“(3)

The exclusion in paragraph (1) does not apply to an activity carried on by a person (“P”) if—

(a)

the FCA13 has given a final notice to P under section 390 of the Act14, as applied by regulation 11C of the Electronic Commerce Directive (Financial Services and Markets) Regulations 200215, in relation to that activity; and

(b)

a determination made by that notice is in effect.”.