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PART IU.K. PRELIMINARY

Citation and CommencementU.K.

1.  These Regulations may be cited as the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001 and come into force on 18th June 2001.

InterpretationU.K.

2.  In these Regulations—

  • [F1“ACER” means the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No. 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators];

  • “the Act" means the Financial Services and Markets Act 2000;

  • F2...

  • [F3“capital requirements directive information” means confidential information received by the PRA—

    (a)

    before IP completion day in the course of discharging its functions as the competent authority under the capital requirements directive;

    (b)

    after IP completion day in the course of exercising its functions in or under the Act or retained EU law which functions are equivalent to the functions as the competent authority set out in the capital requirements directive;]

  • [F4“competent authority” includes a supervisory authority [F5that has the same meaning as in regulation 2(1) of the Solvency 2 Regulations 2015];]

  • [F6“conglomerates directive” means Directive 2002/87/EC of the European Parliament and of the Council of 16th December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate and amending Council Directives 73/239/EEC, 79/267/EEC, 92/49/EEC, 92/96/EEC, 93/6/EEC, 93/22/EEC, and Directives 98/78/EC and 2000/12/EC of the European Parliament and of the Council [F7as last amended by Directive 2011/89/EU of the European Parliament and of the Council];]

  • “criminal investigation" means an investigation of any crime, including an investigation of any alleged or suspected crime and an investigation of whether a crime has been committed;

  • F8...

  • F9...

  • F10...

  • “disciplinary proceedings authority" means a person responsible for initiating prescribed disciplinary proceedings or determining the outcome of such proceedings;

  • F11...

  • F12...

  • F13...

  • [F14EMIR information” means confidential information received by one of the regulators in the course of discharging its functions as a competent authority under the EMIR regulation;]

  • [F14“the EMIR regulation” means Regulation (EU) 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories;]

  • [F15“ESRB” means the European Systemic Risk Board established by Regulation (EU) No. 1092/2010 of the European Parliament and the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board;]

  • [F15“ESAs” means the European Supervisory Authorities established by Regulation (EU) No. 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), Regulation (EU) No. 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) and Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority);]

  • [F16“EU Benchmarks Regulation 2016” means Regulation EU 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014;]

  • [F17“EU entity” has the meaning given in section 20(1) of the European Union (Withdrawal) Act 2018;]

  • [F16“EU Benchmarks Regulation 2016 information” means information received by the FCA in the course of discharging its functions as a competent authority under the EU Benchmarks Regulation 2016;]

  • F18...

  • “former regulated activities" means activities carried on before the coming into force of section 19 of the Act and which constitute—

    (a)

    investment business within the meaning of the Financial Services Act 1986 M1;

    (b)

    deposit-taking business within the meaning of the Banking Act 1987 M2;

    (c)

    insurance business within the meaning of the Insurance Companies Act 1982 M3; or

    (d)

    insurance business within the meaning of the Friendly Societies Act 1992 M4;

  • “former regulated person" means a person who, at any time before the coming into force of section 19 of the Act, was—

    (a)

    authorised under section 3 or 4 of the Insurance Companies Act 1982;

    (b)

    an authorised person within the meaning of the Financial Services Act 1986, or an appointed representative within the meaning of section 44 M5 (appointed representatives) of that Act;

    (c)

    an authorised institution within the meaning of the Banking Act 1987;

    (d)

    a European institution within the meaning of the Banking Coordination (Second Council Directive) Regulations 1992 M6;

    (e)

    a European investment firm within the meaning of the Investment Services Regulations 1995 M7;

    (f)

    an EC company within the meaning of the Insurance Companies Act 1982 able to carry on direct insurance business through a branch in the United Kingdom, or provide insurance in the United Kingdom by virtue of paragraph 1 or 8 of Schedule 2F to that Act M8;

    (g)

    a friendly society authorised or treated as authorised for the purposes of Part IV of the Friendly Societies Act 1992, or permitted by virtue of section 31(2) or (3) of that Act to carry on activities without authorisation under that Part; or

    (h)

    a building society authorised or treated as authorised for the purposes of the Building Societies Act 1986 M9;

  • F19...

  • [F20“market in financial instruments information” means confidential information received by the FCA or the PRA in the course of discharging their functions under—

    (a)

    the markets in financial instruments regulation;

    (b)

    EU tertiary legislation (within the meaning of section 20 of the European Union (Withdrawal) Act 2018) made under—

    (i)

    the markets in financial instruments directive which forms part of retained EU law; and

    (ii)

    the markets in financial instruments regulation;

    (c)

    the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017; or

    (d)

    the Act, which correspond to functions under the markets in financial instruments directive;]

  • F21...

