regulation made under it.]]
(8)For the purposes of determining when a supervisory notice takes effect, a matter to which the notice relates is open to review if—
(a)the period during which any person may refer the matter to the Tribunal is still running;
(b)the matter has been referred to the Tribunal but has not been dealt with;
(c)the matter has been referred to the Tribunal and dealt with but the period during which an appeal may be brought against the Tribunal’s decision is still running; or
(d)such an appeal has been brought but has not been determined.
[F50(8A)Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement imposed by the CSD regulation or any directly applicable regulation made under the CSD regulation, this section has effect subject to Article 62 of the CSD regulation (publication of decisions).]
[F51(8B)Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement imposed by the market abuse regulation or a directly applicable EU regulation made under the market abuse regulation, this section has effect subject to Article 34 of the market abuse regulation (publication of decisions).]
[F52(8C)Where a decision notice, final notice or supervisory notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement imposed by or under Article 4 or 15 of the SFT regulation, this section has effect subject to Article 26 of the SFT regulation (publication of decisions).]
[F53(8D)Where a decision notice, final notice or supervisory notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement imposed by—
(a)Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (the “PRIIPs regulation”), or
(b)any directly applicable regulation made under the PRIIPs regulation,
this section has effect subject to Article 29 of the PRIIPs regulation (publication of decisions).]
[F54(8E)Where a decision notice or final notice relates to any decision or action under a provision of this Act in relation to the contravention of a requirement imposed by the EU Benchmarks Regulation 2016 or any directly applicable regulation made under the EU Benchmarks Regulation 2016, this section has effect subject to Article 45 of the EU Benchmarks Regulation 2016 (publication of decisions).]
(9)“Notice of discontinuance” means a notice given under section 389.
(10)“Supervisory notice” has the same meaning as in section 395.
[F55(11)Section 425A (meaning of “consumers”) applies for the purposes of this section.]
Textual Amendments
F28S. 391(1)(1ZA)(1ZB) substituted for s. 391(1) (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F29Words in s. 391(1ZB)(m) inserted (6.6.2013) by The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (S.I. 2013/1388), regs. 1, 3(18) (with reg. 24)
F30S. 391(1A) inserted (12.10.2010) by Financial Services Act 2010 (c. 28), ss. 13(3), 26(3); S.I. 2010/2480, art. 2 (with art. 4)
F31Words in s. 391(1A) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F32Words in s. 391(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F33Words in s. 391(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F34Words in s. 391(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(4)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F35Words in s. 391(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(4)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F36S. 391(4A) inserted (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), reg. 1(2), Sch. 2 para. 22
F37Words in s. 391(4A) substituted (26.11.2015) by The Transparency Regulations 2015 (S.I. 2015/1755), regs. 1(3), 4(5)
F38Words in s. 391(4A) substituted (18.3.2016) by The Undertakings for Collective Investment in Transferable Securities Regulations 2016 (S.I. 2016/225), regs. 1, 2(7)
F39Words in s. 391(4A) substituted (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. 45(a) (with reg. 7)
F40Words in s. 391(5) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F41S. 391(5A) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 24(2), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F42S. 391(6)(6A) substituted for s. 391(6) (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(6) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F43Word in s. 391(7) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(7) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F44S. 391(7A)(7B) inserted (16.4.2012) by The Financial Services (Omnibus 1 Directive) Regulations 2012 (S.I. 2012/916), regs. 1, 2(13)
F45Words in s. 391(7A) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 30(8) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F46S. 391(7B)(a)(b) omitted (3.7.2016) by virtue of The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(17)(a)
F47Word in s. 391(7B)(c) omitted (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 virtue of 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. 45(b)(i) (with reg. 7)
F48Words in s. 391(7B)(d) 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. 45(b)(ii) (with reg. 7)
