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The Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017

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PART 1U.K.Introduction

Citation and commencementU.K.

1.—(1) These Regulations may be cited as the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.

(2) These Regulations come into force on 26th June 2017.

Prescribed regulationsU.K.

2.  These Regulations are prescribed for the purposes of sections 168(4)(b) (appointment of persons to carry out investigations in particular cases) and 402(1)(b) (power of the FCA to institute proceedings for certain other offences) of the Financial Services and Markets Act 2000 M1.

Marginal Citations

M12000 c.8. Section 168(4)(b) was amended by Part 1 of Schedule 12 to the Financial Services Act 2012 (c.21); and section 402(1) was amended by Parts 1 and 7 of Schedule 9 to the Financial Services Act 2012.

General interpretationU.K.

3.—(1) In these Regulations—

“Annex 1 financial institution” has the meaning given by regulation 55(2);

“appropriate body” means any body which regulates or is representative of any trade, profession, business or employment carried on by a relevant person;

[F1“art market participant” has the meaning given by regulation 14(1)(d);]

“auction platform” has the meaning given by regulation 14(1)(c);

“auditor” (except in regulation 31(4)) has the meaning given by regulation 11(a);

“authorised person” means a person who is authorised for the purposes of FSMA;

“the FCA” means the Financial Conduct Authority;

“beneficial owner”—

(a)

in the case of a body corporate or partnership, has the meaning given by regulation 5;

(b)

in the case of a trust or similar arrangement, or the estate of a deceased person in the course of administration, has the meaning given by regulation 6;

(c)

in any other case, has the meaning given by regulation 6(9);

“body corporate”—

(a)

includes—

(i)

a body corporate incorporated under the laws of the United Kingdom or any part of the United Kingdom, and

(ii)

a body corporate constituted under the law of a country or territory outside the United Kingdom;

(b)

but does not include—

(i)

a corporation sole, or

(ii)

a partnership that, whether or not a legal person, is not regarded as a body corporate under the law by which it is governed;

“bill payment service provider” means an undertaking which provides a payment service enabling the payment of utility and other household bills;

“branch”, except where the context otherwise requires, means a place of business that forms a legally dependent part of the entity in question and conducts directly all or some of the operations inherent in its business;

“business relationship” has the meaning given by regulation 4;

F2...

[F3“the capital requirements regulation” means Regulation (EU) No. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms;]

“cash” means notes, coins or travellers' cheques, in any currency;

“casino” has the meaning given by regulation 14(1)(b);

“the Commissioners” means the Commissioners for Her Majesty's Revenue and Customs;

“contract of long-term insurance” means any contract falling within Part 2 of Schedule 1 to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 M2;

“correspondent relationship” has the meaning given by regulation 34(4);

“credit institution” has the meaning given by regulation 10(1);

[F4“cryptoasset exchange provider” has the meaning given by regulation 14A(1);

“custodian wallet provider” has the meaning given by regulation 14A(2);]

“customer due diligence measures” means the measures required by regulation 28, and where relevant, those required by regulations 29 and 33 to 37;

[F5“the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);]

“Department for the Economy” means the Department for the Economy in Northern Ireland;

“designated supervisory authority” has the meaning given by regulation 76(8);

“document” means anything in which information of any description is recorded;

“electronic money” has the meaning given by regulation 2(1) of the Electronic Money Regulations 2011 M3;

“electronic money institution” has the meaning given by regulation 2(1) of the Electronic Money Regulations 2011;

“electronic money issuer” has the meaning given in regulation 2(1) of the Electronic Money Regulations 2011;

“eligible Scottish partnership” has the meaning given in regulation 3 of the Scottish Partnerships (Register of People with Significant Control) Regulations 2017 (key terms) M4;

“the emission allowance auctioning regulation” means Commission Regulation (EU) No 1031/2010 of 12th November 2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowances trading within the Community M5;

“enactment” includes—

(a)

an enactment contained in subordinate legislation;

(b)

an enactment contained in, or in an instrument made under, an Act of the Scottish Parliament;

(c)

an enactment contained in, or in an instrument made under, a Measure or Act of the National Assembly for Wales; and

(d)

an enactment contained in, or in an instrument made under, Northern Ireland legislation;

“enhanced customer due diligence measures” means the customer due diligence measures required under regulations 33 to 35;

“estate agent” has the meaning given by regulation 13(1);

F6...

“external accountant” (except in regulation 31(4)) has the meaning given by regulation 11(c);

“financial institution” has the meaning given by regulation 10(2);

“firm” means any entity that, whether or not a legal person, is not an individual and includes a body corporate and a partnership or other unincorporated association;

“fourth money laundering directive” means Directive 2015/849/EU of the European Parliament and of the Council of 20th May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing M6[F7, as amended by Directive 2018/843 of the European Parliament and of the Council of 30th May 2018]M7;

“FSMA” means the Financial Services and Markets Act 2000 M8;

“funds transfer regulation” means Regulation 2015/847/EU of the European Parliament and of the Council of 20th May 2015 on information accompanying transfers of funds M9;

F8...

“group” has the meaning given by section 421 (group) of FSMA M10;

“high value dealer” has the meaning given by regulation 14(1)(a);

“independent legal professional” has the meaning given by regulation 12(1);

“insolvency practitioner” has the meaning given by regulation 11(b);

“law enforcement authority” has the meaning given by regulation 44(10);

[F9“letting agent” has the meaning given by regulation 13(3);]

“local weights and measures authority” has the meaning given by section 69 of the Weights and Measures Act 1985 (local weights and measures authorities) M11;

“manager”, in relation to a firm, means a person who has control, authority or responsibility for managing the business of that firm, and includes a nominated officer;

“markets in financial instruments directive” means Directive 2014/65/EU of the European Parliament and of the Council of 15th May 2014 on markets in financial instruments M12;

[F10“markets in financial instruments regulation” means Regulation (EU) 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments (as that Regulation forms part of domestic law under section 3 of the European Union (Withdrawal) Act 2018);]

“money laundering” has the meaning given by section 340(11) of the Proceeds of Crime Act 2002 M13;

“money service business” means an undertaking which by way of business operates a currency exchange office, transmits money (or any representation of monetary value) by any means or cashes cheques which are made payable to customers;

“the NCA” means the National Crime Agency;

“nominated officer” means a person who is nominated to receive disclosures under Part 3 (terrorist property) of the Terrorism Act 2000 M14 or Part 7 (money laundering) of the Proceeds of Crime Act 2002;

“notice” means a notice in writing;

“occasional transaction” means a transaction which is not carried out as part of a business relationship;

“officer”, except in Part 8 and Schedule 5—

(a)

in relation to a body corporate, means—

(i)

a director, secretary, chief executive, member of the committee of management, or a person purporting to act in such a capacity, or

(ii)

an individual who is a controller of the body, or a person purporting to act as a controller;

(b)

in relation to an unincorporated association, means any officer of the association or any member of its governing body, or a person purporting to act in such a capacity; and

(c)

in relation to a partnership, means a partner, and any manager, secretary or similar officer of the partnership, or a person purporting to act in such a capacity;

“ongoing monitoring” (except where the context otherwise requires) means at least the measures described in regulation 28(11);

“payment services” has the meaning given by regulation 2(1) of the Payment Services Regulations [F112017];

“payment service provider” has the meaning given in regulation 2(1) of the Payment Services Regulations [F112017];

“politically exposed person” or “PEP” has the meaning given by regulation 35(12);

“the PRA” means the Prudential Regulation Authority;

“PRA-authorised person” has the meaning given by section 2B(5) of FSMA M15;

[F12“proliferation financing” has the meaning given by regulation 16A(9);]

“regulated market”—

(a)

[F13within the United Kingdom, means a UK regulated market, as defined by Article 2(1)(13A) of the markets in financial instruments regulation;] and

(b)

[F14outside the United Kingdom, means—

(i)

within the EEA, an EU regulated market, as defined by Article 2(1)(13B) of the markets in financial instruments regulation; or

(ii)

outside the EEA, a regulated financial market which subjects companies whose securities are admitted to trading to disclosure obligations which are equivalent to the specified disclosure obligations;]

“relevant parent undertaking” means a relevant person which is a parent undertaking;

“relevant person” means a person to whom, in accordance with regulation 8, Parts 1 to 6 [F15, 7A] and 8 to 11 of these Regulations apply;

“relevant requirement” has the meaning given by regulation 75;

“self-regulatory organisation” means one of the professional bodies listed in Schedule 1 to these Regulations;

“senior management” means an officer or employee of the relevant person with sufficient knowledge of the relevant person's [F16money laundering, terrorist financing and proliferation financing] risk exposure, and of sufficient authority, to take decisions affecting its risk exposure;

F17...M16

“specified disclosure obligations” means—

(a)

disclosure obligations set out in Articles 17 and 19 of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16th April 2014 on market abuse M17;

(b)

[F18disclosure obligations consistent with the requirements in—

(i)

sections 85, 87A and 87G of FSMA;

(ii)

prospectus rules within the meaning of Part 6 of FSMA (see section 73A(4) of FSMA) as those rules have effect on IP completion day;

(iii)

Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market; and

(iv)

Articles 6 to 10 of Commission Delegated Regulation (EU) 2016/301 of 30 November 2015 supplementing Directive 2003/71/EC of the European Parliament and of the Council with regard to regulatory technical standards for approval and publication of the prospectus and dissemination of advertisements and amending Commission Regulation (EC) No 809/2004; and]

(c)

[F19disclosure obligations consistent with the requirements in sections 4 and 5.5 of, and rules 6.1.1 to 6.1.15 in, the Disclosure Guidance and Transparency Rules source book made by the FCA under section 89A of FSMA as those rules have effect on IP completion day;] and

(d)

F20...

“supervisory authority” in relation to—

(a)

any relevant person, means the supervisory authority specified for such a person by regulation 7;

(b)

any payment service provider, means the transfer of funds supervisory authority;

“supervisory functions” means the functions given to a supervisory authority under these Regulations;

“tax adviser” (except in regulation 31(4)) has the meaning given by regulation 11(d);

“telecommunication, digital and IT payment service provider” has the meaning given by regulation 53;

“terrorist financing” means (except where the context otherwise requires) an act which constitutes an offence under—

(a)

section 15 (fund-raising), 16 (use and possession), 17 (funding arrangements), 18 (money laundering) or 63 (terrorist finance: jurisdiction) of the Terrorism Act 2000 M18;

(b)

paragraph 7(2) or (3) of Schedule 3 (freezing orders: offences) to the Anti-terrorism, Crime and Security Act 2001 M19;

(c)

[F21regulations 8 to 13, 25 or 26 of the ISIL (Da'esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019 or regulations 11 to 16 of the Counter-Terrorism (International Sanctions) (EU Exit) Regulations 2019;]; or

(ca)

[F22any of regulations 11 to 16 of the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019;]

(d)

F23...

“third country” means a state other than [F24the United Kingdom];

“transfer of funds supervisory authority” means the supervisory authority specified for payment service providers in regulation 62;

“trust or company service provider” has the meaning given in regulation 12(2).

[F25“UK auctioning regulations” means the Greenhouse Gas Emissions Trading Scheme Auctioning Regulations 2021;]

[F26“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);]

[F27“UK regulated market” means a recognised investment exchange within the meaning of section 285(1)(a) of FSMA, which is not an overseas investment exchange within the meaning of section 313(1) of FSMA.]

(2) In these Regulations—

(a)references to an amount in euros includes reference to an equivalent amount in any currency;

(b)the equivalent in sterling (or any other currency) on a particular day of a sum expressed in euros is determined by converting the sum in euros into its equivalent in sterling or that other currency using the London closing exchange rate for the euro and the relevant currency for the previous working day;

(c)references to “real property” include, in relation to Scotland, references to heritable property;

(d)references to business being carried on in the United Kingdom, or a person carrying on business in the United Kingdom, are to be read in accordance with regulation 9;

(e)references to a person having a “qualifying relationship” with a PRA-authorised person, or with an authorised person are to be read in accordance with section 415B(4) of FSMA M20;

(f)“parent undertaking” and “subsidiary undertaking” have the same meaning as in the Companies Acts (see section 1162 of and Schedule 7 to, the Companies Act 2006 (parent and subsidiary undertaking) M21).

Textual Amendments

F21Words in reg. 3(1) substituted (31.12.2020 immediately after IP completion day) by The Sanctions (EU Exit) (Miscellaneous Amendments) Regulations 2020 (S.I. 2020/591), regs. 1(2), 10(2); S.I. 2020/1514, reg. 5

F22Words in reg. 3(1) inserted (31.12.2020 immediately after IP completion day) by S.I. 2019/577, reg. 34D(2) (as inserted by The Sanctions (EU Exit) (Consequential Provisions) (Amendment) Regulations 2020 (S.I. 2020/1289), regs. 1(2), 4(2); S.I. 2020/1514, reg. 21)

Marginal Citations

M2S.I. 2001/544. Part 2 of Schedule 1 was amended by S.I. 2005/2114 and 2015/575.

M5OJ L 302, 18.11.2010, p.1.

M6OJ L 141, 05.06.15, p. 73.

M7OJ L 156, 19.06.2018, p.43-74.

M9OJ L 141, 05.06.2015, p.1.

M10Section 421 was amended by S.I. 2008/948.

M111985 c.72. Section 69 was amended by Part 4 of Schedule 1 to the Statute Law (Repeals) Act 1989 (c. 43); paragraph 75 of Schedule 16 to the Local Government (Wales) Act 1994 (c. 19) and paragraph 144 of Schedule 13 to the Local Government etc (Scotland) Act 1994 (c.39).

M12OJ L 173, 12.06.2014, p.349.

M15Section 2B was substituted, with the rest of Part 1A of the Financial Services and Markets Act 2000 (c.8) for the original Part 1 of that Act by section 6(1) of the Financial Services Act 2012 (c.21).

M16OJ L 138, 23.05.2014, p.1.

M17OJ L 173, 12.6.2014, p.1.

M20Section 415B was inserted by paragraph 41 of Schedule 9 to the Financial Services Act 2012 (c.21).

Meaning of business relationshipU.K.

4.—(1) For the purpose of these Regulations, “business relationship” means a business, professional or commercial relationship between a relevant person and a customer, which—

(a)arises out of the business of the relevant person, and

(b)is expected by the relevant person, at the time when contact is established, to have an element of duration.

[F28(2) A relationship where the relevant person is asked to provide one or more of the services described in regulation 12(2)(a), (b) or (d) is to be treated as a business relationship for the purpose of these Regulations, whether or not the relationship is otherwise expected to have an element of duration.]

(3) For the purposes of these Regulations, an estate agent is to be treated as entering into a business relationship with a purchaser (as well as with a seller), at the point when the purchaser's offer is accepted by the seller.

Textual Amendments

Meaning of beneficial owner: bodies corporate or partnershipU.K.

5.—(1) In these Regulations, “beneficial owner”, in relation to a body corporate which is not a company whose securities are listed on a regulated market, means—

(a)any individual who exercises ultimate control over the management of the body corporate;

(b)any individual who ultimately owns or controls (in each case whether directly or indirectly), including through bearer share holdings or by other means, more than 25% of the shares or voting rights in the body corporate; or

(c)an individual who controls the body corporate.

(2) For the purposes of paragraph (1)(c), an individual controls a body corporate if—

(a)the body corporate is a company or a limited liability partnership and that individual satisfies one or more of the conditions set out in Part 1 of Schedule 1A to the Companies Act 2006 (people with significant control over a company) M7; or

(b)the body corporate would be a subsidiary undertaking of the individual (if the individual was an undertaking) under section 1162 (parent and subsidiary undertakings) of the Companies Act 2006 read with Schedule 7 to that Act.

(3) In these Regulations, “beneficial owner”, in relation to a partnership (other than a limited liability partnership), means any individual who—

(a)ultimately is entitled to or controls (in each case whether directly or indirectly) more than 25% share of the capital or profits of the partnership or more than 25% of the voting rights in the partnership;

(b)satisfies one or more the conditions set out in Part 1 of Schedule 1 to the Scottish Partnerships (Register of People with Significant Control) Regulations 2017 (references to people with significant control over an eligible Scottish partnership) M22; or

(c)otherwise exercises ultimate control over the management of the partnership.

(4) In this regulation “limited liability partnership” has the meaning given by the Limited Liability Partnerships Act 2000 M23.

Marginal Citations

M7OJ L 156, 19.06.2018, p.43-74.

Meaning of beneficial owner: trusts, similar arrangements and othersU.K.

6.—(1) In these Regulations, “beneficial owner”, in relation to a trust, means each of the following—

(a)the settlor;

(b)the trustees;

(c)the beneficiaries;

(d)where the individuals (or some of the individuals) benefiting from the trust have not been determined, the class of persons in whose main interest the trust is set up, or operates;

(e)any individual who has control over the trust.

(2) In paragraph (1)(e), “control” means a power (whether exercisable alone, jointly with another person or with the consent of another person) under the trust instrument or by law to—

(a)dispose of, advance, lend, invest, pay or apply trust property;

(b)vary or terminate the trust;

(c)add or remove a person as a beneficiary or to or from a class of beneficiaries;

(d)appoint or remove trustees or give another individual control over the trust;

(e)direct, withhold consent to or veto the exercise of a power mentioned in sub-paragraphs (a) to (d).

(3) In these Regulations, “beneficial owner”, in relation to a foundation or other legal arrangement similar to a trust, means those individuals who hold equivalent or similar positions to those set out in paragraph (1).

(4) For the purposes of paragraph (1)—

(a)where an individual is the beneficial owner of a body corporate which is entitled to a specified interest in the capital of the trust property or which has control over the trust, the individual is to be regarded as entitled to the interest or having control over the trust; and

(b)an individual (“P”) does not have control solely as a result of—

(i)P's consent being required in accordance with section 32(1)(c) (power of advancement) of the Trustee Act 1925 M24;

(ii)any discretion delegated to P under section 34 (power of investment and delegation) of the Pensions Act 1995 M25;

(iii)the power to give a direction conferred on P by section 19(2) (appointment and retirement of trustee at instance of beneficiaries) of the Trusts of Land and Appointment of Trustees Act 1996 M26; or

(iv)the power exercisable collectively at common law to vary or extinguish a trust where the beneficiaries under the trust are of full age and capacity and (taken together) absolutely entitled to the property subject to the trust (or, in Scotland, have a full and unqualified right to the fee).

(5) For the purposes of paragraph (4), “specified interest” means a vested interest which is—

(a)in possession or in remainder or reversion (or in Scotland, in fee); and

(b)defeasible or indefeasible.

(6) In these Regulations, “beneficial owner”, in relation to an estate of a deceased person in the course of administration, means—

(a)in England and Wales and Northern Ireland, the executor, original or by representation, or administrator for the time being of a deceased person;

(b)in Scotland, the executor for the purposes of the Executors (Scotland) Act 1900 M27.

(7) In these Regulations, “beneficial owner”, in relation to a legal entity or legal arrangement which does not fall within regulation 5 or paragraphs (1), (3) or (6) of this regulation, means—

(a)any individual who benefits from the property of the entity or arrangement;

(b)where the individuals who benefit from the entity or arrangement have yet to be determined, the class of persons in whose main interest the entity or arrangement is set up or operates;

(c)any individual who exercises control over the property of the entity or arrangement.

(8) For the purposes of paragraph (7), where an individual is the beneficial owner of a body corporate which benefits from or exercises control over the property of the entity or arrangement, the individual is to be regarded as benefiting from or exercising control over the property of the entity or arrangement.

(9) In these Regulations, “beneficial owner”, in any other case, means the individual who ultimately owns or controls the entity or arrangement or on whose behalf a transaction is being conducted.

Marginal Citations

M241925 (c.19). Section 32(1) was amended by section 9 of the Inheritance and Trustees' Powers Act 2014 (c.16).

M251995 (c.26). Section 34 was amended by paragraph 49 of Schedule 12 to the Pensions Act 2004 (c.35); section 5(3) of the Trustee Delegation Act 1999 (c.15) and S.I. 2001/3649.

Supervisory authoritiesU.K.

7.—(1) Subject to paragraph (2), the following bodies are supervisory authorities in relation to relevant persons—

(a)the FCA is the supervisory authority for—

(i)credit and financial institutions (including money service businesses) which are authorised persons but not excluded money service businesses;

(ii)trust or company service providers which are authorised persons;

(iii)Annex 1 financial institutions;

(iv)electronic money institutions;

(v)auction platforms;

(vi)credit unions in Northern Ireland;

(vii)recognised investment exchanges within the meaning of section 285 of FSMA M28 (exemption for recognised investment exchanges [F29, clearing houses and central securities depositories]);

[F30(viii)cryptoasset exchange providers;

(ix)custodian wallet providers;]

(b)each of the professional bodies listed in Schedule 1 is the supervisory authority for relevant persons who are members of it, or regulated or supervised by it;

(c)the Commissioners are the supervisory authority for—

(i)high value dealers;

(ii)money service businesses which are not supervised by the FCA;

(iii)trust or company service providers which are not supervised by the FCA or one of the professional bodies listed in Schedule 1;

(iv)auditors, external accountants and tax advisers who are not supervised by one of the professional bodies listed in Schedule 1;

(v)bill payment service providers which are not supervised by the FCA;

(vi)telecommunication, digital and IT payment service providers which are not supervised by the FCA;

(vii)estate agents [F31and letting agents] which are not supervised by one of the professional bodies listed in Schedule 1;

[F32(viii)art market participants;]

(d)the Gambling Commission is the supervisory authority for casinos.

(2) Where under paragraph (1), there is more than one supervisory authority for a relevant person, the supervisory authorities may agree that one of them will act as the supervisory authority for that person.

(3) Where there has been an agreement under paragraph (2), the authority which has agreed to act as the supervisory authority must notify the relevant person or publish the agreement in such manner as it considers appropriate.

(4) Where there has not been an agreement under paragraph (2), the supervisory authorities for a relevant person must co-operate in the performance of their functions under these Regulations.

(5) For the purposes of paragraph (1)(a)(i), a money service business is an “excluded money service business” if it is an authorised person who has permission under FSMA which relates to or is connected with a contract of the kind mentioned in paragraph 23 or 23B of Schedule 2 M29 to that Act (credit agreements and contracts for hire of goods) but does not have permission to carry on any other kind of regulated activity.

(6) Paragraph (5) must be read with—

(a)section 22 of FSMA (regulated activities) M30;

(b)any relevant order under that section; and

(c)Schedule 2 to that Act.

(7) For the purposes of paragraph (1), a credit union in Northern Ireland is a credit union which is—

(a)registered under regulation 3 of the Credit Unions (Northern Ireland) Order 1985 M31 (registration) and it is an authorised person; or

(b)registered under Part 2 of the Industrial and Provident Societies Act (Northern Ireland) 1969 M32 (registered societies) as a credit union and it is an authorised person.

Textual Amendments

Marginal Citations

M28Section 285 was amended by section 28 of the Financial Services and Markets Act 2000 (c.8); and S.I. 2013/504.

M29Paragraph 23 was substituted, and paragraph 23B was inserted, by section 7 of the Financial Services Act 2012 (c.21).

M30Section 22 was amended by section 7 of the Financial Services Act 2012.

M321969 c.24. Part 2 was amended, but the amendments are not relevant to these Regulations.

PART 2U.K.Money Laundering and Terrorist Financing

CHAPTER 1U.K.Application

ApplicationU.K.

8.—(1) Parts 1 to 6 [F33, 7A] and 8 to 11 apply to the persons (“relevant persons”) acting in the course of business carried on by them in the United Kingdom, who—

(a)are listed in paragraph (2); and

(b)do not come within the exclusions set out in regulation 15.

(2) The persons listed in this paragraph are—

(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 [F34and letting agents];

(g)high value dealers;

(h)casinos;

[F35(i)art market participants;

(j)cryptoasset exchange providers;

(k)custodian wallet providers.]

(3) Regulations 3, 7, 9, 15, 17 to 21, 24, 25, 46, 47, 50 to 52, 65 to 82, 84, 86 to 93, 101, 102 and 106 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.

(4) The definitions in regulations 10 to 14 apply for the purposes of this regulation.

Textual Amendments

Carrying on business in the United KingdomU.K.

9.—(1) For the purposes of these Regulations, a relevant person (“A”) is to be regarded as carrying on business in the United Kingdom in the cases described in this regulation even if A would not otherwise be regarded as doing so.

F36(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The second case is where—

(a)A's registered office (or if A does not have a registered office, A's head office) is in the United Kingdom; and

(b)the day-to-day management of the carrying on of A's business is the responsibility of—

(i)that office, or

(ii)another establishment maintained by A in the United Kingdom.

(4) The third case is where—

(a)A is a casino which provides facilities for remote gambling (within the meaning of section 4 of the Gambling Act 2005 (remote gambling) M33) and—

(b)either—

(i)at least one piece of remote gambling equipment (within the meaning of section 36(4) of the Gambling Act 2005 (territorial application)) is situated in Great Britain, or

(ii)no such equipment is situated in Great Britain but the facilities provided by A are used there.

(5) For the purposes of [F37paragraph (3)]—

F38(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)it is irrelevant where the person with whom the business is carried on is situated.

Textual Amendments

Marginal Citations

Credit institutions and financial institutionsU.K.

10.—(1) In these Regulations, “credit institution” means—

(a)a credit institution as defined in Article 4.1(1) of the capital requirements regulation; or

(b)a branch (as defined by Article 4.1(17) of that regulation) located in [F39the United Kingdom] of an institution falling within sub-paragraph (a) (or an equivalent institution whose head office is located in a third country) wherever the institution's 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 capital requirements regulation), or when it bids directly in auctions in accordance with the emission allowance auctioning regulation [F40or the UK auctioning regulations] on behalf of its clients.

(2) In these Regulations, “financial institution” means—

(a)an undertaking, including a money service business, other than an institution referred to in paragraph (3), when the undertaking carries out one or more listed activity;

[F41(b)an authorised person (within the meaning of section 31 of FSMA), who has permission under Part 4A of FSMA to carry out or effect contracts of insurance, when carrying out or effecting any contract of long-term insurance (an “insurance undertaking”);]

(c)a person (other than [F42a person falling within one of the exclusions to the definition of “investment firm” in article 3(1) of the Regulated Activities Order]), whose regular occupation or business is the provision to other persons of an investment service or the performance of an investment activity on a professional basis, when—

(i)providing investment services or performing investment activities ([F43within the meaning of that article]); or

(ii)bidding directly in auctions in accordance with the emission allowance auctioning regulation [F44or the UK auctioning regulations] on behalf of its clients;

(d)a person falling within [F45paragraph 1(k) of Part 1 of Schedule 3 to the Regulated Activities Order], when bidding directly in auctions in accordance with the emission allowance auctioning regulation [F46or the UK auctioning regulations] on behalf of clients of the person's main business;

(e)a collective investment undertaking, when marketing or otherwise offering its units or shares;

(f)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 on insurance mediation M34, with the exception of a tied insurance intermediary as mentioned in Article 2.7 of that Directive [F47(and for this purpose, Article 2.7 is to be read as if “insurance undertaking” has the meaning given in sub-paragraph (b))], when it acts in respect of contracts of long-term insurance;

(g)a branch located in [F48the United Kingdom] of a person referred to in sub-paragraphs (a) to (f) (or an equivalent person whose head office is located in a third country), wherever the person's head office is located, when carrying out any activity mentioned in sub-paragraphs (a) to (f);

(h)the National Savings Bank;

(i)the Director of Savings, when money is raised under the auspices of the Director under the National Loans Act 1968 M35.

(3) For the purposes of paragraph (2)(a), the institutions referred to are—

(a)a credit institution;

(b)an undertaking whose only listed activity is as a creditor under an agreement which—

(i)falls within section 12(a) of the Consumer Credit Act 1974 M36 (debtor-creditor-supplier agreements);

(ii)provides fixed sum credit (within the meaning given in section 10(1)(b) of the Consumer Credit Act 1974 (running-account credit and fixed-sum credit)) in relation to the provision of services; and

(iii)provides financial accommodation by way of deferred payment or payment by instalments over a period not exceeding 12 months;

(c)an undertaking whose only listed activity is trading for its own account in one or more of the products listed in point 7 of F49...[F50 Schedule 2] where the undertaking does not have a customer (and, for this purpose, “customer” means a person other than the undertaking which is not a member of the same group as the undertaking).

[F51(4) For the purposes of this regulation—

(a)a “listed activity” means an activity listed in points 2 to 12, 14 and 15 of F52... Schedule 2;

(b)“Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.]

Textual Amendments

Marginal Citations

M34OJ L 9, 15.01.2003, p.3.

Auditors and othersU.K.

11.  In these Regulations—

(a)“auditor” means any firm or individual who is—

(i)a statutory auditor within the meaning of Part 42 of the Companies Act 2006 M37 (statutory auditors), when carrying out statutory audit work within the meaning of section 1210 of that Act (meaning of statutory auditor), or

(ii)a local auditor within the meaning of section 4(1) of the Local Audit and Accountability Act 2014 (general requirements for audit) M38, when carrying out an audit required by that Act.

(b)“insolvency practitioner” means any firm or individual who acts as an insolvency practitioner within the meaning of section 388 of the Insolvency Act 1986 M39 or article 3 of the Insolvency (Northern Ireland) Order 1989 M40 (meaning of “act as insolvency practitioner”).

(c)“external accountant” means a firm or sole practitioner who by way of business provides accountancy services to other persons, when providing such services.

(d)“tax adviser” means a firm or sole practitioner who by way of business provides [F53material aid, or assistance or advice, in connection with the tax affairs of other persons, whether provided directly or through a third party], when providing such services.

Textual Amendments

Marginal Citations

M372006 c.46. Section 1210 was amended by S.I. 2008/565; 2008/567; 2008/1950; 2012/1809 and 2013/3115.

M391986 c.45. Section 388 was amended by section 11(1) of the Bankruptcy (Scotland) Act 1993 (c.6); section 4(2) of the Insolvency Act 2000 (c.39); paragraph 2(11) of Schedule 6 to the Deregulation Act 2015 (c.20) and by S.I 1994/2421; 2002/1240; 2002/2708; 2009/1941 and 2016/1034.

Independent legal professionals and trust or company service providersU.K.

12.—(1) In these Regulations, “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, foundations 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.

(2) In these Regulations, “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, when that firm or practitioner is providing such services—

[F54(a)forming a firm;]

(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 capacity 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 legal 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.

Textual Amendments

Estate agents [F55and letting agents]U.K.

13.—(1) In these Regulations, “estate agent” means a firm or a sole practitioner, who, or whose employees, carry out estate agency work, when the work is being carried out.

(2) For the purposes of paragraph (1) “estate agency work” is to be read in accordance with section 1 of the Estate Agents Act 1979 M41 (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.

[F56(3) In these Regulations, “letting agent” means a firm or sole practitioner who, or whose employees, carry out letting agency work, when carrying out such work.

(4) For the purposes of paragraph (3), “letting agency work” means work—

(a)consisting of things done in response to instructions received from—

(i)a person (a “prospective landlord”) seeking to find another person to whom to let land, or

(ii)a person (a “prospective tenant”) seeking to find land to rent, and

(b)done in a case where an agreement is concluded for the letting of land—

(i)for a term of a month or more, and

(ii)at a rent which during at least part of the term is, or is equivalent to, a monthly rent of 10,000 euros or more.

(5) For the purposes of paragraph (3) “letting agency work” does not include the things listed in paragraph (6) when done by, or by employees of, a firm or sole practitioner if neither the firm or sole practitioner, nor any of their employees, does anything else within paragraph (4).

(6) Those things are—

(a)publishing advertisements or disseminating information;

(b)providing a means by which a prospective landlord or a prospective tenant can, in response to an advertisement or dissemination of information, make direct contact with a prospective tenant or a prospective landlord;

(c)providing a means by which a prospective landlord and a prospective tenant can communicate directly with each other;

(d)the provision of legal or notarial services by a barrister, advocate, solicitor or other legal representative communications with whom may be the subject of a claim to professional privilege or, in Scotland, protected from disclosure in legal proceedings on grounds of confidentiality of communication.

(7) In paragraph (4) “land” includes part of a building and part of any other structure.]

Textual Amendments

Marginal Citations

High value dealers, [F57casinos, auction platforms and art market participants]U.K.

14.—(1) In these Regulations—

(a)“high value dealer” means a firm or sole trader who by way of business trades in goods (including an auctioneer dealing in goods), when the trader makes or receives, in respect of any transaction, a payment or payments in cash of at least 10,000 euros in total, whether the transaction is executed in a single operation or in several operations which appear to be linked;

(b)“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)(a) of the Gambling Act 2005 M42 (nature of licence);

(c)“auction platform” means a platform which auctions two-day spot or five-day futures, within the meanings given by [F58regulation 2(1) of the UK auctioning regulations], when it carries out activities covered by that regulation.

[F59(d)“art market participant” means [F60, subject to paragraph (3),] a firm or sole practitioner who—

(i)by way of business trades in, or acts as an intermediary in the sale or purchase of, works of art and the value of the transaction, or a series of linked transactions, amounts to 10,000 euros or more; or

(ii)is the operator of a freeport when it, or any other firm or sole practitioner, by way of business stores works of art in the freeport and the value of the works of art so stored for a person, or a series of linked persons, amounts to 10,000 euros or more;

(e)“freeport” means a warehouse or storage facility within an area designated by the Treasury as a special area for customs purposes pursuant to section 100A(1) of the Customs and Excise Management Act 1979 (designation of free zones) M43;

(f)“work of art” means anything which, in accordance with section 21(6) to (6B) of the Value Added Tax Act 1994 (value of imported goods) M44, is a work of art for the purposes of section 21(5)(a) of that Act.]

(2) A payment does not cease to be a “payment in cash” for the purposes of paragraph (1)(a) if cash is paid by or on behalf of the person making the payment—

(a)to a person other than the other party to the transaction for the benefit of the other party, or

(b)into a bank account for the benefit of the other party to the transaction.

[F61(3) A firm or sole practitioner is not an art market participant for the purposes of paragraph (1)(d)(i) in relation to the sale of a work of art which is created by, or is attributable to, a member of the firm or the sole practitioner.]

Textual Amendments

Marginal Citations

M43 1979 c. 2. Section 100A was inserted by the Finance Act 1984 (c.2), section 8 and (c.43), Schedule 4.

M44 1994 c. 23. Sections 21(6) to (6B) were inserted by section 12(2) of the Finance Act 1999 (c.16).

[F62Cryptoasset exchange providers and custodian wallet providersU.K.

14A.—(1) In these Regulations, “cryptoasset exchange provider” means a firm or sole practitioner who by way of business provides one or more of the following services, including where the firm or sole practitioner does so as creator or issuer of any of the cryptoassets involved, when providing such services—

(a)exchanging, or arranging or making arrangements with a view to the exchange of, cryptoassets for money or money for cryptoassets,

(b)exchanging, or arranging or making arrangements with a view to the exchange of, one cryptoasset for another, or

(c)operating a machine which utilises automated processes to exchange cryptoassets for money or money for cryptoassets.

(2) In these Regulations, “custodian wallet provider” means a firm or sole practitioner who by way of business provides services to safeguard, or to safeguard and administer—

(a)cryptoassets on behalf of its customers, or

(b)private cryptographic keys on behalf of its customers in order to hold, store and transfer cryptoassets,

when providing such services.

