The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019

PART 4 U.K. Amendments to the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005

Modifications etc. (not altering text)

C1 Pts. 3-6 modified in part (31.12.2020) by The Gibraltar (Miscellaneous Amendments) (EU Exit) Regulations 2019 (S.I. 2019/680), regs. 1(2), 11(1)(4)(5) (with reg. 11(8)-(10)) (as amended by S.I. 2020/1301, regs. 1, 3, Sch. para. 40(f)); 2020 c. 1, Sch. 5 para. 1(1)

Introduction and transitional provision U.K.

162.—(1) The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 M1 is amended as set out in this Part.

(2) Nothing in this Part causes a communication to constitute a breach of the prohibition in subsection (1) of section 21 of the Financial Services and Markets Act 2000 M2 (restrictions on financial promotion) if—

(a) a contract entered into before [F1 IP completion day] required the communication to be made, and

(b) the communication would not have constituted a breach of the prohibition had it been made before [F2 IP completion day].

Textual Amendments

F1 Words in reg. 162(2)(a) substituted (30.12.2020) by The Financial Services and Economic and Monetary Policy (Consequential Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1301), regs. 1, 3, Sch. para. 33(u)

F2 Words in reg. 162(2)(b) substituted (30.12.2020) by The Financial Services and Economic and Monetary Policy (Consequential Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1301), regs. 1, 3, Sch. para. 33(u)

Commencement Information

I1 Reg. 162 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Marginal Citations

M1 S.I. 2005/1529.

M2 2000 c.8.

Article 2 (interpretation: general) U.K.

163.  In article 2 (interpretation: general), in paragraph (1), in the definition of “international organisation”, in paragraphs (a) and (b) omit “or another EEA State”.

Commencement Information

I2 Reg. 163 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Article 6 (interpretation: communications) U.K.

164.  In article 6 (interpretation: communications) omit paragraphs (g) and (h).

Commencement Information

I3 Reg. 164 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Article 8A (interpretation: outgoing electronic commerce communication) U.K.

165.  Omit article 8A M3 (interpretation: outgoing electronic commerce communication).

Commencement Information

I4 Reg. 165 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Marginal Citations

M3 Article 8A was amended by S.I. 2011/1265.

Article 10 (application to qualifying contracts of insurance) U.K.

166.  In article 10 (application to qualifying contracts of insurance), in paragraph 1—

(a) omit sub-paragraph (c);

(b) omit sub-paragraph (d).

Commencement Information

I5 Reg. 166 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Article 12 (communications to overseas recipients) U.K.

167.  In article 12 (communications to overseas recipients) omit paragraph 7.

Commencement Information

I6 Reg. 167 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Article 18A (electronic commerce communications: mere conduits, caching and hosting) U.K.

168.—(1) Article 18A (electronic commerce communications: mere conduits, caching and hosting) is amended as follows.

(2) In paragraph (a), for “paragraph 1 of Article 12, 13 or 14 of the electronic commerce directive” substitute “ regulation 17(1), 18 or 19 of the Electronic Commerce (EC Directive) Regulations 2002 M4 ”.

(3) In paragraph (b), for “the conditions mentioned in the paragraph in question, to the extent” substitute “the conditions mentioned in—

“(i) regulation 17(1)(a) to (c) of those Regulations (where regulation 17 is the relevant regulation),

(ii) regulation 18(b)(i) to (v) of those Regulations (where regulation 18 is the relevant regulation), or

(iii) regulation 19(a)(i) and (ii) of those Regulations (where regulation 19 is the relevant regulation),

to the extent”.

Commencement Information

I7 Reg. 168 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Marginal Citations

M4 S.I. 2002/2013.

Article 20B (incoming electronic commerce communications) U.K.

169.  Omit article 20B (incoming electronic commerce communications).

Commencement Information

I8 Reg. 169 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Article 25 (relevant insurance activity: non-real time communications: reinsurance and large risks) U.K.

170.  In article 25 (relevant insurance activity: non-real time communications: reinsurance and large risks), in paragraph (4) omit “(within the meaning of the Seventh Company Law Directive)”.

Commencement Information

I9 Reg. 170 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Article 29 (communications required or authorised by enactments) U.K.

171.  In article 29 (communications required or authorised by enactments), after paragraph (4) M5 insert—

“(4A) The reference in paragraph (4) to Regulation (EU) 345/2013 is a reference to that instrument as it has effect at the beginning of the day on which the Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 are made (but see regulation 2 of the European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) Regulations 2019 M6 , which may further update the reference).”.

Commencement Information

I10 Reg. 171 in force at 23.3.2019, see reg. 1(2)(f)

Marginal Citations

M5 Paragraph (4) was inserted by S.I. 2013/1773.

M6 S.I. 2019/628.

Article 34 (governments, central banks etc) U.K.

172.  In article 34 (governments, central banks etc) omit sub-paragraph (b)(v).

Commencement Information

I11 Reg. 172 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Article 36 (nationals of EEA States other than United Kingdom) U.K.