F49S. 391(7B)(e) and word 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. 45(b)(iii) (with reg. 7)
F50S. 391(8A) inserted (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 6(2)
F51S. 391(8B) inserted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(17)(b)
F52S. 391(8C) inserted (13.7.2016) by The Financial Services and Markets Act 2000 (Transparency of Securities Financing Transactions and of Reuse) Regulations 2016 (S.I. 2016/715), reg. 1(2), Sch. 1 para. 1(4)
F53S. 391(8D) inserted (1.1.2018) by The Packaged Retail and Insurance-based Investment Products Regulations 2017 (S.I. 2017/1127), reg. 1, Sch. 2 para. 1
F54S. 391(8E) inserted (27.2.2018) by The Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018 (S.I. 2018/135), regs. 1(2), 46
F55S. 391(11) substituted (8.4.2010) by Financial Services Act 2010 (c. 28), ss. 24(1), 26(1)(l), Sch. 2 para. 28
Modifications etc. (not altering text)
C56S. 391 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 9 (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
C57S. 391 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 9 (with reg. 1(2))
C58S. 391: power to amend conferred (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 37(2)(a), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
C59S. 391 applied (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 56 (with regs. 52-58)
C60S. 391 applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(11)
C61S. 391 applied (with modifications) by S.I. 2014/2879, reg. 5C(11) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))
C62S. 391(1)(c) restricted (1.4.2013) by The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013 (S.I. 2013/441), arts. 1(1), 33
C63S. 391(4)(6)(7) applied (1.12.2001) by S.I. 2001/2957, arts. 1, 13(8)(a), S.I. 2001/3538, art. 2(1)
C64S. 391(4) applied (1.12.2001) by S.I. 2001/3592, arts. 1(2), 61(7), 85(5)(b), 110(7), 115(5), 122(4), 129 (with art. 23(2))
C65S. 391(6)(b) modified (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013 (S.I. 2013/1881), arts. 1(2)(6), 65(3)(c)
C66S. 391(8) applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 27(14) (with reg. 1(2))
C67S. 391(8) applied (with modifications) by S.I. 2011/99, Sch. 2A para. 1(9)(10)(12) (as inserted (14.2.2014 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014 (S.I. 2014/366), arts. 1(3)(4), 18(3))
C68S. 391(8) applied (with modifications) by S.I. 2009/209, Sch. 4A para. 1(9)(10) (as inserted (14.2.2014 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014 (S.I. 2014/366), arts. 1(3)(4), 12(4))
C69S. 391(8)(a)-(d) applied (1.5.2009 for certain purposes and 1.11.2009 otherwise) by The Payment Services Regulations 2009 (S.I 2009/209), regs. 1(2)(b)(v)(c), {11(13)} (with reg. 3)
C70S. 391(11) modified (18.6.2001) by S.I. 2001/1821, arts. 1(1), 3(5)
(1)This section applies where a decision notice or final notice relates to the imposition of a penalty to which Article 68(1) of the capital requirements directive applies.
(2)Where a regulator publishes information under section 391(4) about a matter to which a 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 subsection (4), where a regulator gives a final notice, the regulator must publish information on the type and nature of the breach and the identity of the person on whom the penalty is imposed.
(4)Information about a matter to which a final notice relates must be published anonymously where—
(a)the penalty is imposed on an individual and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
(b)publication would jeopardise the stability of financial markets or an ongoing criminal investigation; or
(c)publication would cause, insofar as it can be determined, disproportionate damage to the persons involved.
(5)Where subsection (4) 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 penalty is imposed.
(6)Where a regulator publishes information in accordance with subsections (2) to (5), the regulator must—
(a)publish the information on its official website;
(b)ensure the information remains on its official website for at least five years, unless the information is personal data and [F58the data protection legislation] requires the information to be retained for a different period; and
(c)disclose to EBA any penalty imposed, any appeal against such a penalty and the outcome of the appeal, unless such a disclosure is not permitted by section 348.]
Textual Amendments
F56S. 391A inserted (1.1.2014) by The Capital Requirements Regulations 2013 (S.I. 2013/3115), reg. 1(2), Sch. 2 para. 23
F57S. 391A heading substituted (26.11.2015) by The Transparency Regulations 2015 (S.I. 2015/1755), regs. 1(3), 4(6)
F58Words in s. 391A(6)(b) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 50 (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)
(1)This section applies where a decision notice, final notice or notice under section 89M relates to the imposition of a sanction or measure to which Article 29(1) of the transparency obligations directive applies.