(3) For the purposes of this regulation—

(a)“cryptoasset” means a cryptographically secured digital representation of value or contractual rights that uses a form of distributed ledger technology and can be transferred, stored or traded electronically;

(b)“money” means—

(i)money in sterling,

(ii)money in any other currency, or

(iii)money in any other medium of exchange,

but does not include a cryptoasset; and

(c)in sub-paragraphs (a), (b) and (c) of paragraph (1), “cryptoasset” includes a right to, or interest in, the cryptoasset.]

Textual Amendments

ExclusionsU.K.

15.—(1) Parts 1 to 4, 6 and 8 to 11 do not apply to the following persons when carrying on any of the following activities—

(a)a registered society within the meaning of section 1 of the Co-operative and Community Benefit Societies Act 2014 (meaning of “registered society”) M43, when it—

(i)issues withdrawable share capital within the limit set by section 24 of that Act (maximum shareholding in society); or

(ii)accepts deposits from the public within the limit set by section 67(2) of that Act (carrying on of banking by societies);

(b)a society registered under the Industrial and Provident Societies Act (Northern Ireland) 1969 M44, when it—

(i)issues withdrawable share capital within the limit set by section 6 M45 of that Act (maximum shareholding in society); or

(ii)accepts deposits from the public within the limit set by section 7(3) of that Act (carrying on of banking by societies);

(c)a person who is (or falls within a class of persons) specified in any of paragraphs 2 to 23, 26 to 38 or 40 to 49 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001 M46, when carrying out any activity in respect of which that person is exempt;

(d)a local authority within the meaning given in article 3(1) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 M47, when carrying on an activity which would be a regulated activity for the purposes of FSMA but for article 72G of that Order M48;

(e)a person who was an exempted person for the purposes of section 45 of the Financial Services Act 1986 M49 (miscellaneous exemptions) immediately before its repeal, when exercising the functions specified in that section;

(f)a person whose main activity is that of a high value dealer, when engaging in financial activity on an occasional or very limited basis as set out in paragraph (3); or

(g)a person preparing a home report, which for these purposes means the documents prescribed for the purposes of section 98, 99(1) or 101(2) of the Housing (Scotland) Act 2006 (duties: information and others) M50.

(2) These Regulations do not apply to a person who falls within regulation 8 solely as a result of that person engaging in financial activity on an occasional or very limited basis as set out in paragraph (3).

(3) For the purposes of paragraphs (1)(f) and (2), a person is to be considered as engaging in financial activity on an occasional or very limited basis if all the following conditions are met—

(a)the person's total annual turnover in respect of the financial activity does not exceed £100,000;

(b)the financial activity is limited in relation to any customer to no more than one transaction exceeding 1,000 euros, whether the transaction is carried out in a single operation, or a series of operations which appear to be linked;

(c)the financial activity does not exceed 5% of the person's total annual turnover;

(d)the financial activity is ancillary and directly related to the person's main activity;

(e)the financial activity is not the transmission or remittance of money (or any representation of monetary value) by any means;

(f)the person's main activity is not that of a person falling within regulation 8(2)(a) to (f) or (h) [F63to (k)];

(g)the financial activity is provided only to customers of the main activity of the person and is not offered to the public.

(4) Chapters 2 and 3 of Part 2, and Parts 3 to 9, do not apply to—

(a)the Auditor General for Scotland;

(b)the Auditor General for Wales;

(c)the Bank of England;

(d)the Comptroller and Auditor General;

(e)the Comptroller and Auditor General for Northern Ireland;

(f)the Official Solicitor to the Supreme Court, when acting as trustee in his or her official capacity;

(g)the Treasury Solicitor.

Textual Amendments

Marginal Citations

M43 1979 c. 2. Section 100A was inserted by the Finance Act 1984 (c.2), section 8 and (c.43), Schedule 4.

M44 1994 c. 23. Sections 21(6) to (6B) were inserted by section 12(2) of the Finance Act 1999 (c.16).

M46S.I. 2001/1201. Paragraph 15A was inserted by S.I. 2003/47; paragraph 15B was inserted by S.I. 2009/118; paragraph 19 was revoked by S.I. 2014/366; paragraphs 21 and 27 were substituted by S.I. 2002/1310 and 2003/1675 respectively; paragraph 30 was revoked by S.I. 2003/3225; paragraph 31 was substituted by paragraph 10 of Schedule 2 to the Tourist Boards (Scotland) Act 2006 (asp 15) and amended by S.I. 2007/1103; paragraph 33A was inserted by S.I. 2007/1821; paragraphs 34A, 34B and 34C were inserted by SI. 2005/592, 2008/682 and 2012/763 respectively; paragraph 36 was revoked by S.I. 2007/125; paragraph 40 was amended by S.I. 2013/1881; paragraph 41 was amended by S.I. 2010/86; paragraph 42 was amended by S.I. 2007/125; paragraph 44 was amended by S.I. 2014/506; paragraph 45 was amended by S.I. 2013/1773; paragraph 47 was revoked by S.I. 2014/366; paragraph 48 was substituted by S.I. 2003/1673 and paragraph 49 was inserted by S.I. 2001/3623

M47S.I. 2001/544. Article 3(1) was amended, but the amendments are not relevant to these Regulations.

M48Article 72G was inserted by S.I. 2014/366, and amended by S.I. 2015/910 and 2016/392.

M491986 c.60. Section 45 was repealed by S.I. 2001/3649.

CHAPTER 2U.K.Risk assessment and controls

Risk assessment by the Treasury and Home OfficeU.K.

16.—(1) The Treasury and the Home Office must make arrangements before 26th June 2018 for a risk assessment to be undertaken to identify, assess, understand and mitigate the risks of money laundering and terrorist financing affecting the United Kingdom (“the risk assessment”).

(2) The risk assessment must, among other things—

(a)identify any areas where relevant persons should apply enhanced customer due diligence measures, and where appropriate, specify the measures to be taken;

(b)identify, where appropriate, the sectors or areas of lower and greater risk of money laundering and terrorist financing;

(c)consider whether any rules on money laundering and terrorist financing made by a supervisory authority applying in relation to the sector it supervises are appropriate in the light of the risks of money laundering and terrorist financing applying to that sector;

(d)provide the information and analysis necessary to enable it to be used for the purposes set out in paragraph (3).

(3) The Treasury and the Home Office must ensure that the risk assessment is used to—

(a)consider the appropriate allocation and prioritisation of resources to counter money laundering and terrorist financing;

(b)consider whether the exclusions provided for in regulation 15 are being abused;

(c)consider whether providers of gambling services other than casinos should continue to be excluded from the requirements of these Regulations.

(4) For the purpose of paragraph (3)(c), a “provider of gambling services” means a person who by way of business provides facilities for gambling within the meaning of section 5 of the Gambling Act 2005 (facilities for gambling) M51.

F64(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The Treasury and the Home Office must prepare a joint report setting out, as appropriate, the findings of the risk assessment as soon as reasonably practicable after the risk assessment is completed.

[F65(6A) The report must also set out—

(a)the institutional structure and broad procedures of the United Kingdom’s anti-money laundering and counter-terrorist financing regime, including the role of the financial intelligence unit, tax agencies and prosecutors;

(b)the nature of measures taken and resources allocated to counter money laundering and terrorist financing.]

(7) A copy of that report must be laid before Parliament, and sent to—

(a)the PRA;

(b)the supervisory authorities;

F66(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F67(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F68(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) If information from the risk assessment would assist the supervisory authorities in carrying out their own money laundering and terrorist financing risk assessment, the Treasury and the Home Office must, where appropriate, make that information available to those supervisory authorities, unless to do so would not be compatible with restrictions on sharing information imposed by or under [F69—

(a)the Data Protection Act 2018 or any other enactment, or

(b)the [F70UK GDPR].]

(9) The Treasury and the Home Office must take appropriate steps to ensure that the risk assessment is kept up-to-date.

Textual Amendments

F69Words in reg. 16(8) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 412 (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

Marginal Citations

[F71Risk assessment by the TreasuryU.K.

16A.—(1) The Treasury must make arrangements for a risk assessment to be undertaken to identify, assess, understand and mitigate the risks of proliferation financing affecting the United Kingdom (“the proliferation financing risk assessment”).

(2) The proliferation financing risk assessment must, among other things—

(a)identify, where appropriate, the sectors or areas of lower and greater risk of proliferation financing;

(b)provide the information and analysis necessary to enable it to be used for the purposes set out in paragraph (3).

(3) The Treasury must ensure that the proliferation financing risk assessment is used to—

(a)consider the appropriate allocation and prioritisation of resources to counter proliferation financing;

(b)consider whether the exclusions provided for in regulation 15 (exclusions) are being abused.

(4) The Treasury must prepare a report setting out, as appropriate, the findings of the proliferation financing risk assessment as soon as reasonably practicable after the proliferation financing risk assessment is completed.

(5) A copy of that report must be laid before Parliament and sent to the supervisory authorities.

(6) The Treasury must take appropriate steps to ensure that the proliferation financing risk assessment is kept up-to-date.

(7) The proliferation financing risk assessment may be included in the risk assessment made under regulation 16 (risk assessment by the Treasury and Home Office).

(8) The report referred to in paragraph (4) may be included within the joint report of the Treasury and Home Office referred to in regulation 16(6).

(9) In this regulation, “proliferation financing” means the act of providing funds or financial services for use, in whole or in part, in the manufacture, acquisition, development, export, trans-shipment, brokering, transport, transfer, stockpiling of, or otherwise in connection with the possession or use of, chemical, biological, radiological or nuclear weapons, including the provision of funds or financial services in connection with the means of delivery of such weapons and other CBRN-related goods and technology, in contravention of a relevant financial sanctions obligation.

(10) In this regulation—

“biological weapon” means a biological agent or toxin (within the meaning of section 1(1)(a) of the Biological Weapons Act 1974F72) in a form capable of use for hostile purposes or anything to which section 1(1)(b) of that Act applies;

“chemical weapon” has the meaning given by section 1 of the Chemical Weapons Act 1996F73;

“CBRN-related goods and technology” means technology (including dual-use technology) and dual-use goods used for non-legitimate purposes in connection with the matters referred to in paragraph (9);

“dual-use goods” means (a) any thing for the time being specified in Annex I of the Dual-Use Regulation, other than any thing which is dual-use technology, and (b) any tangible storage medium on which dual use technology is recorded or from which it can be derived;

“Dual-Use Regulation” means Council Regulation (EC) No 428/2009 of 5 May 2009F74 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items;

“dual-use technology” means any thing for the time being specified in Annex I of the Dual-Use Regulation which is described as software or technology;

“nuclear weapon” includes a nuclear explosive device that is not intended for use as a weapon;

“radiological weapon” means a device designed to cause destruction, damage or injury by means of the radiation produced by the decay of radioactive material;

“relevant financial sanctions obligation” means a prohibition or requirement in regulations made under section 1 of the Sanctions and Anti-Money Laundering Act 2018F75 and imposed for one or more of the purposes in section 3(1) or (2) of that Act so far as it relates to compliance with a relevant UN obligation;

“relevant UN obligation” means an obligation that the UK has by virtue of a resolution adopted by the Security Council of the United Nations which relates to the prevention, suppression and disruption of the proliferation of weapons of mass destruction and the financing of such;

“technology” has the meaning given by paragraph 37 of Schedule 1 to the Sanctions and Anti-Money Laundering Act 2018.]

Textual Amendments

F721974 c. 6; section 1 was amended by section 43 of the Anti-terrorism, Crime and Security Act 2001 (c. 24).

F74EUR 2009/428. Annexes I and IV were amended by S.I. 2019/771 and 2022/410.

Risk assessment by supervisory authoritiesU.K.

17.—(1) Each supervisory authority must identify and assess the international and domestic risks of money laundering and terrorist financing to which those relevant persons for which it is the supervisory authority (“its own sector”) are subject.

(2) In carrying out the risk assessment required under paragraph (1), the supervisory authority must take into account—

F76(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F77(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the report prepared by the Treasury and the Home Office under regulation 16(6); and

(d)information made available by the Treasury and the Home Office under regulation 16(8).

(3) A supervisory authority must keep an up-to-date record in writing of all the steps it has taken under paragraph (1).

(4) Each supervisory authority must develop and record in writing risk profiles for each relevant person in its own sector.

(5) A supervisory authority may prepare a single risk profile under paragraph (4) in relation to two or more relevant persons in its sector, if—

(a)the relevant persons share similar characteristics; and

(b)the risks of money laundering and terrorist financing affecting those relevant persons do not differ significantly.

(6) Where a supervisory authority has prepared a single risk profile for two or more relevant persons in its sector (a “cluster”), the supervisory authority must keep under review whether an individual risk profile should be prepared in relation to any relevant person in the cluster because sub-paragraph (a) or (b) (or both sub-paragraphs) of paragraph (5) are no longer satisfied in relation to that person.

(7) In developing the risk profiles referred to in paragraph (4), the supervisory authority must take full account of the risks that relevant persons in its own sector will not take appropriate action to identify, understand and mitigate money laundering and terrorist financing risks.

(8) Each supervisory authority must review the risk profiles developed under paragraph (4) at regular intervals and following any significant event or developments which might affect the risks to which its own sector is subject, such as—

(a)significant external events that change the nature of the money laundering or terrorist financing risks;

(b)emerging money laundering or terrorist financing risks;

(c)any findings resulting from measures taken by other supervisory authorities;

(d)any changes in the way in which its own sector is operated;

(e)significant changes in regulation.

(9) If information from the risk assessment carried out under paragraph (1), or from information provided to the supervisory authority under regulation 16(8), would assist relevant persons in carrying out their own money laundering and terrorist financing risk assessment, the supervisory authority must, where appropriate, make that information available to those persons, unless to do so would not be compatible with restrictions on sharing information imposed by or under [F78—

(a)the Data Protection Act 2018 or any other enactment, or

(b)the [F79UK GDPR].]

Textual Amendments

F78Words in reg. 17(9) substituted (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 413 (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

Risk assessment by relevant personsU.K.

18.—(1) A relevant person must take appropriate steps to identify and assess the risks of money laundering and terrorist financing to which its business is subject.

(2) In carrying out the risk assessment required under paragraph (1), a relevant person must take into account—

(a)information made available to them by the supervisory authority under regulations 17(9) and 47, and

(b)risk factors including factors relating to—

(i)its customers;

(ii)the countries or geographic areas in which it operates;

(iii)its products or services;

(iv)its transactions; and

(v)its delivery channels.

(3) In deciding what steps are appropriate under paragraph (1), the relevant person must take into account the size and nature of its business.

(4) A relevant person must keep an up-to-date record in writing of all the steps it has taken under paragraph (1), unless its supervisory authority notifies it in writing that such a record is not required.

(5) A supervisory authority may not give the notification referred to in paragraph (4) unless it considers that the risks of money laundering and terrorist financing applicable to the sector in which the relevant person operates are clear and understood.

(6) A relevant person must provide the risk assessment it has prepared under paragraph (1), the information on which that risk assessment was based and any record required to be kept under paragraph (4), to its supervisory authority on request.

[F80Risk assessment by relevant persons in relation to proliferation financingU.K.

18A.—(1) A relevant person must take appropriate steps to identify and assess the risks of proliferation financing to which its business is subject.

(2) In carrying out the risk assessment required under paragraph (1), a relevant person must take into account—

(a)information in the report referred to in regulation 16A (risk assessment by the Treasury); and

(b)risk factors including factors relating to—

(i)its customers;

(ii)the countries or geographic areas in which it operates;

(iii)its products or services;

(iv)its transactions; and

(v)its delivery channels.

(3) In deciding what steps are appropriate under paragraph (1), the relevant person must take into account the size and nature of its business.

(4) A relevant person must keep an up-to-date record in writing of all the steps it has taken under paragraph (1), unless its supervisory authority notifies it in writing that such a record is not required.

(5) A relevant person must provide the risk assessment it has prepared under paragraph (1), the information on which that risk assessment was based and any record required to be kept under paragraph (4), to its supervisory authority on request.]

Textual Amendments

Policies, controls and proceduresU.K.

19.—(1) A relevant person must—

(a)establish and maintain policies, controls and procedures to mitigate and manage effectively the risks of money laundering and terrorist financing identified in any risk assessment undertaken by the relevant person under regulation 18(1);

(b)regularly review and update the policies, controls and procedures established under sub-paragraph (a);

(c)maintain a record in writing of—

(i)the policies, controls and procedures established under sub-paragraph (a);

(ii)any changes to those policies, controls and procedures made as a result of the review and update required by sub-paragraph (b); and

(iii)the steps taken to communicate those policies, controls and procedures, or any changes to them, within the relevant person's business.

(2) The policies, controls and procedures adopted by a relevant person under paragraph (1) must be—

(a)proportionate with regard to the size and nature of the relevant person's business, and

(b)approved by its senior management.

(3) The policies, controls and procedures referred to in paragraph (1) must include—

(a)risk management practices;

(b)internal controls (see regulations 21 to 24);

(c)customer due diligence (see regulations 27 to 38);

(d)reliance and record keeping (see regulations 39 to 40);

(e)the monitoring and management of compliance with, and the internal communication of, such policies, controls and procedures.

(4) The policies, controls and procedures referred to in paragraph (1) must include policies, controls and procedures—

(a)which provide for the identification and scrutiny of—

(i)any case where—

(aa)a transaction is complex [F81or] unusually large, or there is an unusual pattern of transactions, [F82or]

(bb)the transaction or transactions have no apparent economic or legal purpose, and

(ii)any other activity or situation which the relevant person regards as particularly likely by its nature to be related to money laundering or terrorist financing;

(b)which specify the taking of additional measures, where appropriate, to prevent the use for money laundering or terrorist financing of products and transactions which might favour anonymity;

(c)which ensure that when [F83new products, new business practices (including new delivery mechanisms) or new technology are] adopted by the relevant person, appropriate measures are taken in preparation for, and during, the adoption of such [F84products, practices or] technology to assess and if necessary mitigate any money laundering or terrorist financing risks this new [F85product, practice or] technology may cause;

(d)under which anyone in the relevant person's organisation who knows or suspects (or has reasonable grounds for knowing or suspecting) that a person is engaged in money laundering or terrorist financing as a result of information received in the course of the business or otherwise through carrying on that business is required to comply with—

(i)Part 3 of the Terrorism Act 2000 M52; or

(ii)Part 7 of the Proceeds of Crime Act 2002 M53;

(e)which, in the case of a money service business that uses agents for the purpose of its business, ensure that appropriate measures are taken by the business to assess—

(i)whether an agent used by the business would satisfy the fit and proper test provided for in regulation 58; and

(ii)the extent of the risk that the agent may be used for money laundering or terrorist financing.

(5) In determining what is appropriate or proportionate with regard to the size and nature of its business, a relevant person may take into account any guidance which has been—

(a)issued by the FCA; or

(b)issued by any other supervisory authority or appropriate body and approved by the Treasury.

(6) A relevant person must, where relevant, communicate the policies, controls and procedures which it establishes and maintains in accordance with this regulation to its branches and subsidiary undertakings which are located outside the United Kingdom.

Textual Amendments

Marginal Citations

[F86Policies, controls and procedures in relation to proliferation financingU.K.

19A.—(1) A relevant person must—

(a)establish and maintain policies, controls and procedures to mitigate and manage effectively the risks of proliferation financing identified in any risk assessment undertaken by the relevant person under regulation 18A(1);

(b)regularly review and update the policies, controls and procedures established under sub-paragraph (a);

(c)maintain a record in writing of—

(i)the policies, controls and procedures established under sub-paragraph (a);

(ii)any changes to those policies, controls and procedures made as a result of the review and update required by sub-paragraph (b); and

(iii)the steps taken to communicate those policies, controls and procedures, or any changes to them, within the relevant person’s business.

(2) The policies, controls and procedures adopted by a relevant person under paragraph (1) must be—

(a)proportionate with regard to the size and nature of the relevant person’s business; and

(b)approved by its senior management.

(3) The policies, controls and procedures referred to in paragraph (1) must include—

(a)risk management practices;

(b)internal controls (see regulations 21 to 24)F87;

(c)the monitoring and management of compliance with, and the internal communication of, such policies, controls and procedures.

(4) The policies, controls and procedures referred to in paragraph (1) must include policies, controls and procedures—

(a)which provide for the identification and scrutiny of—

(i)any case where—

(aa)a transaction is complex or unusually large, or there is an unusual pattern of transactions; or

(bb)the transaction or transactions have no apparent economic or legal purpose, and

(ii)any other activity or situation which the relevant person regards as particularly likely by its nature to be related to proliferation financing;

(b)which specify the taking of additional measures, where appropriate, to prevent the use for proliferation financing of products and transactions which might favour anonymity;

(c)which ensure that when new products, new business practices (including new delivery mechanisms) or new technology are adopted by the relevant person, appropriate measures are taken in preparation for, and during, the adoption of such products, practices or technology to assess and if necessary mitigate any proliferation financing risks this new product, practice or technology may cause;

(d)which, in the case of a money service business that uses agents for the purpose of its business, ensure that appropriate measures are taken by the business to assess—

(i)whether an agent used by the business would satisfy the fit and proper test provided for in regulation 58F88; and

(ii)the extent of the risk that the agent may be used for proliferation financing.

(5) A relevant person must, where relevant, communicate the policies, controls and procedures which it establishes and maintains in accordance with this regulation to its branches and subsidiary undertakings which are located outside the United Kingdom.]

Textual Amendments

F87Regulation 22 was revoked by S.I. 2019/253. Regulation 24 was amended by S.I. 2019/1511.

F88Regulation 58 was amended by S.I. 2019/1511.

Policies, controls and procedures: group levelU.K.

20.—(1) A relevant parent undertaking must—

(a)ensure that the policies, controls and procedures referred to in [F89regulations 19(1) and 19A(1)] apply—

(i)to all its subsidiary undertakings, including subsidiary undertakings located outside the United Kingdom; and

(ii)to any branches it has established outside the United Kingdom;

which is carrying out any activity in respect of which the relevant person is subject to these Regulations;

(b)establish and maintain throughout its group the policies, controls and procedures for data protection and sharing information for the purposes of preventing [F90money laundering, terrorist financing and proliferation financing] with other members of the group [F91, including policies on the sharing of information about customers, customer accounts and transactions;]

(c)regularly review and update the policies, controls and procedures applied and established under sub-paragraphs (a) and (b);

(d)maintain a record in writing of—

(i)the policies, controls and procedures established under sub-paragraphs (a) and (b);

(ii)any changes to those policies, controls and procedures made as a result of the review and update required by sub-paragraph (c); and

(iii)the steps taken to communicate those policies, controls and procedures, or any changes to them, to its subsidiary undertakings and branches.

F92(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) If any of the subsidiary undertakings or branches of a relevant parent undertaking are established in a third country which does not impose requirements to counter [F93money laundering, terrorist financing and proliferation financing] as strict as those of the United Kingdom, the relevant parent undertaking must ensure that those subsidiary undertakings and branches apply measures equivalent to those required by these Regulations, as far as permitted under the law of the third country.

(4) Where the law of a third country does not permit the application of such equivalent measures by the subsidiary undertaking or branch established in that country, the relevant parent undertaking must—

(a)inform its supervisory authority accordingly; and

(b)take additional measures to handle the risk of [F94money laundering, terrorist financing and proliferation financing].

(5) A relevant parent undertaking must ensure that information relevant to the prevention of [F95money laundering, terrorist financing and proliferation financing] is shared as appropriate between members of its group, subject to any restrictions on sharing information imposed by or under any enactment or otherwise.

[F96(6) The FCA may make technical standards specifying—

(a)what additional measures are required from credit institutions and financial institutions under paragraph (4); and

(b)the minimum action to be taken by credit institutions and financial institutions where paragraph (4) applies.]

Textual Amendments

Internal controlsU.K.

21.—(1) Where appropriate with regard to the size and nature of its business, a relevant person must—

(a)appoint one individual who is a member of the board of directors (or if there is no board, of its equivalent management body) or of its senior management as the officer responsible for the relevant person's compliance with these Regulations;

(b)carry out screening of relevant employees appointed by the relevant person, both before the appointment is made and during the course of the appointment;

(c)establish an independent audit function with the responsibility—

(i)to examine and evaluate the adequacy and effectiveness of the policies, controls and procedures adopted by the relevant person to comply with the requirements of these Regulations;

(ii)to make recommendations in relation to those policies, controls and procedures; and

(iii)to monitor the relevant person's compliance with those recommendations.

(2) For the purposes of paragraph (1)(b)—

(a)“screening” means an assessment of—

(i)the skills, knowledge and expertise of the individual to carry out their functions effectively;

(ii)the conduct and integrity of the individual;

(b)a relevant employee is an employee whose work is—

(i)relevant to the relevant person's compliance with any requirement in these Regulations, or

(ii)otherwise capable of contributing to the—

(aa)identification or mitigation of the risks of [F97money laundering, terrorist financing and proliferation financing] to which the relevant person's business is subject, or

(bb)prevention or detection of [F98money laundering, terrorist financing and proliferation financing] in relation to the relevant person's business.

(3) An individual in the relevant person's firm must be appointed as a nominated officer.

(4) A relevant person must, within 14 days of the appointment, inform its supervisory authority of—

(a)the identity of the individual first appointed under paragraph (1)(a);

(b)the identity of the individual first appointed under paragraph (3); and

(c)of any subsequent appointment to either of those positions.

(5) Where a disclosure is made to the nominated officer, that officer must consider it in the light of any relevant information which is available to the relevant person and determine whether it gives rise to knowledge or suspicion or reasonable grounds for knowledge or suspicion that a person is engaged in money laundering or terrorist financing.

(6) Paragraphs (1) and (3) do not apply where the relevant person is an individual who neither employs nor acts in association with any other person.

(7) A relevant person who is an electronic money issuer or a payment service provider must appoint an individual to monitor and manage compliance with, and the internal communication of, the policies, controls and procedures adopted by the relevant person under regulation 19(1) [F99or 19A(1)], and in particular to—

(a)identify any situations of higher risk of [F100money laundering, terrorist financing or proliferation financing];

(b)maintain a record of its policies, controls and procedures, risk assessment and risk management including the application of such policies and procedures;

(c)apply measures to ensure that its policies, controls and procedures are taken into account in all relevant functions including in the development of new products, dealing with new customers and in changes to business activities; and

(d)provide information to senior management about the operation and effectiveness of its policies, controls and procedures whenever appropriate and at least annually.

(8) A relevant person must establish and maintain systems which enable it to respond fully and rapidly to enquiries from any person specified in paragraph (9) as to—

(a)whether it maintains, or has maintained during the previous five years, a business relationship with any person; and

(b)the nature of that relationship.

(9) The persons specified in this paragraph are—

(a)financial investigators accredited under section 3 of the Proceeds of Crime Act 2002 (accreditation and training) M54;

(b)persons acting on behalf of the Scottish Ministers in their capacity as an enforcement authority under that Act; and

(c)constables or equivalent officers of any law enforcement authority.

(10) In determining what is appropriate with regard to the size and nature of its business, a relevant person—

(a)must take into account its risk assessment under regulation 18(1) [F101and 18A(1)]; and

(b)may take into account any guidance which has been—

(i)issued by the FCA; or

(ii)issued by any other supervisory authority or appropriate body and approved by the Treasury.

Textual Amendments

Marginal Citations

M542002 c. 29. Section 3 was amended by paragraph 111 of Schedule 8 to the Crime and Courts Act 2013 (c.22), and by paragraph 120 of Schedule 8 and paragraph 1 of Schedule 14 to the Serious Crime Act 2007 (c.27).

Central contact points: electronic money issuers and payment service providersU.K.

F10222.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Requirement on authorised person to inform the FCAU.K.

23.—(1) An authorised person whose supervisory authority is the FCA must, before acting as a money service business or a trust or company service provider or within 28 days of so doing, inform the FCA that it intends, or has begun, to act as such.

(2) Paragraph (1) does not apply to an authorised person which—

(a)immediately before the day on which these Regulations come into force (“the relevant date”) was acting as a money service business or a trust or company service provider and continues to act as such after that date; and

(b)informs the FCA that it is acting as such within 30 days of the relevant date.

(3) Where an authorised person whose supervisory authority is the FCA ceases to act as a money service business or a trust or company service provider, it must within 28 days inform the FCA.

(4) Any requirement imposed by this regulation is to be treated as if it were a requirement imposed by or under FSMA.

(5) Any information to be provided to the FCA under this regulation must be in such form or verified in such manner as it may specify.

TrainingU.K.

24.—(1) A relevant person must—

(a)take appropriate measures to ensure that its relevant employees [F103, and any agents it uses for the purposes of its business whose work is of a kind mentioned in paragraph (2),] are—

(i)made aware of the law relating to [F104money laundering, terrorist financing and proliferation financing], and to the requirements of data protection, which are relevant to the implementation of these Regulations; and

(ii)regularly given training in how to recognise and deal with transactions and other activities or situations which may be related to [F105money laundering, terrorist financing or proliferation financing];

(b)maintain a record in writing of the measures taken under sub-paragraph (a), and in particular, of the training given to its relevant employees [F106and to any agents it uses for the purposes of its business whose work is of a kind mentioned in paragraph (2)].

(2) For the purposes of paragraph (1), a relevant employee is an employee whose work is—

(a)relevant to the relevant person's compliance with any requirement in these Regulations, or

(b)otherwise capable of contributing to the—

(i)identification or mitigation of the risk of [F107money laundering, terrorist financing and proliferation financing] to which the relevant person's business is subject; or

(ii)prevention or detection of [F108money laundering, terrorist financing and proliferation financing] in relation to the relevant person's business.

(3) In determining what measures are appropriate under paragraph (1), a relevant person—

(a)must take account of—

(i)the nature of its business;

(ii)its size;

(iii)the nature and extent of the risks of [F109money laundering, terrorist financing and proliferation financing] to which its business is subject; and

(b)may take into account any guidance which has been—

(i)issued by the FCA; or

(ii)issued by any other supervisory authority or appropriate body and approved by the Treasury.

Textual Amendments

Supervisory actionU.K.

25.—(1) The supervisory authority must determine whether the additional measures taken under regulation 20(4) by a relevant parent undertaking which is an authorised person [F110, a qualifying parent undertaking (as defined by section 192B of FSMA) or a non-authorised parent undertaking (as defined by section 143B of FSMA)] are sufficient to handle the risk of money laundering and terrorist financing effectively.

(2) If the supervisory authority does not consider the measures referred to in paragraph (1) to be sufficient, it must consider whether to direct the relevant parent undertaking—

(a)not to enter into a business relationship with a specified person;

(b)not to undertake transactions of a specified description with a specified person;

(c)to terminate an existing business relationship with a specified person;

(d)to cease any operations in the third country.

(e)to ensure that its subsidiary undertaking—

(i)does not enter into a business relationship with a specified person;

(ii)terminates an existing business relationship with a specified person; or

(iii)does not undertake transactions of a specified description with a specified person, or ceases any operations in the third country.

(3) A direction issued under paragraph (2) takes effect—

(a)immediately, if the notice given under paragraph (6) states that that is the case;

(b)on such date as may be specified in the notice; or

(c)if no such date is specified in the notice, when the matter to which the notice relates is no longer open to review.

(4) For the purposes of paragraph (3), a matter to which a notice relates is still open to review if—

(a)the period during which any person may refer the matter to the appropriate tribunal is still running;

(b)the matter has been referred to the appropriate tribunal but has not been dealt with;

(c)the matter has been referred to the appropriate tribunal and dealt with but the period during which an appeal may be brought against the appropriate tribunal's decision is still running; or

(d)such an appeal has been brought but has not been determined.

(5) Where the FCA proposes to issue a direction under paragraph (2) to a PRA-authorised person or to a person who has a qualifying relationship with a PRA-authorised person, it must consult the PRA.

(6) If the supervisory authority issues a direction under paragraph (2) it must give the relevant parent undertaking (“A”) a notice in writing.

(7) The notice must—

(a)give details of the direction;

(b)state the supervisory authority's reasons for issuing the direction;

(c)inform A that A may make representations to the supervisory authority within such period as may be specified in the notice (whether or not A has referred the matter to the appropriate tribunal);

(d)inform A of when the direction takes effect; and

(e)inform A of A's right to refer the matter to the appropriate tribunal.

(8) The supervisory authority may extend the period allowed under the notice for making representations.

(9) If, having considered any representations made by A, the supervisory authority decides—

(a)to issue the direction, or

(b)if the direction has been issued, not to rescind the direction,

it must give A notice in writing.

(10) If, having considered any representations made by A, the supervisory authority decides—

(a)not to issue the direction,

(b)to issue a different direction, or

(c)to rescind a direction which has effect,

it must give A notice in writing.

(11) A notice under paragraph (9) must inform A of A's right to refer the matter to the appropriate tribunal.

(12) A notice under paragraph (10)(b) must comply with paragraph (7).

(13) If a notice informs A of A's right to refer a matter to the appropriate tribunal, it must give an indication of the procedure on such a reference.

[F111(13A) The supervisory authority may, if it considers it proportionate to do so, publish such information about a direction given under paragraph (2) as the authority considers appropriate.

(13B) Where the supervisory authority publishes such information and the supervisory authority decides to rescind the direction to which the notice relates, the supervisory authority must, without delay, publish that fact in the same manner as that in which the information was published under paragraph (13A).

(13C) Where the supervisory authority publishes information under paragraph (13A) and the person to whom the notice is given refers the matter to the Upper Tribunal, the supervisory authority must, without delay, publish information about the status of the appeal and its outcome in the same manner as that in which the information was published under paragraph (13A).]

(14) For the purpose of this regulation—

(a)“appropriate tribunal” means—

(i)the Upper Tribunal, in the case of a direction issued by the FCA;

(ii)the First-tier or Upper Tribunal, as provided for in regulation 99, in the case of a direction issued by the Commissioners;

(b)“specified” means specified in the direction.

Textual Amendments

CHAPTER 3U.K.Ownership and Management Restrictions

Prohibitions and approvalsU.K.

26.—(1) No person may be the beneficial owner, officer or manager of a firm within paragraph (2) (“a relevant firm”), or a sole practitioner within paragraph (2) (“a relevant sole practitioner”), unless that person has been approved as a beneficial owner, officer or manager of the firm or as a sole practitioner by the supervisory authority of the firm or sole practitioner.

(2) The firms and sole practitioners within this paragraph are—

(a)auditors, insolvency practitioners, external accountants and tax advisors;

(b)independent legal professionals;

(c)estate agents [F112and letting agents];

(d)high value dealers;

[F113(e)art market participants.]

(3) A person does not breach the prohibition in paragraph (1) if that person has before 26th June 2018 applied to the supervisory authority for approval under paragraph (6) and that application has not yet been determined.

[F114(3A) A person does not breach the prohibition in paragraph (1) if—

(a)that person became a relevant firm or relevant sole practitioner on 10th January 2020 by virtue of an amendment to these Regulations by the Money Laundering and Terrorist Financing (Amendment) Regulations 2019;

(b)that person has before 10th January 2021 applied to the supervisory authority for approval under paragraph (6); and

(c)that application has not yet been determined.]

(4) A relevant firm must take reasonable care to ensure that no-one is appointed, or continues to act, as an officer or manager of the firm unless—

(a)that person has been approved by the supervisory authority, and the supervisory authority's approval of that person has not ceased to be valid; or

(b)that person has applied for approval of the supervisory authority under paragraph (6) and the application has not yet been determined.