  • F22...

  • F23...

  • F24...

  • [F3“PRA worker” means—

    (a)

    a person who is or has been employed by the PRA; or

    (b)

    an auditor or expert instructed by the PRA;]

  • “prescribed disciplinary proceedings" means the disciplinary proceedings prescribed in Schedule 3;

  • F25...

  • [F26“recovery and resolution information” means confidential information received by—

    (a)

    the Bank of England in the course of discharging its functions under Part 1 of the Banking Act 2009 or the Bank Recovery and Resolution (No.2) Order 2014;

    (b)

    the FCA or PRA in the course of discharging their functions under Part 1 of the Banking Act 2009 or the Bank Recovery and Resolution (No.2) Order 2014;

    (c)

    a person appointed by the Bank of England under section 62B (resolution administrator) of the Banking Act 2009 to act as resolution administrator in the course of discharging that person's functions as such;]

  • [F27“regulators” means the FCA, the PRA and the Bank of England, and “regulator” means any one of the regulators;]

  • [F27“regulator worker” means—

    (a)

    a person who is or has been employed by one of the regulators; or

    (b)

    an auditor or expert instructed by one of the regulators;]

  • [F28“relevant directives” means, for the purposes of this regulation—

    (a)

    the alternative investment fund managers directive;

    (b)

    the capital requirements directive;

    (c)

    the conglomerates directive;

    (d)

    the insurance distribution directive;

    (e)

    the mortgages directive;

    (f)

    the Solvency 2 directive;

    (g)

    the UCITS directive;]

  • [F28“relevant provisions” means, for the purposes of this regulation—

    (a)

    Articles 76 and 81 of the markets in financial instruments directive;

    (b)

    section 2 of Chapter 1 of Title 7 of the capital requirements directive;

    (c)

    Articles 64, 65, 66, 67, 68, 69 and 70 of the Solvency 2 directive;

    (d)

    Articles 102 and 104.1 of the UCITS directive;

    (e)

    Article 13 of the insurance distribution directive;

    (f)

    Articles 47.2, 47.3, 51, 52 and 53.2 of the alternative investment fund managers directive;

    (g)

    Articles 5(2) and 36 of the mortgages directive;

    (h)

    Article 83 of the EMIR regulation;

    (i)

    Article 18 of the SFT regulation;]

  • [F28“retained EU law restrictions” means the restrictions imposed on the disclosure of confidential information by the relevant provisions, and (excluding those specified at paragraphs (h) and (j) of that definition) as they had effect immediately before IP completion day, and as modified as follows—

    (a)

    requirements imposed on a Member State or an EU entity are to be read as if they are requirements imposed on the United Kingdom or, where relevant, a primary recipient;

    (b)

    a restriction on the disclosure of confidential information to a person in a third country applies to any disclosure of confidential information to any person in a country or territory outside the United Kingdom;

    (c)

    a requirement to seek the consent of an EU entity only applies where an equivalent requirement applies in relation to an equivalent entity in a third country; and

    (d)

    for the purposes of sub-paragraph (b) a reference to a person in a third country, which is a third country regulatory authority, is to be read as including an ESA and the ESRB;]

  • “Secretary of State worker" means—

    (a)

    a person who is or has been employed by the Secretary of State; or

    (b)

    an auditor or expert instructed by the Secretary of State;

  • [F29“SFTR information” means confidential information received by a regulator in the course of discharging its functions as a competent authority under the SFT regulation;]

  • [F30“short selling information” means confidential information received by the FCA in the course of discharging its functions as a competent authority under the short selling regulation;]

  • [F30“specified confidential EU law information” means confidential information received by the FCA or the PRA—

    (a)

    before IP completion day in the course of discharging its functions as the competent authority under the relevant directives; or

    (b)

    after IP completion day in the course of exercising its functions in or under the Act or retained EU law which functions are equivalent to the functions as the competent authority set out in the relevant directives;]

  • F31...

  • F32...

  • F33...

  • F34...