(2)Where the FCA publishes information under section 391(4) or subsection (3) about a matter to which a decision notice or a notice under section 89M relates and the person to whom the notice is given refers the matter to the Tribunal—
(a)the FCA must include information to that effect in the publication at the time of the publication, or,
(b)if the matter is referred to the Tribunal after the publication, the FCA must update the publication or publish that information separately.
(3)Subject to subsection (4), where the FCA gives a final notice or a notice under section 89M, it must publish information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.
(4)Information about a matter to which a final notice or a notice under section 89M relates may be published anonymously where—
(a)the sanction is imposed on an individual and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
(b)failing to publish anonymously would seriously jeopardise the stability of the financial system or an ongoing official investigation; or
(c)failing to publish anonymously would cause, insofar as it can be determined, disproportionate and serious damage to the persons involved.
(5)Where subsection (4) applies, the FCA 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.
(6)In this section, the “transparency obligations directive” has the same meaning as in section 103(1).]
Textual Amendments
F59S. 391B inserted (26.11.2015) by The Transparency Regulations 2015 (S.I. 2015/1755), regs. 1(3), 4(7)
(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 99 of the UCITS directive applies.
(2)Where the FCA publishes information under section 391(4) or (5) about a matter to which a decision notice or supervisory notice relates and the person to whom the notice is given refers the matter to the Tribunal, the FCA must, without undue delay, publish on its official website information about the status of the appeal and its outcome.
(3)Subject to subsection (4), where the FCA 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 (6), information about a matter to which a final notice relates must be published anonymously where—
(a)the sanction or measure is imposed on an individual and, following an obligatory prior assessment, publication of personal data is found to be disproportionate;
(b)failing to publish anonymously would jeopardise the stability of financial markets or an ongoing investigation; or
(c)failing to publish anonymously would cause, insofar as it can be determined, disproportionate damage to the persons involved.
(5)Where subsection (4) applies, the FCA 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.
(6)Information about a matter to which a final notice relates must not be published where anonymous publication under subsection (4) is considered by the FCA to be insufficient to ensure—
(a)that the stability of the financial markets would not be put in jeopardy; or
(b)that the publication would be proportionate with regard to sanctions or measures which are considered by the FCA to be of a minor nature.
(7)Where the FCA publishes information in accordance with subsections (2) to (5), the FCA must—
(a)ensure the information remains on its official website for at least five years, unless the information is personal data and [F61the data protection legislation] requires the information to be retained for a different period; and
(b)promptly report the information to ESMA.]
Textual Amendments
F60S. 391C inserted (18.3.2016) by The Undertakings for Collective Investment in Transferable Securities Regulations 2016 (S.I. 2016/225), regs. 1, 2(8)
F61Words in s. 391C(7)(a) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 51 (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)
(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 [F63the data protection legislation] requires the information to be retained for a different period; and
(b)promptly report the information to ESMA.]
Textual Amendments
F62S. 391D 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. 46 (with reg. 7)
F63Words in s. 391D(9)(a) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 52 (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)
Sections 393 and 394 apply to—
(a)a warning notice given in accordance with section [F6455Z(1)], 57(1), 63(3), [F6563B(1),] 67(1), 88(4)(b), [F66section 88B(1),] 92(1), 126(1), [F67131H(1),] [F68192L(1),] 207(1), 255(1), [F69261V(1),] 280(1), [F70section 312G(1),] 331(1), [F71345B(1) (whether as a result of section 345(2), 345A(3)] or section 249(1) [F72or 261K(1)]) [F73, 385(1) or 412B(4) or (8)];
(b)a decision notice given in accordance with section [F7455Z(2)], 57(3), 63(4), [F7563B(3),] 67(4), 88(6)(b), [F76section 88B(5),] 92(4), 127(1), [F77131H(4),] [F78192L(4),] 208(1), 255(2), [F79261V(2),] 280(2), [F80section 312H(1),] 331(3), [F81345B(4) (whether as a result of section 345(2), 345A(3)] or section 249(1) [F82or 261K(1)]) [F83, 386(1) or 412B(5) or (9)].