(5) A relevant sole practitioner must not act, or continue to act, as a sole practitioner unless—

(a)that person has been approved by the supervisory authority, and the supervisory authority's approval of that person has not ceased to be valid; or

(b)that person has applied for approval of the supervisory authority under paragraph (6) and the application has not yet been determined.

(6) An application for the approval of the supervisory authority under paragraph (1) may be made by or on behalf of the person concerned.

(7) The application must—

(a)be made in such manner as the supervisory authority may direct;

[F115(b)contain, or be accompanied by—

(i)sufficient information to enable the supervisory authority, if it is a self-regulatory organisation, to determine whether the person concerned has been convicted of a relevant offence; and

(ii)such other information as the supervisory authority may reasonably require.]

(8) The supervisory authority—

(a)must grant an application for approval under paragraph (6) unless the applicant has been convicted of a relevant offence;

(b)may grant an application so as to give approval only for a limited period.

(9) An approval given by a supervisory authority under paragraph (8)—

(a)is not valid if the person approved under paragraph (1) (the “approved person”) has been convicted of a relevant offence;

(b)ceases to be valid if the approved person is subsequently convicted of a relevant offence.

(10) If an approved person (“P”) is convicted of a relevant offence—

(a)P must inform the supervisory authority which approved P of the conviction within 30 days of the day on which P was convicted;

(b)the relevant firm for which P was approved must inform its supervisory authority of the conviction within 30 days of the date on which the firm became aware of P's conviction.

(11) If the beneficial owner of a relevant firm is convicted of a relevant offence, the High Court (or in Scotland the Court of Session) may, on the application of the supervisory authority, order the sale of the beneficial owner's interest in that firm.

(12) A person who, in breach of the prohibition in paragraph (1)—

(a)acts as a manager or officer of a relevant firm or as a relevant sole practitioner; or

(b)is knowingly a beneficial owner of a relevant firm,

is guilty of a criminal offence.

(13) A person who is guilty of a criminal offence under paragraph (12) is liable—

(a)on summary conviction—

(i)in England and Wales, to imprisonment for a term not exceeding three months, to a fine or to both;

(ii)in Scotland or Northern Ireland, to imprisonment for a term not exceeding three months, to a fine not exceeding the statutory maximum or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both.

(14) The offences listed in Schedule 3 are relevant offences for the purposes of this regulation.

Textual Amendments

PART 3U.K.Customer Due Diligence

CHAPTER 1U.K.Customer due diligence: general

Customer due diligenceU.K.

27.—(1) A relevant person must apply customer due diligence measures if the person—

(a)establishes a business relationship;

(b)carries out an occasional transaction that amounts to a transfer of funds within the meaning of Article 3.9 of the funds transfer regulation exceeding 1,000 euros;

(c)suspects money laundering or terrorist financing; or

(d)doubts the veracity or adequacy of documents or information previously obtained for the purposes of identification or verification.

(2) A relevant person who is not [F116a letting agent,] a high value dealer, [F117an art market participant, a cryptoasset exchange provider of the kind referred to in paragraph (7D)] [F118or (7E), a custodian wallet provider of the kind referred to in paragraph (7E)] or a casino must also apply customer due diligence measures if the person carries out an occasional transaction that amounts to 15,000 euros or more, whether the transaction is executed in a single operation or in several operations which appear to be linked.

(3) A high value dealer must also apply customer due diligence measures if that dealer carries out an occasional transaction in cash that amounts to 10,000 euros or more, whether the transaction is executed in a single operation or in several operations which appear to be linked.

(4) A transaction does not cease to be a “transaction in cash” for the purposes of paragraph (3) if cash is paid by or on behalf of a party to the transaction—

(a)to a person other than the other party to the transaction for the benefit of the other party, or

(b)into a bank account for the benefit of the other party to the transaction.

(5) A casino must also apply customer due diligence measures in relation to any transaction within paragraph (6) that amounts to 2,000 euros or more, whether the transaction is executed in a single operation or in several operations which appear to be linked.

(6) A transaction is within this paragraph if it consists of—

(a)the wagering of a stake, including—

(i)the purchase from, or exchange with, the casino of tokens for use in gambling at the casino;

(ii)payment for use of gaming machines (within the meaning of section 235 of the Gambling Act 2005 M55); and

(iii)the deposit of funds required to take part in remote gambling; or

(b)the collection of winnings, including the withdrawal of funds deposited to take part in remote gambling (within the meaning of section 4 of the Gambling Act 2005) or winnings arising from the staking of such funds.

(7) In determining whether a transaction amounts to 2,000 euros or more for the purposes of paragraph (5), no account is to be taken of winnings from a previous transaction which had not been collected from the casino, gaming machine or remote gambling, but are being re-used in the transaction in question.

[F119(7A) A letting agent must also apply customer due diligence measures in relation to any transaction which consists of the conclusion of an agreement for the letting of land (within the meaning given in regulation 13(7))—

(i)for a term of a month or more, and

(ii)at a rent which during at least part of the term is, or is equivalent to, a monthly rent of 10,000 euros or more.

(7B) The letting agent must apply customer due diligence measures under paragraph (7A) in relation to both the person by whom the land is being let, and the person who is renting the land.

(7C) An art market participant must also apply customer due diligence measures—

(a)in relation to any trade in a work of art (within the meaning given in regulation 14), when the firm or sole practitioner carries out, or acts in respect of, any such transaction, or series of linked transactions, whose value amounts to 10,000 euros or more;

(b)in relation to the storage of a work of art (within the meaning given in regulation 14), when it is the operator of a freeport and the value of the works of art so stored for a person, or series of linked persons, amounts to 10,000 euros or more.

(7D) A cryptoasset exchange provider of the kind who operates a machine which utilises automated processes to exchange cryptoassets for money, or money for cryptoassets, must also apply customer due diligence measures in relation to any such transaction carried out using that machine (and for the purposes of this paragraph “money” and “cryptoasset” have the same meanings as they have in regulation 14A(1)).]

[F120(7E) Without prejudice to paragraph (7D), a cryptoasset exchange provider and a custodian wallet provider must also apply customer due diligence measures in relation to a cryptoasset transfer which is equal to or exceeds the equivalent in cryptoassets of 1,000 euros in value (taken together with any other cryptoasset transfer which appears to be linked).]

(8) A relevant person must also apply customer due diligence measures—

[F121(za)when the relevant person has any legal duty in the course of the calendar year to contact an existing customer for the purpose of reviewing any information which—

(i)is relevant to the relevant person’s risk assessment for that customer, and

(ii)relates to the beneficial ownership of the customer, including information which enables the relevant person to understand the ownership or control structure of a legal person, trust, foundation or similar arrangement who is the beneficial owner of the customer;

(zb)when the relevant person has to contact an existing customer in order to fulfil any duty under the International Tax Compliance Regulations 2015 M56;]

(a)at other appropriate times to existing customers on a risk based approach;

(b)when the relevant person becomes aware that the circumstances of an existing customer relevant to its risk assessment for that customer have changed.

(9) For the purposes of paragraph (8), in determining when it is appropriate to take customer due diligence measures in relation to existing customers, a relevant person must take into account, among other things—

(a)any indication that the identity of the customer, or of the customer's beneficial owner, has changed;

(b)any transactions which are not reasonably consistent with the relevant person's knowledge of the customer;

(c)any change in the purpose or intended nature of the relevant person's relationship with the customer;

(d)any other matter which might affect the relevant person's assessment of the money laundering or terrorist financing risk in relation to the customer.

[F122(10) In this regulation, “cryptoasset” and “cryptoasset transfer” have the meanings given by regulation 64B (cryptoasset transfers: interpretation).]

Textual Amendments

Marginal Citations

Customer due diligence measuresU.K.

28.—(1) This regulation applies when a relevant person is required by regulation 27 to apply customer due diligence measures.

(2) The relevant person must—

(a)identify the customer unless the identity of that customer is known to, and has been verified by, the relevant person;

(b)verify the customer's identity unless the customer's identity has already been verified by the relevant person; and

(c)assess, and where appropriate obtain information on, the purpose and intended nature of the business relationship or occasional transaction.

(3) Where the customer is a body corporate—

(a)the relevant person must obtain and verify—

(i)the name of the body corporate;

(ii)its company number or other registration number;

(iii)the address of its registered office, and if different, its principal place of business;

(b)subject to paragraph (5), the relevant person must take reasonable measures to determine and verify—

(i)the law to which the body corporate is subject, and its constitution (whether set out in its articles of association or other governing documents);

(ii)the full names of the board of directors (or if there is no board, the members of the equivalent management body) and the senior persons responsible for the operations of the body corporate.

[F123(3A) Where the customer is a legal person, trust, company, foundation or similar legal arrangement the relevant person must take reasonable measures to understand the ownership and control structure of that legal person, trust, company, foundation or similar legal arrangement.]

(4) Subject to paragraph (5), where the customer is beneficially owned by another person, the relevant person must—

(a)identify the beneficial owner;

(b)take reasonable measures to verify the identity of the beneficial owner so that the relevant person is satisfied that it knows who the beneficial owner is; and

(c)if the beneficial owner is a legal person, trust, company, foundation or similar legal arrangement take reasonable measures to understand the ownership and control structure of that legal person, trust, company, foundation or similar legal arrangement.

(5) Paragraphs (3)(b)[F124, (3A)] and (4) do not apply where the customer is a company which is listed on a regulated market.

(6) If the customer is a body corporate, and paragraph (7) applies, the relevant person may treat the senior person in that body corporate responsible for managing it as its beneficial owner.

(7) This paragraph applies if (and only if) the relevant person has exhausted all possible means of identifying the beneficial owner of the body corporate and—

(a)has not succeeded in doing so, or

(b)is not satisfied that the individual identified is in fact the beneficial owner.

[F125(8) If paragraph (7) applies, the relevant person must—

(a)keep records in writing of all the actions it has taken to identify the beneficial owner of the body corporate;

(b)take reasonable measures to verify the identity of the senior person in the body corporate responsible for managing it, and keep records in writing of—

(i)all the actions the relevant person has taken in doing so, and

(ii)any difficulties the relevant person has encountered in doing so.]

(9) Relevant persons do not satisfy their requirements under paragraph (4) by relying solely on the information—

(a)contained in—

(i)the register of people with significant control kept by a company under section 790M of the Companies Act 2006 (duty to keep register) M56;

(ii)the register of people with significant control kept by a limited liability partnership under section 790M of the Companies Act 2006 as modified by regulation 31E of the Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009 M57; or

(iii)the register of people with significant control kept by a [F126UK Societas] (within the meaning of the Council Regulation 2157/2001/EC of 8 October 2001 on the Statute for a European Company F127...) under section 790M of the Companies Act 2006 as modified by regulation 5 of the European Public Limited Liability Company (Register of People with Significant Control) Regulations 2016 M58;

(b)referred to in sub-paragraph (a) and delivered to the registrar of companies (within the meaning of section 1060(3) of the Companies Act 2006 (the registrar)) under any enactment; or

(c)contained in required particulars in relation to eligible Scottish partnerships delivered to the registrar of companies under regulation 19 of the Scottish Partnerships (Register of People with Significant Control) Regulations 2017 M59.

(10) Where a person (“A”) purports to act on behalf of the customer, the relevant person must—

(a)verify that A is authorised to act on the customer's behalf;

(b)identify A; and

(c)verify A's identity on the basis of documents or information in either case obtained from a reliable source which is independent of both A and the customer.

(11) The relevant person must conduct ongoing monitoring of a business relationship, including—

(a)scrutiny of transactions undertaken throughout the course of the relationship (including, where necessary, the source of funds) to ensure that the transactions are consistent with the relevant person's knowledge of the customer, the customer's business and risk profile;

(b)undertaking reviews of existing records and keeping the documents or information obtained for the purpose of applying customer due diligence measures up-to-date.

(12) The ways in which a relevant person complies with the requirement to take customer due diligence measures, and the extent of the measures taken—

(a)must reflect—

(i)the risk assessment carried out by the relevant person under regulation 18(1);

(ii)its assessment of the level of risk arising in any particular case;

(b)may differ from case to case.

(13) In assessing the level of risk in a particular case, the relevant person must take account of factors including, among other things—

(a)the purpose of an account, transaction or business relationship;

(b)the level of assets to be deposited by a customer or the size of the transactions undertaken by the customer;

(c)the regularity and duration of the business relationship.

(14) If paragraph (15) applies, a relevant person is not required to continue to apply customer due diligence measures under paragraph (2) or (10) in respect of a customer.

(15) This paragraph applies if all the following conditions are met—

(a)a relevant person has taken customer due diligence measures in relation to a customer;

(b)the relevant person makes a disclosure required by—

(i)Part 3 of the Terrorism Act 2000 M60, or

(ii)Part 7 of the Proceeds of Crime Act 2002 M61; and

(c)continuing to apply customer due diligence measures in relation to that customer would result in the commission of an offence by the relevant person under—

(i)section 21D of the Terrorism Act 2000 (tipping off: regulated sector) M62; or

(ii)section 333A of the Proceeds of Crime Act 2002 (tipping off: regulated sector) M63.

(16) The relevant person must be able to demonstrate to its supervisory authority that the extent of the measures it has taken to satisfy its requirements under this regulation are appropriate in view of the risks of money laundering and terrorist financing, including risks—

(a)identified by the risk assessment carried out by the relevant person under regulation 18(1);

(b)identified by its supervisory authority and in information made available to the relevant person under regulations 17(9) and 47.

(17) Paragraph (16) does not apply to the National Savings Bank or the Director of Savings.

(18) For the purposes of this regulation—

(a)except in paragraph (10), “verify” means verify on the basis of documents or information in either case obtained from a reliable source which is independent of the person whose identity is being verified;

(b)documents issued or made available by an official body are to be regarded as being independent of a person even if they are provided or made available to the relevant person by or on behalf of that person.

[F128(19) For the purposes of this regulation, information may be regarded as obtained from a reliable source which is independent of the person whose identity is being verified where—

(a)it is obtained by means of an electronic identification process, including by using electronic identification means or by using a trust service (within the meanings of those terms in Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23rd July 2014 on electronic identification and trust services for electronic transactions in the internal market M64); and

(b)that process is secure from fraud and misuse and capable of providing [F129assurance that the person claiming a particular identity is in fact the person with that identity, to a degree that is necessary for effectively managing and mitigating any risks of money laundering and terrorist financing].]

Textual Amendments

Marginal Citations

M57S.I. 2009/1804. Regulation 31E was inserted by S.I. 2016/340.

M62Section 21D was inserted by S.I. 2007/3398.

M63Section 333A was inserted by S.I. 2007/3398.

M64OJ L 257, 28.08.2014, p.73.

Additional customer due diligence measures: credit institutions and financial institutionsU.K.

29.—(1) This regulation applies in addition to regulation 28 where a relevant person is a credit institution or a financial institution.

(2) Paragraphs (3) to (5) apply if the relevant person is providing a customer with a contract of long-term insurance (“the insurance policy”).

(3) As soon as the beneficiaries of the insurance policy are identified or designated, the relevant person must—

(a)if the beneficiary is a named person or legal arrangement, take the full name of the person or arrangement; or

(b)if the beneficiaries are designated by specified characteristics, as a class or in any other way, obtain sufficient information about the beneficiaries to satisfy itself that it will be able to establish the identity of the beneficiary before any payment is made under the insurance policy.

(4) The relevant person must verify the identity of the beneficiaries (on the basis of documents or information in either case obtained from a reliable source which is independent of the customer and the beneficiaries, and regulation 28(18)(b) applies for the purpose of determining whether a source satisfies this requirement) before any payment is made under the insurance policy.

(5) When the relevant person becomes aware that all or part of the rights under the insurance policy are being, or have been, assigned to an individual, body corporate, trust or other legal arrangement which is receiving the value or part of the value of the insurance policy for its own benefit ( “ the new beneficiary ”), the relevant person must identify the new beneficiary as soon as possible after becoming aware of the assignment, and in any case before a payment is made under the policy.

(6) The relevant person must not set up [F130an anonymous account, an anonymous passbook or an anonymous safe-deposit box] for any new or existing customer.

(7) The relevant person must apply customer due diligence measures to all anonymous accounts and passbooks in existence on the date on which these Regulations come into force, and in any event before such accounts or passbooks are used in any way.

[F131(7A) The relevant person must apply customer due diligence measures to all anonymous safe-deposit boxes in existence on 10th January 2019, and in any event before such safe-deposit boxes are used in any way.]

(8) A relevant person which—

(a)is an open-ended investment company within the meaning of regulation 2(1) of the Open-Ended Investment Companies Regulations 2001 M65; and

(b)is authorised on or after the date on which these Regulations come into force,

may not issue shares evidenced by a share certificate (or any other documentary evidence) indicating that the holder of the certificate or document is entitled to the shares specified in it.

(9) Paragraph (8) does not apply to an open-ended investment company if—

(a)an application for an authorisation order under regulation 12 of the Open-ended Investment Companies Regulations 2001 was made in relation to that open-ended investment company before the date on which these Regulations come into force; and

(b)that application was not determined until a date on or after the date on which these Regulations come into force.

Textual Amendments

Marginal Citations

Timing of verificationU.K.

30.—(1) This regulation applies when a relevant person is required to take any measures under regulation 27, 28 or 29.

(2) Subject to paragraph (3) or (4), a relevant person must comply with the requirement to verify the identity of the customer, any person purporting to act on behalf of the customer and any beneficial owner of the customer before the establishment of a business relationship or the carrying out of the transaction.

(3) Provided that the verification is completed as soon as practicable after contact is first established, the verification of the customer, any person purporting to act on behalf of the customer and the customer's beneficial owner, may be completed during the establishment of a business relationship if—

(a)this is necessary not to interrupt the normal conduct of business; and

(b)there is little risk of money laundering and terrorist financing.

(4) The verification by a credit institution or a financial institution of the identity of a customer opening an account, any person purporting to act on behalf of the customer and any beneficial owner of the customer, may take place after the account has been opened provided that there are adequate safeguards in place to ensure that no transactions are carried out by or on behalf of the customer before verification has been completed.

(5) For the purposes of paragraph (4) “account” includes an account which permits transactions in transferable securities.

(6) Paragraph (7) applies if—

(a)the relevant person is required to apply customer due diligence measures in the case of a trust, a legal entity (other than a body corporate) or a legal arrangement (other than a trust); and

(b)the beneficiaries of that trust, entity or arrangement are designated as a class, or by reference to particular characteristics.

(7) If this paragraph applies, the relevant person must establish and verify the identity of any beneficiary before—

(a)any payment is made to the beneficiary; or

(b)the beneficiary exercises its vested rights in the trust, legal entity or legal arrangement.

[F132Requirement to report discrepancies in registersU.K.

30A.—(1) Before establishing a business relationship with—

(a)a company which is subject to the requirements of Part 21A of the Companies Act 2006 (information about people with significant control);

(b)an unregistered company which is subject to the requirements of the Unregistered Companies Regulations 2009;

(c)a limited liability partnership which is subject to the requirements of the Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009;

(d)an eligible Scottish partnership which is subject to the requirements of the Scottish Partnerships (Register of People with Significant Control) Regulations 2017, F133...

(e)a trust which is subject to registration under Part 5 of these Regulations, [F134or]

[F135(f)an overseas entity which is subject to registration under Part 1 of the Economic Crime (Transparency and Enforcement) Act 2022,]

[F136a relevant person must collect an excerpt of the register which contains full details of any information specified in paragraph (1A) held on the register at the relevant time before the business relationship is established, or must establish from its inspection of the register that there is no such information held on the register at that time.]

[F137(1A) The information specified in this paragraph is as follows—

(a)in relation to a firm of a type described in paragraphs (1)(a) to (e), information relating to beneficial owners of the customer; and

(b)in relation to an overseas entity of a type described in paragraph (1)(f), required information relating to registrable beneficial owners specified under Schedule 1 to the Economic Crime (Transparency and Enforcement) Act 2022.]

(2) The relevant person must report to the person mentioned in paragraph (3) [F138any material discrepancy] the relevant person finds between information relating to the beneficial ownership of the customer—

(a)which the relevant person collects under paragraph (1), and

(b)which otherwise becomes available to the relevant person in the course of carrying out its duties under these Regulations when establishing a business relationship with the customer.

[F139(2A) When taking measures to fulfil the duties to carry out customer due diligence and ongoing monitoring of a business relationship (including enhanced customer due diligence and enhanced ongoing monitoring) under Part 3 of these Regulations after a business relationship with a customer of a type described in paragraph (1)(a) to (f) has been established, a relevant person must also collect an excerpt of the register which contains full details of any information specified in paragraph (1A) which is held on the register at that time, or must establish from its inspection of the register that there is no such information held on the register at that time.

(2B) The relevant person must report to the person mentioned in paragraph (3) any material discrepancy the relevant person finds between information relating to the beneficial ownership of the customer—

(a)which the relevant person collects under paragraph (2A), and

(b)which otherwise becomes available to the relevant person in the course of carrying out its duties under these Regulations.]

(3) [F140A material discrepancy referred to in paragraphs (2) and (2B)] must be reported—

(a)if it relates to a company, an unregistered company, a limited liability partnership [F141, an eligible Scottish partnership or an overseas entity,] to the registrar; or

(b)if it relates to a trust, to the Commissioners.

(4) The relevant person is not required under paragraph (2) [F142or (2B)] to report information which that person would be entitled to refuse to provide on grounds of legal professional privilege in the High Court (or in Scotland, on the ground of confidentiality of communications in the Court of Session).

(5) The person to whom [F143a material discrepancy] is reported must take such action as that person considers appropriate to investigate and, if necessary, resolve the discrepancy in a timely manner.

[F144(6) A discrepancy which is reported to the registrar under paragraph (3) is material excluded from public inspection for the purposes of—

(a)section 1087 of the Companies Act 2006 (material not available for public inspection), including for the purposes of that section as applied—

(i)to unregistered companies by paragraph 20 of Schedule 1 to the Unregistered Companies Regulations 2009;

(ii)to limited liability partnerships by regulation 66 of the Limited Liability Partnerships (Application of Companies Act 2006) Regulations 2009; and

(iii)to eligible Scottish partnerships by regulation 61 of the Scottish Partnerships (Register of People with Significant Control) Regulations 2017; and

(b)section 22 of the Economic Crime (Transparency and Enforcement) Act 2022 (material unavailable for inspection).]

(7) A reference to the registrar in this regulation is to the registrar of companies within the meaning of section 1060(3) of the Companies Act 2006.

[F145(8) In this regulation, a “material discrepancy” is one described in Schedule 3AZA.]]

Textual Amendments

Requirement to cease transactions etcU.K.

31.—(1) Where, in relation to any customer, a relevant person is unable to apply customer due diligence measures as required by regulation 28, that person—

(a)must not carry out any transaction through a bank account with the customer or on behalf of the customer;

(b)must not establish a business relationship or carry out a transaction with the customer otherwise than through a bank account;

(c)must terminate any existing business relationship with the customer;

(d)must consider whether the relevant person is required to make a disclosure (or to make further disclosure) by—

(i)Part 3 of the Terrorism Act 2000 M66; or

(ii)Part 7 of the Proceeds of Crime Act 2002 M67.

(2) Paragraph (1)(a) does not prevent money deposited in an account being repaid to the person who deposited it, provided that, in any case where a disclosure is required by the legislation referred in paragraph (1)(d), the relevant person has—

(a)consent (within the meaning of section 21ZA of the Terrorism Act 2000 (arrangements with prior consent)) M68 to the transaction, or

(b)the appropriate consent (within the meaning of section 335 of the Proceeds of Crime Act 2002 (appropriate consent)) to the transaction.

(3) Paragraph (1) does not apply where an independent legal professional or other professional adviser is in the course of ascertaining the legal position for a client or performing the task of defending or representing that client in, or concerning, legal proceedings, including giving advice on the institution or avoidance of proceedings.

(4) In paragraph (3), “other professional adviser” means an auditor, external accountant or tax adviser who is a member of a professional body which is established for any such persons and which makes provision for—

(a)testing the competence of those seeking admission to membership of such a body as a condition for such admission; and

(b)imposing and maintaining professional and ethical standards for its members, as well as imposing sanctions for non-compliance with those standards.

(5) Paragraph (1)(a) to (c) does not apply where an insolvency practitioner has been appointed by the court as administrator or liquidator of a company, provided that—

(a)the insolvency practitioner has taken all reasonable steps to satisfy the requirements set out in regulation 28(2) and (10), and

(b)the resignation of the insolvency practitioner would be prejudicial to the interests of the creditors of the company.

Marginal Citations

M68Section 21ZA was inserted by S.I. 2007/3398.

Exception for trustees of debt issuesU.K.

32.—(1) A relevant person—

(a)who is appointed by the issuer of instruments or securities specified in paragraph (2) as trustee of an issue of such instruments or securities; or

(b)whose customer is a trustee of an issue of such instruments or securities,

is not required to apply the customer due diligence measure referred to in regulation 28(3) and (4) in respect of the holders of such instruments or securities.

(2) The specified instruments and securities are—

(a)instruments which fall within article 77 or 77A of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 M69; and

(b)securities which fall within article 78 of that Order M70.

Marginal Citations

M69S.I. 2001/544. Article 77 was amended by S.I. 2010/86, 2011/133. Article 77A was inserted by S.I. 2010/86 and amended by S.I. 2011/133.

M70Article 78 was amended by S.I. 2010/86.

CHAPTER 2U.K.Enhanced customer due diligence

Obligation to apply enhanced customer due diligenceU.K.

33.—(1) A relevant person must apply enhanced customer due diligence measures and enhanced ongoing monitoring, in addition to the customer due diligence measures required under regulation 28 and, if applicable, regulation 29, to manage and mitigate the risks arising—

(a)in any case identified as one where there is a high risk of money laundering or terrorist financing—

(i)by the relevant person under regulation 18(1), or

(ii)in information made available to the relevant person under regulations 17(9) and 47;

(b)in any business relationship F146... with a person established in a high-risk third country [F147or in relation to any relevant transaction where either of the parties to the transaction is established in a high-risk third country];

(c)in relation to correspondent relationships with a credit institution or a financial institution (in accordance with regulation 34);

(d)if a relevant person has determined that a customer or potential customer is a PEP, or a family member or known close associate of a PEP (in accordance with regulation 35);

(e)in any case where the relevant person discovers that a customer has provided false or stolen identification documentation or information and the relevant person proposes to continue to deal with that customer;

[F148(f)in any case where—

(i)a transaction is complex or unusually large,

(ii)there is an unusual pattern of transactions, or

(iii)the transaction or transactions have no apparent economic or legal purpose, and]

(g)in any other case which by its nature can present a higher risk of money laundering or terrorist financing.

(2) Paragraph (1)(b) does not apply when the customer is a branch or majority owned subsidiary undertaking of an entity which is established in [F149a third country] if all the following conditions are satisfied—

[F150(a)the entity is—

(i)subject to requirements in national legislation having an equivalent effect to those laid down in the fourth money laundering directive on an obliged entity (within the meaning of that directive); and

(ii)supervised for compliance with those requirements in a manner equivalent to section 2 of Chapter VI of the fourth money laundering directive;]

(b)the branch or subsidiary complies fully with procedures and policies established for the group under [F151requirements equivalent to those laid down in] Article 45 of the fourth money laundering directive; and

(c)the relevant person, applying a risk-based approach, does not consider that it is necessary to apply enhanced customer due diligence measures.

[F152(3) For the purposes of paragraph (1)(b)—

(a)[F153a “high-risk third country” means a country which is specified in Schedule 3ZA;]

(b)a “relevant transaction” means a transaction in relation to which the relevant person is required to apply customer due diligence measures under regulation 27;

(c)being “established in” a country means—

(i)in the case of a legal person, being incorporated in or having its principal place of business in that country, or, in the case of a financial institution or a credit institution, having its principal regulatory authority in that country; and

(ii)in the case of an individual, being resident in that country, but not merely having been born in that country.]

[F154(3A) The enhanced due diligence measures taken by a relevant person for the purpose of paragraph (1)(b) must include—

(a)obtaining additional information on the customer and on the customer’s beneficial owner;

(b)obtaining additional information on the intended nature of the business relationship;

(c)obtaining information on the source of funds and source of wealth of the customer and of the customer’s beneficial owner;

(d)obtaining information on the reasons for the transactions;

(e)obtaining the approval of senior management for establishing or continuing the business relationship;

(f)conducting enhanced monitoring of the business relationship by increasing the number and timing of controls applied, and selecting patterns of transactions that need further examination.]

(4) The enhanced customer due diligence measures taken by a relevant person for the purpose of paragraph (1)(f) must include—

(a)as far as reasonably possible, examining the background and purpose of the transaction, and

(b)increasing the degree and nature of monitoring of the business relationship in which the transaction is made to determine whether that transaction or that relationship appear to be suspicious.

[F155(4A) Where a relevant person provides a life insurance policy, the relevant person must consider the nature and identity of the beneficiary of the policy when assessing whether there is a high risk of money laundering or terrorist financing, and the extent of the measures which should be taken to manage and mitigate that risk.

(4B) Where the beneficiary of a life insurance policy provided by a relevant person—

(a)is a legal person or a legal arrangement, and

(b)presents a high risk of money laundering or terrorist financing,

the relevant person must take reasonable measures to identify and verify the identity of the beneficial owner of that beneficiary before any payment is made under the policy.]

(5) Depending on the requirements of the case, the enhanced customer due diligence measures required under paragraph (1) may also include, among other things—

(a)seeking additional independent, reliable sources to verify information provided or made available to the relevant person;

(b)taking additional measures to understand better the background, ownership and financial situation of the customer, and other parties to the transaction;

(c)taking further steps to be satisfied that the transaction is consistent with the purpose and intended nature of the business relationship;

(d)increasing the monitoring of the business relationship, including greater scrutiny of transactions.

(6) When assessing whether there is a high risk of money laundering or terrorist financing in a particular situation, and the extent of the measures which should be taken to manage and mitigate that risk, relevant persons must take account of risk factors including, among other things—

(a)customer risk factors, including whether—

(i)the business relationship is conducted in unusual circumstances;

(ii)the customer is resident in a geographical area of high risk (see sub-paragraph (c));

(iii)the customer is a legal person or legal arrangement that is a vehicle for holding personal assets;

(iv)the customer is a company that has nominee shareholders or shares in bearer form;

(v)the customer is a business that is cash intensive;

(vi)the corporate structure of the customer is unusual or excessively complex given the nature of the company's business;

[F156(vii)the customer is the beneficiary of a life insurance policy;

(viii)the customer is a third country national who is applying for residence rights in or citizenship of [F157a state] in exchange for transfers of capital, purchase of a property, government bonds or investment in corporate entities in [F158that state];]

(b)product, service, transaction or delivery channel risk factors, including whether—

(i)the product involves private banking;

(ii)the product or transaction is one which might favour anonymity;

(iii)the situation involves non-face-to-face business relationships or transactions, without certain safeguards, such as [F159an electronic identification process which meets the conditions set out in regulation 28(19)];

(iv)payments will be received from unknown or unassociated third parties;

(v)new products and new business practices are involved, including new delivery mechanisms, and the use of new or developing technologies for both new and pre-existing products;

(vi)the service involves the provision of nominee directors, nominee shareholders or shadow directors, or the formation of companies in a third country;

[F160(vii)there is a transaction related to oil, arms, precious metals, tobacco products, cultural artefacts, ivory or other items related to protected species, or other items of archaeological, historical, cultural or religious significance or of rare scientific value;]

(c)geographical risk factors, including—

(i)countries identified by credible sources, such as mutual evaluations, detailed assessment reports or published follow-up reports, as not having effective systems to counter money laundering or terrorist financing;

(ii)countries identified by credible sources as having significant levels of corruption or other criminal activity, such as terrorism (within the meaning of section 1 of the Terrorism Act 2000 M71), money laundering, and the production and supply of illicit drugs;

(iii)countries subject to sanctions, embargos or similar measures issued by, for example, the European Union or the United Nations;

(iv)countries providing funding or support for terrorism;

(v)countries that have organisations operating within their territory which have been designated—

(aa)by the government of the United Kingdom as proscribed organisations under Schedule 2 to the Terrorism Act 2000 M72, or

(bb)by other countries, international organisations or the European Union as terrorist organisations;

(vi)countries identified by credible sources, such as evaluations, detailed assessment reports or published follow-up reports published by the Financial Action Task Force, the International Monetary Fund, the World Bank, the Organisation for Economic Co-operation and Development or other international bodies or non-governmental organisations as not implementing requirements to counter money laundering and terrorist financing that are consistent with the recommendations published by the Financial Action Task Force in February 2012 and updated in [F161June 2019].

(7) In making the assessment referred to in paragraph (6), relevant persons must bear in mind that the presence of one or more risk factors may not always indicate that there is a high risk of money laundering or terrorist financing in a particular situation.

F162(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Marginal Citations

M71 2006 c. 46; Part 21A was inserted by Schedule 3 to the Small Business, Enterprise and Employment Act 2015 (c.26).

Enhanced customer due diligence: credit institutions, financial institutions and correspondent relationshipsU.K.

34.—(1) A credit institution or financial institution (the “correspondent”) which has or proposes to have a correspondent relationship [F163involving the execution of payments] with another such institution (the “respondent”) from a third country must, in addition to the measures required by regulation 33—

(a)gather sufficient information about the respondent to understand fully the nature of its business;

(b)determine from publicly-available information from credible sources the reputation of the respondent and the quality of the supervision to which the respondent is subject;

(c)assess the respondent's controls to counter money laundering and terrorist financing;

(d)obtain approval from senior management before establishing a new correspondent relationship;

(e)document the responsibilities of the respondent and correspondent in the correspondent relationship; and

(f)be satisfied that, in respect of those of the respondent's customers who have direct access to accounts with the correspondent, the respondent—

(i)has verified the identity of, and conducts ongoing customer due diligence measures in relation to, such customers; and

(ii)is able to provide to the correspondent, upon request, the documents or information obtained when applying such customer due diligence measures.

(2) Credit institutions and financial institutions must not enter into, or continue, a correspondent relationship with a shell bank.

(3) Credit institutions and financial institutions must take appropriate enhanced measures to ensure that they do not enter into, or continue, a correspondent relationship with a credit institution or financial institution which is known to allow its accounts to be used by a shell bank.

(4) For the purposes of this regulation—

(a)“correspondent relationship” means—

(i)the provision of banking services by a correspondent to a respondent including providing a current or other liability account and related services, such as cash management, international funds transfers, cheque clearing, providing customers of the respondent with direct access to accounts with the correspondent (and vice versa) and providing foreign exchange services; or

(ii)the relationship between and among credit institutions and financial institutions including where similar services are provided by a correspondent to a respondent, and including relationships established for securities transactions or funds transfers;

(b)a “shell bank” means a credit institution or financial institution, or an institution engaged in equivalent activities to those carried out by credit institutions or financial institutions, incorporated in a jurisdiction in which it has no physical presence involving meaningful decision-making and management, and which is not part of a financial conglomerate or third-country financial conglomerate;

(c)in sub-paragraph (b), “financial conglomerate” and “third-country financial conglomerate” have the meanings given by regulations 1(2) and 7(1) respectively of the Financial Conglomerates and Other Financial Groups Regulations 2004 M73.

Textual Amendments

Marginal Citations

Enhanced customer due diligence: politically exposed personsU.K.