  • [F24“third country regulatory authority” means—

    (a)

    an authority in a country or territory outside the United Kingdom which exercises any function of a kind mentioned in section 195(4) of the Act;

    (b)

    a third country investment exchange, a third country clearing house, a third country central counterparty (within the meaning of section 285(1)(d) of the Act) or a third country CSD (within the meaning of section 285(1)(g) of the Act); or

    (c)

    an authority in a country or territory outside the United Kingdom which exercises any functions of a kind corresponding to a function of the Bank of England;]

  • [F18“third country resolution authority” means an authority in a country or territory which is not, and does not form part of, the United Kingdom which exercises functions in relation to third country resolution action (within the meaning of section 89H of the Banking Act 2009), including planning for such action, corresponding to one or more functions exercisable by the Bank of England pursuant to Part 1 of the Banking Act 2009 or the Bank Recovery and Resolution (No.2) Order 2014;]

  • [F35“UCITS information” means confidential information received by the FCA in the course of discharging its functions as the United Kingdom authority under the Undertakings for Collective Investment in Transferable Securities Regulations 2011;]

  • F36...

  • F36... [F37, and

any reference to an EU regulation, or part of an EU regulation, is to be read as a reference to that EU regulation, or that part of an EU regulation, as amended from time to time.]

Textual Amendments

F19Words in reg. 2 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. 3 para. 4(2)(b) (with reg. 7)

Modifications etc. (not altering text)

Marginal Citations

M6S.I. 1992/3218; relevant amendments were made by S.I. 1999/2094.

M7S.I. 1995/3275; to which there are amendments not relevant to these Regulations.

M8Inserted by S.I. 1994/1696 and amended by S.I. 1997/2781.

PART IIU.K. DISCLOSURE OF CONFIDENTIAL INFORMATION GENERALLY

Modifications etc. (not altering text)

Disclosure by and to the [F38regulators], the Secretary of State and the Treasury etc.U.K.

3.—(1) A disclosure of confidential information is permitted when it is made to any person—

[F39(a)by one of the regulators or a regulator worker for the purposes of enabling or assisting the person making the disclosure to discharge any public functions of that regulator or (if different) the regulator worker;]

(b)by the Secretary of State or a Secretary of State worker for the purpose of enabling or assisting the person making the disclosure to discharge any public functions of the Secretary of State or (if different) of the Secretary of State worker;

(c)by the Treasury for the purpose of enabling or assisting the Treasury to discharge any of their public functions;

[F40(d)by one of the regulators or a regulator worker to one of the other regulators or a regulator worker employed or instructed by one of the other regulators for the purpose of enabling or assisting the recipient to discharge any public functions of the regulator or (if different) the regulator worker.]

(2) A disclosure of confidential information is permitted when it is made by any primary recipient, or person obtaining the information directly or indirectly from a primary recipient, to [F41one of the regulators], the Secretary of State or the Treasury for the purpose of enabling or assisting [F42that regulator], the Secretary of State or the Treasury (as the case may be) to discharge any of its, his or their public functions.

(3) Paragraphs (1) and (2) do not permit disclosure in contravention of any of the [F43retained EU law restrictions].

Textual Amendments

Disclosure for the purposes of criminal proceedings and investigationsU.K.

4.  A primary recipient of confidential information, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to any person—

(a)for the purposes of any criminal investigation whatever which is being or may be carried out, whether in the United Kingdom or elsewhere;

(b)for the purposes of any criminal proceedings whatever which have been or may be initiated, whether in the United Kingdom or elsewhere; or

[F44(ba)for the purposes of any proceedings under Part 2, 3 or 4 of the Proceeds of Crime Act 2002 which have been, or may be initiated;]

(c)for the purpose of initiating or bringing to an end any such investigation or proceedings, or of facilitating a determination of whether it or they should be initiated or brought to an end.

Textual Amendments

Disclosure for the purposes of certain other proceedingsU.K.

5.—(1) Subject to paragraphs (4) and (5), a primary recipient of confidential information, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to—

(a)a person mentioned in paragraph (3) for the purpose of initiating proceedings to which this regulation applies, or of facilitating a determination of whether they should be initiated; or

(b)any person for the purposes of proceedings to which this regulation applies and which have been initiated, or for the purpose of bringing to an end such proceedings, or of facilitating a determination of whether they should be brought to an end.

(2) A person mentioned in paragraph (3) (or a person who is employed by [F45one of the regulators] or the Secretary of State) is permitted to disclose confidential information to any person for a purpose mentioned in paragraph (1)(a).

(3) The persons referred to in paragraphs (1)(a) and (2) are—

(a)[F46the regulators];

(b)the Secretary of State; and

(c)[F47the Department for the Economy in Northern Ireland].

(4) This regulation does not permit the disclosure of information with a view to the institution of, or in connection with, proceedings of the kind referred to in paragraph (6)(e) to the extent that—

(a)the information relates to an authorised person, former authorised person or former regulated person (“A");

(b)the information also relates to another person (“B") who, to the knowledge of the primary recipient (or person obtaining confidential information directly or indirectly from him), is or has been involved in an attempt to rescue A, or A’s business, from insolvency or impending insolvency; and

(c)B is not a director, controller or manager of A.