Textual Amendments
F64Word in s. 392(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 31(2)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F65Word in s. 392(a) inserted (8.6.2010) by Financial Services Act 2010 (c. 28), ss. 24(1), 26(2)(e), Sch. 2 para. 29(2)(a)
F66Words in s. 392 substituted (19.3.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 18(5)(a), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.; S.I. 2013/651, art. 2(a)
F67Word in s. 392(a) inserted (8.6.2010) by Financial Services Act 2010 (c. 28), ss. 24(1), 26(2)(e), Sch. 2 para. 29(2)(b)
F68Word in s. 392(a) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 31(2)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F69Word in s. 392(a) inserted (6.6.2013) by The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (S.I. 2013/1388), regs. 1, 3(19)(a)(i) (with reg. 24)
F70Words in s. 392(a) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 8 para. 37(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F71Words in s. 392(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 13 para. 8(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F72Words in s. 392(a) inserted (6.6.2013) by The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (S.I. 2013/1388), regs. 1, 3(19)(a)(ii) (with reg. 24)
F73Words in s. 392(a) substituted (1.4.2007 for certain purposes and 1.11.2007 otherwise) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007 (S.I. 2007/126), regs. 1(2), 3(5), Sch. 5 para. 16(a)
F74Word in s. 392(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 31(3)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F75Word in s. 392(b) inserted (8.6.2010) by Financial Services Act 2010 (c. 28), ss. 24(1), 26(2)(e), Sch. 2 para. 29(3)(a)
F76Words in s. 392 substituted (19.3.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 18(5)(b), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.; S.I. 2013/651, art. 2(a)
F77Word in s. 392(b) inserted (8.6.2010) by Financial Services Act 2010 (c. 28), ss. 24(1), 26(2)(e), Sch. 2 para. 29(3)(b)
F78Word in s. 392(b) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 31(3)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F79Word in s. 392(b) inserted (6.6.2013) by The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (S.I. 2013/1388), regs. 1, 3(19)(b)(i) (with reg. 24)
F80Words in s. 392(b) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 8 para. 37(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F81Words in s. 392(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 13 para. 8(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F82Words in s. 392(b) inserted (6.6.2013) by The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (S.I. 2013/1388), regs. 1, 3(19)(b)(ii) (with reg. 24)
F83Words in s. 392(b) substituted (1.4.2007 for certain purposes and 1.11.2007 otherwise) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007 (S.I. 2007/126), regs. 1(2), 3(5), Sch. 5 para. 16(b)
Modifications etc. (not altering text)
C71Ss. 392-394 applied (with modifications) by 2009 c. 1, s. 83ZV (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
C72Ss. 392-395 applied (with modifications) (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 82 (with regs. 8, 15)
C73S. 392(a) excluded (1.12.2001) by S.I. 2001/3592, arts. 1(2), 46(2), 47(2), 48(2), 52(4), 55(2) (with art. 23(2))
(1)If any of the reasons contained in a warning notice to which this section applies relates to a matter which—
(a)identifies a person (“the third party”) other than the person to whom the notice is given, and
(b)in the opinion of the [F84regulator giving the notice], is prejudicial to the third party,
a copy of the notice must be given to the third party.
(2)Subsection (1) does not require a copy to be given to the third party if the [F85regulator giving the notice] —
(a)has given him a separate warning notice in relation to the same matter; or
(b)gives him such a notice at the same time as it gives the warning notice which identifies him.
(3)The notice copied to a third party under subsection (1) must specify a reasonable period (which may not be less than [F8614 days]) within which he may make representations to [F87the regulator giving the notice].
(4)If any of the reasons contained in a decision notice to which this section applies relates to a matter which—
(a)identifies a person (“the third party”) other than the person to whom the decision notice is given, and
(b)in the opinion of [F88the regulator giving the notice], is prejudicial to the third party,
a copy of the notice must be given to the third party.
(5)If the decision notice was preceded by a warning notice, a copy of the decision notice must (unless it has been given under subsection (4)) be given to each person to whom the warning notice was copied.
(6)Subsection (4) does not require a copy to be given to the third party if [F89the regulator giving the notice]—
(a)has given him a separate decision notice in relation to the same matter; or
(b)gives him such a notice at the same time as it gives the decision notice which identifies him.
(7)Neither subsection (1) nor subsection (4) requires a copy of a notice to be given to a third party if [F90the regulator giving the notice] considers it impracticable to do so.