35.—(1) A relevant person must have in place appropriate risk-management systems and procedures to determine whether a customer or the beneficial owner of a customer is—

(a)a politically exposed person (a “PEP”); or

(b)a family member or a known close associate of a PEP,

and to manage the enhanced risks arising from the relevant person's business relationship or transactions with such a customer.

(2) In determining what risk-management systems and procedures are appropriate under paragraph (1), the relevant person must take account of—

(a)the risk assessment it carried out under regulation 18(1);

(b)the level of risk of money laundering and terrorist financing inherent in its business;

(c)the extent to which that risk would be increased by its business relationship or transactions with a PEP, or a family member or known close associate of a PEP, and

(d)any relevant information made available to the relevant person under regulations 17(9) and 47.

(3) If a relevant person has determined that a customer or a potential customer is a PEP, or a family member or known close associate of a PEP, the relevant person must assess—

(a)the level of risk associated with that customer, and

(b)the extent of the enhanced customer due diligence measures to be applied in relation to that customer.

(4) In assessing the extent of the enhanced customer due diligence measures to be taken in relation to any particular person (which may differ from case to case), a relevant person—

(a)must take account of any relevant information made available to the relevant person under regulations 17(9) and 47; and

(b)may take into account any guidance which has been—

(i)issued by the FCA; or

(ii)issued by any other supervisory authority or appropriate body and approved by the Treasury.

(5) A relevant person who proposes to have, or to continue, a business relationship with a PEP, or a family member or a known close associate of a PEP, must, in addition to the measures required by regulation 33—

(a)have approval from senior management for establishing or continuing the business relationship with that person;

(b)take adequate measures to establish the source of wealth and source of funds which are involved in the proposed business relationship or transactions with that person; and

(c)where the business relationship is entered into, conduct enhanced ongoing monitoring of the business relationship with that person.

(6) A relevant person which is providing a customer with a contract of long-term insurance (an “insurance policy”) must take reasonable measures to determine whether one or more of the beneficiaries of the insurance policy or the beneficial owner of a beneficiary of such an insurance policy are—

(a)PEPs, or

(b)family members or known close associates of PEPs.

(7) The measures required under paragraph (6) must be taken before—

(a)any payment is made under the insurance policy, or

(b)the benefit of the insurance policy is assigned in whole or in part to another person.

(8) A relevant person must, in addition to the measures required by regulation 33, ensure that—

(a)its senior management is informed before it pays out any sums under an insurance policy the beneficiary of which is a PEP or a person who comes within paragraph (6)(b) in relation to a PEP, and

(b)its entire business relationship with the holder of the insurance policy (“the policy holder”) is scrutinised on an ongoing basis in accordance with enhanced procedures, whether or not the policy holder is a PEP or a family member or known close associate of a PEP.

(9) Where a person who was a PEP is no longer entrusted with a prominent public function, a relevant person must continue to apply the requirements in paragraphs (5) and (8) in relation to that person—

(a)for a period of at least 12 months after the date on which that person ceased to be entrusted with that public function; or

(b)for such longer period as the relevant person considers appropriate to address risks of money laundering or terrorist financing in relation to that person.

(10) Paragraph (9) does not apply in relation to a person who—

(a)was not a politically exposed person within the meaning of regulation 14(5) of the Money Laundering Regulations 2007 M74, when those Regulations were in force; and

(b)ceased to be entrusted with a prominent public function before the date on which these Regulations come into force.

(11) When a person who was a PEP is no longer entrusted with a prominent public function, the relevant person is no longer required to apply the requirements in paragraphs (5) and (8) in relation to a family member or known close associate of that PEP (whether or not the period referred to in paragraph (9) has expired).

(12) In this regulation—

(a)“politically exposed person” or “PEP” means an individual who is entrusted with prominent public functions, other than as a middle-ranking or more junior official;

(b)“family member” of a politically exposed person includes—

(i)a spouse or civil partner of the PEP;

(ii)children of the PEP and the spouses or civil partners of the PEP's children;

(iii)parents of the PEP;

(c)“known close associate” of a PEP means—

(i)an individual known to have joint beneficial ownership of a legal entity or a legal arrangement or any other close business relations with a PEP;

(ii)an individual who has sole beneficial ownership of a legal entity or a legal arrangement which is known to have been set up for the benefit of a PEP.

(13) For the purposes of paragraph (5), a reference to a business relationship with an individual includes a reference to a business relationship with a person of which the individual is a beneficial owner.

(14) For the purposes of paragraphs (9), (11) and (12)(a), individuals entrusted with prominent public functions include—

(a)heads of state, heads of government, ministers and deputy or assistant ministers;

(b)members of parliament or of similar legislative bodies;

(c)members of the governing bodies of political parties;

(d)members of supreme courts, of constitutional courts or of any judicial body the decisions of which are not subject to further appeal except in exceptional circumstances;

(e)members of courts of auditors or of the boards of central banks;

(f)ambassadors, charges d'affaires and high-ranking officers in the armed forces;

(g)members of the administrative, management or supervisory bodies of State-owned enterprises;

(h)directors, deputy directors and members of the board or equivalent function of an international organisation.

(15) For the purpose of deciding whether a person is a known close associate of a politically exposed person, a relevant person need only have regard to information which is in its possession, or to credible information which is publicly available.

Marginal Citations

Politically exposed persons: other dutiesU.K.

36.—(1) The duty under section 30(1) of the Bank of England and Financial Services Act 2016 (duty to ensure that regulations or orders implementing the fourth money laundering directive comply with paragraphs (a) to (d) of that subsection) M75 does not apply if, and to the extent that, the duty is otherwise satisfied as a result of any provision contained in these Regulations, or any guidance issued by the FCA under these Regulations.

(2) The duty under section 333U(1) and (2) of FSMA (duty to issue guidance in connection with politically exposed persons) M76 does not apply if, and to the extent that, the duty is otherwise satisfied as a result of guidance issued by the FCA under these Regulations.

Marginal Citations

M76Section 333U was inserted by the Bank of England and Financial Services Act 2016, s.30.

CHAPTER 3U.K.Simplified customer due diligence

Application of simplified customer due diligenceU.K.

37.—(1) A relevant person may apply simplified customer due diligence measures in relation to a particular business relationship or transaction if it determines that the business relationship or transaction presents a low degree of risk of money laundering and terrorist financing, having taken into account—

(a)the risk assessment it carried out under regulation 18(1);

(b)relevant information made available to it under regulations 17(9) and 47; and

(c)the risk factors referred to in paragraph (3).

(2) Where a relevant person applies simplified customer due diligence measures, it must—

(a)continue to comply with the requirements in [F164regulations 28 and 30A], but it may adjust the extent, timing or type of the measures it undertakes under [F165regulation 28] to reflect its determination under paragraph (1); and

(b)carry out sufficient monitoring of any business relationships or transactions which are subject to those measures to enable it to detect any unusual or suspicious transactions.

(3) When assessing whether there is a low degree of risk of money laundering and terrorist financing in a particular situation, and the extent to which it is appropriate to apply simplified customer due diligence measures in that situation, the relevant person must take account of risk factors including, among other things—

(a)customer risk factors, including whether the customer—

(i)is a public administration, or a publicly owned enterprise;

(ii)is an individual resident in a geographical area of lower risk (see sub-paragraph (c));

(iii)is a credit institution or a financial institution which is—

[F166(aa)subject to requirements in national legislation having an equivalent effect to those laid down in the fourth money laundering directive on an obliged entity (within the meaning of that directive); and]

(bb)supervised for compliance with those requirements [F167in a manner equivalent to] section 2 of Chapter VI of the fourth money laundering directive;

(iv)is a company whose securities are listed on a regulated market, and the location of the regulated market;

(b)product, service, transaction or delivery channel risk factors, including whether the product or service is—

(i)a life insurance policy for which the premium is low;

(ii)an insurance policy for a pension scheme which does not provide for an early surrender option, and cannot be used as collateral;

(iii)a pension, superannuation or similar scheme which satisfies the following conditions—

(aa)the scheme provides retirement benefits to employees;

(bb)contributions to the scheme are made by way of deductions from wages; and

(cc)the scheme rules do not permit the assignment of a member's interest under the scheme;

(iv)a financial product or service that provides appropriately defined and limited services to certain types of customers to increase access for financial inclusion purposes in [F168the United Kingdom];

(v)a product where the risks of money laundering and terrorist financing are managed by other factors such as purse limits or transparency of ownership;

(vi)a child trust fund within the meaning given by section 1(2) of the Child Trust Funds Act 2004 M77;

(vii)a junior ISA within the meaning given by regulation 2B of the Individual Savings Account Regulations 1998 M78;

(c)geographical risk factors, including whether the country where the customer is resident, established or registered or in which it operates is—

(i)[F169the United Kingdom];

(ii)a third country which has effective systems to counter money laundering and terrorist financing;

(iii)a third country identified by credible sources as having a low level of corruption or other criminal activity, such as terrorism (within the meaning of section 1 of the Terrorism Act 2000 M79), money laundering, and the production and supply of illicit drugs;

(iv)a third country which, on the basis of credible sources, such as evaluations, detailed assessment reports or published follow-up reports published by the Financial Action Task Force, the International Monetary Fund, the World Bank, the Organisation for Economic Co-operation and Development or other international bodies or non-governmental organisations—

(aa)has requirements to counter money laundering and terrorist financing that are consistent with the revised Recommendations published by the Financial Action Task Force in February 2012 and updated in October 2016; and

(bb)effectively implements those Recommendations.

(4) In making the assessment referred to in paragraph (3), relevant persons must bear in mind that the presence of one or more risk factors may not always indicate that there is a low risk of money laundering and terrorist financing in a particular situation.

(5) A relevant person may apply simplified customer due diligence measures where the customer is a person to whom paragraph (6) applies and the product is an account into which monies are pooled (the “pooled account”), provided that—

(a)the business relationship with the holder of the pooled account presents a low degree of risk of money laundering and terrorist financing; and

(b)information on the identity of the persons on whose behalf monies are held in the pooled account is available, on request to the relevant person where the pooled account is held.

(6) This paragraph applies to—

(a)a relevant person who is subject to these Regulations under regulation 8;

[F170(b)a person who carries on business in a third country who is—

(i)subject to requirements in national legislation having an equivalent effect to those laid down in the fourth money laundering directive on an obliged entity (within the meaning of that directive); and

(ii)supervised for compliance with those requirements in a manner equivalent to section 2 of Chapter VI of the fourth money laundering directive.]

F171(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) A relevant person must not continue to apply simplified customer due diligence measures under paragraph (1)—

(a)if it doubts the veracity or accuracy of any documents or information previously obtained for the purposes of identification or verification;

(b)if its risk assessment changes and it no longer considers that there is a low degree of risk of money laundering and terrorist financing;

(c)if it suspects money laundering or terrorist financing; or

(d)if any of the conditions set out in regulation 33(1) apply.

Textual Amendments

Marginal Citations

M78S.I. 1998/1870. Regulation 2B was inserted by S.I. 2011/1780.

Electronic moneyU.K.

38.—(1) Subject to paragraph (3), a relevant person is not required to apply customer due diligence measures in relation to electronic money, and regulations 27, 28, 30 and 33 to 37 do not apply provided that—

(a)the maximum amount which can be stored electronically is [F172150 euros];

(b)the payment instrument used in connection with the electronic money (“the relevant payment instrument”) is—

(i)not reloadable; or

(ii)is subject to a maximum limit on monthly payment transactions of [F173150 euros] which can only be used in the United Kingdom;

(c)the relevant payment instrument is used exclusively to purchase goods or services;

(d)anonymous electronic money cannot be used to fund the relevant payment instrument.

(2) Paragraph (1) does not apply to any transaction which consists of the redemption in cash, or a cash withdrawal, of the monetary value of the electronic money, [F174where—

(a)the amount redeemed exceeds 50 euros; or

(b)in the case of remote payment transactions, the amount redeemed exceeds 50 euros per transaction.]

(3) The issuer of the relevant payment instrument must carry out sufficient monitoring of its business relationship with the users of electronic money and of transactions made using the relevant payment instrument to enable it to detect any unusual or suspicious transactions.

(4) A relevant person is not prevented from applying simplified customer due diligence measures in relation to electronic money because the conditions set out in paragraph (1) are not satisfied, provided that such measures are permitted under regulation 37.

[F175(4A) Credit institutions and financial institutions, acting as acquirers for payment using an anonymous prepaid card issued in a third country, shall only accept payment where—

(a)the anonymous prepaid card is subject to requirements in national legislation having an equivalent effect to those laid down in this regulation; and

(b)the anonymous prepaid card satisfies those requirements.]

[F176(5) For the purposes of this regulation—

(a)“acquirer” means a payment service provider contracting with a payee to accept and process card-based payment transactions, which result in a transfer of funds to the payee;

(b)“payment instrument” has the meaning given by regulation 2(1) of the Electronic Money Regulations 2011 M80;

(c)“remote payment transaction” has the meaning given by regulation 2 of the Payment Services Regulations 2017 M81.]

Textual Amendments

Marginal Citations

PART 4U.K.Reliance and Record-keeping

RelianceU.K.

39.—(1) A relevant person may rely on a person who falls within paragraph (3) (“the third party”) to apply any of the customer due diligence measures required by regulation 28(2) to (6) and (10) [F177, or to carry out any of the measures required by regulation 30A,] but, notwithstanding the relevant person's reliance on the third party, the relevant person remains liable for any failure to apply such measures.

(2) When a relevant person relies on the third party to apply customer due diligence measures [F178or carry out any of the measures required by regulation 30A] under paragraph (1) it—

(a)must immediately obtain from the third party all the information needed to satisfy the requirements of regulation 28(2) to (6) and (10) [F179and regulation 30A] in relation to the customer, customer's beneficial owner, or any person acting on behalf of the customer;

(b)must enter into arrangements with the third party which—

(i)enable the relevant person to obtain from the third party immediately on request copies of any identification and verification data and any other relevant documentation on the identity of the customer, customer's beneficial owner, or any person acting on behalf of the customer;

(ii)require the third party to retain copies of the data and documents referred to in paragraph (i) for the period referred to in regulation 40.

(3) The persons within this paragraph are—

(a)another relevant person who is subject to these Regulations under regulation 8;

F180(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)a person who carries on business in a third country who is—

(i)subject to requirements in relation to customer due diligence and record keeping which are equivalent to those laid down in the fourth money laundering directive; and

(ii)supervised for compliance with those requirements in a manner equivalent to section 2 of Chapter VI of the fourth money laundering directive;

(d)organisations whose members consist of persons within sub-paragraph (a)F181... or (c).

(4) A relevant person may not rely on a third party established in [F182a high-risk third country], and for these purposes “high-risk third country” has the meaning given in regulation 33(3).

(5) Paragraph (4) does not apply to a branch or majority owned subsidiary of an entity F183... if all the following conditions are met—

[F184(a)the entity is—

(i)a person who is subject to the requirements in these Regulations as a relevant person within the meaning of regulation 8 and who is supervised for compliance with them; or

(ii)subject to requirements in national legislation having an equivalent effect to those laid down in the fourth money laundering directive on an obliged entity (within the meaning of that directive) and supervised for compliance with those requirements in a manner equivalent to section 2 of Chapter VI of the fourth money laundering directive;]

[F185(b)the branch or subsidiary complies fully with procedures and policies established for the group under—

(i)regulation 20 of these Regulations, or

(ii)requirements in national legislation having an equivalent effect to those laid down Article 45 of the fourth money laundering directive.]

(6) A relevant person is to be treated by a supervisory authority as having complied with the requirements of paragraph (2) if—

(a)the relevant person is relying on information provided by a third party which is a member of the same group as the relevant person;

(b)that group applies customer due diligence measures, rules on record keeping and programmes against money laundering and terrorist financing in accordance with these Regulations, the fourth money laundering directive or rules having equivalent effect; and

(c)the effective implementation of the requirements referred to in sub-paragraph (b) is supervised at group level by—

(i)an authority of an EEA state F186... with responsibility for the functions provided for in the fourth money laundering directive; or

(ii)an equivalent authority of a third country.

(7) Nothing in this regulation prevents a relevant person applying customer due diligence measures [F187, or carrying out any of the measures required by regulation 30A,] by means of an agent or an outsourcing service provider provided that the arrangements between the relevant person and the agent or outsourcing service provider provide for the relevant person to remain liable for any failure to apply such measures.

(8) For the purposes of paragraph (7), an “outsourcing service provider” means a person who—

(a)performs a process, a service or an activity that would otherwise be undertaken by the relevant person, and

(b)is not an employee of the relevant person.

Textual Amendments

Record-keepingU.K.

40.—(1) Subject to paragraph (5), a relevant person must keep the records specified in paragraph (2) for at least the period specified in paragraph (3).

(2) The records are—

(a)a copy of any documents and information obtained by the relevant person to satisfy the customer due diligence requirements in regulations 28, 29 and 33 to 37 [F188and the requirements of regulation 30A] [F189, and of regulations 64C and 64G(1)];

(b)sufficient supporting records (consisting of the original documents or copies) in respect of a transaction (whether or not the transaction is an occasional transaction) which is the subject of customer due diligence measures or ongoing monitoring to enable the transaction to be reconstructed.

[F190(c)in the case of an inter-cryptoasset business transfer, in addition to the records referred to in sub-paragraphs (a) and (b), any documents and information received by an intermediary cryptoasset business and the cryptoasset business of a beneficiary by virtue of the obligations under regulations 64C(1), (2) and (7), or received by them pursuant to a request under regulation 64D(2)(a) or 64E(2)(a); and

(d)in the case of an unhosted wallet transfer, in addition to the records referred to in sub-paragraphs (a) and (b), any documents and information received by a cryptoasset business pursuant to a request under regulation 64G(1).]

(3) Subject to paragraph (4), the period is five years beginning on the date on which the relevant person knows, or has reasonable grounds to believe—

(a)that the transaction is complete, for records relating to an occasional transaction; or

(b)that the business relationship has come to an end for records relating to—

(i)any transaction which occurs as part of a business relationship, or

(ii)customer due diligence measures taken in connection with that relationship.

(4) A relevant person is not required to keep the records referred to in paragraph (3)(b)(i) for more than 10 years.

(5) Once the period referred to in paragraph (3), or if applicable paragraph (4), has expired, the relevant person must delete any personal data obtained for the purposes of these Regulations unless—

(a)the relevant person is required to retain records containing personal data—

(i)by or under any enactment, or

(ii)for the purposes of any court proceedings;

(b)the data subject has given consent to the retention of that data; or

(c)the relevant person has reasonable grounds for believing that records containing the personal data need to be retained for the purpose of legal proceedings.

(6) A relevant person who is relied on by another person must keep the records specified in paragraph (2) for the period referred to in paragraph (3) or, if applicable, paragraph (4).

(7) A person referred to in regulation 39(3) (“A”) who is relied on by a relevant person (“B”) must, if requested by B within the period referred to in paragraph (3) or, if applicable, paragraph (4), immediately—

(a)make available to B any information about the customer, any person purporting to act on behalf of the customer and any beneficial owner of the customer, which A obtained when applying customer due diligence measures; and

(b)forward to B copies of any identification and verification data and other relevant documents on the identity of the customer, any person purporting to act on behalf of the customer and any beneficial owner of the customer, which A obtained when applying those measures.

(8) Paragraph (7) does not apply where a relevant person applies customer due diligence measures by means of an agent or an outsourcing service provider (within the meaning of regulation 39(8)).

(9) For the purposes of this regulation—

(a)B relies on A where B does so in accordance with regulation 39(1);

(b)“copy” means a copy of the original document which would be admissible as evidence of the original document in court proceedings;

[F191(c)“data subject” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);

(d)“personal data” has the same meaning as in Parts 5 to 7 of that Act (see section 3(2) and (14) of that Act).]

[F192(e)“beneficiary”, “cryptoasset business”, “inter-cryptoasset business transfer”, “intermediary cryptoasset business” and “unhosted wallet transfer” have the meanings given by regulation 64B.]

Textual Amendments

F191Reg. 40(9)(c)(d) substituted for reg. 40(9)(c) (25.5.2018) by Data Protection Act 2018 (c. 12), s. 212(1), Sch. 19 para. 414 (with ss. 117, 209, 210); S.I. 2018/625, reg. 2(1)(g)

Data ProtectionU.K.

41.—(1) Any personal data obtained by relevant persons for the purposes of these Regulations may only be processed for the purposes of preventing [F193money laundering, terrorist financing or proliferation financing].

F194(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) No other use may be made of personal data referred to in paragraph (1), unless—

(a)use of the data is permitted by or under an enactment other than these Regulations [F195or the [F196UK GDPR]]; or

(b)the relevant person has obtained the consent of the data subject to the proposed use of the data.

F197(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F197(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F198(6) Before establishing a business relationship or entering into an occasional transaction with a new customer, as well as providing the customer with the information required under Article 13 of the [F199UK GDPR] (information to be provided where personal data are collected from the data subject), relevant persons must provide the customer with a statement that any personal data received from the customer will be processed only—

(a)for the purposes of preventing [F200money laundering, terrorist financing or proliferation financing], or

(b)as permitted under paragraph (3).

(7) In Article 6(1) of the [F201UK GDPR] (lawfulness of processing), the reference in point (e) to processing of personal data that is necessary for the performance of a task carried out in the public interest includes processing of personal data in accordance with these Regulations that is necessary for the prevention of [F202money laundering, terrorist financing or proliferation financing].

(8) In the case of sensitive processing of personal data for the purposes of the prevention of [F203money laundering, terrorist financing or proliferation financing], section 10 of, and Schedule 1 to, the Data Protection Act 2018 make provision about when the processing meets a requirement in Article 9(2) or 10 of the [F204UK GDPR] for authorisation under the law of the United Kingdom (see, for example, paragraphs 10, 11 and 12 of that Schedule).

(9) In this regulation—

“data subject” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);

“personal data” and “processing” have the same meaning as in Parts 5 to 7 of that Act (see section 3(2), (4) and (14) of that Act);

“sensitive processing” means the processing of personal data described in Article 9(1) or 10 of the [F205UK GDPR] (special categories of personal data and personal data relating to criminal convictions and offences etc).]

Textual Amendments

PART 5U.K.Beneficial Ownership Information

Application of this PartU.K.

42.—(1) This Part applies to UK bodies corporate and relevant trusts.

(2) For the purposes of this Part—

(a)a “UK body corporate” is a body corporate which is incorporated under the law of the United Kingdom or any part of the United Kingdom, and includes an eligible Scottish partnership;

(b)a “relevant trust” is—

(i)a UK trust which is an express trust; F206...

(ii)a non-UK trust which is an express trust; and

(aa)receives income from a source in the United Kingdom; or

(bb)has assets in the United Kingdom,

on which it is liable to pay one or more of the taxes referred to in regulation 45(14); [F207or

(iii)any other non-UK trust which is an express trust, is not a trust listed in Schedule 3A (excluded trusts) and whose trustees (in their capacity as such)—

(aa)acquire an interest in land in the United Kingdom; or

(bb)enter into a business relationship with a relevant person, where at least one of those trustees is resident in the United Kingdom and the trust is not an EEA registered trust;]

(c)a trust is a “UK trust” if—

(i)all the trustees are resident in the United Kingdom; or

(ii)sub-paragraph (d) applies;

(d)this sub-paragraph applies if—

(i)at least one trustee is resident in the United Kingdom, and

(ii)the settlor was resident and domiciled in the United Kingdom at the time when—

(aa)the trust was set up, or

(bb)the settlor added funds to the trust;

(e)a trust is a “non-UK trust” if it is not a UK trust;

(f)a “collective investment scheme” has the meaning given in regulation 12H of the International Tax Compliance Regulations 2015 M82.

(3) A trustee or settlor is resident in the United Kingdom—

(a)in the case of a body corporate, if it is a UK body corporate;

(b)in the case of an individual, if the individual is resident in the United Kingdom for the purposes of one or more of the taxes referred to in regulation 45(14).

[F208[F209(4) For the purposes of this Part, an “EEA registered trust” is a trust established in a country or territory other than the United Kingdom where national legislation applies having a broadly equivalent effect to the requirements laid down in the fourth money laundering directive.]

(5) For the purposes of this Part, the trustees acquire an interest in land in the United Kingdom where at least one of the trustees becomes registered—

(a)in the register of title kept under the Land Registration Act 2002 as the proprietor of—

(i)a freehold estate in land; or

(ii)a leasehold estate in land granted for a term of more than 7 years from the date of the grant;

(b)in the Land Register of Scotland as the proprietor or as the tenant under a lease (“lease” and “proprietor” having the meanings given by section 113(1) of the Land Registration etc. (Scotland) Act 2012); or

(c)in the register kept under the Land Registration Act (Northern Ireland) 1970 as the owner of—

(i)a freehold estate in land; or

(ii)a leasehold estate in land granted for a term of more than 21 years from the date of the grant.

(6) For the purposes of this Part—

(a)the trustees have a controlling interest in a third country entity if they meet any of the specified conditions in paragraphs 2 to 5 of Schedule 1A to the Companies Act 2006 (people with significant control over a company) where that Schedule is read with the following modifications—

(i)references to X having or holding a share in or a right in relation to, or exercising significant influence or control over, company Y are to be read as references to the trustees (in their capacity as such) having or holding a share in or a right in relation to, or exercising significant influence or control over, the third country entity;

(ii)for “25%” wherever it occurs in each of paragraphs 2 (ownership of shares), 3 (voting rights), 13 (calculating shareholdings), and 14 (voting rights), read “50%”; and

[F210(b)“third country entity” means a body corporate, partnership or other entity that—

(i)is governed by the law of a country or territory other than the United Kingdom and (in each case) is a legal person under that law, and

(ii)is not subject to national legislation having a broadly equivalent effect to the requirements laid down in Article 30 of the fourth money laundering directive.]]

Textual Amendments

Marginal Citations

M82S.I. 2015/878. Regulation 12H was inserted by S.I. 2017/598.

Corporate bodies: obligationsU.K.

43.—(1) When a UK body corporate which is not listed on a regulated market enters into a relevant transaction with a relevant person, or forms a business relationship with a relevant person, the body corporate must on request from the relevant person provide the relevant person with—

(a)information identifying—

(i)its name, registered number, registered office and principal place of business;

(ii)its board of directors, or if there is no board, the members of the equivalent management body;

(iii)the senior persons responsible for its operations;

(iv)the law to which it is subject;

(v)its legal owners;

(vi)its beneficial owners; and

(b)its articles of association or other governing documents.

(2) For the purposes of paragraph (1)(a)(v) and (vi), references to the legal owners and beneficial owners of a UK body corporate include a reference to the legal owners and beneficial owners of any body corporate or trust which is directly or indirectly a legal owner or beneficial owner of that body corporate.

(3) Paragraph (1)(a)(vi) does not apply if no person qualifies as a beneficial owner (within the meaning of regulation 5(1)) of—

(a)the UK body corporate; or

(b)any body corporate which is directly or indirectly the owner of that UK body corporate.

(4) If, during the course of a business relationship, there is any change in the identity of the individuals or information falling within paragraph (1), the UK body corporate referred to in paragraph (1) must notify the relevant person of the change and the date on which it occurred within fourteen days from the date on which the body corporate becomes aware of the change.

(5) The UK body corporate must on request provide all or part of the information referred to in paragraph (1) to a law enforcement authority.

(6) Information requested under paragraph (5), must be provided before the end of such reasonable period as may be specified by the law enforcement authority.

(7) The provision of information in accordance with this regulation is not to be taken to breach any restriction, however imposed, on the disclosure of information.

(8) Where a disclosure is made in good faith in accordance with this regulation no civil liability arises in respect of the disclosure on the part of the UK body corporate.

(9) For the purposes of this regulation, a “relevant transaction” means a transaction in relation to which the relevant person is required to apply customer due diligence measures under regulation 27.

Trustee obligationsU.K.

44.—(1) The trustees of a relevant trust must maintain accurate and up-to-date records in writing of all the beneficial owners of the trust, and of any potential beneficiaries referred to in paragraph (5)(b), containing the information required by regulation 45(2)(b) to (d) and (5)(f) and (g).

(2) When a trustee of a relevant trust, acting as trustee, enters into a relevant transaction with a relevant person, or forms a business relationship with a relevant person, the trustee must—

(a)inform the relevant person that it is acting as trustee; and

(b)on request from the relevant person, provide the relevant person with information identifying all the beneficial owners of the trust (which, in the case of a class of beneficiaries, may be done by describing the class of persons who are beneficiaries or potential beneficiaries under the trust).

(3) If, during the course of a business relationship, there is any change in the information provided under paragraph (2), the trustees must notify the relevant person of the change and the date on which it occurred within fourteen days from the date on which any one of the trustees became aware of the change.

(4) For the purposes of this regulation, a “relevant transaction” means a transaction in relation to which the relevant person is required to apply customer due diligence measures under regulation 27.

(5) The trustees of a relevant trust must on request provide information to any law enforcement authority—

(a)about the beneficial owners of the trust; and

(b)about any other individual referred to as a potential beneficiary in a document from the settlor relating to the trust such as a letter of wishes.

(6) Information requested under paragraph (5) must be provided before the end of such reasonable period as may be specified by the law enforcement authority.

(7) The provision of information in accordance with this regulation is not to be taken to breach any restriction, however imposed, on the disclosure of information.

(8) Where a disclosure is made in good faith in accordance with this regulation no civil liability arises in respect of the disclosure on the part of the trustees of a relevant trust.

(9) If the trustees of a relevant trust are relevant persons who are being paid to act as trustees of that trust, they must—

(a)retain the records referred to in paragraph (1) for a period of five years after the date on which the final distribution is made under the trust;

(b)make arrangements for those records to be deleted at the end of that period, unless—

(i)the trustees are required to retain them by or under any enactment or for the purpose of court proceedings;

(ii)any person to whom information in a record relates consents to the retention of that information; or

(iii)the trustees have reasonable grounds for believing that records containing the personal data need to be retained for the purpose of legal proceedings.

(10) For the purposes of this regulation, any of the following authorities is a law enforcement authority—

(a)the Commissioners;

(b)the FCA;

(c)the NCA;

(d)police forces maintained under section 2 of the Police Act 1996 M83;

(e)the Police of the Metropolis;

(f)the Police for the City of London;

(g)the Police Service of Scotland;

(h)the Police Service of Northern Ireland;

(i)the Serious Fraud Office.

(11) For the purposes of this regulation, in the case of a relevant trust which is a collective investment scheme, a reference to the trustees of a relevant trust includes a reference to the manager or operator of the collective investment scheme.

Marginal Citations

M831996 c.16. Section 2 was amended by paragraphs 3 and 4 of Schedule 16 to the Police Reform and Social Responsibility Act 2011 (c.13).

Register of beneficial ownershipU.K.

45.—(1) The Commissioners must maintain a register (“the register”) of—

(a)beneficial owners of taxable relevant trusts; and

(b)potential beneficiaries (referred to in regulation 44(5)(b)) of taxable relevant trusts.

(2) The trustees of a taxable relevant trust must within the time specified in paragraph (3) provide the Commissioners with—

(a)the information specified in paragraph (5) in relation to the trust;

(b)the information specified in paragraph (6) in relation to each of the individuals referred to in regulation 44(2)(b) and (5)(b) (but if sub-paragraph (d) applies, this information does not need to be provided in relation to the beneficiaries of the trust);

(c)the information specified in paragraph (7) in relation to each of the legal entities referred to in regulation 44(2)(b);

(d)the information specified in paragraph (8), where the beneficial owners include a class of beneficiaries, not all of whom have been determined.

[F211(3) The information required under paragraph (2) must, apart from any information already provided to the Commissioners under regulation 45ZA (at a time when the trust was not a taxable relevant trust), be provided—

(a)on or before 31st January after the tax year in which the trustees were first liable to pay any of the taxes referred to in paragraph (14) (“UK taxes”), in the case of a trust which is set up before 6th April 2021;

(b)on or before [F2121st September 2022], in the case of a trust which is set up after 5th April 2021 where the trustees become liable to pay UK taxes before [F2134th June 2022];

(c)within [F21490 days] of the trustees becoming liable to pay UK taxes, in any other case.]

(4) The information required under [F215paragraphs (2) and (9)] must be provided in such form as the Commissioners reasonably require.

(5) The information specified in this paragraph is—

(a)the full name of the trust;

(b)the date on which the trust was set up;

(c)a statement of accounts for the trust, describing the trust assets and identifying the value of each category of the trust assets at the date on which the information is first provided to the Commissioners (including the address of any property held by the trust);

(d)the country where the trust is considered to be resident for tax purposes;

(e)the place where the trust is administered;

(f)a contact address for the trustees;

(g)the full name of any advisers who are being paid to provide legal, financial or tax advice to the trustees in relation to the trust.

(6) The information specified in this paragraph is—

(a)the individual's full name;

(b)the individual's national insurance number or unique taxpayer reference, if any;

(c)if the individual does not have a national insurance number or unique taxpayer reference, the individual's usual residential address;

(d)if the address provided under sub-paragraph (c) is not in the United Kingdom—

(i)the individual's passport number or identification card number, with the country of issue and the expiry date of the passport or identification card; or

(ii)if the individual does not have a passport or identification card, the number, country of issue and expiry date of any equivalent form of identification;

(e)the individual's date of birth;

(f)the nature of the individual's role in relation to the trust.

(7) The information specified in this paragraph is—

(a)the legal entity's corporate or firm name;

(b)the legal entity's unique taxpayer reference, if any;

(c)the registered or principal office of the legal entity;

(d)the legal form of the legal entity and the law by which it is governed;

(e)if applicable, the name of the register of companies in which the legal entity is entered (including details of the [F216country] in which it is registered), and its registration number in that register;

(f)the nature of the entity's role in relation to the trust.

(8) The information specified in this paragraph is a description of the class of persons who are beneficiaries or potential beneficiaries under the trust.

(9) The trustees of a taxable relevant trust must—

(a)if a trustee becomes aware that any of the information provided to the Commissioners under paragraph (2) (other than information provided in relation to the value of the trust assets under paragraph (5)(c)) has changed, notify the Commissioners of the change and the date on which it occurred on or before 31st January—

(i)after the tax year in which the change occurred; or

(ii)if the trustees are not liable to pay any UK taxes in that year, after the tax year in which the trustees are liable to pay any UK taxes; or

(b)if the trustees are not aware of any change to any of the information provided under paragraph (2), confirm that fact to the Commissioners on or before 31st January after the tax year in which the trustees are liable to pay any UK taxes.

[F217(10) The register must contain the information referred to in—

(a)regulation 44(2)(b) and (5)(b), in relation to taxable relevant trusts;

(b)regulation 44(2)(b) and (5)(b) and paragraphs (10E) to (10G), in relation to the types of taxable relevant trust mentioned in paragraphs (10A) to (10C);

(c)regulation 45ZA(3) and (4), in relation to the types of trust mentioned in regulation 45ZA(1).]

[F218(10A) The trustees of a taxable relevant trust which is a UK trust, and is not an EEA registered trust or a trust listed in Schedule 3A, must provide the Commissioners with the information specified in paragraph (10E), apart from any information already provided to the Commissioners under regulation 45ZA (at a time when the trust was not a taxable relevant trust)—

(a)on or before [F2191st September 2022], where the trustees become liable to pay UK taxes before [F2204th June 2022];

(b)within [F22190 days] of the trustees becoming liable to pay UK taxes, in any other case.

