The Banking Coordination (Second Council Directive) (Amendment) Regulations 1993

Amendment of the principal Regulations U.K.

2.  The Banking Coordination (Second Council Directive) Regulations 1992(1) are amended as follows:

(a) in regulation 2(1), after “1993” in the definition of “the commencement date” there are inserted the words “except in relation to the application of these Regulations as they have effect by virtue of section 2(1) of the European Economic Area Act 1993 to the carrying on by credit institutions and financial institutions incorporated in or formed under the law of a member State of the Communities of listed activities in a relevant EFTA State and to the carrying on by credit institutions and financial institutions incorporated in or formed under the law of a relevant EFTA State of listed activities in the European Economic Area, where it means 1st January 1994;”;

(b) in regulation 2(1), after the definitions of “member” and “rules” there are inserted the following:

““member State” means a member State of the Communities or a relevant EFTA State;”;

(c) in regulation 2(1), after the definition of “recognised self—regulatory organisation” there are inserted the following:

““relevant EFTA State” means any of Austria, Finland, Iceland, Norway and Sweden;”;

(d) after regulation 2, the following regulation is added:

“Iceland

2A.— (1) For the period commencing with 1st January 1994 and ending on the implementation date and subject to paragraph (2) below, wherever the expressions “another member State”, “member State” and “relevant EFTA State” are used in these Regulations they have effect for the purposes of these Regulations as if they did not include a reference to Iceland.

(2) Paragraph (1) above does not apply to—

(a) the definition of “the commencement date” in regulation 2(1) above where it has effect in relation to the provisions described in sub—paragraph (e) below;

(b) regulation 22(1), (2) and (3) below;

(c) regulation 24(1) and (3) below;

(d) paragraphs 1 to 7 of Schedule 6 to these Regulations;

(e) paragraphs 2 and 3 of Schedule 11 to these Regulations;

(f) the definitions of “another member State”, “relevant supervisory authority” and “supervisory authority” in section 106 of the Banking Act as inserted by regulation 45 below in so far as those definitions are used in the following provisions of the Banking Act—

(i) section 9(7) as inserted by regulation 26 below;

(ii) section 11(1A)(f) as inserted by regulation 28(1) below;

(iii) section 12A(1) and (3)(b) as inserted by regulation 29 below;

(iv) section 13(3A) as inserted by regulation 30(1) below;

(v) section 15(4) as inserted by regulation 30(2) below;

(vi) section 22(1A) as inserted by regulation 31(2) below; and

(vii) section 86(1)(b), (3) and (4) as substituted by regulation 41 below;

(g) the definitions of “another member State”, “relevant supervisory authority” and “supervisory authority” in section 119(2A) of the Building Societies Act as inserted by regulation 81 below in so far as those definitions are used in the following provisions of the Building Societies Act—

(i) section 43(1A)(f) as inserted by regulation 71(1) below;

(ii) section 45A(1) and (3)(b) as inserted by regulation 74 below;

(iii) section 54(3B) as inserted by regulation 77(1) below; and

(iv) section 54(6) as inserted by regulation 77(2) below.

(3) In relation to a credit institution incorporated in or formed under the law of Iceland, any reference to the commencement date in paragraphs 1, 6 and 7 of Schedule 11 to these Regulations is construed as a reference to the implementation date.

(4) In this regulation “the implementation date” means the date, to be notified in the London, Edinburgh and Belfast Gazettes, on which the EFTA Surveillance Authority to be established under Article 108 of the Agreement on the European Economic Area is notified by Iceland that it has implemented the Second Council Directive, or 1st January 1995, whichever is the sooner.”;

(e) in regulation 5(1), for “paragraph (2)” there is substituted “paragraphs (2) and (3)”;

(f) in regulation 5, the following paragraph is added after paragraph (2)—

“(3) Paragraph (1)(a) above shall not apply in relation to a European institution in respect of which a determination under regulation 13A below is in force.”;

(g) after regulation 13, the following regulation is added:

“Treasury determinations for implementing decisions

13A.— (1) For the purpose of implementing a relevant decision within the meaning of section 26A(1) of the Banking Act(2) the Treasury may following consultation with the Bank make a determination in respect of a credit institution if—

(a) it is incorporated in or formed under the law of a relevant EFTA State;

(b) it is the subsidiary undertaking of a parent undertaking governed by the laws of a third country whose treatment of credit institutions from the European Economic Area or any part of it gave rise to the relevant decision; and

(c) it conforms to regulation 3(2)(b) and (c) above but not to regulation 3(2)(d).

(2) A determination made under paragraph (1) shall prohibit a credit institution in respect of which it is made from thereafter carrying on in the United Kingdom by the provision of services any home—regulated activity or establishing a branch in the United Kingdom for the purpose of carrying on such an activity notwithstanding that the requirements of paragraph 1 of Schedule 2 to these Regulations are at any time complied with in relation to its carrying on of the activity or, as the case may be, its establishment of the branch.

(3) A determination made under paragraph (1) above may relate to a particular institution or class of institution.

(4) A determination made under paragraph (1) above may be withdrawn at any time by the Treasury, but such withdrawal shall not affect anything done in accordance with the determination before it was withdrawn.

(5) Notice of a determination made under paragraph (1) above in respect of a particular institution or of the withdrawal of such a determination shall be given in writing by the Treasury to that institution and notice of any determination made under paragraph (1) or of the withdrawal of any determination shall be published in the London, Edinburgh and Belfast Gazettes on the date of the determination or, as the case may be, on the date of the withdrawal, or as soon as practicable thereafter.

(6) A credit institution which fails to comply with a determination made under paragraph (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale; but such a contravention shall not invalidate any transaction.

(7) In proceedings brought against a credit institution for an offence under paragraph (6) above it shall be a defence for the institution to show that it took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.”;

(h) Sub—paragraph (3) of paragraph 3 of Schedule 11 is revoked.

Commencement Information

I1 Reg. 2 in force at 1.1.1994, see reg. 1(2)

(1)

S.I. 1992/3218.

(2)

Section 26A was inserted by regulation 32 of the Banking Coordination (Second Council Directive) Regulations 1992.