173.  Omit article 36 (nationals of EEA States other than United Kingdom).

Commencement Information

I12 Reg. 173 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Article 59 (annual accounts and directors' report) U.K.

174.—(1) Article 59 (annual accounts and directors' report) is amended as follows.

(2) In paragraph (1)(b)—

(a) at the end of sub-paragraph (ai) M7 insert “ or ”;

(b) at the end of sub-paragraph (i) M8 omit “or”;

(c) omit sub-paragraph (iii) M9 .

(3) In paragraph (7) omit sub-paragraph (e).

(4) The amendments made by this regulation do not apply in relation to any report for a financial year beginning before [F3 IP completion day].

Textual Amendments

F3 Words in reg. 174(4) substituted (30.12.2020) by The Financial Services and Economic and Monetary Policy (Consequential Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1301), regs. 1, 3, Sch. para. 33(v)

Commencement Information

I13 Reg. 174 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Marginal Citations

M7 Sub-paragraph (ai) was inserted by S.I. 2015/352.

M8 Sub-paragraph (i) was amended by S.I. 2011/1265.

M9 Sub-paragraph (iii) was amended by S.I. 2011/1265 and S.I. 2015/352.

Prospective

Article 70 (promotions included in listing particulars etc) U.K.

F4 175.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F4 Reg. 175 omitted (6.9.2019) by virtue of The Prospectus (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1234), regs. 1(2), 28 (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/1234, reg. 29(2)))

Schedule 1 (controlled activities and controlled investments) U.K.

176.—(1) In Schedule 1, Part 2 (controlled investments) is amended as follows.

(2) In paragraph 14 (shares or stock)—

(a) in sub-paragraph (2)(b) M10 omit “or in a body constituted under the law of another EEA State for purposes equivalent to those of such a body”;

(b) omit sub-paragraph (3)(d).

(3) In paragraph 15A M11 (alternative finance investment bonds), for sub-paragraph (f) M12 of paragraph (2) substitute—

“(f) the arrangements are—

(i) a security that is admitted to the official list in accordance with Part 6 of the Act,

(ii) a security that is admitted to an official list in the EEA (in accordance with the provisions of Directive 2001/34/EC of the European Parliament and of the Council on the admission of securities to official stock exchange listing and on information to be published on those securities) and has been so admitted since before [F5 IP completion day],

(iii) a security that is admitted to trading on a recognised investment exchange or a UK trading venue, or

(iv) a security that is admitted to trading on an EU trading venue and has been so admitted since before [F5 IP completion day].”.

(4) In paragraph 21 M13 (options)—

(a) in sub-paragraph (1)(e) M14 , for the words after “an option to which” substitute “ paragraph 5, 6, 7 or 10 of Part 1 of Schedule 2 (read with Articles 5, 6, 7, and 8 of the Commission Regulation) applies ”;

(b) in sub-paragraph (2)(d)(i) M15 , for “Section C of Annex I to the markets in financial instruments directive” substitute “ Part 1 of Schedule 2 ”;

(c) in sub-paragraph (2)(d)(ii), for “Section C of Annex I to the markets in financial instruments directive” substitute “ Part 1 of that Schedule ”;

(d) in sub-paragraph (3)(c) M16 , for “Section C of Annex I to the markets in financial instruments directive” substitute “ Part 1 of Schedule 2 ”;

(e) in sub-paragraph (4), for sub-paragraphs (a) to (d) M17 substitute—

“(a) an investment firm or qualifying credit institution is providing or performing investment services and activities on a professional basis;

(b) a management company which has a Part 4A permission to do so is providing the investment service specified in paragraph 4 or 5 of Part 3 of Schedule 2 or the ancillary service specified in paragraph 1 of Part 3A of that Schedule;

(c) a market operator is providing the investment service specified in paragraph 8 or 9 of Part 3 of that Schedule;

(d) a full-scope UK AIFM which has a Part 4A permission to do so is providing the investment service specified in paragraph 1, 4 or 5 of Part 3 of that Schedule or the ancillary service specified in paragraph 1 of Part 3A of that Schedule.”;

(f) omit sub-paragraph (5) M18 .

(5) In paragraph 22 (futures)—

(a) in sub-paragraph (1A)(d), (1B)(e) and (1C)(c) M19 , for “Section C of Annex I to the markets in financial instruments directive” substitute “ Part 1 of Schedule 2 ”;

(b) in sub-paragraph (1CA) M20 , for “Section C of Annex I to the markets in financial instruments directive” substitute “ Part 1 of Schedule 2 ”;

(c) in sub-paragraph (1D), for sub-paragraphs (a) to (d) M21 substitute—

“(a) an investment firm or qualifying credit institution is providing or performing investment services and activities on a professional basis;

(b) a management company which has a Part 4A permission to do so is providing the investment service specified in paragraph 4 or 5 of Part 3 of Schedule 2 or the ancillary service specified in paragraph 1 of Part 3A of that Schedule;

(c) a market operator is providing the investment service specified in paragraph 8 or 9 of Part 3 of that Schedule;

(d) a full-scope UK AIFM which has a Part 4A permission to do so is providing the investment service specified in paragraph 1, 4 or 5 of Part 3 of that Schedule or the ancillary service specified in paragraph 1 of Part 3A of that Schedule.”;

(d) omit sub-paragraph (1E) M22 .