(10B) This paragraph applies to the trustees of a taxable relevant trust which is a non-UK trust, has at least one trustee resident in the United Kingdom and is not an EEA registered trust or a trust falling within Schedule 3A, where the trustees of that trust, in their capacity as such—

(a)enter into a business relationship with a relevant person; or

(b)acquire an interest in land in the United Kingdom.

(10C) This paragraph applies to the trustees of a taxable relevant trust which is a non-UK trust and is not a trust listed in Schedule 3A, where none of the trustees are resident in the United Kingdom and those trustees, in their capacity as such, acquire an interest in land in the United Kingdom.

(10D) Where paragraph (10B) or (10C) applies, the trustees must provide the Commissioners with the information specified in paragraph (10E), apart from any information already provided to the Commissioners under regulation 45ZA (at a time when the trust was not a taxable relevant trust)—

(a)on or before [F2221st September 2022], where the trustees become liable to pay UK taxes before [F2234th June 2022];

(b)otherwise, within [F22490 days] of the trustees acquiring the land or (where paragraph (10B)(a) applies) entering into the business relationship.

(10E) The trustees must provide the Commissioners with the following information in relation to each of the beneficial owners of the trust who is an individual, and in relation to any other individual referred to as a potential beneficiary in a document from the settlor relating to the trust such as a letter of wishes—

(a)the individual’s country of residence;

(b)the individual’s nationality;

(c)the nature and extent of the individual’s beneficial interest,

but if paragraph (10F) applies, this information does not need to be provided in relation to the beneficiaries of the trust.

(10F) Where the beneficial owners include a class of beneficiaries, not all of whom have been determined, the information to be provided under paragraph (10E) is a description of the class of persons who are beneficiaries or potential beneficiaries under the trust.

(10G) The trustees of a trust to which paragraph (10A) or (10B) applies must—

(a)if they have a controlling interest in a third country entity, provide the Commissioners with the following information, apart from any information already provided under regulation 45ZA(4), at the same time as providing the information under paragraph (10E)—

(i)the third country entity’s corporate or firm name;

(ii)the country or territory by whose law the third country entity is governed;

(iii)the registered or principal office of the third country entity;

(b)if they acquire an interest in a third country entity after providing the information under paragraph (10E), provide the Commissioners with the information specified in this paragraph within [F22590 days] of the date on which they acquired that interest.

(10H) The trustees of a taxable relevant trust to which paragraph (10A), (10B) or (10C) applies must, if the trustee becomes aware that any of the information provided to the Commissioners under paragraphs (10E) to (10G) has changed, notify the Commissioners of the change and the date on which it occurred within [F22690 days] of the trustee becoming aware of the change.

(10I) The information required under paragraphs (10E) to (10H) must be provided in such form as the Commissioners reasonably require.

(10J) The Commissioners must keep the information referred to in paragraph (10) on the register for at least five years, and no more than 10 years, after the trust to which it relates has ceased to exist or has ceased to be a type of trust referred to in paragraph (10).]

(11) The Commissioners may keep the register in any form they think fit.

(12) The Commissioners must ensure that the information on the register may be inspected by any law enforcement authority.

(13) The Commissioners [F227may] make arrangements to ensure that the NCA are able to use information on the register to respond promptly to a request for information about the persons referred to in regulation 44(2)(b) and (5)(b) [F228, paragraphs (10E) to (10G) and regulation 45ZA(3) and (4)] made by—

(a)an authority responsible for functions[F229equivalent to those provided for in these Regulations in a third country, or]

(b)a financial intelligence unit of [F230a third country].

(14) For the purposes of this regulation, a taxable relevant trust is a relevant trust in any year in which its trustees are liable to pay any of the following taxes in the United Kingdom in relation to assets or income of the trust—

(a)income tax;

(b)capital gains tax;

(c)inheritance tax;

(d)stamp duty land tax (within the meaning of section 42 of the Finance Act 2003 M84);

(e)land and buildings transaction tax (within the meaning of section 1 of the Land and Buildings Transaction Tax (Scotland) Act 2013 M85);

[F231(ea)land transaction tax (within the meaning of section 2 of the Land Transaction Tax and Anti-avoidance of Devolved Taxes (Wales) Act 2017);]

(f)stamp duty reserve tax.

(15) For the purpose of this regulation, in the case of a taxable relevant trust which is a collective investment scheme, a reference to the trustees of a taxable relevant trust includes a reference to the manager or operator of the collective investment scheme.

Textual Amendments

Marginal Citations

[F232Register of beneficial ownership: additional types of trustU.K.

45ZA.—(1) In relation to trusts which are—

(a)type A trusts, other than taxable relevant trusts;

(b)type B trusts, other than taxable relevant trusts;

(c)type C trusts, other than taxable relevant trusts,

the information to be contained in the register maintained under this Part is the information referred to in paragraphs (3) and (4), and in this paragraph, “taxable relevant trust” has the meaning given in regulation 45.

(2) For the purposes of this regulation—

(a)a “type A trust” is a UK trust which is an express trust and is not an EEA registered trust or a trust listed in Schedule 3A;

(b)a “type B trust” is a non-UK trust which has at least one trustee resident in the United Kingdom, is an express trust and is not an EEA registered trust or a trust listed in Schedule 3A, where the trustees of that trust, in their capacity as such—

(i)enter into a business relationship with a relevant person; or

(ii)acquire an interest in land in the United Kingdom;

(c)a “type C trust” is a non-UK trust which is an express trust and is not a trust listed in Schedule 3A, where none of the trustees are resident in the United Kingdom and those trustees, in their capacity as such, acquire an interest in land in the United Kingdom.

(3) The trustees of a trust to which paragraph (1) applies must, within the time specified in paragraph (5), provide the Commissioners with the following information, apart from any information already provided to the Commissioners under regulation 45 (at a time when the trust was a taxable relevant trust within the meaning of that regulation)—

(a)the information specified in paragraphs (i) to (v) in relation to each of the beneficial owners of the trust who is an individual, and in relation to any other individual referred to as a potential beneficiary in a document from the settlor relating to the trust such as a letter of wishes—

(i)the individual’s full name;

(ii)the individual’s month and year of birth;

(iii)the individual’s country of residence;

(iv)the individual’s nationality;

(v)the nature and extent of the individual’s beneficial interest,

but if sub-paragraph (b) applies, this information does not need to be provided in relation to the beneficiaries of the trust;

(b)where the beneficial owners include a class of beneficiaries, not all of whom have been determined, a description of the class of persons who are beneficiaries or potential beneficiaries under the trust;

(c)the information specified in paragraphs (i) to (iii) in relation to each of the beneficial owners of the trust who is a legal entity—

(i)the legal entity’s corporate or firm name;

(ii)the registered or principal office of the legal entity;

(iii)the nature of the entity’s role in relation to the trust.

(4) The trustees of a trust to which paragraph (1)(a) or (b) applies must—

(a)if they have a controlling interest in a third country entity, provide the Commissioners with the following information, apart from any information already provided under regulation 45(10G), at the same time as providing the information under paragraph (3)—

(i)the third country entity’s corporate or firm name;

(ii)the country or territory by whose law the third country entity is governed;

(iii)the registered or principal office of the third country entity;

(b)if they acquire an interest in a third country entity after providing the information under paragraph (3), provide the Commissioners with the information specified in this paragraph within [F23390 days] of the date on which they acquired that interest.

(5) The information required under paragraph (3) must be provided—

(a)on or before [F2341st September 2022], in the case of a trust which first falls within paragraph (1)(a), (b) or (c) before [F2354th June 2022];

(b)in any other case, within [F23690 days] of the trust being set up, or, if later, within [F23690 days] of the trust first falling within paragraph (1)(a), (b) or (c).

(6) If a trustee becomes aware that any of the information provided to the Commissioners under paragraph (3) or (4) has changed, the trustee must notify the Commissioners of the change within [F23790 days] of the trustee becoming aware of the change.

(7) The information required under paragraphs (3), (4) and (6) must be provided in such form as the Commissioners reasonably require. ]

Textual Amendments

[F238Access to information on the registerU.K.

45ZB.—(1) The Commissioners must make the accessible information available to a person who demonstrates to the Commissioners a legitimate interest in the beneficial ownership of a trust, where that person so requests.

(2) The Commissioners must make available to a trustee, on a request by that trustee, such information as the trustee reasonably requires in order to enable a relevant person to meet the relevant person’s obligations under Part 3, where that relevant person proposes to—

(a)form a business relationship with the trust; or

(b)enter into a transaction with the trust in relation to which the relevant person is required to apply customer due diligence measures under regulation 27.

(3) The Commissioners must make the accessible information available to a person who makes a written request about a type A trust or a type B trust (within the meaning given in regulation 45ZA(2)), where the trustees of that trust have a controlling interest in a third country entity.

(4) The Commissioners may—

(a)charge a fee to any person making a request for accessible information under paragraph (1) or (3), which must not exceed such amount as the Commissioners consider will enable them to meet any expenses reasonably incurred by them in dealing with such requests, including expenses incurred in maintaining the register;

(b)require the person to submit the request in such a manner as the Commissioners may reasonably require, including by requiring the person to register in a manner specified by the Commissioners; and

(c)require the person to provide such information to support the request as the Commissioners may specify.

(5) Paragraphs (1) and (3) do not apply to the accessible information in a case where, and to the extent that, the Commissioners consider that the information should be exempt because—

(a)the Commissioners consider that making the information available would expose the beneficial owner to a disproportionate risk of fraud, kidnapping, blackmail, extortion, harassment, violence or intimidation;

(b)the beneficial owner is under the age of 18; or

(c)the beneficial owner—

(i)lacks capacity within the meaning of section 2 of the Mental Capacity Act 2005;

(ii)is incapable within the meaning of section 1 of the Adults with Incapacity (Scotland) Act 2000; or

(iii)is incapable by reason of mental disorder within the meaning of Article 3(1) of the Mental Health (Northern Ireland) Order 1986,

and in this paragraph, references to the beneficial owner include references to any other individual referred to as a potential beneficiary in a document from the settlor relating to the trust such as a letter of wishes.

(6) Where the Commissioners decide to exempt any of the accessible information in accordance with paragraph (5), the Commissioners must inform the person requesting the information of the decision, explain that the person is entitled to seek a review, and specify the period in which the person must inform the Commissioners that the person wishes to seek a review (which must not be less than 30 days beginning with the day on which the person is informed of the decision).

(7) If the person seeks a review, the Commissioners may decide to—

(a)uphold the decision to exempt the information;

(b)make the information available; or

(c)exempt less of the requested information and make more of the requested information available,

and must inform the person who made the request of their decision.

(8) For the purposes of this regulation, the “accessible information” means the details specified in paragraph (9) or (10) which are held on the register in relation to a beneficial owner of a type A trust or a type B trust (within the meaning given in regulation 45ZA(2)), or in relation to an individual referred to as a potential beneficiary in a document from the settlor relating to the trust such as a letter of wishes.

(9) The details are, in relation to an individual—

(a)the individual’s full name;

(b)the individual’s month and year of birth;

(c)the individual’s country of residence;

(d)the individual’s nationality;

(e)the nature and extent of the individual’s beneficial interest.

(10) The details are, in relation to a legal entity—

(a)the legal entity’s corporate or firm name;

(b)the registered or principal office of the legal entity;

(c)the nature of the entity’s role in relation to the trust.

(11) For the purposes of this regulation, the Commissioners must take account of the following when determining whether a person has a legitimate interest in the beneficial ownership of a trust—

(a)whether the person is involved in an investigation into [F239money laundering, terrorist financing or proliferation financing];

(b)whether the person is making the request for accessible information in order to further an investigation into a specified suspected instance of [F240money laundering, terrorist financing or proliferation financing];

(c)whether the disclosure of the information to that person would be likely to prejudice—

(i)any criminal investigation or criminal proceedings;

(ii)any other investigation mentioned in section 342(1) of the Proceeds of Crime Act 2002 (offences of prejudicing investigation); or

(iii)any investigation by an appropriate officer (within the meaning given in regulation 87(10)) into a potential contravention of a relevant requirement,

which is or are being, or is or are about to be, conducted;

(d)whether, having regard to the information produced by the person making the request, it is reasonable for that person to suspect that the trust is being used for [F241money laundering, terrorist financing or proliferation financing].]

Textual Amendments

F242PART 5AU.K.Requests for information about accounts and safe-deposit boxes

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

PART 6U.K.Money Laundering and Terrorist Financing: Supervision and Registration

CHAPTER 1U.K.Duties of supervisory authorities

Duties of supervisory authoritiesU.K.

46.—(1) A supervisory authority must effectively monitor the relevant persons for which it is the supervisory authority (“its own sector”) and take necessary measures for the purpose of [F243—

(a)securing compliance by such persons with the requirements of these Regulations; and

(b)securing that any application for which the supervisory authority grants approval under regulation 26 meets the requirements of regulation 26(7), whether or not the person making the application, or being approved, is a relevant person.]

(2) Each supervisory authority must—

(a)adopt a risk-based approach to the exercise of its supervisory functions, informed by the risk assessments carried out by the authority under regulation 17;

(b)ensure that its employees and officers have access both at its offices and elsewhere to relevant information on the domestic and international risks of money laundering and terrorist financing which affect its own sector;

(c)base the frequency and intensity of its on-site and off-site supervision on the risk profiles prepared under regulation 17(4);

(d)keep a record in writing of the actions it has taken in the course of its supervision, and of its reasons for deciding not to act in a particular case;

(e)take effective measures to encourage its own sector to report [F244actual or potential] breaches of the provisions of these Regulations to it;

[F245(f)provide one or more secure communication channels for persons to report actual or potential breaches of these Regulations to it;

(g)take reasonable measures to ensure that the identity of the reporting person is known only to the supervisory authority.]

(3) In determining its approach to the exercise of its supervisory functions the supervisory authority must—

F246(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)take account of the degree of discretion permitted to relevant persons in taking measures to counter money laundering and terrorist financing.

(4) In accordance with its risk-based approach, the supervisory authority must take appropriate measures to review—

(a)the risk assessments carried out by relevant persons under regulation 18;

(b)the adequacy of the policies, controls and procedures adopted by relevant persons under regulation 19 to 21 and 24, and the way in which those policies, controls and procedures have been implemented.

(5) A supervisory authority which, in the course of carrying out any of its supervisory functions or otherwise, knows or suspects, or has reasonable grounds for knowing or suspecting, that a person is or has engaged in money laundering or terrorist financing must as soon as practicable inform the NCA.

(6) A disclosure made under paragraph (5) is not to be taken to breach any restriction, however imposed, on the disclosure of information.

(7) Where a disclosure under paragraph (5) is made in good faith, no civil liability arises in respect of the disclosure on the part of the person by whom, or on whose behalf, it is made.

(8) The FCA, when carrying out its supervisory functions in relation to an auction platform—

(a)must effectively monitor the auction platform's compliance with—

(i)the customer due diligence requirements of [F247regulation 17 of the UK auctioning regulations];

(ii)the monitoring and record-keeping requirements of [F248regulation 37 of those Regulations]; and

(iii)the notification requirements of [F249regulation 38(4) and (5) of those Regulations]; and

(b)may monitor the auction platform's compliance with regulations 18 to 21 and 24 of these Regulations.

(9) The functions of the FCA under these Regulations shall be treated for the purposes of Parts 1, 2 and 4 of Schedule 1ZA to FSMA M86 (the Financial Conduct Authority) as functions conferred on the FCA under that Act.

Textual Amendments

Marginal Citations

M862000 c 8. Schedule 1ZA was substituted, with Schedule 1ZB, for Schedule 1 to the Financial Services and Markets Act by section 6(2) of the Financial Services Act 2012 (c.21), and amended by paragraphs 14 and 16 of Schedule 3 and paragraph 7 of Schedule 8 to the Financial Services (Banking Reform) Act 2013 (c.33), paragraph 13 of Schedule 3 to the Pension Scheme Act 2015 (c.8), section 18 of the Bank of England and Financial Services Act 2016 (c.14) and S.I. 2013/1388.

[F250Annual reports by self-regulatory organisationsU.K.

46A.  A self-regulatory organisation must publish or make arrangements to publish an annual report containing information about—

(a)measures taken by the self-regulatory organisation to encourage the reporting of actual or potential breaches as referred to in regulation 46(2)(e);

(b)the number of reports of actual or potential breaches received by that self-regulatory organisation as referred to in regulation 46(2)(e);

(c)the number and description of measures carried out by the self-regulatory organisation to monitor, and enforce, compliance by relevant persons with their obligations under—

(i)Part 3 (customer due diligence);

(ii)Part 3 of the Terrorism Act 2000 (terrorist property) M87 and Part 7 of the Proceeds of Crime Act 2002 (money laundering) M88;

(iii)regulation 40 (record-keeping); and

(iv)regulations 20 to 24 (policies and controls etc.).]

Textual Amendments

Marginal Citations

Duties of supervisory authorities: informationU.K.

47.—(1) A supervisory authority must, in any way it considers appropriate, make up-to-date information on money laundering and terrorist financing available to those relevant persons which it supervises (“its own sector”).

(2) The information referred to in paragraph (1) must include the following—

(a)information on the money laundering and terrorist financing practices considered by the supervisory authority to apply to its own sector;

(b)a description of indications which may suggest that a transfer of criminal funds is taking place in its own sector;

(c)a description of the circumstances in which the supervisory authority considers that there is a high risk of money laundering or terrorist financing.

(3) The information referred to in paragraph (1) must also include information from the following sources which the supervisory authority considers is relevant to its own sector—

F251(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F251(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F251(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F251(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F251(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f)the report prepared by the Treasury and the Home Office under regulation 16(6);

(g)any relevant information made available by the Treasury and the Home Office under regulation 16(8);

(h)any relevant information published by the Director General of the NCA under section 4(9) (operations) or 6 (duty to publish information) of the Crime and Courts Act 2013 M89.

Textual Amendments

Marginal Citations

Duties of the FCA: guidance on politically exposed personsU.K.

48.—(1) The FCA must give guidance under section 139A of FSMA (power of the FCA to give guidance) M90 to relevant persons, who are subject to rules made by the FCA, in relation to the enhanced customer due diligence measures required under regulation 35 in respect of politically exposed persons (“PEPs”), their family members and known close associates (within the meanings given in regulation 35(12)).

(2) The guidance referred to in paragraph (1) must include guidance on the following matters—

(a)taking into account regulation 35(14), what functions are, and are not, to be taken to be “prominent public functions” for the purposes of determining whether an individual is a PEP;

(b)which persons should be treated as coming within the definitions of—

(i)a family member of a PEP; or

(ii)a known close associate of a PEP;

(c)what constitutes “appropriate risk-management systems and procedures” for the purposes of regulation 35(1);

(d)what account is to be taken of the jurisdiction in which the prominent public function arises (taking into consideration the controls against money-laundering and terrorist financing in different jurisdictions);

(e)how the level of risk associated with a particular individual is to be assessed for the purposes of regulation 35(3), and what approach is to be taken in relation to a PEP, or a family member or known close associate of a PEP, if the PEP, family member or close associate is assessed as presenting a low level of risk;

(f)who should be treated as coming within the meaning of “senior management” for the purposes of regulation 35(5) and (8);

(g)the situations in which it would be appropriate for the senior management approval mentioned in regulation 35(5) to be given by an individual who is not a member of the board of directors (or, if there is no such board, a member of the equivalent management body) of a business;

(h)what constitutes “adequate measures” and “reasonable measures” for the purposes of paragraphs (5) and (6) respectively of regulation 35;

(i)the extent to which information on public registers may be taken into account for the purposes of regulation 35(5) and (6);

(j)what sort of monitoring and scrutiny is required for the purposes of regulation 35(5) and (8);

(k)what measures are required in relation to persons who have ceased to be PEPs to comply with regulation 35(9); and

(l)how to address risks of money laundering or terrorist financing where a PEP, a family member of a PEP or a known close associate of a PEP, is—

(i)the beneficial owner of a customer;

(ii)a beneficiary of a contract of long-term insurance;

(iii)the beneficial owner of a beneficiary of a contract of long-term insurance.

Marginal Citations

M902000 c.8. Section 139A was substituted (together with the rest of Part 9A of FSMA) for the original Part 10 by section 24 of the Financial Services Act 2012 (c.21).

Duties of self-regulatory organisationsU.K.

49.—(1) Self-regulatory organisations must make arrangements to ensure that—

(a)their supervisory functions are exercised independently of any of their other functions which do not relate to disciplinary matters;

(b)sensitive information relating to the supervisory functions is appropriately handled within the organisation;

(c)they employ only persons with appropriate qualifications, integrity and professional skills to carry out the supervisory functions;

(d)contravention of a relevant requirement by a relevant person they are responsible for supervising renders that person liable to effective, proportionate and dissuasive disciplinary measures under their rules;

[F252(e)potential conflicts of interest within the organisation are appropriately handled.]

(2) Self-regulatory organisations must—

(a)provide adequate resources to carry out the supervisory functions;

(b)appoint a person to monitor and manage the organisation's compliance with its duties under these Regulations.

(3) The person appointed under paragraph (2)(b) is to be responsible—

(a)for liaison with—

(i)another supervisory authority or a registering authority (within the meaning of regulation 53);

(ii)any law enforcement authority; and

(iii)any overseas authority (within the meaning of regulation 50(4))

(b)for ensuring that the self-regulatory organisation responds fully and rapidly to any request from an authority referred to in paragraph (a)(i) or (ii) for information about any person it supervises, whether that request concerns an application by that person for registration or any other matter.

Textual Amendments

Duty to co-operateU.K.

50.—(1) A supervisory authority must take such steps as it considers appropriate—

(a)to co-operate with other supervisory authorities, the Treasury and law enforcement authorities in relation to the development and implementation of policies to counter money laundering and terrorist financing;

(b)to co-ordinate activities to counter money laundering and terrorist financing with other supervisory authorities and law enforcement authorities;

F253(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F254(1A) A supervisory authority may take such steps as it considers appropriate to co-operate with overseas authorities—

(a)for the purposes of these Regulations, and

(b)to ensure the effective supervision of a relevant person to which paragraph (2) applies.]

(2) This paragraph applies to a relevant person established—

(a)in the United Kingdom, which has its head office in another country; or

(b)in another country but which has its head office in the United Kingdom.

(3) Co-operation may include the sharing of information which the supervisory authority is not prevented from disclosing [F255, provided that—

(a)any confidential information disclosed to the authority in question will be subject to an obligation of confidentiality equivalent to that provided for in regulation 52A;

(b)where the information disclosed has been received from [F256a third country], it is only disclosed—

(i)with the express consent of the competent authority or other institution which provided the information; and

(ii)where appropriate, for the purposes for which the information was originally provided.]

(4) For the purposes of this regulation “overseas authority” means—

(a)an authority responsible for any of the functions provided for in the fourth money laundering directive in an EEA state F257... in which the relevant person is established or has its head office; and

(b)where the relevant person is established or has its head office in [F258another country] which is not an EEA state, an authority in that country which has equivalent functions to any of the functions provided for in the fourth money laundering directive.

F259(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Regulatory informationU.K.

51.—(1) A supervisory authority within regulation 7 must collect such information as it considers necessary for the purpose of performing its supervisory functions, including the information specified in Schedule 4.

(2) A supervisory authority within regulation 7 must on request provide the Treasury with such information collected under paragraph (1) as may be specified by the Treasury, for the purpose of enabling the Treasury to [F260perform its functions under these Regulations].

[F261(2A) The Treasury may disclose to the FCA information provided by the supervisory authorities under paragraph (2), provided that the disclosure is made for purposes connected with the effective exercise of—

(a)the functions of the Treasury under these Regulations in relation to self-regulatory organisations or under the Oversight of Professional Body Anti-Money Laundering and Counter Terrorist Financing Supervision Regulations 2017 M91 (“the Professional Body Regulations”); or

(b)the functions of the FCA under the Professional Body Regulations.]

(3) The Treasury must publish an annual consolidated review of the information provided by the supervisory authorities under paragraph (2).

(4) A disclosure made under paragraph (2) [F262or (2A)] is not to be taken to breach any restriction, however imposed, on the disclosure of information.

(5) Where a disclosure under paragraph (2) [F263or (2A)] is made in good faith, no civil liability arises in respect of the disclosure on the part of the person by whom, or on whose behalf, it is made.

Textual Amendments

Marginal Citations

Disclosure by supervisory authorities [F264and other relevant authorities] U.K.

52.—(1) F265... A supervisory authority may disclose to a relevant authority information it holds relevant to its supervisory functions, provided the disclosure is made for purposes connected with the effective exercise of—

(a)the functions of the relevant authority under these Regulations [F266or any other functions related to money laundering, terrorist financing or the integrity of the international financial system];

(b)the functions of the law enforcement authority; or

(c)in the case of an overseas authority, the functions provided for in the fourth money laundering directive, or equivalent functions.

[F267(1A) A relevant authority referred to in paragraph (5)(b), (c), (e) or (f) may disclose to a supervisory authority or another relevant authority referred to in paragraph (5) information it holds, provided the disclosure is made for purposes connected with—

(a)the effective exercise of the functions of the supervisory authority or other relevant authority under these Regulations; or

(b)money laundering, terrorist financing or the integrity of the international financial system.

(1B) Nothing in paragraph (1A) affects the powers of a relevant authority referred to in paragraph (5)(b), (c), (e) or (f) to disclose information to a supervisory authority or other relevant authority apart from this regulation.]

(2) Information disclosed to a relevant authority under paragraph (1) [F268or (1A)] may not be further disclosed by that authority, except—

(a)in accordance with paragraph (1) [F268or (1A)];

(b)by the FCA to the PRA, where the information concerns a PRA-authorised person or a person who has a qualifying relationship with a PRA-authorised person;

(c)in the case of an overseas authority, in accordance with any conditions imposed on further disclosure of that information by the supervisory authority which disclosed that information to the overseas authority;

(d)with a view to the institution of, or otherwise for the purposes of, any criminal or other enforcement proceedings; or

(e)as otherwise required by law.

(3) A disclosure made under paragraph (1) [F269or (1A)] is not to be taken to breach any restriction, however imposed, on the disclosure of information.

(4) Where a disclosure under paragraph (1) [F270or (1A)] is made in good faith, no civil liability arises in respect of the disclosure on the part of the person by whom, or on whose behalf, it is made.

(5) For the purposes of this regulation, “relevant authority” means—

(a)another supervisory authority;

(b)the Treasury;

(c)any law enforcement authority;

(d)an overseas authority, within the meaning of regulation 50(4);

[F271(e)the Secretary of State for purposes connected with the effective exercise of his or her functions under enactments relating to companies, audit and insolvency;

(f)the registrar of companies within the meaning of section 1060(3) of the Companies Act 2006F272.]

Textual Amendments

[F273Obligation of confidentialityU.K.

52A.—(1) No person working for a relevant supervisory authority, or acting on behalf of a relevant supervisory authority (or who has worked or acted for a relevant supervisory authority) may, except in accordance with this regulation, disclose any confidential information received in the course of their duties under these Regulations.

(2) Information referred to in paragraph (1) may be disclosed in summary or aggregate form, provided that no credit institution or financial institution is identifiable from the information disclosed.

(3) A relevant supervisory authority may [F274disclose] confidential information received pursuant to these Regulations—

(a)in the discharge of its duties under these Regulations or under other legislation relating to—

(i)[F275money laundering, terrorist financing or proliferation financing];

(ii)prudential regulation; or

(iii)the supervision of credit institutions and financial institutions;

(b)in an appeal against a decision of a supervisory authority;

(c)in court proceedings initiated by a relevant supervisory authority in the exercise of the duties referred to in sub-paragraph (a), or otherwise relating to the authority’s discharge of those duties;

[F276(d)where the Commissioners are the supervisory authority, in accordance with sections 17 and 18 of the Commissioners for Revenue and Customs Act 2005];

[F277(e)in accordance with regulation 52.]

(4) This regulation does not prevent the exchange of information between—

(a)any authority in the United Kingdom responsible for the supervision of a credit institution or a financial institution in accordance with these Regulations or other law relating to credit institutions or financial institutions (a “UK authority”) and another UK authority;

[F278(b)a UK authority and a competent authority in a third country supervising any credit or financial institution in accordance with—

(i)the fourth money laundering directive or other legislative acts relating to credit institutions or financial institutions;

(ii)laws imposing requirements on credit institutions or financial institutions which have an equivalent effect to those laid down in the fourth money laundering directive.]

(5) Confidential information may only be exchanged under paragraph (4) if the authority to which the information is provided agrees to hold it subject to an obligation of confidentiality equivalent to that set out in paragraph (1).

(6) Nothing in this regulation affects the disclosure of confidential information in accordance with regulations made under section 349 (exceptions from section 348) of FSMA M92.

(7) For the purposes of this regulation, a “relevant supervisory authority” is a supervisory authority which is responsible for the supervision of credit institutions or financial institutions.

Textual Amendments

Marginal Citations

M92 2000 c. 8. Section 349 has been amended by section 964 of the Companies Act 2006 (c.46), paragraph 19 of Schedule 12 to the Financial Services Act 2012 (c.21) and by S.I. 2006/1183 and 2007/1093.

Obligation of confidentiality: offenceU.K.

52B.—(1) Any person who discloses information in contravention of regulation 52A is guilty of an offence.

(2) A person guilty of an offence under paragraph (1) is liable—

(a)on summary conviction—

(i)in England and Wales, to imprisonment for a term not exceeding three months, to a fine or to both,

(ii)in Scotland or Northern Ireland, to imprisonment for a term not exceeding three months, to a fine not exceeding the statutory maximum or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(3) In proceedings for an offence under this regulation, it is a defence for the accused to prove—

(a)that the accused did not know and had no reason to suspect that the information was confidential information; and

(b)that the accused took all reasonable precautions and exercised all due diligence to avoid committing the offence.]

Textual Amendments

CHAPTER 2U.K.Registration

InterpretationU.K.

53.  For the purposes of this Chapter—

“registering authority” means—

(a)

the FCA, in relation to—

(i)

those relevant persons which it is required to register under regulation 54(1) [F279or (1A)]; and

(ii)

those relevant persons it decides to register under regulation 55(1);

(b)

the Commissioners, in relation to—

(i)

those relevant persons which they are required to register under regulation 54(2); and

(ii)

those relevant persons they decide to register under regulation 55(3);

“telecommunication, digital and IT payment service provider” means an undertaking which provides payment services [F280consisting of the execution of payment transactions where the consent of the payer to execute a payment transaction is given by means of any telecommunication, digital or IT device and the payment is made to the telecommunication, IT system or network operator acting only as an intermediary between the payment service user and the supplier of the goods and services (and terms used in this definition which are defined in the Payment Services Regulations 2017 have the meanings given in those Regulations).]

Textual Amendments

Duty to maintain registers of certain relevant personsU.K.

54.—(1) The FCA must maintain a register of those relevant persons who—

(a)are authorised persons, and

(b)have notified the FCA under regulation 23 that they are acting, or intend to act, as a money service business or a trust or company service provider.

[F281(1A) The FCA must maintain a register of—

(a)cryptoasset exchange providers; and

(b)custodian wallet providers.]

(2) The Commissioners must maintain a register of those relevant persons who are not included in the register maintained by the FCA under paragraph (1) and are—

(a)high value dealers;

(b)money service businesses;

(c)trust or company service providers;

(d)bill payment service providers, for which the Commissioners are the supervisory authority;

(e)telecommunication, digital and IT payment service providers, for which the Commissioners are the supervisory authority.

(3) Subject to paragraph (4) the registering authorities may keep the registers required by this regulation in any form they think fit.

(4) The register maintained by the Commissioners must include entries in the registers maintained under regulation 25 of the Money Laundering Regulations 2007 M88 which were current immediately before the date that regulation was revoked.

(5) A registering authority may publish or make available to public inspection all or part of a register maintained by it under this regulation.

Textual Amendments

Marginal Citations

Power to maintain registersU.K.

55.—(1) The FCA may maintain a register of Annex 1 financial institutions.

(2) For the purposes of paragraph (1), an “Annex 1 financial institution” is a financial institution which—

(a)falls within regulation 10(2)(a), and

(b)is not—

(i)a money service business;

(ii)an authorised person;

(iii)a bill payment service provider; or

(iv)a telecommunication, digital and IT payment service provider.

(3) The Commissioners may maintain registers of relevant persons who are not supervised by any of the professional bodies listed in Schedule 1, and who are—

(a)estate agents,

(b)auditors;

(c)external accountants;

(d)tax advisers;

(e)bill payment service providers; F282...

(f)telecommunication, digital and IT payment service providers;

[F283(g)letting agents; or

(h)art market participants.]

(4) Where a registering authority decides to maintain a register under this regulation, it must take reasonable steps to bring its decision to the attention of those relevant persons in respect of which the register is to be established.

(5) Subject to paragraph (6) a registering authority may maintain a register under this regulation in any form it thinks fit.

(6) The registers maintained by the registering authorities must include entries in any equivalent registers maintained under regulation 32 of the Money Laundering Regulations 2007 M92 which were current immediately before the date that regulation was revoked.

(7) A registering authority may publish or make available to public inspection all or part of a register maintained by it under this regulation.

Textual Amendments

Marginal Citations

M92 2000 c. 8. Section 349 has been amended by section 964 of the Companies Act 2006 (c.46), paragraph 19 of Schedule 12 to the Financial Services Act 2012 (c.21) and by S.I. 2006/1183 and 2007/1093.

Requirement to be registeredU.K.

56.—(1) Unless a person in respect of whom the registering authorities are required to maintain a register under regulation 54 is included in the appropriate register, or paragraph (2) [F284or regulation 56A (transitional provision for existing cryptoasset businesses)] applies, that person must not act as a—

(a)high value dealer;

(b)money service business;

(c)trust or company service provider;

(d)bill payment service provider; F285...

(e)telecommunication, digital and IT payment service provider;

[F286(f)cryptoasset exchange provider; or

(g)custodian wallet provider.]

[F287(2) This paragraph applies if—

(a)the person concerned is a high value dealer, a bill payment service provider, or a telecommunications, digital and IT payment service provider and has applied for registration in the register but that application has not yet been determined; or

(b)the person concerned is a money service business or a trust or company service provider and has, before 10th January 2020, applied for registration in the register but that application has not yet been determined.]

(3) A relevant person which is registered in the register maintained by the Commissioners under regulation 25 or 32 of the Money Laundering Regulations 2007 M91 is to be treated as included in the appropriate registers maintained by the Commissioners under regulation 54 or 55 of these Regulations for the purpose of paragraph (1)—

(a)during the period of 12 months beginning with the date on which these Regulations come into force, and

(b)after that period, if the person concerned has provided the additional information required for registration under regulation 57 within the period referred to in sub-paragraph (a).

(4) A relevant person which is registered in the register maintained by the FCA under regulation 32 of the Money Laundering Regulations 2007 is to be treated as included in the register maintained by the FCA under regulation 55(1) for the purposes of paragraph (1).

(5) Where a registering authority decides to maintain a register under regulation 55(1) or (3) in respect of any description of relevant persons and establishes a register for that purpose, [F288or where a new description of relevant persons is required to be registered in consequence of an amendment to these Regulations,] a relevant person of that description must not carry on the business or profession in question for a period of more than 12 months beginning with the date on which the registering authority establishes the register [F289or (as the case may be) the date on which the amendment comes into force] unless—

(a)that person is included in the register, F290...

(b)that person has applied for registration in the register, but that application has not yet been determined, [F291or

(c)that person is an art market participant or a letting agent.]