(8)Subsections (9) to (11) apply if the person to whom a decision notice is given has a right to refer the matter to the Tribunal.
(9)A person to whom a copy of the notice is given under this section may refer to the Tribunal—
(a)the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or
(b)any opinion expressed by [F91the regulator giving the notice] in relation to him.
(10)The copy must be accompanied by an indication of the third party’s right to make a reference under subsection (9) and of the procedure on such a reference.
(11)A person who alleges that a copy of the notice should have been given to him, but was not, may refer to the Tribunal the alleged failure and—
(a)the decision in question, so far as it is based on a reason of the kind mentioned in subsection (4); or
(b)any opinion expressed by [F92the regulator giving the notice] in relation to him.
(12)Section 394 applies to a third party as it applies to the person to whom the notice to which this section applies was given, in so far as the material [F93to which access must be given] under that section relates to the matter which identifies the third party.
(13)A copy of a notice given to a third party under this section must be accompanied by a description of the effect of section 394 as it applies to him.
(14)Any person to whom a warning notice or decision notice was copied under this section must be given a copy of a notice of discontinuance applicable to the proceedings to which the warning notice or decision notice related.
Textual Amendments
F84Words in s. 393(1)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F85Words in s. 393(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(2) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F86Words in s. 393(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(3)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F87Words in s. 393(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(3)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F88Words in s. 393(4)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F89Words in s. 393(6) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F90Words in s. 393(7) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F91Words in s. 393(9)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F92Words in s. 393(11)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F93Words in s. 393(12) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 32(5) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
Modifications etc. (not altering text)
C71Ss. 392-394 applied (with modifications) by 2009 c. 1, s. 83ZV (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
C72Ss. 392-395 applied (with modifications) (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 82 (with regs. 8, 15)
C74S. 393 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 24(3) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
S. 393 excluded (1.12.2001) by S.I. 2001/3592, arts. 1(2), 38(2), 46(2), 47(2), 48(2), 52(4), 55(2) (with art. 23(2))
C75S. 393 applied by Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544), art. 95(10) (as inserted (31.10.2004 for certain purposes and 14.1.2005 otherwise) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2003 (S.I. 2003/1476), arts. 1(3), 13)
C76S. 393 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 24(3) (with reg. 1(2))
C77S. 393 applied (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 56 (with regs. 52-58)
C78S. 393 applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
C79S. 393 applied (with modifications) by S.I. 2014/2879, reg. 5C(10) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))
C80S. 393(1) extended (1.12.2001) by S.I. 2001/3592, arts. 1(2), 36(4) (with art. 23(2))
(1)If [F95a regulator] gives a person (“A”) a notice to which this section applies, it must—
(a)allow him access to the material on which it relied in taking the decision which gave rise to the obligation to give the notice;
(b)allow him access to any secondary material which [F96, in the regulator's opinion,] might undermine that decision.
(2)But [F97the regulator giving the notice] does not have to allow A access to material under subsection (1) if the material is excluded material or it—
(a)relates to a case involving a person other than A; and
(b)was taken into account by [F97the regulator giving the notice] in A’s case only for purposes of comparison with other cases.
(3)[F98The regulator giving the notice] may refuse access A to particular material which it would otherwise have to allow him access to if, in its opinion, allowing him access to the material—
(a)would not be in the public interest; or
(b)would not be fair, having regard to—
(i)the likely significance of the material to A in relation to the matter in respect of which he has been given a notice to which this section applies; and
(ii)the potential prejudice to the commercial interests of a person other than A which would be caused by the material’s disclosure.
(4)If [F99the regulator giving the notice] does not allow A access to material because it is excluded material consisting of a protected item, it must give A written notice of—
(a)the existence of the protected item; and
(b)[F100the regulator's] decision not to allow him access to it.
(5)If [F101the regulator giving the notice] refuses under subsection (3) to allow A access to material, it must give him written notice of—
(a)the refusal; and
(b)the reasons for it.
(6)“Secondary material” means material, other than material falling within paragraph (a) of subsection (1) which—
(a)was considered by [F102the regulator giving the notice] in reaching the decision mentioned in that paragraph; or
(b)was obtained by [F103the regulator giving the notice in connection with the matter to which that notice] relates but which was not considered by it in reaching that decision.
