SCHEDULES
SCHEDULE 10Amendments of the Markets in Financial Instruments Regulation
Temporary prohibitions and restrictions and withdrawal of registration
I18
1
Article 49 (withdrawal of registration) is amended as follows.
2
For the heading substitute— “
Temporary prohibitions and restrictions and withdrawal of registration
”
.
3
Before paragraph 1 insert—
A1
The FCA may temporarily prohibit a third-country firm from providing investment services, or performing investment activities, in the United Kingdom, or place temporary restrictions on a third-country firm's provision of such services or performance of such activities in the United Kingdom, where the third-country firm—
a
has failed to comply with a prohibition or restriction imposed on it by the FCA under Article 42,
b
has failed to comply with a request for data made by the FCA under Article 46(6A)(b) in accordance with the cooperation arrangements established under Article 47(2),
c
has failed to provide information in accordance with rules made under Article 46(6B),
d
has failed to provide information requested by the FCA in accordance with the cooperation arrangements established under Article 47(2),
e
has failed to cooperate with an investigation or on-site inspection carried out in accordance with the cooperation arrangements established under Article 47(2), or
f
has failed to comply with a requirement imposed by regulations under Article 48A.
A2
The FCA may impose more than one temporary prohibition or restriction under paragraph A1 in respect of the same failure.
4
In paragraph 1—
a
in the opening words, for “shall” substitute “
may
”
,
b
for points (a) and (b) substitute—
a
the FCA has well-founded reasons based on documented evidence to believe that—
i
in the provision of investment services and the performance of investment activities in the United Kingdom, the third-country firm is acting in a manner which is clearly prejudicial to the interests of investors or the orderly functioning of markets,
ii
in the provision of such services and activities in the United Kingdom, the third-country firm has seriously infringed a provision applicable to it in the third country and on the basis of which the Treasury made regulations under Article 47(1),
iii
in the provision of such services and activities in the United Kingdom, the third-country firm has seriously infringed a requirement imposed under Article 48A, or
iv
the third-country firm is not maintaining the necessary arrangements and procedures to provide the information required by rules made under Article 46(6B) or to comply with requirements under Article 48A, and
c
omit point (d) (and the “and” before it).
5
After paragraph 1 insert—
1A
In deciding the appropriate action to take under this Article, the FCA must, among other things, take into account the nature and seriousness of the risk posed to the interests of investors and the orderly functioning of markets in the United Kingdom, having regard to—
a
the duration and frequency of the risk arising,
b
whether the risk has revealed serious or systemic weaknesses in the third-country firm's procedures,
c
whether financial crime has been occasioned or facilitated by, or is otherwise attributable to, the risk, and
d
whether the risk has arisen intentionally or negligently.
1B
The FCA must inform the competent authority of the third country in due course of its intention to take action in accordance with paragraph A1 or 1.
6
At the end insert—
4
In this Article, “documented evidence” includes, but is not limited to, information provided in accordance with rules made under Article 46(6B).