[F292(6) An art market participant or a letting agent—

(a)must apply for registration in the register before 10th June 2021;

(b)must not carry on that business or profession on or after 10th June 2021 unless—

(i)that person is included in the register, or

(ii)that person has applied for registration in the register, but the application has not yet been determined.]

Textual Amendments

Marginal Citations

[F293Transitional provision for existing cryptoasset businesses: requirement to registerU.K.

56A.—(1) Regulation 56 does not apply to an existing cryptoasset exchange provider or existing custodian wallet provider until—

(a)the date the person is included in the register maintained under regulation 54(1A) following the determination of its application by the FCA;

(b)where the FCA gives the person notice under regulation 59(4)(b) of the FCA’s decision not to register that person—

(i)the date on which the FCA states that the decision takes effect, or

(ii)if the FCA considers that the interests of the public require its decision to have immediate effect, the date on which the FCA gives a notice to the person which includes a statement to that effect and the reasons for it; or

(c)10th January 2021 if before that date neither of the following has occurred—

(i)the giving of notice to that person by the FCA under regulation 59(3);

(ii)the expiry of the period specified in regulation 59(3A) for the FCA to give such notice.

(2) In this regulation, “existing cryptoasset exchange provider” and “existing custodian wallet provider” mean a cryptoasset exchange provider or custodian wallet provider which was carrying on business as a cryptoasset exchange provider or custodian wallet provider (as the case may be) in the United Kingdom immediately before 10th January 2020.]

Textual Amendments

Applications for registration in a register maintained under regulation 54 or 55U.K.

57.—(1) A person applying for registration in a register maintained under regulation 54 or 55 (“an applicant”) must make an application in such manner and provide such information as the registering authority may specify.

(2) The information which the registering authority may specify includes, among other things—

(a)the applicant's full name and where different the name of the business;

(b)where the applicant is an individual, the applicant's date of birth and residential address;

(c)the nature of the business;

(d)the address of the head office of the business with its company number (in the case of a company), and of any branches the business has in the United Kingdom;

(e)the full name of the nominated officer (if any);

(f)a risk assessment which satisfies the requirements in regulation 18;

(g)information as to the way in which the business meets the requirements set out in—

(i)these Regulations;

(ii)Part 3 of the Terrorism Act 2000 (terrorist property) M93;

(iii)Part 7 of the Proceeds of Crime Act 2002 (money laundering) M94; and

(iv)Part 8 of the Proceeds of Crime Act 2002 (investigations);

(h)in relation to a money service business or a trust or company service provider—

(i)the full name, date of birth and residential address of any officer, manager or beneficial owner of the business or service provider; and

(ii)information needed by the registering authority to decide whether it must refuse the application pursuant to regulation 58;

(i)in relation to a money service business, the full name and address of any agent it uses for the purposes of its business;

(j)where the registering authority is not the supervisory authority for the applicant—

(i)the name of the applicant's supervisory authority;

(ii)confirmation from the applicant's supervisory authority that any person mentioned in regulation 58(1) is a fit and proper person within the meaning of that regulation;

(k)whether the applicant, or any person named in the application, has been convicted of a criminal offence listed in Schedule 3.

(3) At any time after receiving an application and before determining it, the registering authority may require the applicant to provide, within 21 days beginning with the date on which the requirement is issued, such further information as the registering authority reasonably considers necessary to enable it to determine the application.

(4) [F294Without prejudice to the application of regulation 60B,] if at any time after the applicant has provided the registering authority with any information under paragraph (1) or (3) (whether before or after the applicant is registered)—

(a)there is a material change affecting any matter contained in that information; or

(b)it becomes apparent to the applicant that the information contains an inaccuracy,

the applicant must provide the registering authority with details of the change or a correction of the inaccuracy within 30 days beginning with the date of the occurrence of the change (or the discovery of the inaccuracy) or within such later time as may be agreed with the registering authority.

(5) The obligation in paragraph (4) applies also to material changes or inaccuracies affecting any matter contained in any supplementary information provided pursuant to that paragraph.

(6) Any information to be provided to the registering authority under this regulation must be in such form and verified in such manner as the authority may specify.

Textual Amendments

Marginal Citations

Fit and proper testU.K.

58.—(1) The registering authority must refuse to register an applicant for registration in a register maintained under regulation 54 as a money service business or as a trust or company service provider, if it is satisfied that—

(a)the applicant;

(b)an officer or manager of the applicant;

(c)a beneficial owner of the applicant; or

(d)where the applicant is a money service business—

(i)any agent used by the applicant for the purposes of its business; or

(ii)any officer, manager or beneficial owner of the agent,

is not a fit and proper person to carry on that business.

(2) Where the FCA has decided to maintain a register of Annex I financial institutions under regulation 55, paragraph (1) applies in relation to those institutions as it applies to a money service business and a trust or company service provider.

(3) A person who has been convicted of a criminal offence listed in Schedule 3 is to be treated as not being a fit and proper person to carry on the business for the purposes of paragraph (1).

(4) If paragraph (3) does not apply, the registering authority must have regard to the following factors in determining the question in paragraph (1)—

(a)whether the applicant has consistently failed to comply with the requirements of—

(i)these Regulations;

(ii)the Money Laundering Regulations 2001 M95,

(iii)the Money Laundering Regulations 2003 M96, or

(iv)the Money Laundering Regulations 2007 M97; F295...

(b)the risk that the applicant's business may be used for money laundering or terrorist financing; [F296and

(c)whether the applicant, and any officer, manager or beneficial owner of the applicant, has adequate skills and experience and has acted and may be expected to act with probity.]

(5) Where the applicant is a money service business, the registering authority may, in determining the question in paragraph (1), take account of the opinion of the applicant as to whether any person referred to in paragraph (1)(d) is a fit and proper person to carry on the business.

(6) Where the registering authority is not the supervisory authority of the applicant, the registering authority must consult the supervisory authority and may rely on its opinion as to whether or not the applicant is a fit and proper person to carry on the business referred to in paragraph (1).

Textual Amendments

Marginal Citations

[F297Fit and proper test: cryptoasset businessesU.K.

58A.—(1) The FCA must refuse to register an applicant (“A”) for registration in a register maintained under regulation 54(1A) as a cryptoasset exchange provider or as a custodian wallet provider if A does not meet the requirement in paragraph (2).

(2) A, and any officer, manager or beneficial owner of A, must be a fit and proper person to carry on the business of a cryptoasset exchange provider or custodian wallet provider, as the case may be.

(3) A person who has been convicted of a criminal offence listed in Schedule 3 is to be treated as not being a fit and proper person for the purposes of this regulation.

(4) If paragraph (3) does not apply, the FCA must have regard to the following factors in determining whether the requirement in paragraph (2) is met—

(a)whether A has consistently failed to comply with the requirements of these Regulations;

(b)the risk that A’s business may be used for money laundering or terrorist financing; and

(c)whether A, and any officer, manager or beneficial owner of A, has adequate skills and experience and has acted and may be expected to act with probity.]

Textual Amendments

Determination of applications for registration under regulations 54 and 55U.K.

59.—(1) Subject to regulation 58 [F298and regulation 58A], the registering authority may refuse to register an applicant for registration in a register maintained under regulation 54 or 55 if—

(a)any requirement of, or imposed under, regulation 57 has not been complied with;

(b)it appears to the registering authority that any information provided pursuant to regulation 57 is false or misleading in a material particular;

(c)the applicant has failed to pay—

(i)a penalty imposed by the authority under Part 9;

(ii)a charge imposed by the authority under Part 11; or

(iii)a penalty or charge imposed by the authority under regulation 35(1) or 42(1) of the Money Laundering Regulations 2007;

(d)where the registering authority is not the applicant's supervisory authority, the supervisory authority opposes the application for registration on reasonable grounds; or

(e)the registering authority suspects, on reasonable grounds—

(i)that the applicant will fail to comply with any of its obligations under—

(aa)these Regulations;

(bb)Part 3 of the Terrorism Act 2000 M98; or

(cc)Parts 7 and 8 of the Proceeds of Crime Act 2002 M99;

(the “relevant obligations”);

(ii)that any person whom the applicant has identified as one of its officers or managers will fail to comply with any of the relevant obligations.

(2) Where the Commissioners are the registering authority, they must within 45 days beginning either with the date on which they receive the application or, where applicable, with the date on which they receive any further information required under regulation 57(3), give the applicant notice of—

(a)the decision to register the applicant; or

(b)the following matters—

(i)their decision not to register the applicant;

(ii)the reasons for their decision;

(iii)the right to a review under regulation 94; and

(iv)the right to appeal under regulation 99.

(3) Where the FCA is the registering authority, it must within [F299the period specified in paragraph (3A)], give the applicant notice of—

(a)its decision to register the applicant; or

(b)the following matters—

(i)that it is minded not to register the applicant;

(ii)the reasons for being minded to refuse to register the applicant; and

(iii)the right to make representations to it within a specified period (which may not be less than 28 days).

[F300(3A) The period specified in this paragraph is—

(i)where the applicant is a cryptoasset exchange provider or custodian wallet provider, 3 months, or

(ii)in any other case, 45 days,

beginning either with the date on which it receives the application or, where applicable, with the date on which it receives any further information required under regulation 57(3).]

(4) After the expiry of the period referred to in paragraph (3)(b)(iii), the FCA must decide, within a reasonable period, whether to register the applicant and it must give the applicant notice of—

(a)its decision to register the applicant; or

(b)the following matters—

(i)its decision not to register the applicant;

(ii)the reasons for its decision; and

(iii)the right to appeal under regulation 93.

(5) The registering authority must, as soon as practicable after deciding to register a person, include that person in the relevant register.

[F301(6) Where—

(a)the registering authority decides not to register an applicant, the authority may, if it considers it proportionate to do so, publish such information about that decision as the authority considers appropriate;

(b)the FCA has received a notice under Part 12 of FSMA as modified by regulation 60B and Schedule 6B (changes in control of registered cryptoasset businesses) from a person who decides to acquire or increase control over a registered cryptoasset business and the FCA decides to object to the acquisition, the FCA may, if it considers it proportionate to do so, publish such information about that decision as the FCA considers appropriate.

(7) Where the supervisory authority publishes information under paragraph (6) and the person whose registration is refused, or whose acquisition is the subject of objection, refers the matter to the Upper Tribunal, the supervisory authority must, without delay, publish information about the status of the appeal and its outcome in the same manner as that in which the information was published under paragraph (6).

(8) In this regulation, “registered cryptoasset business” means a cryptoasset exchange provider or a custodian wallet provider which is included in a register maintained by the FCA under regulation 54(1A).]

Textual Amendments

Marginal Citations

Cancellation and suspension of registration in a register under regulation 54 or 55U.K.

60.—(1) If paragraph (2) applies, the registering authority may suspend (for such period as it considers appropriate) or cancel—

(a)the registration of a money service business or a trust or company service provider in a register maintained under regulation 54; or

(b)the registration of an Annex 1 financial institution in a register maintained under regulation 55 (including the registration of an Annex 1 financial institution previously included in a register maintained under regulation 32 of the Money Laundering Regulations 2007) M100.

(2) This paragraph applies if, at any time after registration, the registering authority is satisfied that—

(a)the money service business, trust or company service provider, or Annex 1 financial institution (as the case may be); or

(b)any other person mentioned in regulation 58(1) in relation to that business, provider, or financial institution,

is not a fit and proper person for the purposes of regulation 58.

[F302(2A) The FCA may suspend (for such period as it considers appropriate) or cancel the registration of a cryptoasset exchange provider or custodian wallet provider if, at any time after registration, the FCA is satisfied that the cryptoasset exchange provider or custodian wallet provider (as the case may be) does not meet the requirement in regulation 58A(2).]

(3) The registering authority may suspend (for such period as it considers appropriate) or cancel a person's registration in a register maintained by it under regulation 54 or 55 if, at any time after registration—

(a)it appears to the authority that any of paragraphs (a) to (e) of regulation 59(1) apply; or

(b)the person has failed to comply with any requirement of a notice given under regulation 66.

(4) The Commissioners may suspend (for such period as they consider appropriate) or cancel the registration of a person who—

(a)was included in a register maintained by the Commissioners under regulation 25 or 32 of the Money Laundering Regulations 2007, and

(b)has not provided the additional information required for registration under regulation 57 within the period of 12 months beginning with the date on which these Regulations come into force.

(5) The Commissioners may suspend (for such period as they consider appropriate) or cancel the registration of a money service business in a register maintained under regulation 54(2)(b) where the money service business is—

(a)providing a payment service in the United Kingdom, or is purporting to do so;

(b)not included in the register of payment service providers maintained by the FCA under regulation 4(1) of the Payment Service Regulations [F3032017]; and

(c)not a person—

(i)mentioned in paragraphs [F304(d) to (j)] of the definition of a “payment service provider” in regulation 2(1) of the Payment Services Regulations [F3052017], or

(ii)to whom regulation 3 or [F306154(2)] of those Regulations applies.

(6) Where the supervisory authority of a person on the register maintained under regulation 54 or 55 is not the registering authority, the supervisory authority must inform the registering authority as soon as possible if it becomes aware of any grounds on which the registering authority might decide to suspend or cancel that person's registration.

(7) Where the Commissioners decide to suspend or cancel a person's registration they must give that person notice of—

(a)their decision and, subject to paragraph (10), the date from which the suspension or cancellation takes effect;

(b)if appropriate, the period of the suspension;

(c)the reasons for their decision;

(d)the right to a review under regulation 94; and

(e)the right to appeal under regulation 99.

(8) Where the FCA is minded to suspend or cancel a person's registration it must give that person notice—

(a)that it is so minded;

(b)if appropriate, the proposed period of the suspension;

(c)the reasons for being so minded; and

(d)the right to make representations to it within the period specified in the notice (which must not be less than 28 days).

(9) The FCA must then decide, within a reasonable period, whether to suspend or cancel the person's registration and it must give that person notice of—

(a)its decision not to suspend or cancel the person's registration; or

(b)the following matters—

(i)its decision to suspend or cancel the person's registration and, subject to paragraph (10), the date from which the suspension or cancellation takes effect;

(ii)the period of the suspension;

(iii)the reasons for its decision; and

(iv)the right to appeal under regulation 93.

(10) If the registering authority—

(a)considers that the interests of the public require the suspension or cancellation of a person's registration to have immediate effect; and

(b)includes a statement to that effect and the reasons for it in the notice given under paragraph (7) or (9),

the suspension or cancellation takes effect when the notice is given to the person.

[F307(11) Where the registering authority decides to suspend or cancel a person’s registration, the authority may, if it considers it proportionate to do so, publish such information about that decision as the authority considers appropriate.

(12) Where the supervisory authority publishes information under paragraph (11) and the person whose registration is suspended or cancelled refers the matter to the Upper Tribunal, the supervisory authority must, without delay, publish information about the status of the appeal and its outcome in the same manner as that in which the information was published under paragraph (11).]

Textual Amendments

F306Word in reg. 60(5)(c)(ii) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 26(c)(iii) (with reg. 3)

Marginal Citations

[F308CHAPTER 3U.K.Disclosure obligation

Textual Amendments

Disclosure by cryptoasset businessesU.K.

60A.—(1) Paragraph (2) applies where—

(a)a cryptoasset exchange provider or custodian wallet provider (“cryptoasset business”) establishes a business relationship, or enters into a transaction, with a customer that arises out of any of its activities as a cryptoasset business, and

(b)the activity is not—

(i)within scope of the jurisdiction of the Financial Ombudsman Service, or

(ii)subject to protection under the Financial Services Compensation Scheme, or

(iii)within scope of the jurisdiction of, or subject to protection under, either of the schemes referred to in paragraph (i) or (ii).

(2) Before establishing the business relationship or entering into the transaction, the cryptoasset business must inform the customer of the position in paragraph (1)(b)(i), (ii) or (iii), as the case may be.

(3) In this regulation—

(a)the Financial Ombudsman Service means the scheme established under Part 16 of FSMA M101;

(b)the Financial Services Compensation Scheme means the scheme established under Part 15 of FSMA M102.]

Marginal Citations

M101Section 226 was amended by the Financial Services Act 2012 (c.21), section 39 and Schedule 11 and by S.I. 2009/209, 2011/99, 2017/692 and 2017/752. Section 227 was amended by the Consumer Credit Act 2006 (c.14), section 61; the Financial Services Act 2012, section 39 and Schedule 11 and by S.I. 2013/1881.

M102Section 212 was amended by the Financial Services Act 2012 (c.21), section 38 and Schedule 10, and by the Financial Services (Banking Reform) Act 2013 (c.33), section 16. Section 213 was amended by the Financial Services Act 2012, section 38 and Schedule 10, and by S.I. 2017/701. Section 214 was amended by the Financial Services Act 2012, section 38 and Schedule 10, and by the Banking Act 2009 (c.1), sections 169 and 174, and by S.I. 2017/701.

[F309Changes in control of registered cryptoasset businessesU.K.

60B.  Schedule 6B applies to an acquisition of or increase in control over a registered cryptoasset business (within the meaning given at regulation 59(8)).]

Textual Amendments

PART 7U.K.Transfer of Funds (Information on the Payer) Regulations

InterpretationU.K.

61.  In this Part “transfer of funds supervisory authority” in relation to a payment service provider means the supervisory authority specified by regulation 62.

Transfer of funds supervisory authoritiesU.K.

62.—(1) The FCA is the transfer of funds supervisory authority for payment service providers, who are—

(a)authorised persons;

(b)authorised payment institutions under the Payment Services Regulations [F3102017] which are not included in the register maintained by the Commissioners under regulation 54(2);

(c)registered small payment institutions under the Payment Services Regulations [F3112017] which are not included in the register maintained by the Commissioners under regulation 54(2);

(d)authorised electronic money institutions under the Electronic Money Regulations 2011 M103; or

(e)registered small electronic money institutions under the Electronic Money Regulations 2011.

(2) The Commissioners are the transfer of funds supervisory authority for payment service providers who do not come within paragraph (1).

Textual Amendments

F310Word in reg. 62(1)(b) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 26(d) (with reg. 3)

F311Word in reg. 62(1)(c) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 26(d) (with reg. 3)

Marginal Citations

Duties of transfer of funds supervisory authoritiesU.K.

63.—(1) A transfer of funds supervisory authority must—

(a)monitor effectively the payment service providers for whom it is the transfer of funds supervisory authority;

(b)take the measures necessary to secure compliance by payment service providers with the requirements of the funds transfer regulation;

(c)take effective measures to encourage the payment service provider to report breaches of the provisions of the funds transfer regulation to the authority;

(d)take such steps as it considers appropriate—

(i)to co-operate with other supervisory authorities, the Treasury and law enforcement authorities in relation to the development and implementation of policies to counter money laundering and terrorist financing;

(ii)to co-ordinate activities to counter money laundering and terrorist financing;

(iii)to co-operate with overseas authorities to ensure the effective supervision of a payment service provider to which paragraph (2) applies.

(2) This paragraph applies to a payment service provider established—

(a)in the United Kingdom, which has its head office in another country; or

(b)in another country but which has its head office in the United Kingdom.

(3) Co-operation may include the sharing of information which the supervisory authority is not prevented from disclosing.

F312(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) A transfer of funds supervisory authority which, in the course of carrying out any of its functions under this Part or otherwise, knows or suspects, or has reasonable grounds for knowing or suspecting, that a payment service provider is or has engaged in money laundering or terrorist financing must as soon as practicable inform the NCA.

(6) A disclosure made under paragraph (5) is not to be taken to breach any restriction, however imposed, on the disclosure of information.

(7) Where a disclosure under paragraph (5) is made in good faith, no civil liability arises in respect of the disclosure on the part of the person by whom, or or on whose behalf, it is made.

(8) The functions of the FCA under this Part are to be treated for the purposes of section 1A of, and Parts 1, 2 and 4 of Schedule 1ZA to, FSMA (the Financial Conduct Authority) M104 as functions conferred on the FCA under that Act.

F313(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(10) For the purposes of this regulation, “overseas authority” means—

(a)an authority responsible for any of the functions provided for in the funds transfer regulation in an EEA state F314... in which the payment service provider is established or has its head office; and

(b)where the payment service provider is established or has its head office in [F315another country] which is not an EEA state, an authority in that country which has equivalent functions to any of the functions provided for in the funds transfer regulation.

Textual Amendments

Marginal Citations

M1042000 c.8. Section 1A was substituted, together with the rest of Part 1A for Part 1 of the Financial Services and Markets Act 2000 by section 6(1) of the Financial Services Act 2012 (c.21). Schedule 1ZA was substituted, with Schedule 1ZB, for Schedule 1 to the Financial Services and Markets Act by section 6(2) of the Financial Services Act 2012 (c.21), and amended by paragraphs 14 and 16 of Schedule 3 and paragraph 7 of Schedule 8 to the Financial Services (Banking Reform) Act 2013 (c.33), paragraph 13 of Schedule 3 to the Pension Scheme Act 2015 (c.8) section 18 of the Bank of England and Financial Services Act 2016 (c.14) and S.I. 2013/1388.

Obligations of payment service providersU.K.

64.—F316(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) A payment service provider must ensure that it is able F317... to respond fully and rapidly to enquiries from a person specified in paragraph (3) concerning any of the information required by or under the funds transfer regulation.

(3) The persons specified in this paragraph are—

(a)financial investigators accredited under section 3 of the Proceeds of Crime Act 2002 (accreditation and training) M105;

(b)persons acting on behalf of the Scottish Ministers in their capacity as an enforcement authority under that Act; and

(c)constables or equivalent officers of any law enforcement authority.

Textual Amendments

Marginal Citations

M1052002 c. 29. Section 3 was amended by paragraph 111 of Schedule 8 to the Crime and Courts Act 2013 (c.22), and by paragraph 120 of Schedule 8 and paragraph 1 of Schedule 14 to the Serious Crime Act 2007 (c.27).

[F318PART 7AU.K.Cryptoasset Transfers

Textual Amendments

Chapter 1U.K.Application and interpretation

Application of this PartU.K.

64A.—(1) This Part applies in respect of a cryptoasset transfer which is not excluded by paragraph (2) or (3).

(2) This Part does not apply in respect of a transfer of funds within the meaning of Article 3.9 of the funds transfer regulation.

(3) This Part does not apply to a cryptoasset transfer where both the originator and the beneficiary is a cryptoasset business acting on its own behalf.

InterpretationU.K.

64B.  In this Part—

“batch file transfer” means a bundle of individual inter-cryptoasset business transfers from a single originator put together by a cryptoasset business of the originator for transmission to a cryptoasset business of a beneficiary or beneficiaries;

“beneficiary” means the intended recipient of a cryptoasset from an originator;

“cryptoasset” has the meaning given in regulation 14A(3)(a) (cryptoasset exchange providers and custodian wallet providers) and includes a right to, or interest in, the cryptoasset;

“cryptoasset business” means a cryptoasset exchange provider or a custodian wallet provider;

“cryptoasset transfer” means an inter-cryptoasset business transfer or an unhosted wallet transfer;

“inter-cryptoasset business transfer” means a transaction carried out by two or more cryptoasset businesses which involves the making available of a cryptoasset of an originator to a beneficiary, provided that at least one of the cryptoasset businesses involved in the transaction is carrying on business in the United Kingdom in respect of the transaction (whether that is a cryptoasset business acting for the originator or a cryptoasset business acting for the beneficiary or an intermediary cryptoasset business);

“intermediary cryptoasset business” means a cryptoasset business which, in the course of an inter-cryptoasset business transfer—

(a)

is not acting for the originator or the beneficiary; and

(b)

receives and transmits a cryptoasset on behalf of a cryptoasset business;

“originator” means a person who owns a cryptoasset and allows a transfer of that cryptoasset;

“unhosted wallet” means software or hardware that enables a person to store and transfer a cryptoasset on their own behalf, and in relation to which a private cryptographic key is administered by that person;

“unhosted wallet transfer” means the transfer of a cryptoasset either—

(a)

by an originator from an unhosted wallet to the cryptoasset business of a beneficiary, or

(b)

by the cryptoasset business of the originator to the unhosted wallet of a beneficiary,

with a view to making the cryptoasset available to the beneficiary;

“unique transaction identifier” means the combination of letters, numbers or symbols determined by a cryptoasset business which permits the traceability of the transaction from the originator to the beneficiary;

“working day” means any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.

Chapter 2U.K.Inter-cryptoasset business transfers

Information accompanying an inter-cryptoasset business transferU.K.

64C.—(1) In respect of an inter-cryptoasset business transfer, the cryptoasset business of the originator must ensure that the cryptoasset transfer is accompanied by the information specified in paragraph (5).

(2) Where paragraph (3) applies, if the cryptoasset business of the beneficiary makes a request for the information specified in paragraph (6), the cryptoasset business of the originator must, within three working days of the request, also provide the information specified in paragraph (6).

(3) This paragraph applies where each of the cryptoasset businesses executing the inter-cryptoasset business transfer (including any intermediary cryptoasset business) is carrying on business in the United Kingdom in respect of the transaction.

(4) Where paragraph (3) does not apply and the transfer is equal to or exceeds the equivalent in cryptoassets of 1,000 euros in value (taken together with any other cryptoasset transfer which appears to be linked), the cryptoasset business of the originator must ensure that the inter-cryptoasset business transfer is also accompanied by the information specified in paragraph (6).

(5) The information specified in this paragraph is—

(a)the name of the originator and the beneficiary;

(b)if the originator or beneficiary is a firm, the registered name of the originator or beneficiary (as the case may be), or if there is no registered name, the trading name; and

(c)the account number of the originator and the beneficiary, or if there is no account number, the unique transaction identifier.

(6) The information specified in this paragraph is—

(a)if the originator is a firm—

(i)the customer identification number; or

(ii)the address of the originator’s registered office, or, if different, or if there is none, its principal place of business;

(b)if the originator is an individual, one of the following—

(i)the customer identification number;

(ii)the individual’s address;

(iii)the individual’s birth certificate number, passport number or national identity card number;

(iv)the individual’s date and place of birth.

(7) In the case of a batch file transfer where the cryptoasset business of the beneficiary is carrying on business wholly outside the United Kingdom, paragraphs (1) and (4) do not apply to each of the individual business transfers, provided that—

(a)the batch is accompanied by the information required by paragraphs (1) and (4); and

(b)each individual transfer within the batch is accompanied by the account number of the originator, or if there is no account number, the unique transaction identifier.

(8) Information relating to the originator required under this regulation must have been verified by the cryptoasset business of the originator on the basis of documents or information in either case obtained from a reliable source which is independent of the person whose identity is being verified.

(9) A cryptoasset business of an originator must not make an inter-cryptoasset business transfer before ensuring full compliance with this regulation.

Missing or non-corresponding information: the cryptoasset business of a beneficiaryU.K.

64D.—(1) When a cryptoasset business of a beneficiary receives a cryptoasset as part of an inter-cryptoasset business transfer it must, before making the cryptoasset available to the beneficiary, check whether—

(a)it has received the information required by regulation 64C to be provided; and

(b)the information relating to the beneficiary corresponds with information verified by it under Part 3 (customer due diligence).

(2) Where the cryptoasset business of the beneficiary becomes aware that any information required by regulation 64C to be provided is missing or does not correspond with information verified by it under Part 3, the cryptoasset business of the beneficiary must—

(a)request the cryptoasset business of the originator to provide the missing information;

(b)consider whether to make enquiries as to any discrepancy between information received and information verified by it under Part 3; and

(c)consider whether—

(i)to delay making the cryptoasset available to the beneficiary until the information is received or any discrepancy resolved; and

(ii)if the information is not received or discrepancy resolved within a reasonable time, to return the cryptoasset to the cryptoasset business of the originator.

(3) In deciding what action to take under paragraph (2)(c) the cryptoasset business must have regard to—

(a)the risk assessments carried out by the cryptoasset business under regulations 18(1) (risk assessment by relevant persons) and 18A(1) (risk assessment by relevant persons in relation to proliferation financing); and

(b)its assessment of the level of risk of money laundering, terrorist financing and proliferation financing arising from the inter-cryptoasset business transfer.

(4) In assessing the level of risk for the purposes of paragraph (3)(b), the cryptoasset business must take account of factors including—

(a)the purpose and nature of its business relationship with the beneficiary and of the inter-cryptoasset business transfer;

(b)the value of the inter-cryptoasset business transfer and any cryptoasset transfer which appears to be linked;

(c)the frequency of cryptoasset transfers made by or to the beneficiary via the cryptoasset business of the beneficiary; and

(d)the duration of its business relationship with the beneficiary.

(5) The cryptoasset business of a beneficiary must report to the FCA repeated failure by a cryptoasset business to provide any information required by regulation 64C as well as any steps the cryptoasset business of the beneficiary has taken in respect of such failures.

Missing information: intermediariesU.K.

64E.—(1) When an intermediary cryptoasset business receives a cryptoasset as part of an inter-cryptoasset business transfer it must, before further transferring the cryptoasset, check whether it has received the information required by regulation 64C to be provided.

(2) Where an intermediary cryptoasset business becomes aware that any information required by regulation 64C to be provided is missing, the intermediary cryptoasset business must—

(a)request the cryptoasset business from which it received the transfer to provide the missing information; and

(b)consider whether—

(i)to delay the onward transfer of the cryptoasset until the information is received; and

(ii)if the information is not received within a reasonable time, to return the cryptoasset to the cryptoasset business from which it was received.

(3) In deciding what action to take under paragraph (2)(b) an intermediary cryptoasset business must have regard to—

(a)the risk assessments carried out by the intermediary cryptoasset business under regulations 18(1) and 18A(1); and

(b)its assessment of the level of risk of money laundering, terrorist financing and proliferation financing arising from the inter-cryptoasset business transfer.

(4) In assessing the level of risk under paragraph (3)(b) the intermediary cryptoasset business must take account of factors including—

(a)the purpose and nature of the business relationship with its customer cryptoasset business, and of the inter-cryptoasset business transfer; and

(b)the value of the inter-cryptoasset business transfer and any cryptoasset transfer which appears to be linked.

(5) An intermediary cryptoasset business must report to the FCA repeated failure by a cryptoasset business to provide any information required by regulation 64C as well as any steps the intermediary cryptoasset business has taken in respect of such failures.

Retention of information with an inter-cryptoasset business transfer: intermediariesU.K.

64F.  An intermediary cryptoasset business must—

(a)ensure that all the information that is provided in relation to an inter-cryptoasset business transfer pursuant to regulation 64C, including any that is requested to be provided before the transfer is made under regulation 64E(2)(a), also accompanies the onward transfer (whether to another intermediary cryptoasset business or to the cryptoasset business of the beneficiary); and

(b)send on to the relevant cryptoasset business, as soon as practicable, any information requested under regulation 64E(2)(a) which is received after it has transferred the cryptoasset to the relevant cryptoasset business.

Chapter 3U.K.Unhosted wallet transfers

Requesting information: unhosted wallet transfers and cryptoasset businessesU.K.

64G.—(1) A cryptoasset business involved in an unhosted wallet transfer may request from its customer (whether the originator or the beneficiary)—

(a)such information specified in regulation 64C(5) as it does not already hold; and

(b)where the unhosted wallet transfer is equal to or exceeds the equivalent in cryptoassets of 1,000 euros in value (taken together with any other cryptoasset transfer which appears to be linked), and where its customer is the beneficiary, the information specified in regulation 64C(6) in respect of the originator.

(2) In determining under paragraph (1) whether to request information from its customer, the cryptoasset business must have regard to—

(a)the risk assessments carried out by the cryptoasset business under regulations 18(1) and 18A(1); and

(b)its assessment of the level of risk of money laundering, terrorist financing and proliferation financing arising from the unhosted wallet transfer.

(3) In assessing the level of risk under paragraph (2)(b), a cryptoasset business must take account of factors including—

(a)the purpose and nature of—

(i)the business relationship with its customer (whether beneficiary or originator); and

(ii)the unhosted wallet transfer;

(b)the value of the unhosted wallet transfer and any cryptoasset transfer which appears to be linked;

(c)the frequency of cryptoasset transfers made by or to the customer (whether beneficiary or originator) via the cryptoasset business; and

(d)the duration of the business relationship with its customer.

(4) In the event that the cryptoasset business involved in an unhosted wallet transfer does not receive information requested under paragraph (1) it must not make the cryptoasset available to the beneficiary.

Chapter 4U.K.Provision of information to law enforcement authorities

Provision of informationU.K.

64H.  A cryptoasset business must respond fully and without delay to a request in writing from a law enforcement authority (within the meaning of regulation 44(10)) for any information held in connection with this Part which that authority reasonably requires in connection with the authority’s functions.]

PART 8U.K. [F319Information, Investigation and Directions]

Textual Amendments

InterpretationU.K.

65.—(1) In this Part—

“premises” means any building or other structure, including a moveable structure, other than premises used only as a dwelling;

“tribunal” means the First-tier Tribunal or, where determined by or under Tribunal Procedure Rules, the Upper Tribunal;

(2) Unless otherwise defined in this Part—

“officer” means—

(a)

an officer of the FCA, including a member of the FCA's staff or an agent of the FCA;

(b)

an officer of Revenue and Customs; or

(c)

an employee or agent of a professional body listed in Schedule 1 who is authorised by the body to act on behalf of the body for the purposes of this Part;

(d)

a relevant officer;

“relevant officer” means—

(a)

in Great Britain, an officer of a local weights and measures authority;

(b)

in Northern Ireland, an officer of the Department for the Economy,

acting pursuant to arrangements made with the FCA or with the Commissioners for the purposes of these Regulations.

(3) For the purposes of this Part, a person is connected to a relevant person or a payment service provider (“a connected person”) if that person is a person listed in Schedule 5 in relation to the relevant person or payment service provider.

Power to require informationU.K.

66.—(1) A supervisory authority may, by notice in writing to a person (“P”) who is (or was at any time) a relevant person, a payment service provider or a connected person, require P to—

(a)provide specified information, or information of a specified description;

(b)produce specified documents, or documents of a specified description; or

(c)attend before an officer of the supervisory authority (or of a supervisory authority which is acting on behalf of that authority) at a time and place specified in the notice and answer questions.

[F320(1A) The power in paragraph (1) includes power to require P to provide a copy of any suspicious activity disclosure made to the NCA.]

(2) The information or documents must be provided or produced—

(a)before the end of such reasonable period as may be specified; and

(b)at such place as may be specified.

(3) An officer who has authorisation in writing from a supervisory authority to do so may require P without unreasonable delay to—

(a)provide the officer with specified information or information of a specified description; or

(b)produce to the officer specified documents or documents of a specified description.

(4) The powers in this regulation may only be exercised by a supervisory authority, or by an officer authorised under paragraph (3) to act on behalf of the supervisory authority, in relation to information or documents which are reasonably required by the supervisory authority in connection with the exercise by the authority of any of its supervisory functions.

(5) Where a supervisory authority or an officer requires information to be provided or documents to be produced under paragraph (1) or (3), the notice must set out the reasons why the information is required to be provided or the documents produced, unless the supervisory authority or (as the case may be) the officer is not permitted to disclose this information.

(6) The supervisory authority may require—

(a)information contained in a computer or other storage device, or recorded in any other way otherwise than in legible form to be produced to it in legible form or in a form from which the information can readily be produced in visible and legible form; and

(b)any information provided under this regulation to be provided in such form as it may reasonably require.

(7) The production of a document does not affect any lien which a person has on the document.