(5) This regulation does not permit disclosure in contravention of any of the [F48retained EU law restrictions].

(6) The proceedings to which this regulation applies are—

(a)civil proceedings arising under or by virtue of the Act, an enactment referred to in section 338 of the Act, the Banking Act 1979 M10, the Friendly Societies Act 1974 M11, the Insurance Companies Act 1982 M12, the Financial Services Act 1986 M13, the Building Societies Act 1986 M14, the Banking Act 1987 M15, the Friendly Societies Act 1992 M16 or the Investment Services Regulations 1995 M17;

(b)proceedings before the Tribunal;

(c)any other civil proceedings to which [F49one of the regulators] is, or is proposed to be, a party;

(d)proceedings under section 7 or 8 of the Company Directors Disqualification Act 1986 M18 or article 10 or 11 of the Companies (Northern Ireland) Order 1989 M19 in respect of a director or former director of an authorised person, former authorised person or former regulated person; or

(e)proceedings under Parts I to VI or IX to X of the Insolvency Act 1986 M20, the Bankruptcy (Scotland) Act 1985 M21 or Parts II to VII or IX or X of the Insolvency (Northern Ireland) Order 1989 M22 in respect of an authorised person, former authorised person or former regulated person.

Textual Amendments

Modifications etc. (not altering text)

C7Reg. 5(6)(e) applied (with modifications) (11.2.2010) by The Cross Border Payments in Euro Regulations 2010 (S.I. 2010/89), reg. 1, Sch. Pt. 3 para. 10(c)

Marginal Citations

M181986 c. 46. Section 7 was amended by the Insolvency Act 2000 (c. 39), Sch. 4, Part I, and s. 6. Section 8 was amended by the Financial Services Act 1986 (c. 60), s. 198; the Criminal Justice (Scotland) Act 1987 (s. 41), s. 55(b); the Criminal Justice Act 1988 (c. 33), s. 145(b); the Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40), s. 5, Sch. 4, para 62; the Companies Act 1989 (c. 40), s. 79; and the Insolvency Act 2000, s. 6.

Disclosure in pursuance of [F50 an EU] obligationU.K.

F516.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Restrictions on use of confidential informationU.K.

7.  Where confidential information is disclosed under these Regulations to a person other than [F52the FCA, the PRA,], the Secretary of State, the Treasury or the Bank of England, and the disclosure is made subject to any conditions as to the use to which the information may be put, the person to whom the information has been disclosed may not use the information in breach of any such condition, without the consent of the person who disclosed it to him.

Textual Amendments

PART IIIU.K. DISCLOSURE OF [F53SPECIFIED CONFIDENTIAL EU LAW INFORMATION] F54...

Textual Amendments

F53Words in Pt. 3 heading substituted (31.12.2020) by The Public Record, Disclosure of Information and Co-operation (Financial Services) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/681), regs. 1(3), 4(6); 2020 c. 1, Sch. 5 para. 1(1)

[F55 Application of this PartU.K.

8.  This Part applies to—

(a)[F56specified confidential EU law information]; F57...

(b)markets in financial instruments F58... information, where that information has been received [F59from a third country regulatory authority under a cooperation agreement; and]

F60(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F61(d)recovery and resolution F62... information]F63...F64

F65(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F66(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

Textual Amendments

F65Reg. 8(e) 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. 3 para. 4(3)(c) (with reg. 7)

Modifications etc. (not altering text)

Disclosure by [F67regulators or regulator workers] to certain other personsU.K.

9.—(1) Subject to paragraphs (2) F68...[F69 , (3A) [F70, (3C)] F68... F68... F68... [F71, F72...] [F73(4) and (5)]], [F74any of the regulators or a regulator worker] is permitted to disclose information to which this Part applies to a person specified in the first column in Schedule 1 for the purpose of enabling or assisting that person to discharge any of the functions listed beside him in the second column in that Schedule.

[F75(1A) A regulator or a person who is employed by a regulator may disclose confidential information if it is necessary to do so in order to publish the outcome of a stress test conducted in respect of a credit institution or investment firm F76....]

(2) Paragraph (1) does not permit disclosure to a person specified in the first column in Part 3 of Schedule 1 unless [F77the conditions in paragraphs (2ZA), (2B) [F78or (2C)] are met].

