The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013

CHAPTER 2 Notices under Part 4, sections 189, 191A, 197 and 321, and paragraph 19 of Schedule 3

Determination of applications under Part 4: warning notices given by the Authority

26.—(1) This article applies where, before the commencement date, the Authority—

(a) gave a warning notice under section 52(6) or (7)(1) (determination of applications); and

(b) had not given a decision notice or a written notice following that warning notice.

(2) The warning notice is to be treated as if it had been given by the relevant regulator under—

(a) section 55X(1)(a) (determination of applications: warning notices and decision notices), where the notice was given by the Authority under section 52(6)(a) and the Authority proposed to exercise its power under section 42(7)(a) or (b) (giving permission);

(b) section 55X(1)(b) and (e), where the notice was given by the Authority under section 52(6)(a) and the Authority proposed to exercise its power under section 43(1) (imposition of requirements);

(c) section 55X(1)(c), where the notice was given by the Authority under section 52(6)(b) and the Authority proposed to exercise its power under section 42(7)(a) or (b);

(d) section 55X(1)(d) and (e), where the notice was given by the Authority under section 52(6)(b) and the Authority proposed to exercise its power under section 43(1);

(e) section 55X(2), where the notice was given by the Authority under section 52(7).

(3) Where the relevant regulator is the PRA—

(a) any representations made to the Authority before the commencement date in respect of the warning notice are to be treated as if they had been made to the PRA; and

(b) if the period for making representations in respect of the warning notice had not expired before the commencement date, representations are to be made to the PRA.

(4) In this article, the “relevant regulator” means—

(a) in relation to section 55X(1)(e), the FCA; and

(b) in relation to section 55X(1)(a), (b), (c) and (d) and (2)—

(i) the PRA, if the application to which the warning notice relates would have been made to the PRA as the appropriate regulator within the meaning of section 55A had the application been made on the commencement date; and

(ii) in any other case, the FCA.

(5) For the purposes of paragraph (2)(b) and (d)—

(a) the service of a notice of discontinuance by the PRA in relation to part or the whole of the warning notice does not affect the validity of the notice in relation to the FCA for the purposes of section 55X(1)(e); and

(b) the service of a notice of discontinuance by the FCA in relation to its exercise of its power under section 55L (imposition of requirements by FCA) does not affect the validity of the notice in relation to the PRA for the purposes of section 55X(1)(b) or (d).

Determination of applications under Part 4: decision notices given by the Authority

27.—(1) This article applies where before the commencement date, the Authority—

(a) gave a decision notice under section 52(9); and

(b) had not given a final notice on taking the action to which the decision notice related.

(2) The decision notice is to be treated as if it had been given by the relevant regulator under—

(a) section 55X(4)(a), where the notice was given by the Authority under section 52(9)(a) and the Authority decided to exercise its power under section 42(7)(a) or (b);

(b) section 55X(4)(b) and (e), where the notice was given by the Authority under section 52(9)(a) and the Authority decided to exercise its power under section 43(1);

(c) section 55X(4)(c), where the notice was given by the Authority under section 52(9)(b) and the Authority decided to exercise its power under section 42(7)(a) or (b);

(d) section 55X(4)(d) and (e), where the notice was given by the Authority under section 52(9)(b) and the Authority decided to exercise its power under section 43(1);

(e) section 55X(4)(f), where the notice was given by the Authority under section 52(9)(c).

(3) In this article, the “relevant regulator” means—

(a) where the decision notice had been referred to the Tribunal before the commencement date, the FCA; and

(b) where the decision notice had not been referred to the Tribunal before the commencement date—

(i) in relation to section 55X(4)(e), the FCA; and

(ii) in relation to section 55X(4)(a), (b), (c), (d) and (f)—

(aa) the PRA, if the application to which the decision notice relates would have been made to the PRA as the appropriate regulator within the meaning of section 55A (application for permission) had the application been made on the commencement date; and

(bb) in any other case, the FCA.

(4) For the purposes of paragraph (2)(b) and (d)—

(a) the service of a notice of discontinuance by the PRA in relation to part or the whole of the decision notice does not affect the validity of the notice in relation to the FCA for the purposes of section 55X(4)(e); and

(b) the service of a notice of discontinuance by the FCA in relation to its exercise of its power under section 55L does not affect the validity of the decision notice in relation to the PRA for the purposes of section 55X(4)(b) or (d).

Exercise of own-initiative power under Part 4: procedure

28.—(1) This article applies where—

(a) the Authority gave a written notice under section 53 before the commencement date; and

(b) (i) the variation was expressed to take effect before the commencement date and the period for making representations in respect of the notice had not expired before the commencement date, or

(ii) the date on which the variation is expressed to take effect is, or is after, the commencement date.

(2) A written notice given under—

(a) section 53(4) is to be treated as if it had been given under section 55Y(4);

(b) section 53(7) is to be treated as if it had been given under section 55Y(7);

(c) section 53(8)(b) is to be treated as if it had been given under section 55Y(8)(b).

(3) The written notice is to be treated as if it had been given by the FCA except to the extent that the FCA—

(a) makes a transfer election in relation to the notice or part of the notice in accordance with this Order; or

(b) is treated as having made such a transfer election.