(7)“Excluded material” means material which—
[F104(a)is material the disclosure of which for the purposes of or in connection with any legal proceedings is prohibited by section 17 of the Regulation of Investigatory Powers Act 2000; or]
(c)is a protected item (as defined in section 413).
Textual Amendments
F94Words in s. 394 heading substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(8) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F95Words in s. 394(1) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(2)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F96Words in s. 394(1)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(2)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F97Words in s. 394(2) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F98Words in s. 394(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F99Words in s. 394(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(5)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F100Words in s. 394(4) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(5)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F101Words in s. 394(5) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(6) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F102Words in s. 394(6)(a) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(7)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F103Words in s. 394(6)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 33(7)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F104S. 394(7)(a) substituted (2.10.2000) for s. 394(7)(a)(b) by 2000 c. 23, s. 82, Sch. 4 para. 11 (with s. 82(3)); S.I. 2000/2543, art. 3
Modifications etc. (not altering text)
C71Ss. 392-394 applied (with modifications) by 2009 c. 1, s. 83ZV (as inserted (1.1.2015) by The Bank Recovery and Resolution Order 2014 (S.I. 2014/3329), arts. 1(2), 97)
C72Ss. 392-395 applied (with modifications) (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 82 (with regs. 8, 15)
C81S. 394 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 24(3) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
S. 394 excluded (1.12.2001) by S.I. 2001/3592, arts. 1(2), 36(3), 38(2), 46(2), 47(2), 48(2), 52(4), 55(2) (with art. 23(2))
C82S. 394 applied by Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (S.I. 2001/544), art. 95(10) (as inserted (31.10.2004 for certain purposes and 14.1.2005 otherwise) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2003 (S.I. 2003/1476), arts. 1(3), 13)
C83S. 394 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 24(3) (with reg. 1(2))
C84S. 394 applied (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 56 (with regs. 52-58)
C85S. 394 applied (21.11.2014) by The Central Securities Depositories Regulations 2014 (S.I. 2014/2879), regs. 1(1), 5(10)
C86S. 394 applied (with modifications) by S.I. 2014/2879, reg. 5C(10) (as inserted (28.11.2017) by The Central Securities Depositories Regulations 2017 (S.I. 2017/1064), regs. 1, 5(9) (with regs. 7(4), 9(1)))
Textual Amendments
F105Words in s. 395 cross-heading substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(15) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
[F107(1)Each regulator must determine the procedure that it proposes to follow in relation to the following—
(a)a decision which gives rise to an obligation to give a supervisory notice,
(b)in the case of the FCA, a decision which—
(i)gives rise to an obligation for it to give a warning notice or decision notice, or
(ii)gives rise to an obligation for the PRA to include a statement under section 387(1A) in a warning notice or a statement under section 388(1A) in a decision notice,
(c)in the case of the PRA, a decision which gives rise to an obligation for it to give a warning notice or decision notice, other than a decision which depends entirely on a decision of the FCA of the kind mentioned in paragraph (b)(ii), and
(d)a decision under section 391(1)(c) to publish information about the matter to which a warning notice relates.]
(2)That procedure must be designed to secure, among other things [F108that—
(a)a decision falling within any of paragraphs (a) to (c) of subsection (1) is taken—
(i)by a person not directly involved in establishing the evidence on which the decision is based, or
(ii)by 2 or more persons who include a person not directly involved in establishing that evidence,
(b)a decision falling within paragraph (d) of subsection (1) is taken—
(i)by a person other than the person by whom the decision was first proposed, or
(ii)by 2 or more persons not including the person by whom the decision was first proposed, and
(c)a decision falling within paragraph (d) of subsection (1) is taken in accordance with a procedure which is, as far as possible, the same as that applicable to a decision which gives rise to an obligation to give a warning notice and which falls within paragraph (b) or (c) of subsection (1).]