[F79(2ZA) The condition in this paragraph is that the disclosure is provided for by a cooperation agreement of the kind referred to in—

(a)[F80article 88] of the markets in financial instruments directive;

[F81(b)article 55 of the capital requirements directive;]

[F82(c)article 66 of the Solvency 2 Directive;]

F83(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)article 102.3 of the UCITS directive; F84...

F83(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F85reading the relevant provisions in those directives as if—

(i)requirements imposed on a Member State or an EU entity are to be read as if they are requirements imposed on the United Kingdom or, where relevant, a primary recipient;

(ii)a restriction on the disclosure of confidential information to a person in a third country applies to any disclosure of confidential information to any person in a country or territory outside the United Kingdom;

(iii)a requirement to seek the consent of an EU entity only applies where an equivalent requirement applies in relation to an equivalent entity in a third country; and

(iv)for the purposes of sub-paragraph (ii) a reference to a person in a third country, which is a third country regulatory authority, is to be read as including an ESA and the ESRB.]

F86(2A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F87(2B) The conditions in this paragraph are that—

[F88(a)the disclosure is made in accordance with Chapter V of the [F89UK GDPR];] [F90and]

(b)the regulator or regulator worker is satisfied that the disclosure is necessary for the purpose of complying with

[F91(i)requirements imposed on the regulator in the exercise of its functions under the Act which correspond to the functions under the Alternative Investment Fund Managers Regulations 2013;

(ii)EU tertiary legislation (within the meaning of section 20 of the European Union (Withdrawal) Act 2018) made under the alternative investment fund managers directive which forms part of retained EU law; and

(iii)rules made by the FCA under the Act that were in force immediately before IP completion day to implement the alternative investment fund managers directive.]

F92(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

[F93(2C) The condition in this paragraph is that—

(a)the disclosure is of recovery and resolution information;

(b)the disclosure is to a third country resolution authority;

(c)the third country resolution authority is subject to restrictions on the disclosure of confidential information at least equivalent, in the opinion of the Bank of England, to the restrictions on the Bank of England in relation to its functions under Part 1 of the Banking Act 2009 or the Bank Recovery and Resolution (No.2) Order 2014; and

(c)the information—

(i)is necessary for the performance by the third country resolution authority of its functions in relation to a third country resolution action (within the meaning of section 89H of the Banking Act 2009) including planning for such action, corresponding to one or more of the functions exercisable by the Bank of England pursuant to Part 1 of the Banking Act 2009 or the Bank Recovery and Resolution (No.2) Order 2014; and

(ii)is not used for any other purpose.]

F94(2D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F95(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F96(3A) Paragraph (1) does not permit disclosure of markets in financial instruments information to a person specified in the first column of Schedule 1 other than a person listed in paragraph (3B) where that information—

[F97(a)was obtained from a third country regulatory authority under a cooperation agreement; and]

(b)that authority indicated at the time of communication that such information must not be disclosed,

unless that authority has given its express consent to the disclosure.

(3B) The persons are—

(a)the Bank of England,

F98(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the central bank of any country or territory outside the United Kingdom, F99...

(d)a body (other than a central bank) F100... outside the United Kingdom having—

(i)functions as a monetary authority; or

(ii)responsibility for overseeing payment systems],

F101(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F102(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F103(3C) Paragraph (1) does not permit disclosure of UCITS F104... information to a person specified in the first column of Schedule 1 other than a person listed in paragraph (3D) where that information—

(a)was obtained from [F105a third country regulatory authority] under a cooperation agreement referred to in Article 102 of [F106the UCITS directive, reading the provisions in Article 102 of that directive as if the requirements imposed on a Member State were requirements imposed on the regulator], and

(b)that authority indicated at the time of communication that such information must not be disclosed,

unless that authority has given its express consent to the disclosure.

(3D) The persons are—

(a)the Bank of England;

(b)[F107a central bank] outside the United Kingdom;

(c)a recognised investment exchange;

(d)an auditor exercising functions conferred by or under the Act in relation to insurance undertakings, credit institutions, investment firms or other financial institutions;

F108(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

F109(3E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F110(3EA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F111(3F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F112(3G) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F113(4) Paragraph (1) does not permit disclosure in breach of any restriction on the disclosure of confidential information in Section 2 of Chapter 1 of Title 7 of the capital requirements directive reading those provisions in that directive as follows—

(a)the requirements imposed on a Member State or an EU entity are to be read as if they are requirements imposed on the United Kingdom or, where relevant, a primary recipient;

(b)a restriction on the disclosure of confidential information to a person in a third country applies to any disclosure of confidential information to any person in a country or territory outside the United Kingdom;

(c)a requirement to seek the consent of an EU entity applies only where an equivalent requirement applies in relation to an equivalent entity in a third country; and

(d)for the purposes of sub-paragraph (b) a reference to a person in a third country, which is a third country regulatory authority, is to be read as including an ESA and the ESRB.]