(8) If a supervisory authority has power under this regulation to require a person to produce a document but it appears that the document is in the possession of a third person, that power may be exercised by the supervisory authority in relation to the third person.

[F321(9) In this regulation, “suspicious activity disclosure” has the meaning given in regulation 104(4).]

Textual Amendments

Requests in support of other authoritiesU.K.

67.—(1) On receiving a request to which paragraph (2) applies from a foreign authority, the supervisory authority may exercise the power conferred by regulation 66, and for these purposes, regulation 66 has effect as if it also referred to information and documents reasonably required by the supervisory authority to meet such a request.

(2) This paragraph applies if the request is made by the foreign authority in connection with the exercise by that authority of—

(a)functions provided for in the fourth money laundering directive;

(b)functions provided for in the funds transfer regulation; or

(c)functions provided for in the law of a third country equivalent to those provided for in the fourth money laundering directive or the funds transfer regulation.

(3) In deciding whether or not to exercise its powers under regulation 66 in response to a request, the supervisory authority may take into account in particular—

(a)whether, in the territory of the foreign authority concerned, corresponding assistance would be given to the supervisory authority;

(b)whether the case concerns the breach of a law, or other requirement, which has no close parallel in the United Kingdom or involves the assertion of a jurisdiction not recognised by the United Kingdom;

(c)the seriousness of the case and its importance to persons in the United Kingdom.

(4) The supervisory authority may decide not to exercise its powers under regulation 66 unless the foreign authority undertakes—

(a)to make such contribution towards the cost of doing so as the supervisory authority considers appropriate; and

(b)to comply with such conditions in relation to the information and documents as the supervisory authority considers appropriate.

F322(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) “Foreign authority” means an authority in a territory which is not part of the United Kingdom which exercises functions referred to in paragraph (2).

Textual Amendments

Requests to other authoritiesU.K.

68.—(1) This regulation applies if—

(a)documents or information which are reasonably required by a supervisory authority in connection with the exercise by the authority of any of the functions given to it under these Regulations are not (as far as the supervisory authority is aware) available in the United Kingdom; and

(b)the supervisory authority has reason to believe that such documents or information may be held by a person who is within the jurisdiction of a foreign authority.

(2) A supervisory authority may request the assistance of the foreign authority in obtaining specified information or documents which satisfy the conditions in paragraph (1).

(3) The information or documents provided to the supervisory authority pursuant to a request under paragraph (2) must only be used—

(a)for the purpose for which it was provided; or

(b)for the purposes of proceedings arising as a result of contravention of a relevant requirement in these Regulations, or proceedings arising out of such proceedings.

(4) Paragraph (3) does not apply if the foreign authority by which the information or documents were provided consents to its use.

(5) In this regulation, “foreign authority” has the meaning given in regulation 67(6).

Entry, inspection of premises without a warrant etcU.K.

69.—(1) Paragraph (2) applies where a duly authorised officer of (or acting on behalf of) a supervisory authority in relation to a relevant person or a payment service provider (“P”) has reasonable grounds to believe that—

(a)any premises are being used by P in connection with P's business or professional activities; and

(b)P may have contravened the requirements of—

F323(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)the funds transfer regulation, or

(iii)these Regulations.

(2) The officer may, on producing evidence of the officer's authority, at any reasonable time—

(a)enter the premises;

(b)inspect the premises;

(c)observe the carrying on of business or professional activities by P;

(d)inspect any documents or other information found on the premises;

(e)require any person on the premises to provide an explanation of any document or to state where documents or information might be found;

(f)inspect any cash found on the premises.

(3) The officer may take copies of, or make extracts from, any documents found as a result of the exercise of the power in paragraph (2).

(4) In this regulation, “duly authorised officer” means—

(a)an officer of the FCA, authorised in writing to exercise the powers under this regulation on behalf of the FCA or another supervisory authority, by a Head of Department working within the enforcement function of the FCA; or

(b)an officer of Revenue and Customs authorised in writing to exercise the powers under this regulation on behalf of the Commissioners, or another supervisory authority, by an officer of Revenue and Customs of at least the grade of senior officer.

Textual Amendments

Entry of premises under warrantU.K.

70.—(1) A justice may issue a warrant under this regulation if satisfied on information given on oath (or in Scotland by evidence on oath) by a duly authorised officer acting on behalf of a supervisory authority that—

(a)there are reasonable grounds for believing that the first, second, or third set of conditions is satisfied; or

(b)there are reasonable grounds for suspecting that the fourth set of conditions is satisfied.

(2) The application for the warrant must—

(a)identify the premises to which the application relates and state that the premises is not used only as a dwelling;

(b)state that the officer has reasonable grounds to suspect a warrant is necessary in connection with the exercise of the supervisory functions of the supervisory authority for which the officer is acting and the warrant is sought for the purpose of those functions;

(c)state that the officer executing the warrant—

(i)will give to any person on the premises, when entering the premises, evidence of identification and authority to act on behalf of the supervisory authority, and

(ii)will give to that person, no later than on entering the premises, a notice identifying and explaining the powers exercisable under this regulation, and

(d)state that the warrant is sought in relation to material specified in the application, or that there are reasonable grounds for suspecting that there is material falling within regulation 66 on the premises.

(3) The first set of conditions is—

(a)that a person on whom a requirement has been imposed under regulation 66 has failed (wholly or in part) to comply with it, and

(b)that on the premises specified in the warrant—

(i)there are documents which have been required, or

(ii)there is information which has been required.

(4) The second set of conditions is—

(a)that the premises specified in the warrant are premises of—

(i)the relevant person or the payment service provider (“P”),

(ii)a member of the same group as P; or

(iii)a third person referred to in regulation 66(8);

(b)that there are on the premises documents or information in relation to which a requirement could be imposed under regulation 66, and

(c)that if such a requirement were to be imposed—

(i)it would not be complied with, or

(ii)the documents or information to which it related would be removed, tampered with or destroyed.

(5) The third set of conditions is—

(a)that an officer has been obstructed in the exercise of the power under regulation 69; and

(b)that there is on the premises specified in the warrant documents, information or cash which could be inspected under regulation 69(2)(d) or (f).

(6) The fourth set of conditions is—

(a)that an offence under these Regulations has been, is being or is about to be committed by P; and

(b)there is on the premises specified in the warrant information or documents relevant to whether the offence has been, is being or is about to be committed.

(7) A warrant under this regulation authorises the executing officer—

(a)to enter the premises specified in the warrant;

(b)to search the premises and take possession of any documents or information appearing to be documents or information of a kind in respect of which the warrant was issued (“the relevant kind”) or to take, in relation to any such documents or information, any other steps which may appear to be necessary for preserving them or preventing interference with them;

(c)to inspect any cash found on the premises;

(d)to take copies of, or extracts from, any documents or information appearing to be of the relevant kind;

(e)to require any person on the premises to provide an explanation of any document or information appearing to be of the relevant kind or to state where it may be found; and

(f)to use such force as may be reasonably necessary.

(8) Where information of the relevant kind is contained in a computer or other storage device, or is recorded in any other way otherwise than in legible form, the warrant authorises the executing officer to take possession of that information in a form in which it can be taken away and in which it is legible.

(9) A warrant under this regulation—

(a)may be exercised by any executing officer;

(b)may authorise persons to accompany any executing officer who is executing it;

(c)may be issued subject to conditions.

(10) The powers in paragraph (7) may be exercised by a person authorised by the warrant to accompany an executing officer; but that person may exercise those powers only in the company of, and under the supervision of, an executing officer.

(11) In England and Wales, sections 15(5) to (8) and 16(3) to (12) of the Police and Criminal Evidence Act 1984 M106 (execution of warrants and safeguards) apply to warrants issued under this regulation.

(12) In Northern Ireland, Articles 17(5) to (8) and 18(3) to (12) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (execution of warrants and safeguards) M107 apply to warrants issued under this regulation.

(13) In this regulation—

“duly authorised officer” means—

(a)

where a warrant is issued on the basis of information given on behalf of the FCA or another supervisory authority, an officer of the FCA authorised in writing to exercise the powers under this regulation by a Head of Department working within the enforcement function of the FCA,

(b)

where a warrant is issued on the basis of information given on behalf of the Commissioners or another supervisory authority, an officer of Revenue and Customs authorised in writing to exercise the powers under this regulation by an officer of Revenue and Customs of at least the grade of senior officer;

“executing officer” means—

(a)

where a warrant is issued on the basis of information given on behalf of the FCA, or of a supervisory authority for which the FCA is acting, a constable,

(b)

where a warrant is issued on the basis of information given on behalf of the Commissioners, or of a supervisory authority for which the Commissioners are acting, an officer of Revenue and Customs;

“justice” means—

(a)

in England and Wales, a justice of the peace;

(b)

in Northern Ireland, a lay magistrate; or

(c)

in Scotland, a sheriff or summary sheriff.

Marginal Citations

M1061984 c.60. Sections 15(5) to (8) and 16(3) to (12) have been amended by sections 113 and 114 of the Serious Organised Crime and Police Act 2005 (c.15), and S.I. 2005/3496. Section 16 has also been amended by paragraph 281 of Schedule 8 to the Courts Act 2003 (c.39).

M107S.I. 1989/1341 (N.I. 12). Articles 17 and 18 have been amended by S.I. 2007/288 (N.I.).

Retention of documents taken under regulation 66 or 70U.K.

71.—(1) Any material possession of which is taken in accordance with a requirement under regulation 66 or under a warrant issued under regulation 70 (“seized material”) may be retained for so long as it is necessary to retain it (rather than copies of it) in connection with the exercise of the functions of the supervisory authority under these Regulations for the purposes of which any requirement was imposed or the warrant was issued.

(2) If a duly authorised officer (within the meaning of regulation 70(13)) has reasonable grounds for suspecting that—

(a)the seized material may need to be produced for the purposes of legal proceedings; and

(b)it might otherwise be unavailable for those purposes,

it may be retained until the proceedings are concluded.

(3) A person claiming to be the owner of any seized material may apply to the Crown Court or (in Scotland) the sheriff or the summary sheriff for an order for the delivery of the material to the person appearing to the court, the sheriff or the summary sheriff to be the owner.

(4) If on an application under paragraph (3), the court or (in Scotland) the sheriff or the summary sheriff cannot ascertain who is the owner of the seized material the court, the sheriff or the summary sheriff may make such order as the court, the sheriff or the summary sheriff thinks fit.

(5) An order under paragraph (3) or (4) does not affect the right of any person to take legal proceedings against any person in possession of seized material for the recovery of the material.

Provision of information and warrants: safeguardsU.K.

72.—(1) A person may not be required under regulation 66, 69 [F324, 70, 74A or 74B] to produce excluded material, or to provide information, produce documents or answer questions which that person would be entitled to refuse to provide, produce or answer on grounds of legal professional privilege in proceedings in the High Court, except that a lawyer may be required to provide the full name and address of the lawyer's client.

(2) The provision of information in accordance with regulation 66, 69 [F325, 70, 74A or 74B], is not to be taken to breach any restriction, however imposed, on the disclosure of information.

(3) Where a disclosure is made in good faith in accordance with regulations 66, 69 [F326, 70, 74A or 74B] no civil liability arises in respect of the disclosure on the part of the person making the disclosure.

(4) A warrant issued under regulation 70 does not confer the right to seize privileged material or excluded material.

(5) Privileged material is any material which the person would be entitled to refuse to produce on grounds of legal professional privilege in proceedings in the High Court.

(6) In the application of this regulation to Scotland, the references in paragraphs (1) and (5)—

(a)to proceedings in the High Court are to be read as references to proceedings in the Court of Session; and

(b)to an entitlement on grounds of legal professional privilege are to be read as references to an entitlement on the grounds of confidentiality of communication—

(i)between professional legal advisers and their clients; or

(ii)made in connection with or in contemplation of legal proceedings and for the purposes of those proceedings.

(7) For the purposes of this regulation, “excluded material” means personal records which a person has acquired or created in the course of any trade, business, profession or other occupation or for the purposes of any paid or unpaid office and which is held subject—

(a)to an express or implied undertaking to hold it in confidence; or

(b)to a restriction on disclosure or an obligation of secrecy contained in any enactment, including an enactment contained in, or made under, an Act passed after this Regulation.

Textual Amendments

Admissibility of statementsU.K.

73.—(1) A statement made by a person in response to a requirement imposed under regulations 66(1)(c), 69(2)(e) [F327, 70(7)(e) or 74B(6)] may not be used in evidence against the person in criminal proceedings.

(2) Paragraph (1) does not apply—

(a)in the case of proceedings under Parts 2 to 4 of the Proceeds of Crime Act 2002 (confiscation proceedings) M108;

(b)on a prosecution for an offence under section 5 of the Perjury Act 1911 (false statements) M109;

(c)on a prosecution for an offence under Article 10 of the Perjury (Northern Ireland) Order 1979 (false statements) M110;

(d)on a prosecution for an offence under section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements and declarations) M111;

(e)on a prosecution for an offence under regulation 88; or

(f)for some other offence where, in giving evidence, the person makes a statement inconsistent with the statement mentioned in paragraph (1).

(3) A statement may not be used by virtue of paragraph (2)(f) against a person unless—

(a)evidence relating to it is adduced; or

(b)a question relating to it is asked;

by them or on their behalf in the proceedings arising out of the prosecution.

Textual Amendments

Marginal Citations

M1091911 c.6. Section 5 was amended by virtue of section 1(2) of the Criminal Justice Act 1948 (c.58).

Powers of relevant officersU.K.

74.—(1) A relevant officer (“R”) may only exercise powers under this Part pursuant to arrangements made with the FCA or with the Commissioners—

(a)by or on behalf of the local weights and measures authority of which R is an officer (“R's authority”); or

(b)by the Department for the Economy.

(2) Anything done or omitted to be done by, or in relation to, R in the exercise or purported exercise of a power in this Part is to be treated for all purposes as having been done or omitted to be done by, or in relation to—

(a)an officer of the FCA, if R is acting pursuant to arrangements made with the FCA, or

(b)an officer of Revenue and Customs, if R is acting pursuant to arrangements made with the Commissioners.

(3) Paragraph (2) does not apply for the purpose of any criminal proceedings brought against R, R's authority, the Department for the Economy, the FCA or the Commissioners, in respect of anything done or omitted to be done by R.

(4) R must not disclose to any person other than the FCA (if R is acting pursuant to arrangements made with the FCA), the Commissioners (if R is acting pursuant to arrangements made with the Commissioners), R's authority or, as the case may be, the Department of the Economy, information obtained by R in the exercise of such powers unless—

(a)R has the approval of the FCA or where appropriate the Commissioners to do so, or

(b)R is under a duty to make the disclosure.

Modifications etc. (not altering text)

[F328Reporting requirements: cryptoasset businessesU.K.

74A.—(1) Each cryptoasset exchange provider and custodian wallet provider (“cryptoasset business”) must provide to the FCA such information as the FCA may direct—

(a)about compliance by the cryptoasset business with requirements imposed in or under Parts 2 to 6 [F329and 7A] of these Regulations;

(b)which is required by the FCA for the purpose of calculating charges under regulation 102 (costs of supervision); or

(c)which is otherwise reasonably required by the FCA in connection with the exercise by the FCA of any of its supervisory functions.

(2) The information referred to in paragraph (1) must be provided at such times and in such form, and verified in such manner, as the FCA may direct.

Textual Amendments

Modifications etc. (not altering text)

Report by a skilled person: cryptoasset businessesU.K.

74B.—(1) This regulation applies where the FCA reasonably considers that a report by a skilled person, concerning a matter relating to the exercise of the FCA’s functions under these Regulations, is required in connection with the exercise by the FCA of any of its functions under these Regulations in relation to a relevant person who is a cryptoasset exchange provider or custodian wallet provider.

(2) The FCA may either—

(a)by notice in writing to the relevant person, require the relevant person to appoint a skilled person to provide the FCA with a report on the matter concerned, or

(b)itself appoint a skilled person to do so, and recover any expenses incurred in doing so as a fee to be payable by the relevant person concerned.

(3) When acting under paragraph (2)(a), the FCA may require—

(a)the report to be in such form as may be specified in the notice; and

(b)that the contract between the skilled person and the relevant person contain certain terms that the FCA considers appropriate.

(4) The FCA must give notice in writing of an appointment under paragraph (2)(b) to the relevant person.

(5) References in this regulation to a skilled person are to a person—

(a)appearing to the FCA to have the skills necessary to make a report on the matter concerned, and

(b)where the appointment is to be made by the relevant person, nominated or approved by the FCA.

(6) It is the duty of the relevant person and any connected person to give the skilled person all such assistance as the skilled person may reasonably require.

Textual Amendments

Modifications etc. (not altering text)

Directions: cryptoasset businessesU.K.

74C.—(1) The FCA may [F330exercise its powers of direction under paragraph (5) or (6) in writing in relation to] a cryptoasset exchange provider or custodian wallet provider (“cryptoasset business”).

(2) A direction may be imposed before, on or after registration, as the FCA considers appropriate.

(3) A direction may be imposed for the purpose of—

(a)remedying a failure to comply with a requirement under these Regulations;

(b)preventing a failure to comply, or continued non-compliance with a requirement under these Regulations;

(c)preventing the cryptoasset business from being used for [F331money laundering, terrorist financing or proliferation financing].

(4) A direction may require or prohibit the taking of specified action.

(5) The FCA may, on its own initiative—

(a)impose a new direction;

(b)vary a direction imposed under this regulation; or

(c)rescind such a direction.

(6) The FCA may, on the request of a cryptoasset business—

(a)impose a new direction;

(b)vary a direction imposed under this regulation; or

(c)rescind such a direction.

(7) The FCA must consult the PRA before imposing or varying a direction which relates to—

(a)a person who is a PRA authorised person; or

(b)a person who is a member of a group which includes a PRA authorised person.

(8) A direction may be expressed to expire at the end of such period as the FCA may specify, but the imposition of a direction that expires at the end of a specified period does not affect the FCA’s power to impose a new direction.

(9) If the FCA imposes or varies a direction under paragraph (5)(a) or (b) it must give the cryptoasset business a notice in writing.

(10) The notice referred to in paragraph (9) must—

(a)give details of the direction;

(b)state the FCA’s reasons for imposing or varying the direction;

(c)inform the cryptoasset business that it may make representations to the FCA within such period as may be specified in the notice (whether or not the cryptoasset business has referred the matter to the Upper Tribunal);

(d)inform the cryptoasset business of when the direction takes effect; and

(e)inform the cryptoasset business of its right to refer the matter to the Upper Tribunal.

(11) The FCA may extend the period allowed under the notice for making representations.

(12) If, having considered any representations made by the cryptoasset business, the FCA decides not to rescind the direction, it must give the cryptoasset business a notice in writing.

(13) If, having considered any representations made by the cryptoasset business, the FCA decides—

(a)to vary the direction,

(b)to rescind the direction and to impose a different direction, or

(c)to rescind the direction and not to impose a different direction,

it must give the cryptoasset business a notice in writing.

(14) A notice under paragraph (12) must inform the cryptoasset business of its right to refer the matter to the Upper Tribunal.

(15) A notice under paragraph (13)(a) or (b) must comply with paragraph (10).

(16) If a notice informs the cryptoasset business of its right to refer a matter to the Upper Tribunal, it must give an indication of the procedure on such a reference.

(17) If the FCA imposes or varies a direction under paragraph (6)(a) or (b) it must give the cryptoasset business a notice in writing.

(18) The notice referred to in paragraph (17) must—

(a)give details of the direction;

(b)state the reasons for imposing or varying the direction; and

(c)inform the cryptoasset business of when the direction takes effect.

(19) If the FCA rescinds a direction under paragraph (6)(c) it must give the cryptoasset business a notice in writing.

(20) The FCA may, if it considers it proportionate to do so, publish such information about a notice given under paragraphs (9), (13) or (17) as it considers appropriate.

(21) Where the FCA publishes such information and the FCA decides to rescind the direction to which the notice relates, the FCA must, without delay, publish that fact in the same manner as that in which the information was published under paragraph (20).

(22) Where the FCA publishes information under paragraph (20) and the person to whom the notice is given refers the matter to the Upper Tribunal, the FCA must, without delay, publish information about the status of the appeal and its outcome in the same manner as that in which the information was published under paragraph (20).]

Textual Amendments

Modifications etc. (not altering text)

PART 9U.K.Enforcement

CHAPTER 1U.K.General

Meaning of “relevant requirement”U.K.

75.  For the purposes of this Part, “relevant requirement” has the meaning given in Schedule 6.

CHAPTER 2U.K.Civil penalties and notices

Power to impose civil penalties: fines and statementsU.K.

76.—(1) Paragraph (2) applies if a designated supervisory authority is satisfied that any person (“P”) has contravened a relevant requirement imposed on that person.

(2) A designated supervisory authority may do one or both of the following—

(a)impose a penalty of such amount as it considers appropriate on P;

(b)publish a statement censuring P.

(3) If a designated supervisory authority considers that another person who was at the material time an officer of P was knowingly concerned in a contravention of a relevant requirement by P, the designated supervisory authority may impose on that person a penalty of such amount as it considers appropriate.

(4) A designated supervisory authority must not impose a penalty on P under this regulation for contravention of a relevant requirement if the authority is satisfied that P took all reasonable steps and exercised all due diligence to ensure that the requirement would be complied with.

(5) Where the FCA proposes to impose a penalty under this regulation on a PRA-authorised person or on a person who has a qualifying relationship with a PRA-authorised person, it must consult the PRA.

(6) In deciding whether P has contravened a relevant requirement, the designated supervisory authority must consider whether at the time P followed—

F332(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)any relevant guidance which was at the time—

(i)issued by the FCA; or

(ii)issued by any other supervisory authority or appropriate body and approved by the Treasury.

(7) A penalty imposed under this Part is payable to the designated supervisory authority which imposes it.

(8) For the purposes of this regulation—

(a)“appropriate” means (other than in references to an appropriate body) effective, proportionate and dissuasive;

(b)“designated supervisory authority” means the FCA or the Commissioners.

Textual Amendments

Power to impose civil penalties: suspension and removal of authorisationU.K.

77.—(1) Paragraph (2) applies if the FCA is satisfied that a relevant person or a payment service provider has—

(a)repeatedly or systematically failed to include the information it is required to include on the payer or the payee under Articles 4, 5 or 6 of the funds transfer regulation;

(b)failed to implement effective risk-based procedures in breach of Articles 8 or 12 of the funds transfer regulation;

(c)failed to comply with Articles 11, 12 or 16 of the funds transfer regulation, where the failure is a serious one;

(d)repeatedly or systematically failed to retain records in breach of Article 16 of the funds transfer regulation; or

(e)failed to comply with a relevant requirement.

(2) The FCA may take one or more of the measures set out in sub-paragraphs (a) and (b)—

(a)to cancel or suspend, for such period as it considers appropriate—

(i)any permission which an authorised person has to carry on a regulated activity;

(ii)the authorisation of a payment service provider as an authorised payment institution under the Payment Services Regulations [F3332017];

(iii)the registration of a payment service provider as a small payment institution under the Payment Services Regulations [F3332017];

(iv)the authorisation of a payment service provider as an authorised electronic money institution under the Electronic Money Regulations 2011 M112; or

(v)the registration of a payment service provider as a small electronic money institution under the Electronic Money Regulations 2011;

(b)to impose, for such period as it considers appropriate, such limitations or other restrictions as it considers appropriate—

(i)in relation to the carrying on of a regulated activity by an authorised person;

(ii)on the authorisation of a payment service provider as a payment institution under the Payment Services Regulations [F3342017];

(iii)on the registration of a payment service provider as a small payment institution under the Payment Services Regulations [F3342017];

(iv)on the authorisation of a payment service provider as an electronic money institution under the Electronic Money Regulations 2011; or

(v)on the registration of a payment service provider as a small electronic money institution under the Electronic Money Regulations 2011.

(3) In paragraph (2)—

(a)“permission” means any permission that the authorised person has, whether given (or treated as given) under Part 4A of FSMA M113;

(b)“regulated activity” has the meaning given by section 22 of FSMA M114).

(4) The period for which a suspension, limitation or other restriction is to have effect may not exceed 12 months.

(5) A suspension may relate only to the carrying on of an activity in circumstances specified by the FCA when the suspension is imposed.

(6) A restriction may, in particular, be imposed so as to require the person concerned to take, or refrain from taking, specified action.

(7) The FCA may—

(a)withdraw a suspension, limitation or other restriction; or

(b)vary a suspension, limitation or other restriction so as to reduce the period for which it has effect or otherwise to limit its effect.

(8) For the purposes of this regulation, “appropriate” means effective, proportionate and dissuasive.

Textual Amendments

F333Word in reg. 77(2)(a)(ii)(iii) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 26(e) (with reg. 3)

F334Word in reg. 77(2)(b)(ii)(iii) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 26(e) (with reg. 3)

Marginal Citations

M113Part 4A was substituted by section 11 of the Financial Services Act 2012 (c.21).

M1142000 (c.8). Section 22 was amended by section 7 of the Financial Services Act 2012 (c.21).

Power to impose civil penalties: prohibitions on managementU.K.

78.—(1) Paragraph (2) applies if a designated supervisory authority considers that another person who was at the material time an officer of P was knowingly concerned in a contravention of a relevant requirement by P.

(2) The designated supervisory authority may impose one of the following measures on the person concerned—

(a)a temporary prohibition on the individual concerned holding an office or position involving responsibility for taking decisions about the management of a relevant person or a payment service provider (“having a management role”);

(b)a permanent prohibition on the individual concerned having a management role.

(3) A prohibition may be expressed to expire at the end of such period as the designated supervisory authority may specify, but the imposition of a prohibition under paragraph (2)(a) that expires at the end of a specified period does not affect the designated supervisory authority's power to impose a new prohibition under paragraph (2)(a).

(4) A prohibition imposed under paragraph (2) may be expressed to be a prohibition on an individual having a management role in—

(a)a named relevant person or payment service provider;

(b)a relevant person or payment service provider of a description specified by the designated supervisory authority when the prohibition is imposed; or

(c)any relevant person or payment service provider.

(5) A relevant person or payment service provider must take reasonable care to ensure that no individual who is subject to a prohibition under paragraph (2) on having a management role with that relevant person or payment service provider is given such a role, or continues to act in such a role.

Imposition of civil penaltiesU.K.

79.  Any one or more of the powers in regulations 76, 77 and 78 may be exercised by a designated supervisory authority in relation to the same contravention.

InjunctionsU.K.

80.—(1) If, on the application of a designated supervisory authority, the court is satisfied—

(a)that there is a reasonable likelihood that any person will contravene a relevant requirement; or

(b)that any person has contravened a relevant requirement and that there is a reasonable likelihood that the contravention will continue or be repeated,

the court may make an order restraining (or in Scotland an interdict prohibiting) the contravention.

(2) If on the application of a designated supervisory authority the court is satisfied—

(a)that any person has contravened a relevant requirement; and

(b)that there are steps which could be taken for remedying the contravention,

the court may make an order requiring that person, and any other person who appears to have been knowingly concerned in the contravention, to take such steps as the court may direct to remedy it.

(3) If, on the application of a designated supervisory authority, the court is satisfied that any person may have—

(a)contravened a relevant requirement; or

(b)been knowingly concerned in the contravention of a relevant requirement,

the court may make an order restraining (or in Scotland an interdict prohibiting) that person from disposing or otherwise dealing with any assets belonging to that person which it is satisfied that that person is reasonably likely to dispose of or otherwise deal with.

(4) The jurisdiction in this regulation is exercisable by the High Court and the Court of Session.

(5) In paragraph (2), references to remedying a contravention include references to mitigating its effect.

The FCA: disciplinary measures (procedure)U.K.

81.—(1) When determining the type of sanction, and level of any penalty, to be imposed on a person (“P”) under regulation 76, 77 or 78, the FCA must take into account all relevant circumstances, including where appropriate—

(a)the gravity and the duration of the contravention or failure;

(b)the degree of responsibility of P;

(c)the financial strength of P;

(d)the amount of profits gained or losses avoided by P;

(e)the losses for third parties caused by the contravention or failure;

(f)the level of co-operation of P with the FCA;

(g)previous contraventions or failures by P; and

(h)any potential systemic consequences of the contravention or failure.

[F335(1A) Before imposing a sanction on P under regulation 76, 77 or 78, the FCA must check whether P has any criminal convictions that may be relevant to the determination referred to in paragraph (1).]

(2) If the FCA proposes to impose a sanction on P under regulation 76, 77 or 78 it must give P a warning notice.

(3) Where the FCA proposes to impose a penalty on a PRA-authorised person or on a person who has a qualifying relationship with a PRA-authorised person, it must consult the PRA.

(4) Section 387 of FSMA (warning notices) M115 applies in relation to a notice given under paragraph (2) as it applies in relation to a warning notice given by the FCA under that Act, subject to paragraph (5).

(5) In complying with section 387(1)(a), a warning notice must—

(a)if it is about a proposal to publish a statement, set out the terms of the statement;

(b)if it is about a proposal to impose a penalty, specify the amount of the penalty;

(c)if it is about a proposal to impose a suspension, limitation or other restriction—

(i)state the period for which the suspension, limitation or restriction is to have effect,

(ii)sets out the terms of the suspension, limitation or other restriction;

(d)if it is about a proposal to cancel, state the date from which the cancellation is to have effect;

(e)if it is about a proposal to impose a prohibition on an individual, set out the terms of the proposed prohibition.

(6) If the FCA decides to impose a sanction on P under regulation 76, 77 or 78 it must without undue delay give P a decision notice.

(7) If the decision is to publish a statement, the decision notice must set out the terms of the statement.

(8) If the decision is to impose a penalty, the decision notice must specify the amount of the penalty.

(9) If the decision is to impose a suspension, limitation or other restriction, the decision notice must—

(a)state the period for which the suspension, limitation or restriction is to have effect;

(b)sets out the terms of the suspension, limitation or other restriction.

(10) If the decision is to cancel a permission, registration or authorisation, the decision notice must state the date from which the cancellation is to have effect.

(11) If the decision is to impose a prohibition on an individual, the decision notice must set out the terms of the prohibition.

(12) Section 388 of FSMA (decision notices) M116 applies in relation to a decision notice given under paragraph (6) as it applies in relation to a decision notice given by the FCA under FSMA, subject to paragraph (13).

(13) Section 388 of FSMA has effect for the purposes of paragraph (12) as if—

(a)in subsection (1)(e)(i) for “this Act” there were substituted “ regulation 93(1) of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 ”, and

(b)subsections (1A) and (2) were omitted.

Textual Amendments

Marginal Citations

M115Section 387 was amended by paragraph 26 of Schedule 9 to the Financial Services Act 2012 (c.21), paragraph 12 of Schedule 3 to the Financial Services (Banking Reform) Act 2013 (c.33).

M116Section 388 was amended (and subsection (1A) inserted) by paragraph 27 of Schedule 9 to the Financial Services Act 2012 and paragraph 13 of Schedule 3 to the Financial Services (Banking Reform) Act 2013.

The FCA: procedure (general)U.K.

82.—(1) Sections 389 (notices of discontinuance), 390 (final notices) and 392 (application of sections 393 and 394) to 395 (the FCA's and PRA's procedures) of FSMA M117 apply in relation to a warning notice given under regulation 81(2) and a decision notice given under regulation 81(6) as they apply in relation to a warning notice or decision notice given under FSMA, subject to paragraphs (2) to (3).

(2) Section 390 of FSMA has effect as if—

(a)for subsection (4) there were substituted—

“(4) A final notice about a cancellation, suspension, limitation or other restriction under regulation 77 or 78 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (“the 2017 Regulations”) must—

(a)specify the permission, authorisation or registration which is being cancelled, suspended or the terms of the limitation or other restriction being imposed, and

(b)give details of—

(i)the date on which the cancellation, suspension, limitation or other restriction has effect, and

(ii)the period for which the suspension, limitation or other restriction is imposed.

(4A) A final notice about a prohibition under regulation 78 of the 2017 Regulations must—

(a)specify the extent of the prohibition; and

(b)give details of the date on which the prohibition has effect, and if relevant the period for which it has effect.”;

(b)subsections (6), (7) and (10) were omitted.

(3) Section 392 of FSMA has effect as if for paragraphs (a) and (b) there were substituted—

“(a)a warning notice given under regulation 81(2) of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 (“the 2017 Regulations”);

(b)a decision notice given under regulation 81(6) of the 2017 Regulations.”.

Marginal Citations

M117Section 389 was amended by paragraph 28 of Schedule 9 to the Financial Services Act 2012. Section 390 was amended by paragraph 29 of Schedule 9 to the Financial Services Act 2012 and S.I. 2010/22. Section 392 was amended by paragraph 29 of Schedule 2 to the Financial Services Act 2010 (c.28); section 18 of, paragraph 31 of Schedule 9, paragraph 37 of Schedule 8 and paragraph 8 of Schedule 13 to, the Financial Services Act 2012; section 4 of the Financial Services (Banking Reform) Act 2013 (c.33); S.I. 2007/126 and 2013/1388. Section 395 was amended by sections 17, 18, 19 and 24 of, and paragraph 34 of Schedule 9 to the Financial Services Act 2012, and paragraph 14 of Schedule 3 to the Financial Services (Banking Reform) Act 2013; S.I. 2005/381, 2005/1433, 2007/1973, 2009/534 and 2013/1388.

The Commissioners: disciplinary measures (procedure)U.K.

83.—(1) When determining the type of sanction, and level of any penalty, to be imposed on a person (“P”) under regulation 76 or 78, the Commissioners must take into account all relevant circumstances, including where appropriate—

(a)the gravity and the duration of the contravention or failure;

(b)the degree of responsibility of P;

(c)the financial strength of P;

(d)the amount of profits gained or losses avoided by P;

(e)the losses for third parties caused by the contravention or failure;

(f)the level of co-operation of P with the Commissioners;

(g)previous contraventions or failures by P; and

(h)any potential systemic consequences of the contravention or failure.

[F336(1A) Before imposing a sanction on P under regulation 76, 77 or 78, the Commissioners must check whether P has any criminal convictions that may be relevant to the determination referred to in paragraph (1).]

(2) Where the Commissioners decide to impose a penalty or publish a statement under regulation 76, or impose a prohibition under regulation 78, the Commissioners must give P a notice in accordance with paragraph (3).

(3) A notice must be given of—

(a)the Commissioners' decision—

(i)to impose a penalty, and the amount of the penalty;

(ii)to publish a statement, and the terms of the statement;

(iii)to impose a prohibition, and the terms of the prohibition;

(b)the Commissioners' reasons for imposing a penalty, publishing a statement or imposing a prohibition;

(c)the right to a review under regulation 94; and

(d)the right to appeal under regulation 99.

(4) A notice about a penalty must—

(a)state the manner in which and the period within which, the penalty is to be paid;

(b)give details of the way in which the penalty may be recovered if it is not paid by the date stated in the notice.

Textual Amendments

Publication: the FCAU.K.

84.—(1) Where a warning notice is given by the FCA under regulation 81(2), neither the FCA nor any person to whom it is given or copied may publish the notice or any details concerning it.

(2) Where the FCA gives a decision notice under regulation 81(6), the FCA must publish on their official website such information about the matter to which the notice relates as it considers appropriate, subject to paragraphs (3) to (9).

(3) Where the FCA publishes information under paragraph (2) or (4) about a matter to which a decision notice relates and the person to whom the notice is given refers the matter to the Upper Tribunal (see regulation 93), the FCA must, without undue delay, publish on its official website information about the status of the appeal and its outcome.

