PART 1GENERAL
Application of the Regulations3
1
Subject to regulation 4, these Regulations apply to the following persons acting in the course of business carried on by them in the United Kingdom (“relevant persons”)—
a
credit institutions;
b
financial institutions;
c
auditors, insolvency practitioners, external accountants and tax advisers;
d
independent legal professionals;
e
trust or company service providers;
f
estate agents;
g
high value dealers;
h
casinos.
F31A
Regulations 2, 20, 21, 23, 24, 35 to 42, and 44 to 48 apply to an auction platform acting in the course of business carried on by it in the United Kingdom, and such an auction platform is a relevant person for the purposes of those provisions.
2
“Credit institution” means—
a
a credit institution as defined in F1Article 4(1) of the banking consolidation directive; or
b
a branch (within the meaning of Article 4(3) of that directive) located in an EEA state of an institution falling within sub-paragraph (a) (or an equivalent institution whose head office is located in a non-EEA state) wherever its head office is located,
when it accepts deposits or other repayable funds from the public or grants credits for its own account (within the meaning of the banking consolidation directive)F5, or when it bids directly in auctions in accordance with the emission allowance auctioning regulation on behalf of its clients.
3
“Financial institution” means—
a
an undertaking, including a money service business, when it carries out one or more of the activities listed in points 2 to 12F2, 14 and 15 of Annex 1 to the banking consolidation directive (the relevant text of which is set out in Schedule 1 to these Regulations), other than—
i
a credit institution;
F10ii
an undertaking whose only listed activity is as a creditor under an agreement which—
aa
falls within section 12(a) of the Consumer Credit Act 1974 (debtor-creditor-supplier agreements),
bb
provides fixed sum credit (within the meaning given in section 10 of the Consumer Credit Act 1974 (running-account credit and fixed-sum credit)) in relation to the provision of services, and
cc
provides financial accommodation by way of deferred payment or payment by instalments over a period not exceeding 12 months;
F9iii
an undertaking whose only listed activity is trading for own account in one or more of the products listed in point 7 of Annex 1 to the banking consolidation directive where the undertaking does not have a customer,
and, for this purpose, “customer” means a third party which is not a member of the same group as the undertaking;
b
an insurance company duly authorised in accordance with the life assurance consolidation directive, when it carries out activities covered by that directive;
F7c
a person, other than a person falling within Article 2 of the markets in financial instruments directive, whose regular occupation or business is the provision to other persons of an investment activity on a professional basis, when providing or performing investment services or activities (within the meaning of that directive) or when bidding directly in auctions in accordance with the emission allowance auctioning regulation on behalf of clients;
F6ca
a person falling within Article 2(1)(i) of the markets in financial instruments directive, when bidding directly in auctions in accordance with the emission allowance auctioning regulation on behalf of clients of the person’s main business.
d
a collective investment undertaking, when marketing or otherwise offering its units or shares;
e
an insurance intermediary as defined in Article 2(5) of Directive 2002/92/EC of the European Parliament and of the Council of 9th December 2002 M1 on insurance mediation, with the exception of a tied insurance intermediary as mentioned in Article 2(7) of that Directive, when it acts in respect of contracts of long-term insurance within the meaning given by article 3(1) of, and Part II of Schedule 1 to, the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 M2;
f
a branch located in an EEA state of a person referred to in sub-paragraphs (a) to (e) (or an equivalent person whose head office is located in a non-EEA state), wherever its head office is located, when carrying out any activity mentioned in sub-paragraphs (a) to (e);
g
the National Savings Bank;
h
the Director of Savings, when money is raised under the auspices of the Director under the National Loans Act 1968 M3.
4
“Auditor” means any firm or individual who is a statutory auditor within the meaning of Part 42 of the Companies Act 2006 M4 (statutory auditors), when carrying out statutory audit work within the meaning of section 1210 of that Act.
5
Before the entry into force of Part 42 of the Companies Act 2006 the reference in paragraph (4) to—
a
b
the carrying out of statutory audit work shall be treated as a reference to the provision of audit services.
6
7
“External accountant” means a firm or sole practitioner who by way of business provides accountancy services to other persons, when providing such services.
8
“Tax adviser” means a firm or sole practitioner who by way of business provides advice about the tax affairs of other persons, when providing such services.
9
“Independent legal professional” means a firm or sole practitioner who by way of business provides legal or notarial services to other persons, when participating in financial or real property transactions concerning—
a
the buying and selling of real property or business entities;
b
the managing of client money, securities or other assets;
c
the opening or management of bank, savings or securities accounts;
d
the organisation of contributions necessary for the creation, operation or management of companies; or
e
the creation, operation or management of trusts, companies or similar structures,
and, for this purpose, a person participates in a transaction by assisting in the planning or execution of the transaction or otherwise acting for or on behalf of a client in the transaction.
10
“Trust or company service provider” means a firm or sole practitioner who by way of business provides any of the following services to other persons—
a
forming companies or other legal persons;
b
acting, or arranging for another person to act—
i
as a director or secretary of a company;
ii
as a partner of a partnership; or
iii
in a similar position in relation to other legal persons;
c
providing a registered office, business address, correspondence or administrative address or other related services for a company, partnership or any other legal person or arrangement;
d
acting, or arranging for another person to act, as—
i
a trustee of an express trust or similar legal arrangement; or
ii
a nominee shareholder for a person other than a company whose securities are listed on a regulated market,
when providing such services.
11
“Estate agent” means—
a
a firm; or
b
sole practitioner,
who, or whose employees, carry out estate agency work F11..., when in the course of carrying out such work.
F811A
For the purposes of paragraph (11) “estate agency work” is to be read in accordance with section 1 of the Estate Agents Act 1979 (estate agency work), but for those purposes references in that section to disposing of or acquiring an interest in land are (despite anything in section 2 of that Act) to be taken to include references to disposing of or acquiring an estate or interest in land outside the United Kingdom where that estate or interest is capable of being owned or held as a separate interest.
12
“High value dealer” means a firm or sole trader who by way of business trades in goods (including an auctioneer dealing in goods), when he receives, in respect of any transaction, a payment or payments in cash of at least 15,000 euros in total, whether the transaction is executed in a single operation or in several operations which appear to be linked.
13
“Casino” means the holder of a casino operating licence and, for this purpose, a “casino operating licence” has the meaning given by section 65(2) of the Gambling Act 2005 M9 (nature of licence).
F413A
“Auction platform” means a platform which auctions two-day spot or five-day futures, within the meanings given by Article 3(4) and (5) of the emission allowance auctioning regulation, when it carries out activities covered by that regulation.
14
In the application of this regulation to Scotland, for “real property” in paragraph (9) substitute “
heritable property
”
.