[F114(4A) Paragraph (4) does not apply where regulation 10C applies to the disclosure of confidential information.]

[F115(5) Paragraph (1) does not permit the disclosure of recovery and resolution F116... information to any person unless the assessment required in regulation 10B has been carried out.]

[F117(6) In this regulation, “the UK GDPR” has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(10) and (14) of that Act).]

Textual Amendments

F72Word in reg. 9(1) 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. 3 para. 4(4)(a) (with reg. 7)

F78Words in reg. 9(2) 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. 3 para. 4(4)(b) (with reg. 7)

F80Words in reg. 9(2ZA) 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. 3 para. 4(4)(c) (with reg. 7)

F94Reg. 9(2D) 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. 3 para. 4(4)(d) (with reg. 7)

F112Reg. 9(3G) 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. 3 para. 4(4)(f) (with reg. 7)

Modifications etc. (not altering text)

Disclosure by Schedule 1 personU.K.

10.  A person specified in the first column in Schedule 1 is permitted to disclose information to which this Part applies for the purpose of enabling or assisting him to discharge any of the functions listed beside him in that Schedule.

[F118Disclosure of recovery and resolution F119... informationU.K.

10A.—(1) The Bank of England may disclose recovery and resolution F120... information to any person for the purpose of enabling the Bank to prepare for and carry out the functions given to it under—

(a)Parts 1, 2 and 3 of the Banking Act 2009, or

(b)the Investment Bank Special Administration Regulations 2011,

provided that any such disclosure is made subject to the conditions in paragraph (2), and following the assessment required in regulation 10B.

(2) A disclosure made by the Bank of England under paragraph (1) must be made subject to—

(a)a requirement that the information disclosed is kept confidential and not disclosed to any other person without the consent of the Bank; and

(b)restrictions imposed by the Bank as to the way in which the information may be used.

(3) A resolution administrator appointed under section 62B of the Banking Act 2009 may disclose recovery and resolution F121... information to a regulator.]

Textual Amendments

[F118Assessment of effects of disclosureU.K.

10B.—(1) Before any disclosure is made of recovery and resolution F122... information the person disclosing that information must—

(a)assess the possible effects of disclosing the information in question on—

(i)the public interest in relation to financial, monetary or economic policy;

(ii)the commercial interests of natural and legal persons;

(iii)the purpose of any investigation, inspection or audit to which the information is relevant; and

(b)where the information in question relates to the recovery plan or resolution plan of any undertaking, assess the effects of the disclosure of any part of that recovery plan or resolution plan.

(2) In this regulation—

[F123“recovery plan” means a recovery plan or a group recovery plan as those terms are defined in the Bank Recovery and Resolution (No.2) Order 2014; and]

[F123“resolution plan” means a resolution plan or a group resolution plan as those terms are defined in that Order.]]

Textual Amendments

[F124Disclosure of capital requirements directive information to International Financial InstitutionsU.K.

10C.—(1) Subject to the conditions in paragraph (2), the PRA or a PRA worker is permitted to disclose capital requirements directive information to an organisation specified in the first column of Part 6 of Schedule 1 for the purpose of enabling or assisting that organisation to discharge any of the functions listed beside it in the second column of Part 6 of Schedule 1.

(2) The conditions are as follows—

(a)the organisation must make an explicit request for the confidential information;

(b)the request is precise as to the nature, scope and format of the confidential information and the means of its disclosure or transmission;

(c)the confidential information requested is necessary for the performance of the specific tasks of the organisation making the request and does not go beyond the functions conferred on that organisation;

(d)the organisation making the request justifies it by reference to its tasks; and

(e)to the extent that the disclosure of confidential information involves processing of personal data, any processing of personal data by the organisation making the request complies with the UK GDPR.

(3) In this regulation, “the UK GDPR” has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(10) and (14) of that Act).]

Textual Amendments

PART IVU.K. DISCLOSURE OF CONFIDENTIAL INFORMATION NOT SUBJECT TO [F125RETAINED EU LAW RESTRICTIONS]

Textual Amendments

Modifications etc. (not altering text)

Application of this PartU.K.