(4) The FCA is to be treated as having made such a transfer election where—

(a) paragraph (1)(b)(i) applies; and

(b) the variation is to be treated as if it had been imposed by the PRA under section 55M (imposition of requirements by PRA) by virtue of an order made under section 119(3).

Cancellation of permission under Part 4: notices given by the Authority

29.—(1) Paragraph (2) applies where, before the commencement date, the Authority—

(a) gave a warning notice under section 54(1) (cancellation of Part 4 permission: procedure); and

(b) had not given a decision notice or a notice of discontinuance following that warning notice.

(2) The warning notice is to be treated as if it had been given by the relevant regulator under section 55Z(1) (cancellation of Part 4A permission: procedure).

(3) Paragraph (4) applies where, before the commencement date, the Authority—

(a) gave a decision notice under section 54(2); and

(b) had not given a final notice or a notice of discontinuance following that decision notice.

(4) The decision notice is to be treated as if it had been given by the relevant regulator under section 55Z(2).

(5) In this article, the “relevant regulator” means the FCA unless the FCA makes a transfer election in accordance with this Order in relation to the relevant notice.

Control over authorised persons

30.—(1) Paragraphs (2), (3) and (4) apply if—

(a) before the commencement date, the Authority—

(i) gave a warning notice under—

(aa) section 189(4)(b)(2) (assessment: procedure), or

(bb) section 191A(4) (objection by the Authority), and

(ii) had not given a decision notice or a notice of discontinuance following that warning notice; and

(b) the warning notice relates to the acquisition of, or increase in, control over a UK authorised person who is, on the commencement date, a PRA-authorised person.

(2) The warning notice is to be treated as if it had been given by the PRA.

(3) Any representations made to the Authority before the commencement date in respect of the warning notice are to be treated as if they had been made to the PRA.

(4) If the period for making representations in respect of the warning notice had not expired before the commencement date, representations are to be made to the PRA.

(5) Paragraph (6) applies if—

(a) before the commencement date, the Authority—

(i) gave a decision notice under—

(aa) section 189(7), or

(bb) section 191A(6), and

(ii) had not given a final notice on taking the action to which the decision notice related or a notice of discontinuance; and

(b) the decision notice relates to the acquisition of, or increase in, control over a UK authorised person who is, on the commencement date, a PRA-authorised person.

(6) The decision notice is to be treated as if it had been given by the PRA.

Variation or revocation of requirements imposed on former underwriting members

31.—(1) Paragraphs (2), (3) and (4) apply if—

(a) before the commencement date, the Authority gave a warning notice under section 321(8)(3) (requirements imposed under section 320), and

(b) had not given a decision notice or a notice of discontinuance following that warning notice.

(2) The warning notice is to be treated as if it had been given by the PRA.

(3) Any representations made to the Authority before the commencement date in respect of the warning notice are to be treated as if they had been made to the PRA.

(4) If the period for making representations in respect of the warning notice had not expired before the commencement date, representations are to be made to the PRA.

(5) Paragraph (6) applies if—

(a) before the commencement date, the Authority gave a decision notice under section 321(9), and

(b) had not given a final notice on taking the action to which the decision notice related or a notice of discontinuance.

(6) The decision notice is to be treated as if it had been given by the PRA.

(7) This article does not apply in the event that, on the commencement date, the activity of effecting or carrying out contracts of insurance as principal is not to any extent a PRA-regulated activity.

UK firm seeking to establish a branch

32.—(1) This article applies where—

(a) before the commencement date, the Authority received a notice of intention within the meaning of paragraph 19(2)(4) of Schedule 3 (establishment); and

(b) the notice would have been sent to the PRA as the appropriate UK regulator (within the meaning of paragraph 18A(5) of that Schedule (meaning of “the appropriate UK regulator”)) had the notice been sent on the commencement date.

(2) Paragraph (3) applies if, before the commencement date, the Authority—

(a) gave a warning notice under paragraph 19(8) of Schedule 3; and

(b) had not given a decision notice or a notice of discontinuance following that warning notice.

(3) The warning notice is to be treated as if it had been given by the PRA.

(4) Paragraph (5) applies if, before the commencement date—

(a) the Authority—

(i) gave a decision notice under paragraph 19(12) of that Schedule; and

(ii) had not given a final notice or notice of discontinuance following that decision notice; and

(b) the decision notice was not referred to the Tribunal.

(5) The decision notice is to be treated as if it had been given by the PRA.

(1)

Sections 55A to 55Z4 are substituted for sections 40 to 55 by the 2012 Act, section 11.

(2)

Section 178, 189 and 191A were substituted by S.I. 2009/534 and are amended by the 2012 Act, section 26.

(3)

Section 321 is amended by the 2012 Act, section 40.

(4)

Paragraph 19 was amended by S.I. 2003/1473 and 2066, 2007/126 and 3253, 2011/1613, 2012/916 and 1906 and is further amended by the 2012 Act, Schedule 4, Part 1, paragraph 10.

(5)

Paragraph 18A is inserted by the 2012 Act, Schedule 4, Part 1, paragraph 9.