Civil penalties – where no determination made before 1st April 2014U.K.
44.—(1) Paragraphs (2) to (7) apply if, before 1st April 2014—
(a)the OFT had given a notice under section 39B(1) of the 1974 Act (notice that OFT is minded to impose a civil penalty) M1 to a person (“A”) that it is minded to impose a penalty on A under section 39A of the 1974 Act (power to impose civil penalties) M2, and
(b)the OFT had not before 1st April 2014—
(i)given A a penalty notice under section 39A of the 1974 Act, or
(ii)given notice to A under section 34 of the 1974 Act of its determination not to give such a penalty notice.
(2) The notice is to be treated as a warning notice given by the FCA to A under section 207(1)(b) of the Act M3 (except for the purposes of sections 210 (statements of policy) [F1, 387 (warning notices), 392(a) (application of sections 393 and 394), in so far as it applies to section 393 (third party rights), and 393 of the Act] which do not apply).
(3) The notice has effect subject to any necessary modifications.
(4) For the purposes of this article, each reference in Part 14 of the Act and any provision made under Part 14 of the Act to an “authorised person” is to be treated as including a reference to A.
(5) If the period for making representations under section 34 of the 1974 Act in connection with that notice had not expired before 1st April 2014, subsections (1) and (2) of that section continue to apply as if—
(a)in subsection (1), references to the OFT (apart from the first reference) were references to the FCA or, before 1st April 2014, the OFT;
(b)in subsection (2), the reference to the OFT was to the FCA.
(6) In determining what if any financial penalty to impose on A, the FCA must have regard to—
(a)any penalty or fine that has been imposed on A by another body in relation to the conduct giving rise to the possible imposition of the penalty;
(b)other steps the OFT or FCA has taken, or the FCA might take, in relation to that conduct;
(c)the statement of policy prepared by the OFT under section 39C of the 1974 Act M4 as most recently published at the time the conduct occurred.
(7) The financial penalty imposed on A by the FCA in relation to each failure to comply with a requirement may not exceed £50,000.
(8) Section 210 of the Act (statement of policy) does not apply to a penalty imposed by the FCA by virtue of this article.
Textual Amendments
F1Words in art. 44(2) substituted (1.4.2014) by The Financial Services and Markets Act 2000 (Consumer Credit) (Transitional Provisions) Order 2014 (S.I. 2014/376), arts. 1, 8
Marginal Citations
M1Inserted by the Consumer Credit Act 2006, section 53.
M2Inserted by the Consumer Credit Act 2006, section 52.
M3Amended by the Financial Services Act 2010, Schedule 2, paragraphs 1 and 18, and the Financial Services Act 2012, Schedule 9, paragraphs 1 and 14.
M4Inserted by the Consumer Credit Act 2006, section 54.