11.  This Part applies to confidential information other than—

(a)[F126specified confidential EU law information];

F127(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F128(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F129(d)markets in financial instruments F130... information, where that information has been received [F131from a third country regulatory authority under a cooperation agreement unless that authority has given its express consent for disclosure that is covered by this Part;]

[F132(e)UCITS F133... information, where that information has been received [F134from a third country regulatory authority under a cooperation agreement unless that authority has given its express consent for disclosure that is covered by this Part;]

F135(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F136(fa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F137(g)recovery and resolution F138... information];

F139(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]]

Textual Amendments

F139Reg. 11(h) 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. 3 para. 4(5)(b) (with reg. 7)

Modifications etc. (not altering text)

Disclosure by and to a Schedule 1 or 2 person or disciplinary proceedings authorityU.K.

12.—(1) A primary recipient of information to which this Part applies, or a person obtaining such information directly or indirectly from a primary recipient, is permitted to disclose such information to—

(a)a person specified in the first column in Schedule 1 or 2 for the purpose of enabling or assisting that person to discharge any function listed beside him in the second column in Schedule 1 or 2; or

(b)a disciplinary proceedings authority for the purposes of any prescribed disciplinary proceedings which have been or may be initiated, or for the purpose of initiating or bringing to an end any such proceedings, or of facilitating a determination of whether they should be initiated or brought to an end.

(2) A person specified in the first column in Schedule 1 or 2 is permitted to disclose information to which this Part applies to any person for the purpose of enabling or assisting the person making the disclosure to discharge any function listed beside him in the second column in Schedule 1 or 2.

(3) A disciplinary proceedings authority is permitted to disclose information to which this Part applies to any person for any of the purposes mentioned in paragraph (1)(b).

[F140(4) This regulation does not permit disclosure of short selling regulation information to a person specified in the first column in Part 3 of Schedule 1 unless the disclosure is in accordance with article 40 of the short selling regulation or a cooperation arrangement of the kind referred to in article 38 of the short selling regulation.]

[F141(5) This regulation does not permit the disclosure of information if—

(a)the information is confidential information received by the FCA in the course of discharging its functions as a competent authority under the market abuse regulation or any directly applicable EU regulation made under the market abuse regulation; and

(b)the disclosure of the information contravenes the market abuse regulation.]

[F142(6) This regulation does not permit disclosure of the EU Benchmarks Regulation 2016 information which has been received from another competent authority unless the disclosure is in accordance with Article 38 of the EU Benchmarks Regulation 2016.]

Textual Amendments

F141Reg. 12(5) 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. 3 para. 4(6) (with reg. 7)

[F143The Gambling Commission]U.K.

[F14412A.  The [F145Gambling] Commission may disclose information to which this Part applies to [F146the Comptroller and Auditor General] for the purpose of enabling or assisting the Comptroller and Auditor General to carry out an examination under Part II of the National Audit Act 1983 in relation to the Commission.]

Textual Amendments

Electronic commerceU.K.

F14712B.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F148Proceedings under the Proceeds of Crime Act 2002]U.K.

[F14912C.  A primary recipient of information to which this Part applies, or a person obtaining such information directly or indirectly from a primary recipient is permitted to disclose such information to any person for the purposes of any proceedings under the Proceeds of Crime Act 2002 which have been or may be initiated.]

Textual Amendments

PART VU.K.

[F150CHAPTER 1U.K.Transitional Provisions Applicable Before IP completion day]

Textual Amendments

InterpretationU.K.

13.  In this Part—

  • [F151“the Authority” means the Financial Services Authority;]

  • [F152“EEA competent authority” has the meaning given in regulation 2 of these Regulations as it had effect immediately before IP completion day;]

  • “pre-commencement information" means information which is subject to restrictions (with or without qualifications or exceptions) on disclosure by virtue of a pre-commencement provision;

  • “pre-commencement provision" means—

    (a)

    any provision in—

    (i)

    Schedule 2B to the Insurance Companies Act 1982 M23;

    (ii)

    Part VIII of the Financial Services Act 1986 M24;

    (iii)

    Part V of the Banking Act 1987 M25; or

    (iv)

    SRO rules;

    which imposes restrictions on the disclosure of information, or creates exceptions or qualifications to such restrictions; or

    (b)

    regulation 48 of the Investment Services Regulations 1995 M26;

  • “recognised self-regulating organisation" means a body which immediately before the coming into force of section 348 of the Act was a recognised self-regulating organisation within the meaning of section 8(1) of the Financial Services Act 1986, or a recognised self-regulating organisation for friendly societies within the meaning of Schedule 11 to that Act;

  • [F153“single market information” has the meaning given in regulation 2 of these Regulations as it had effect immediately before IP completion day;]

  • [F154“single market restrictions” has the meaning given in regulation 2 of these Regulations as it had effect immediately before IP completion day;]

  • “SRO rules" means the rules of a recognised self-regulating organisation;

  • “transitional information" means information which immediately before the coming into force of section 19 of the Act was subject to restrictions on disclosure by virtue of a pre-commencement provision.