(6) In paragraph 23 (contracts for differences etc)—

(a) in sub-paragraphs (3)(b) M23 and (4A)(c) M24 , for “Section C of Annex I to the markets in financial instruments directive” substitute “ Part 1 of Schedule 2 ”;

(b) in sub-paragraphs (4) and (4B) M25 , for paragraphs (a) to (d) substitute—

“(a) an investment firm or qualifying credit institution is providing or performing investment services and activities on a professional basis;

(b) a management company which has a Part 4A permission to do so is providing the investment service specified in paragraph 4 or 5 of Part 3 of Schedule 2 or the ancillary service specified in paragraph 1 of Part 3A of that Schedule;

(c) a market operator is providing the investment service specified in paragraph 8 or 9 of Part 3 of that Schedule;

(d) a full-scope UK AIFM which has a Part 4A permission to do so is providing the investment service specified in paragraph 1, 4 or 5 of Part 3 of that Schedule or the ancillary service specified in paragraph 1 of Part 3A of that Schedule.”;

(c) omit sub-paragraph (5) M26 .

(7) In paragraph 23A M27 (emission allowances)—

(a) in sub-paragraph (1), after “compliance” insert “ (by an EEA State) ”;

(b) in sub-paragraph (2), for paragraphs (a) to (d) substitute—

“(a) an investment firm or qualifying credit institution is providing or performing investment services and activities on a professional basis;

(b) a management company which has a Part 4A permission to do so is providing the investment service specified in paragraph 4 or 5 of Part 3 of Schedule 2 or the ancillary service specified in paragraph 1 of Part 3A of that Schedule;

(c) a market operator is providing the investment service specified in paragraph 8 or 9 of Part 3 of that Schedule;

(d) a full-scope UK AIFM which has a Part 4A permission to do so is providing the investment service specified in paragraph 1, 4 or 5 of Part 3 of that Schedule or the ancillary service specified in paragraph 1 of Part 3A of that Schedule.”.

(8) In paragraph 28 (interpretation) omit the definition of “credit institution” and insert at the appropriate places—

““EU trading venue” has the meaning given by Article 2.1.16B of the markets in financial instruments regulation;”;

““qualifying credit institution” has the meaning given in the Regulated Activities Order;”;

““UK trading venue” has the meaning given by Article 2.1.16 of the markets in financial instruments regulation.”.

Textual Amendments

F5 Words in reg. 176(3) substituted (30.12.2020) by The Financial Services and Economic and Monetary Policy (Consequential Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1301), regs. 1, 3, Sch. para. 33(w)

Commencement Information

I14 Reg. 176 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Marginal Citations

M10 Sub-paragraph (2)(b) was amended by S.I. 2014/1815.

M11 Paragraph 15A was inserted by S.I. 2010/86.

M12 Sub-paragraph (2)(f) was amended by 2017/488.

M13 Paragraph 21 was amended by S.I. 2006/3384.

M14 Sub-paragraph (1)(e) was inserted by S.I. 2006/3384 and was amended by S.I. 2017/488.

M15 Sub-paragraph (2)(d) was inserted by S.I. 2006/3384 and was amended by S.I. 2017/488.

M16 Sub-paragraph (3)(c) was inserted by S.I. 2006/3384 and was amended by S.I. 2017/488.

M17 Sub-paragraph (4)(b) was inserted by S.I. 2006/3384 and was amended by S.I. 2011/1613 and S.I. 2017/488; sub-paragraphs (4)(c) and (d) were inserted by S.I. 2006/3384 and were amended by S.I. 2017/488.

M18 Sub-paragraph (5) was inserted by S.I. 2006/3384.

M19 Sub-paragraphs (1A), (1B) and (1C) were inserted by S.I. 2006/3384; and (1A)(d) and (1C)(c) were amended by S.I. 2017/488.

M20 Sub-paragraph (1CA) was inserted by S.I. 2017/488.

M21 Sub-paragraph (1D) was inserted by S.I. 2006/3384, sub-paragraphs (1D)(b), (c) and (d) were amended by S.I. 2017/488.

M22 Sub-paragraph (1E) was inserted by S.I. 2006/3384 and was amended by S.I. 2017/488.

M23 Sub-paragraph (3) was inserted by S.I. 2006/3384.

M24 Sub-paragraph (4A) was inserted by S.I. 2017/488.

M25 Sub-paragraphs (4)(b) to (d) were amended by S.I. 2017/488; sub-paragraph (4B) was inserted by S.I 2017/488.

M26 Sub-paragraph (5) was inserted by S.I. 2006/3384.

M27 Paragraph 23A was inserted by S.I. 2017/488.