(3)But the procedure may permit a decision which gives rise to an obligation to give a supervisory notice to be [F109taken otherwise than as mentioned in subsection (2) if the person taking the decision is of a level of seniority laid down by the procedure and—
(a)in the case of procedure proposed by the FCA, the FCA considers that, in the particular case, it is necessary in order to advance one or more of its operational objectives, or
(b)in the case of procedure proposed by the PRA, the PRA considers that, in the particular case, it is necessary in order to advance any of its objectives.]
(4)A level of seniority laid down by the procedure for the purposes of subsection (3)(b) must be appropriate to the importance of the decision.
(5)[F110Each regulator] must issue a statement of [F111its procedure].
(6)The statement must be published in the way appearing to [F112the regulator issuing it] to be best calculated to bring [F113the statement] to the attention of the public.
(7)[F114The regulator issuing the statement] may charge a reasonable fee for providing a person with a copy of the statement.
(8)[F115The regulator issuing a statement under this section] must, without delay, give the Treasury a copy of [F116the statement].
(9)When [F117a regulator gives] a supervisory notice, or a warning notice or decision notice, [F118other than a warning notice or decision notice relating to a decision of the PRA that is required by a a decision of the FCA of the kind mentioned in subsection (1)(b)(ii)] [F119the regulator] must follow its stated procedure.
[F120(9A)When the FCA takes a decision falling within subsection (1)(b)(ii), it must follow its stated procedure.]
(10)If [F121a regulator] changes [F122its procedure] in a material way, it must publish a revised statement.
(11)[F123A regulator's] failure in a particular case to follow its procedure as set out in the latest published statement does not affect the validity of a notice given in that case.
(12)But subsection (11) does not prevent the Tribunal from taking into account any such failure in considering a matter referred to it.
(13)“Supervisory notice” means a notice [F124or notification] given in accordance with section—
[F125(za)55XA(1) or (5) (where subsection (6) applies);]
[F126(a)55Y(4), (7) or (8)(b);]
[F127(aa)63ZC(4), (8) or (9)(b);]
[F128(ab)71H(2), (3), (4), (9) or (11)(a);]
(b)78(2) or (5);
[F129(bza)78A(2) or (8)(b);]
[F130(bzb)section 88F(2), (5) or (6)(b);]
[F131(bzc)section 89V(2), (5) or (6)(b);]
F132(ba). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F133(bb)87O(2) or (5);]
[F134(bbza)122I;]
[F135(bbzb)section 122IA;]
[F136(bba)section 137S(5) or (8)(a);]
[F137(bc) 191B(1);]
(c)197(3), (6) or (7)(b);
(d)259(3), (8) or (9)(b);
[F138(da)261Z1(3), (8) or (9)(b);]
(e)268(3), (7)(a) or (9)(a) (as a result of subsection (8)(b));
(f)282(3), (6) or (7)(b);
[F139(fa) 301J(1);]
(g)321(2) or (5).
Textual Amendments
F106Words in s. 395 heading substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(14) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F107S. 395(1) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(2) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F108Words in s. 395(2) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F109Words in s. 395(3) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(4) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F110Words in s. 395(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(5)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F111Words in s. 395(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(5)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F112Words in s. 395(6) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(6)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F113Words in s. 395(6) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(6)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F114Words in s. 395(7) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(7) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F115Words in s. 395(8) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(8)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F116Words in s. 395(8) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(8)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F117Words in s. 395(9) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(9)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F118Words in s. 395(9) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(9)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F119Words in s. 395(9) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(9)(c) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F120S. 395(9A) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(10) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F121Words in s. 395(10) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(11)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F122Words in s. 395(10) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(11)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F123Words in s. 395(11) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(12) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F124Words in s. 395(13) inserted (19.3.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 17(3), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.; S.I. 2013/651, art. 2(a)
F125S. 395(13)(za) inserted (27.2.2018) by The Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018 (S.I. 2018/135), regs. 1(2), 47
F126S. 395(13)(a) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 34(13) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F127S. 395(13)(aa) inserted (7.3.2016) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 14; S.I. 2015/490, art. 2(1)(b) (with savings and transitional provisions in S.I. 2015/492 (as amended by S.I. 2015/1660))