Textual Amendments

Marginal Citations

M26S.I. 1995/3275. Regulation 48 was amended by Regulation 11 of S.I. 1996/1669.

Disclosure of pre-commencement informationU.K.

14.—(1) Before the coming into force of section 19 of the Act, each pre-commencement provision is to be treated as permitting the disclosure of pre-commencement information—

(a)in accordance with regulation 3(1) as if it were confidential information;

(b)to the Authority, the Secretary of State or the Treasury for the purpose referred to in regulation 3(2);

(c)to any person for the purposes referred to in regulation 4; and

(d)to—

(i)a person mentioned in regulation 5(3) for the purpose referred to in regulation 5(1)(a); or

(ii)any person for the purposes referred to in regulation 5(1)(b),

but only if the proceedings in question are of the kind referred to in regulation 5(6)(a), (b) or (c).

(2) Paragraph (1) is not to be taken as—

(a)precluding disclosure of pre-commencement information where that is otherwise permitted under the pre-commencement provision in question; or

(b)permitting disclosure in contravention of any of the [F155single market restrictions].

Textual Amendments

Disclosure of transitional informationU.K.

15.—(1) After the coming into force of section 19 of the Act, sections 348, 349 and 352 of the Act apply in relation to transitional information in the same way as they apply in relation to confidential information within the meaning of section 348(2) of the Act.

(2) Paragraph (1) does not apply to transitional information which—

(a)has been made available to the public by virtue of being disclosed in any circumstances in which, or for any purposes for which, disclosure is not precluded by section 348 of the Act or a pre-commencement provision; or

(b)satisfies the criterion set out in section 348(4)(b) of the Act.

(3) For the purposes of sections 348 and 349 of the Act as they apply by virtue of paragraph (1)—

(a)a person who holds transitional information is to be treated as a primary recipient of the information if he—

(i)obtained it as mentioned in paragraph 1(2) or 5(1)(a) of Schedule 2B to the Insurance Companies Act 1982 M27;

(ii)was a primary recipient of the information for the purposes of section 179 of the Financial Services Act 1986 M28;

[F156(iia)obtained or received it as mentioned in subsection (5) of that section;]

(iii)received it as mentioned in section 82(1)(a) of the Banking Act 1987 M29; or

(iv)received it as mentioned in regulation 48(1) of the Investment Services Regulations 1995 M30;

(b)any other person who holds transitional information is to be treated as having obtained the information directly or indirectly from a primary recipient.

(4) Transitional information which is subject to [F157single market restrictions] F158... is to be treated for the purposes of these Regulations as [F159single market information] F158....

(5) Part IV of these Regulations does not apply to transitional information which is subject to [F160single market restrictions] imposed by [F161article 107.3] of the listing particulars directive.

Textual Amendments

Marginal Citations

M27Paragraphs 1(2) and 5(1)(a) were modified by S.I. 1997/2781, art. 8, Sch. paras. 53 and 57(a)(i).

M30S.I. 1995/3275. Regulation 48 was amended by Regulation 11 of S.I. 1996/1669.

Disclosure by recognised self-regulating organisationsU.K.

16.  If a recognised self-regulating organisation discloses any information to the Authority for the purpose of enabling or assisting the Authority to discharge functions corresponding to functions of the organisation, the disclosure is not to be taken as a contravention of any duty to which the organisation is subject.

[F162Investment services directive information: transitional provisionU.K.

17.  In these Regulations confidential information received by the Authority in the course of discharging its functions as an EEA competent authority under Council Directive 93/22/EEC of 10th May 1993 on investment services in the securities field shall be deemed to have been received by the Authority in the course of discharging its functions as an EEA competent authority under [F163Directive 2004/39/EC of the European Parliament and of the Council of 21st April 2004 on markets in financial instruments].]

Textual Amendments

[F164CHAPTER 2U.K.Transitional Provision Applicable on or after IP completion day

Textual Amendments

Transitional provision applicable on or after IP completion dayU.K.

18.  Confidential information received before IP completion day by a primary recipient or any person obtaining the information directly or indirectly from a primary recipient shall continue to be treated, on or after IP completion day, as if that information had been received by that person in accordance with the relevant EU Regulations, directives or these Regulations as they had effect immediately before IP completion day.]

Gordon Brown

David Jamieson

Two of the Lords Commissioners of Her Majesty’s Treasury

15th June 2001

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