(4) Subject to paragraph (5), (6) and (9) where the FCA gives a final notice, it must, without undue delay, publish on its official website information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.

(5) Subject to paragraph (8) and (9), information about a matter to which a final notice relates must be published in accordance with paragraph (6) where—

(a)the FCA considers it to be disproportionate to publish the identity of a legal person on whom the sanction or measure is imposed following an assessment by the FCA of the proportionality of publishing the person's identity;

(b)the FCA considers it to be disproportionate to publish the personal data of the individual on whom the sanction or measure is imposed following an assessment by the FCA of the proportionality of publishing the personal data; or

(c)the publication of information under paragraph (4) would jeopardise the stability of the financial markets or an ongoing investigation.

(6) Where paragraph (5) applies, the FCA must—

(a)defer the publication of the information about a matter to which a final notice relates until such time as paragraph (5) ceases to apply; or

(b)publish the information on an anonymous basis if publication on that basis would ensure the effective protection of any anonymised personal data in the information.

(7) Where paragraph (6)(b) applies, the FCA may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction or measure is imposed.

(8) The FCA may make arrangements for the postponed publication of personal data that is anonymised in information it publishes under paragraph (6)(b) if—

(a)the publication of the data is postponed for a reasonable period of time; and

(b)the FCA considers that paragraphs (5)(b) and (6)(b) will no longer apply in respect of that data at the time of the postponed publication.

(9) Information about a matter to which a final notice relates must not be published if publication in accordance with paragraph under paragraph (6) is considered by the FCA insufficient to ensure—

(a)that the stability of the financial markets would not be put in jeopardy; or

(b)that the publication of the information would be proportionate with regard to sanctions or measures which are considered by the FCA to be of a minor nature.

(10) Where the FCA publishes information in accordance with paragraphs (2) to (8), the FCA must ensure that the information remains on its official website for at least five years, unless the information is personal data and [F337the data protection legislation] requires the information to be retained for a different period.

[F338(11) For the purposes of this regulation, “personal data” has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(2) and (14) of that Act).]

Textual Amendments

Publication: the CommissionersU.K.

85.—(1) Where the Commissioners give a notice under regulation 83, the Commissioners must publish on their official website such information about the matter to which the notice relates as they consider appropriate, subject to paragraphs (2) to (8).

(2) Where the Commissioners publish information under paragraph (1) or (3) about a matter to which a notice under regulation 83 relates and the person to whom the notice is given refers the matter to the tribunal (see regulation 99), the Commissioners must, without undue delay, publish on their official website information about the status of the appeal and its outcome.

(3) Subject to paragraph (4), (5) and (8) where the Commissioners give a notice under regulation 83, they must, without undue delay, publish on their official website information on the type and nature of the breach and the identity of the person on whom the sanction or measure is imposed.

(4) Subject to paragraph (7) and (8), information about a matter to which a notice under regulation 83 relates must be published in accordance with paragraph (5) where—

(a)the Commissioners consider it to be disproportionate to publish the identity of a legal person on whom the sanction or measure is imposed following an assessment by the Commissioners of the proportionality of publishing the person's identity;

(b)the Commissioners consider it to be disproportionate to publish the personal data of the individual on whom the sanction or measure is imposed following an assessment by the Commissioners of the proportionality of publishing the personal data; or

(c)the publication of information under paragraph (3) would jeopardise the stability of the financial markets or an ongoing investigation.

(5) Where paragraph (4) applies, the Commissioners must—

(a)defer the publication of the information about a matter to which a notice under regulation 83 relates until such time as paragraph (4) ceases to apply; or

(b)publish the information on an anonymous basis if publication on that basis would ensure the effective protection of any anonymised personal data in the information.

(6) Where paragraph (5)(b) applies, the Commissioners may make such arrangements as to the publication of information (including as to the timing of publication) as are necessary to preserve the anonymity of the person on whom the sanction or measure is imposed.

(7) The Commissioners may make arrangements for the postponed publication of personal data that is anonymised in information they publish under paragraph (5)(b) if—

(a)the publication of the data is postponed for a reasonable period of time; and

(b)the Commissioners consider that paragraphs (4)(b) and (5)(b) will no longer apply in respect of that data at the time of the postponed publication.

(8) Information about a matter to which a notice relates must not be published if publication in accordance with paragraph under paragraph (5) is considered by the Commissioners insufficient to ensure—

(a)that the stability of the financial markets would not be put in jeopardy; or

(b)that the publication of the information would be proportionate with regard to sanctions or measures which are considered by the Commissioners to be of a minor nature.

(9) Where the Commissioners publish information in accordance with paragraphs (1) to (7), the Commissioners must ensure that the information remains on their official website for at least five years, unless the information is personal data and [F339the data protection legislation] requires the information to be retained for a different period.

[F340(10) For the purposes of this regulation, “personal data” has the same meaning as in Parts 5 to 7 of the Data Protection Act 2018 (see section 3(2) and (14) of that Act).]

Textual Amendments

CHAPTER 3U.K.Criminal offences, penalties and proceedings etc.

Criminal offenceU.K.

86.—(1) A person who contravenes a relevant requirement imposed on that person is guilty of an offence and liable—

(a)on summary conviction—

(i)in England and Wales, to imprisonment for a term not exceeding three months, to a fine or to both;

(ii)in Scotland or Northern Ireland, to imprisonment for a term not exceeding three months, to a fine not exceeding the statutory maximum or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine, or to both.

(2) In deciding whether a person has committed an offence under paragraph (1), the court must decide whether that person followed—

F341(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)any relevant guidance which was at the time—

(i)issued by the FCA; or

(ii)issued by any other supervisory authority or appropriate body and approved by the Treasury.

(3) A person is not guilty of an offence under this regulation if that person took all reasonable steps and exercised all due diligence to avoid committing the offence.

(4) Where a person has been convicted of an offence under this regulation, that person is not also to be liable to a sanction under Chapter 2 of this Part.

Textual Amendments

Offences of prejudicing investigationsU.K.

87.—(1) This regulation applies if a person (“P”) knows or suspects that an appropriate officer is acting (or proposing to act) in connection with an investigation into a potential contravention of a relevant requirement which is being or is about to be conducted.

(2) P commits an offence if—

(a)P makes a disclosure which is likely to prejudice the investigation; or

(b)P falsifies, conceals, destroys or otherwise disposes of, or causes or permits the falsification, concealment, destruction or disposal of, documents which are relevant to the investigation.

(3) P does not commit an offence under paragraph (2)(a) if—

(a)P does not know or suspect that the disclosure is likely to prejudice the investigation;

(b)the disclosure is made in the exercise of a function under these Regulations, or in compliance with a requirement imposed by or under these Regulations;

(c)the disclosure is made in the exercise of a function, or in compliance with a requirement imposed, by or under the Terrorism Act 2000 M118;

(d)the disclosure is made in the exercise of a function, or in compliance with a requirement imposed, by or under the Proceeds of Crime Act 2002 M119;

(e)the disclosure is made in the exercise of a function, or in compliance with a requirement imposed, under any Act relating to criminal conduct or benefit from criminal conduct; or

(f)P is a professional legal adviser and the disclosure falls within paragraph (6).

(4) Criminal conduct is conduct which—

(a)constitutes an offence in any part of the United Kingdom; or

(b)would constitute an offence in any part of the United Kingdom if it occurred there.

(5) A person benefits from conduct if that person obtains property as a result of or in connection with the conduct.

(6) Subject to paragraph (7), a disclosure falls within this paragraph if it is a disclosure—

(a)to (or to a representative of) a client of the professional legal adviser in connection with the giving by the adviser of legal advice to the client; or

(b)to any person in connection with legal proceedings or contemplated legal proceedings.

(7) A disclosure does not fall within paragraph (6) if it is made with the intention of furthering a criminal purpose.

(8) P does not commit an offence under paragraph (2)(b) if—

(a)P does not know or suspect that the documents are relevant in connection with the investigation; or

(b)P does not intend to conceal any facts disclosed by the documents from any appropriate officer acting in connection with the investigation.

(9) A person guilty of an offence under paragraph (2) is liable—

(a)on summary conviction—

(i)in England and Wales, to imprisonment for a term not exceeding three months, to a fine or to both,

(ii)in Scotland or Northern Ireland, to imprisonment for a term not exceeding three months, to a fine not exceeding the statutory maximum or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

(10) For the purposes of this regulation—

“appropriate officer” means—

(a)

an officer of the FCA, including a member of the FCA's staff or an agent of the FCA;

(b)

an officer of Revenue and Customs;

(c)

an employee or agent of a professional body listed in Schedule 1 who is authorised by the body to act on behalf of the body for the purposes of this Part; or

(d)

a relevant officer;

“relevant officer” means—

(a)

in Great Britain, an officer of a local weights and measures authority;

(b)

in Northern Ireland, an officer of the Department for the Economy;

acting pursuant to arrangements made with the FCA or with the Commissioners for the purposes of these Regulations.

Marginal Citations

Information offencesU.K.

88.—(1) A person (“P”) commits an offence if, in purported compliance with a requirement imposed on P by or under these Regulations, P provides information to any person which is false or misleading in a material particular, and—

(a)P knows that the information is false or misleading; or

(b)P is reckless as to whether the information is false or misleading.

(2) A person guilty of an offence under paragraph (1) is liable—

(a)on summary conviction—

(i)in England and Wales, to imprisonment for a term not exceeding three months, to a fine or to both,

(ii)in Scotland or Northern Ireland, to imprisonment for a term not exceeding three months, to a fine not exceeding the statutory maximum or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(3) A person who discloses information in contravention of a relevant requirement is guilty of an offence and liable—

(a)on summary conviction—

(i)in England and Wales, to imprisonment for a term not exceeding three months, to a fine or to both,

(ii)in Scotland or Northern Ireland, to imprisonment for a term not exceeding three months, to a fine not exceeding the statutory maximum or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.

(4) It is a defence for a person charged with an offence under paragraph (3) of disclosing information to prove that they reasonably believed—

(a)that the disclosure was lawful; or

(b)that the information had already and lawfully been made available to the public.

Proceedings: generalU.K.

89.—(1) Proceedings for an offence under these Regulations may be instituted by—

(a)order of the Commissioners;

(b)a local weights and measures authority;

(c)the Department for the Economy;

(d)the Director of Public Prosecutions; or

(e)the Director of Public Prosecutions for Northern Ireland.

(2) Where proceedings under paragraph (1) are instituted by order of the Commissioners, the proceedings must be brought in the name of an officer of Revenue and Customs.

(3) A local weights and measures authority must, whenever the FCA or (where the authority is acting pursuant to arrangements made with the Commissioners) the Commissioners require, report in such form and with such particulars as the FCA or the Commissioners require on the exercise of its functions under these Regulations.

(4) Where the Commissioners investigate, or propose to investigate, any matter with a view to determining—

(a)whether there are grounds for believing that an offence under these Regulations has been committed by any person; or

(b)whether a person should be prosecuted for such an offence,

that matter is to be treated as an assigned matter within the meaning of section 1(1) of the Customs and Excise Management Act 1979 (interpretation) M120.

(5) Paragraphs (1) and (3) do not extend to Scotland.

(6) In its application to the Commissioners acting in Scotland, paragraph (4)(b) is to be read as referring to the Commissioners determining whether to refer the matter to the Crown Office and Procurator Fiscal Service with a view to the Procurator Fiscal determining whether a person should be prosecuted for such an offence.

Marginal Citations

M1201979 c.2. The definition of “assigned matter” was substituted by paragraph 22 of Schedule 4 to the Commissioners of Revenue and Customs Act 2006 (c.11) and amended by section 24(7) of the Scotland Act 2012 (c.11) and section 7 of the Wales Act 2014 (c.29).

Proceedings: jurisdictionU.K.

90.—(1) Proceedings against any person for an offence under these Regulations may be taken before the appropriate court in the United Kingdom having jurisdiction in the place where that person is for the time being.

(2) Proceedings against any person for an offence under these Regulations which cannot be taken under paragraph (1) may be taken at any appropriate court in the United Kingdom.

(3) An offence falling under these Regulations which is committed wholly or partly outside the United Kingdom may for all incidental purposes be treated as having been committed within the jurisdiction of the court where proceedings were taken.

Proceedings: partnership or unincorporated associationU.K.

91.—(1) Proceedings for an offence alleged to have been committed by—

(a)a partnership must be brought in the name of the partnership; or

(b)an unincorporated association must be brought in the name of the association,

and not in that of its members.

(2) A fine imposed on—

(a)a partnership on its conviction of an offence is to be paid out of the funds of the partnership; and

(b)an unincorporated association on its conviction of an offence is to be paid out of the funds of the association.

(3) Rules of court relating to the service of documents are to have effect as if a partnership or unincorporated association were a body corporate.

(4) In proceedings for an offence brought against a partnership or an unincorporated association—

(a)section 33 of the Criminal Justice Act 1925 M121 (procedure on charge of offence against corporation) and Schedule 3 to the Magistrates' Courts Act 1980 M122 (corporations) apply as they do in relation to a body corporate; and

(b)section 18 of the Criminal Justice (Northern Ireland) Act 1945 M123 (procedure on charge) and Schedule 4 to the Magistrates' Courts (Northern Ireland) Order 1981 M124 (corporations) apply as they do in relation to a body corporate.

Marginal Citations

M1211995 c.86. Section 33 was amended by Schedule 6 to the Magistrates' Court Act 1952 (c.55) and paragraph 19 of Schedule 8 to the Courts Act 1971 (c.23).

M1221980 c.43. Schedule 3 was amended by sections 25 and 101 and Schedule 13 to the Criminal Justice Act 1991; paragraph 51 of Schedule 3 and by Schedule 37 to the Criminal Justice Act 2003 (c.44).

M1231945 c.15 (N.I.1). Section 18 was amended by paragraph 1 of Schedule 12 to the Justice (Northern Ireland) Act 2002 (c.26) and by S.I. 1972/538 (N.I.1).

Offence by bodies corporate, partnership or unincorporated associationU.K.

92.—(1) If an offence under this Part committed by a body corporate is shown—

(a)to have been committed with the consent or the connivance of an officer of the body corporate; or

(b)to be attributable to any neglect on the part of an officer,

the officer (as well as the body corporate) is guilty of the offence and is liable to be proceeded against and punished accordingly.

(2) If the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with their functions of management as if the member was a director of the body.

(3) If an offence under this Part committed by a partnership is shown—

(a)to have been committed with the consent or the connivance of an officer; or

(b)to be attributable to any neglect on the part of an officer,

that officer (as well as the partnership) is guilty of the offence and is liable to be proceeded against and punished accordingly.

(4) If an offence under this Part committed by an unincorporated association (other than a partnership) is shown—

(a)to have been committed with the consent or the connivance of an officer of the association; or

(b)to be attributable to any neglect on the part of an officer,

that officer (as well as the association) is guilty of the offence and is liable to be proceeded against and punished accordingly.

PART 10U.K.Appeals

CHAPTER 1U.K.Decisions of the FCA

Appeals against decisions of the FCAU.K.

93.—[F342(1) A person may appeal to the Upper Tribunal a decision by the FCA under—

(a)regulation 25(2), to issue a direction;

(b)regulation 59(1), to refuse to register an applicant;

(c)regulation 60, to suspend or cancel the registration of a registered person;

[F343(ca)regulation 74C(1), to impose a direction;]

(d)regulation 76, to impose a penalty or publish a censuring statement;

(e)regulation 77, to take a measure set out in paragraph (2)(a) or (b) of that regulation;

(f)regulation 78(2), to impose a prohibition.]

(2) The provisions of Part 9 of FSMA (hearings and appeals), apply, subject to the modifications set out in paragraph (3), in respect of appeals to the Upper Tribunal made under this regulation as they apply in respect of references made to that Tribunal under that Act.

(3) Part 9 of FSMA has effect as if—

(a)in section 133 (proceedings before Tribunal: general provision), in subsection (7A) M125, after paragraph (o) there were inserted—

“(p)a decision to take action under any of regulations 76 to 78 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017.”; and

(b)for section 133A M126 there were substituted—

“133A.    Proceedings before Tribunal: decision notices

(1) The action specified in a decision notice given under regulation 81(6) of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017 must not be taken—

(a)during the period within which the matter to which the notice relates may be referred to the Tribunal under the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017; and

(b)if the matter is so referred, until the reference, and any appeal against the Tribunal's determination, has been finally disposed of.

(2) The Tribunal may, on determining a reference under these Regulations in respect of a decision of the FCA, make recommendations as to its regulating provisions or its procedures.”.

Textual Amendments

Marginal Citations

M1252000 c.8. Subsection 7A was inserted by section 23 of the Financial Services Act 2012 (c.21) and amended by section 4(2) of the Financial Services (Banking Reform) Act 2013 (c.33) and by S.I. 2013/1388; 20143/3329.

M126Section 133A was inserted by S.I. 2010/22 and amended by section 23 of the Financial Services Act 2012.

CHAPTER 2U.K.Decisions of the Commissioners

Offer of reviewU.K.

94.—(1) The Commissioners must offer a person (“P”) a review of a decision that has been notified to P if an appeal lies under this Chapter in respect of the decision.

(2) The offer of a review must be made by notice given to P at the same time as the decision is notified to P.

(3) This regulation does not apply to the notification of the conclusions of a review.

Review by the CommissionersU.K.

95.—(1) The Commissioners must review a decision if—

(a)they have offered a review of the decision under this Chapter, and

(b)the person concerned (“P”) notifies the Commissioners that P accepts the offer within 30 days from the date of the notice of the offer of a review.

(2) P may not notify acceptance of the offer where P has already appealed against the decision to the tribunal under regulation 100.

(3) The Commissioners must not review a decision if P has appealed to the tribunal under regulation 100 in respect of the decision.

Extensions of timeU.K.

96.—(1) If under this Chapter the Commissioners have offered a person (“P”) a review of a decision the Commissioners may within the relevant period notify P that the relevant period is extended.

(2) If notice is given, the relevant period is extended to the end of 30 days from—

(a)the date of the notice; or

(b)any other date set out in the notice or a further notice.

(3) More than one notice may be given under paragraph (1).

(4) In this regulation, “relevant period” means—

(a)the period of 30 days referred to in regulation 95(1)(b); or

(b)in the case where one or more notices have already been given under paragraph (1) the period as extended (or as most recently extended) in accordance with paragraph (2).

Review out of timeU.K.

97.—(1) This regulation applies if—

(a)the Commissioners have offered a review of a decision under this Chapter to a person (“P”); and

(b)P does not accept the offer within the time allowed under regulation 95(1)(b) or 96(2).

(2) The Commissioners must review the decision if—

(a)after the time allowed, P notifies the Commissioners in writing requesting a review out of time;

(b)the Commissioners are satisfied that P had a reasonable excuse for not accepting the offer of a review within the time allowed; and

(c)the Commissioners are satisfied that P made the request without unreasonable delay after the excuse had ceased to apply.

Nature of review etcU.K.

98.—(1) This regulation applies if the Commissioners are required to undertake a review under regulation 95 or 97.

(2) The nature and extent of the review are to be such as appear appropriate to the Commissioners in the circumstances.

(3) For the purpose of paragraph (2), the Commissioners must, in particular, have regard to steps taken before the beginning of the review—

(a)by the Commissioners in reaching the decision; and

(b)by any person in seeking to resolve disagreement about the decision.

(4) The review must take account of any representations made by the person (“P”) at a stage which gives the Commissioners a reasonable opportunity to consider them.

(5) The review may conclude that the decision is to be—

(a)upheld;

(b)varied; or

(c)cancelled.

(6) The Commissioners must give P notice of the conclusions of the review and their reasoning within—

(a)a period of 45 days beginning with the relevant date; or

(b)such other period as the Commissioners and P may agree.

(7) In paragraph (6), “relevant date” means—

(a)in a case falling within regulation 95, the date the Commissioners received notification accepting the offer of a review from P; or

(b)in a case falling within regulation 97, the date on which the Commissioners decided to undertake the review.

(8) Where the Commissioners are required to undertake a review but do not give notice of the conclusions within the time period specified in paragraph (6), the review is to be treated as having concluded that the decision is upheld.

(9) If paragraph (8) applies, the Commissioners must notify P of the conclusion which the review is treated as having reached.

Appeals against decisions of the CommissionersU.K.

99.—[F344(1) A person may appeal to the tribunal in accordance with regulation 100 if the person is the subject of a decision by the Commissioners under—

(a)regulation 25(2), to issue a direction;

(b)regulation 58, to the effect that a person is not a fit and proper person (unless the decision is required by virtue of paragraph (3) of that regulation);

(c)regulation 59(1), to refuse to register an applicant;

(d)regulation 60, to suspend or cancel the registration of a registered person;

(e)regulation 76, to impose a penalty or publish a censuring statement;

(f)regulation 78(2), to impose a prohibition.]

(2) The provisions of Part 5 of the Value Added Tax Act 1994 M127 (appeals), subject to the modifications set out in paragraph (3), apply in respect of appeals to the tribunal made under this regulation as they apply in respect of appeals made to the tribunal under section 83 of that Act (appeals) M128.

(3) Part 5 of the Value Added Tax Act 1994 has effect as if sections 83A M129 to 84 M130, 85A and 85B (appeals and reviews) M131 were omitted.

(4) The tribunal hearing an appeal under paragraph (1) has the power to—

(a)quash or vary any decision of the Commissioners, including the power to reduce any penalty to such amount (including nil) as the tribunal thinks appropriate; and

(b)substitute the tribunal's own decision for any decision quashed on appeal.

(5) For the purpose of an appeal under this regulation, the meaning of “tribunal” is as defined in section 82 of the Value Added Tax Act 1994 (meaning of tribunal) M132.

Textual Amendments

Marginal Citations

M128Section 83 was amended by section 77(4) of the Finance Act 2009 (c.10), section 200(3) of the Finance Act 2012 (c.14), section 124 of the Finance Act 2016 (c.24) and by S.I. 2009/56.

M129Section 83A was inserted by S.I. 2009/56.

M130Section 84 was amended by section 31(4) of the Finance Act 1996 (c.8); section 31(3) of the Finance Act 1997 (c.16);, paragraph 4 of Schedule 2 to the Finance Act 1999 (c.16); section 23(3) of the Finance Act 2002 (c.23); section 17 of the Finance Act 2003 (c.14); paragraph 5 of Schedule 2 to the Finance Act 2004 (c.12); section 21(5) of the Finance Act 2006 (c.25); section 93(9) of the Finance Act 2007 (c.11); paragraph 17 of Schedule 22(3) to the Finance Act 2014 (c.26) and section 124(4) of the Finance Act 2016 (c.24) and by S.I. 2008/1146 and 2009/56.

M131Sections 85A and 85B were inserted by S.I 2009/56.

M132Section 82 was amended by S.I. 2009/56.

Appeals against decisions of the Commissioners: procedureU.K.

100.—(1) Subject to paragraphs (2) to (4), an appeal under regulation 99 is to be made to the tribunal before—

(a)the end of the period of 30 days beginning with the date of the notice notifying the decision to which the appeal relates; or

(b)if later, the end of the relevant period (within the meaning of regulation 96).

(2) In a case where the Commissioners are required to undertake a review under regulation 95—

(a)an appeal may not be made until the conclusion date; and

(b)any appeal is to be made within the period of 30 days beginning with the conclusion date.

(3) In a case where the Commissioners are requested to undertake a review in accordance with regulation 97—

(a)an appeal may not be made—

(i)unless the Commissioners have notified the person concerned (“P”) as to whether or not a review will be undertaken; and

(ii)if the Commissioners have notified P that a review will be undertaken, until the conclusion date;

(b)any appeal where sub-paragraph (a)(ii) applies is to be made within the period of 30 days beginning with the conclusion date; and

(c)if the Commissioners have notified P that a review will not be undertaken, an appeal may be made only if the tribunal gives permission to appeal.

(4) In a case where regulation 98(8) applies, an appeal may be made at any time from the end of the period specified in regulation 98(6) to the date 30 days after the conclusion date.

(5) An appeal may be made after the end of the period specified in paragraph (1), (2)(b), 3(b) or (4) if the tribunal gives permission to appeal.

(6) In this regulation, “conclusion date” means the date of the notice notifying the conclusions of the review.

PART 11U.K.Miscellaneous Provisions

Recovery of charges and penalties through the courtU.K.

101.  Any charge or penalty imposed on a relevant person or on a payment service provider by the FCA or the Commissioners under these Regulations is a debt due from that person to the FCA or the Commissioners respectively, and is recoverable accordingly.

Costs of supervisionU.K.

102.—(1) The FCA and the Commissioners may impose charges on—

(a)applicants for approval under Chapter 3 of Part 2;

(b)applicants for registration under Chapter 2 of Part 6;

(c)relevant persons supervised by them;

(d)payment service providers supervised by them;

(e)professional bodies listed in Schedule 1, for which they undertake enforcement action in relation to relevant persons supervised by those professional bodies.

(2) Charges levied under paragraph (1) must not exceed such amount as the FCA or the Commissioners (as the case may be) consider will enable them to meet any expenses reasonably incurred by them in carrying out their functions under these Regulations or for any incidental purpose (including any expenses reasonably incurred by them in undertaking enforcement action on behalf of a self-regulatory organisation).

(3) Without prejudice to the generality of paragraph (2), a charge may be levied in respect of each of the premises at which the relevant person, the provider or a person connected with the relevant person or the provider carries on (or proposes to carry on) business or professional activities.

(4) The FCA must in respect of each of its financial years pay to the Treasury any amounts received by the FCA during the year by way of penalties imposed under Part 9.

(5) The Treasury may give directions to the FCA as to how the FCA is to comply with the duty under paragraph (4).

(6) The directions may in particular—

(a)specify the time when any payment is required to be made to the Treasury; and

(b)require the FCA to provide the Treasury at specified times with information relating to penalties that the FCA has imposed under Part 9.

(7) The Treasury must pay into the Consolidated Fund any sums received by them under this regulation.

(8) In paragraph (2), “expenses” includes expenses incurred by a local weights and measures authority or the Department for the Economy pursuant to arrangements made for the purposes of these Regulations with the FCA or with the Commissioners—

(a)by or on behalf of the authority; or

(b)by the Department for the Economy.

Obligations on public authoritiesU.K.

103.—(1) The following bodies and persons must, if they know or suspect or have reasonable grounds for knowing or suspecting that a person is or has engaged in money laundering or terrorist financing, as soon as practicable, inform the NCA—

(a)the Auditor General for Scotland;

(b)the Auditor General for Wales;

(c)the Bank of England;

(d)the Comptroller and Auditor General;

(e)the Comptroller and Auditor General for Northern Ireland;

(f)the FCA;

(g)the Gambling Commission;

(h)the Official Solicitor to the Supreme Court;

(i)the Pensions Regulator;

(j)the PRA;

(k)the Public Trustee;

(l)the Secretary of State, in the exercise of his or her functions under enactments relating to companies and insolvency;

(m)the Treasury, in the exercise of their functions under FSMA;

(n)the Treasury Solicitor;

(o)a designated professional body for the purposes of Part 20 of FSMA (provision of financial services by members of the professions);

(p)a person or inspector appointed under section 65 (investigations on behalf of FCA) or 66 (inspections and special meetings) of the Friendly Societies Act 1992 M133;

(q)an inspector appointed under section 106 of the Co-operative and Community Benefit Societies 2014 M134 (appointment of inspectors) or section 18 of the Credit Unions Act 1979 M135 (power to appoint inspector);

(r)an inspector appointed under section 431 (investigation of a company on its own application), 432 (other company investigations), 442 (power to investigate company ownership) or 446D (appointment of replacement inspectors) of the Companies Act 1985 M136;

(s)a person or inspector appointed under section 55 (investigations on behalf of FCA) or 56 (inspections and special meetings) of the Building Societies Act 1986 M137;

(t)a person appointed under section 167 (appointment of persons to carry out investigations), 168(3) or (5) (appointment of persons to carry out investigations in particular cases), 169(1)(b) (investigations to support overseas regulator) or 284 (power to investigate affairs of a scheme) of FSMA M138, or under regulations made under section 262(2)(k) (open-ended investment companies) of that Act M139, to conduct an investigation; and

(u)a person authorised to require the production of documents under section 447 (Secretary of State's power to require production of documents) of the Companies Act 1985 M140, or section 84 of the Companies Act 1989 M141 (exercise of powers by officer).

(2) A disclosure made under paragraph (1) is not to be taken to breach any restriction, however imposed, on the disclosure of information.

(3) Where a disclosure under paragraph (1) is made in good faith, no civil liability arises in respect of the disclosure on the part of the person by whom, or on whose behalf, it is made.

Marginal Citations

M1331992 c.40. Section 65 was amended by S.I. 1994/1984; 2001/2617 and 2013/496. Section 66 was amended by S.I. 2009/1941 and 2013/496.

M1351979 c.34. Section 18 was amended by paragraph 9 of Schedule 4 to the Co-operative and Community Benefit Society Act (c.14) and by S.I. 2001/2617; 2002/1501 and 2013/496.

M1361985 c.6. Section 431 was amended by section 1035(2) of the Companies Act 2006 (c.46) and S.I. 2003/1116, section 432 was amended by sections 55 and 213 of the Companies Act 1989 (c. 40), section 1035(3) of the Companies Act 2006, section 442 was amended by sections 62 and 213(2) of the Companies Act 1989 and by paragraph 1 of Schedule 16 to the Companies Act 2006 and section 446D was inserted by section 1036 of the Companies Act 2006.

M1371986 c.53. Section 55 was amended by paragraph 21 of Schedule 7 to the Building Societies Act 1987 (c.37) and by S.I. 2013/496, and section 56 was amended by paragraph 22 of Schedule 7 to the Building Societies Act 1997 and by S.I. 2013/496.

M138Section 167 was amended by paragraph 7 of Schedule 12 to the Financial Services Act 2012 (c.21), and by S.I. 2005/575 and S.I. 2007/126, section 168(5) and been amended by paragraph 8 of Schedule 12 to the Financial Services Act 2012, section 284 was amended by paragraph 17 of Schedule 18 to the Financial Services Act 2012.

M139Section 262(2)(k) was amended by paragraph 9 of Schedule 18 to the Financial Services Act 2012.

M1401985 c.6. Section 447 was amended by section 21 of the Companies (Audit, Investigations and Community Enterprise) Act 2004 (c.27), and by section 1038 of the Companies Act 2006.

Suspicious activity disclosuresU.K.

104.—(1) The NCA must make arrangements to provide appropriate feedback on the suspicious activity disclosures it has received at least once a year.

(2) The feedback referred to in paragraph (1) may be provided by the NCA jointly with another person, or by another person on behalf of the NCA.

(3) The feedback referred to in paragraph (1) may be provided in any form the NCA thinks fit.

(4) In this regulation, a “suspicious activity disclosure” is a disclosure made to the NCA under—

(a)Part 3 of the Terrorism Act 2000 (terrorist property) M142;

(b)Part 7 of the Proceeds of Crime Act 2002 (money laundering) M143.

Marginal Citations

[F345The United Kingdom’s financial intelligence unitU.K.

104A.  Schedule 6A makes provision in relation to the NCA in its capacity as the United Kingdom’s financial intelligence unit.]

Textual Amendments

Disclosure by the CommissionersU.K.

105.—(1) The Commissioners may disclose to the FCA information held in connection with their functions under these Regulations if the disclosure is made for the purpose of enabling or assisting the FCA to discharge any of its functions under the Payment Services Regulations [F3462017] or the Electronic Money Regulations 2011 M144.

(2) Information disclosed to the FCA under paragraph (1) may not be disclosed by the FCA or any person who receives the information directly or indirectly from the FCA except—

(a)to, or in accordance with authority given by, the Commissioners;

(b)with a view to the institution of, or otherwise for the purposes of, any criminal proceedings;

(c)with a view to the institution of any other proceedings by the FCA, for the purposes of any such proceedings, or for the purposes of any reference to the Upper Tribunal under the Payment Services Regulations [F3472017]; or

(d)in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it.

Textual Amendments

F347Word in reg. 105(2)(c) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 26(f) (with reg. 3)

Marginal Citations

General restrictionsU.K.

106.  These Regulations do not authorise or require—

[F348(a)a disclosure in contravention of the data protection legislation; or]

(b)a disclosure which is prohibited by any of Parts 1 to 3 or 5 to 7 of the Investigatory Powers Act 2016 M145.

Textual Amendments

Marginal Citations

Transfers between the United Kingdom and the Channel Islands and the Isle of ManU.K.

107.  In determining whether a person has failed to comply with any requirement in the funds transfer regulation, any transfer of funds between the United Kingdom and—

(a)the Channel Islands; or

(b)the Isle of Man;

is to be treated as a transfer of funds within the United Kingdom.

ReviewU.K.

108.—(1) The Treasury must from time to time—

(a)carry out a review of the regulatory provision contained in these Regulations; and

(b)publish a report setting out the conclusions of the review.

(2) The first report must be published before 26th June 2022.

(3) Subsequent reports must be published at intervals not exceeding 5 years.

(4) Section 30(3) of the Small Business, Enterprise and Employment Act 2015 (provision for review) M146 requires that a review carried out under this regulation must, so far as is reasonable, have regard to how—

(a)the emission allowance auctioning regulation;

(b)the fourth money laundering directive; and

(c)the funds transfer regulation;

are implemented in other member States.

(5) Section 30(4) of the Small Business, Enterprise and Employment Act 2015 requires that a report published under this regulation must, in particular—

(a)set out the objectives intended to be achieved by the regulatory provision referred to in paragraph (1)(a);

(b)assess the extent to which those objectives are achieved;

(c)assess whether those objectives remain appropriate; and

(d)if those objectives remain appropriate, assess the extent to which they could be achieved in another way which involves less onerous regulatory provision.

(6) In this regulation, “regulatory provision” has the same meaning as in sections 28 to 32 of the Small Business, Enterprise and Employment Act 2015 (see section 32 of that Act).

Marginal Citations

Consequential amendmentsU.K.

109.  Schedule 7 makes amendments relating to these Regulations.

Revocation and saving provisionsU.K.

110.—(1) The old money laundering regulations and the old transfer of funds regulations are revoked.

(2) The old money laundering regulations and the old transfer of funds regulations shall continue to have effect where the conduct constituting a contravention of one of those Regulations, or an offence under one of those Regulations began before the date on which these Regulations come into force.

(3) Where the old money laundering regulations or the old transfer of funds regulations continue to have effect, a penalty or an offence under the relevant Part of these Regulations is not to have effect in such circumstances.

(4) Where the conduct is found to have been committed over a period of two or more days, or at some point during a period of two or more days, it is to be taken for the purposes of paragraph (2) to have been begun on the earliest of those days.

(5) The “old money laundering regulations” means—

(a)the Money Laundering Regulations 2007 M147;

(b)the Money Laundering (Amendment) Regulations 2007 M148;

(c)the Money Laundering (Amendment) Regulations 2011 M149;

(d)the Money Laundering (Amendment) Regulations 2012 M150; and

(e)the Money Laundering (Amendment) Regulations 2015 M151.

(6) The “old transfer of funds regulations” means the Transfer of Funds (Information on the Payer) Regulations 2007 M152.

Marginal Citations

David Evennett

Andrew Griffiths

Two of the Lords Commissioners of Her Majesty's Treasury

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