F128S. 395(13)(ab) inserted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 35
F129S. 395(13)(bza) inserted (12.7.2007) by The Regulatory Reform (Financial Services and Markets Act 2000) Order 2007 (S.I. 2007/1973), art. 8
F130S. 395(13)(bzb) inserted (19.3.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 18(6), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.; S.I. 2013/651, art. 2(a)
F131S. 395(13)(bzc) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 19(2), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
F132S. 395(13)(ba) omitted (3.7.2016) by virtue of The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(18)(a)
F133S. 395(13)(bb) inserted (1.7.2005) by The Prospectus Regulations 2005 (S.I. 2005/1433), reg. 2(1), Sch. 1 para. 14
F134S. 395(13)(bbza) inserted (3.7.2016) by The Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 (S.I. 2016/680), regs. 1, 10(18)(b)
F135S. 395(13)(bbzb) 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. 47 (with reg. 7)
F136S. 395(13)(bba) inserted (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. 24(3), 122(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F137S. 395(13)(bc) inserted (21.3.2009) by The Financial Services and Markets Act 2000 (Controllers) Regulations 2009 (S.I. 2009/534), reg. 6(a)
F138S. 395(13)(da) inserted (6.6.2013) by The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (S.I. 2013/1388), regs. 1, 3(20) (with reg. 24)
F139S. 395(13)(fa) inserted (21.3.2009) by The Financial Services and Markets Act 2000 (Controllers) Regulations 2009 (S.I. 2009/534), reg. 6(b)
Modifications etc. (not altering text)
C72Ss. 392-395 applied (with modifications) (26.6.2017) by The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (S.I. 2017/692), regs. 1(2), 82 (with regs. 8, 15)
C87S. 395 applied (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 10 (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
S. 395 amended (1.12.2001) by S.I. 2001/1228, regs. 1(2)(c), 27(15) (with reg. 1(2)(3)); S.I. 2001/3538, art. 2(1)
C88S. 395 applied (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 10 (with reg. 1(2))
C89S. 395 modified (N.I.) (1.11.2004) by Open-Ended Investment Companies Regulations (Northern Ireland) 2004 (S.R. 2004/335), regs. 1(1)(b), 27(15) (with reg. 1(2))
C90S. 395(1)(9) excluded (1.12.2001) by S.I. 2001/2957, arts. 1, 12(9); S.I. 2001/3538, art. 2(1)
C91S. 395(1)(d): power to repeal conferred (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 37(2)(b), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
C92S. 395(2)(b): power to repeal conferred (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 37(2)(b), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
C93S. 395(2)(c): power to repeal conferred (1.4.2013) by Financial Services Act 2012 (c. 21), ss. 37(2)(b), 122(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.
(1)Before issuing a statement of [F140its] procedure under section 395, [F141the regulator] must publish a draft of the proposed statement in the way appearing to [F142it] to be best calculated to bring [F143the draft] to the attention of the public.
(2)The draft must be accompanied by notice that representations about the proposal may be made to the [F144regulator publishing the draft] within a specified time.
(3)[F145Before a regulator issues the proposed statement of its procedure, it] must have regard to any representations made to it in accordance with subsection (2).
(4)If the [F146regulator issues the proposed statement of its procedure,] it must publish an account, in general terms, of—
(a)the representations made to it in accordance with subsection (2); and
(b)its response to them.
(5)If the [F147statement of the regulator's procedure differs from the draft published by it] under subsection (1) in a way which is [F148, in its opinion,] significant, [F149it must] (in addition to complying with subsection (4)) publish details of the difference.
(6)[F150The regulator publishing a draft under subsection (1)] may charge a reasonable fee for providing a person with a copy of [F151the draft].
(7)This section also applies to a proposal to revise a statement of policy.
Textual Amendments
F140Word in s. 396(1) inserted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(2)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F141Words in s. 396(1) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(2)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F142Word in s. 396(1) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(2)(c) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F143Words in s. 396(1) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(2)(d) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F144Words in s. 396(2) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F145Words in s. 396(3) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(4) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F146Words in s. 396(4) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(5) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F147Words in s. 396(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(6)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F148Words in s. 396(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(6)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F149Words in s. 396(5) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(6)(c) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F150Words in s. 396(6) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(7)(a) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.
F151Words in s. 396(6) substituted (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 9 para. 35(7)(b) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.