PART 3Administration and enforcement

CHAPTER 2Application of FSMA 2000 for the purposes of the Regulations

Application of Part 11 of FSMA 2000 (information gathering and investigations)18.

(1)

Part 11 of FSMA 200020 (information gathering and investigations)—

(a)

applies with respect to the discharge by the FCA of its functions under these Regulations, as it applies with respect to the discharge by the FCA of its functions under FSMA 2000, with the modifications specified in paragraphs (2) to (18);

(b)

in its application to the discharge by the FCA of its functions under sections 165, 166 to 167 and 176, as those functions apply in respect of data reporting service rules, has effect with the modifications specified in paragraphs (2)(c) to (e), (3), (5) to (7) and (17).

(2)

Part 11 of FSMA 2000 applies as if—

(a)

each reference to that Act included a reference to these Regulations;

(b)

each reference to a section or Part of, or Schedule to, that Act were a reference to that section, Part or Schedule as applied by these Regulations;

(c)

each reference to an authorised person were a reference to a data reporting service provider;

(d)

each reference to the PRA were omitted;

(e)

each reference to a regulator were a reference to the FCA, and each reference to either regulator, the regulator in question, the regulator exercising the power, or each regulator were a reference to the FCA only.

(3)

Section 165 of FSMA 2000 (regulators’ power to require information: authorised persons etc.) applies as if—

(a)

subsection (4)(b) were omitted;

(b)

in subsection (7)(a), after “a person”, there were inserted “who provides, or has provided, a service to an authorised person or to a relevant parent undertaking of an authorised person, or”;

(c)

subsections (7)(b) to (d), (8A), (11)(e), (12) and (13) were omitted.

(4)

Sections 165A (PRA’s power to require information: financial stability), 165B (safeguards etc. in relation to exercise of power under section 165A) and 165C (orders under section 165A(2)(d)) of FSMA 2000 do not apply.

(5)

Section 166 of FSMA 2000 (reports by skilled persons) applies as if—

(a)

in subsection (10) for “subsection (11), (12) or (13)” there were substituted “subsection (12)”;

(b)

subsection (11) were omitted;

(c)

in subsection (12) from “an FCA investment firm” to the end there were substituted “a data reporting service provider or to a relevant parent undertaking of that service provider”;

(d)

subsections (13) and (14) were omitted.

(6)

Section 166A of FSMA 2000 (appointment of skilled person to collect and update information) applies as if—

(a)

for subsection (1) there were substituted—

“(1)

This section applies if the FCA considers that a person has contravened a requirement imposed by or under the Data Reporting Services Regulations 2024, within the meaning given in regulation 2(4) of those Regulations, to collect, and keep up to date, information of a description specified in those Regulations.”;

(b)

subsections (9A) and (10) were omitted.

(7)

Section 167 of FSMA 2000 (appointment of persons to carry out general investigations) applies as if—

(a)

for subsection (1) there were substituted—

“(1)

If it appears to the FCA that there is good reason for doing so, the FCA may appoint one or more competent persons to conduct an investigation on its behalf into—

(a)

the nature, conduct or state of the business of a person in respect of whom a requirement is imposed by or under the Data Reporting Services Regulations 2024 within the meaning given in regulation 2(4) of these Regulations (“a person subject to the 2024 Regulations”) or a person who provides a service to that person or to a relevant parent undertaking of that person;

(b)

a particular aspect of that business;

(c)

the ownership or control of a person subject to the 2024 Regulations.”;

(b)

subsection (1A) and (2)(c) were omitted;

(c)

for subsection (4A) there were substituted—

“(4A)

The power conferred by this section may be exercised in relation to a person who has at any time been a person in respect of whom a requirement was imposed by or under the 2017 Regulations or a person who has at any time been a person described in subsection (1)(a) but only in relation to—

(a)

business carried on when the person was a person in respect of whom a requirement was imposed by or under the 2017 Regulations or a person described in subsection (1)(a); or

(b)

the ownership or control of the person at such a time.”;

(d)

subsections (4B), (5A) and (6) were omitted.

(8)

Section 168 of FSMA 2000 (appointment of persons to carry out investigations in particular cases) applies as if—

(a)

for subsection (1) there were substituted—

“(1)

Subsection (3) applies if it appears to the FCA that there are circumstances suggesting that—

(a)

a relevant person may have contravened a requirement imposed by or under the Data Reporting Services Regulations 2024, within the meaning given in regulation 2(4) of those Regulations;

(b)

a member of the management body of a relevant person or another member of the senior management of a relevant person may be responsible for the contravention of a requirement imposed by or under those Regulations; or

(c)

a person may be guilty of an offence under those Regulations or under this Act as applied by those Regulations.”;

(b)

subsection (2) were omitted;

(c)

in subsection (3) for “investigating authority” there were substituted “FCA”;

(d)

subsections (4) and (5) were omitted;

(e)

for subsection (6) there were substituted—

“(6)

“Management body” “relevant person” and “senior management” have the meanings given in regulation 2(1) of the Data Reporting Services Regulations 2024. ”.

(9)

Section 169 of FSMA 2000 (investigations etc. in support of overseas regulator) applies as if—

(a)

subsection (2A) were omitted;

(b)

for subsection (13) there were substituted—

“(13)

“Overseas regulator” means an authority in a country or territory outside the United Kingdom which has functions corresponding to those of the FCA under the Data Reporting Services Regulations 2024.”.

(10)

Section 169A of FSMA 2000 (support of overseas regulator with respect to financial stability) does not apply.

(11)

Section 170 of FSMA 2000 (investigations: general) applies as if—

(a)

each reference to the investigating authority were a reference to the FCA;

(b)

in subsection (1) “or (5)” were omitted;

(c)

for subsection (3) there were substituted—

“(3)

Subsections (2) and (9) do not apply if the investigator is appointed as a result of section 168(1) and the FCA believes that the notice required by subsection (2) or (9) would be likely to result in the investigation being frustrated.”;

(d)

subsection (10) were omitted.

(12)

Section 171 of FSMA 2000 (powers of persons appointed under section 167) applies as if—

(a)

for subsection (1A)(c) and (d) there were substituted—

“(c)

where the person under investigation is a data reporting service provider, a person who provides, or has provided, a service to that person or to a relevant parent undertaking of that person;

(d)

where the person under investigation is a relevant parent undertaking of a data reporting service provider, a person who provides, or has provided, a service to the parent undertaking or to that person;”;

(b)

subsections (3A) and (7) were omitted.

(13)

Section 172 of FSMA 2000 (additional power of persons appointed as a result of section 168(1) or (4)) applies as if in the heading and in subsection (4) “or (4)” were omitted.

(14)

Section 173 of FSMA 2000 (powers of persons appointed as a result of section 168(2)) does not apply.

(15)

Section 174 of FSMA 2000 (admissibility of statements made to investigators) applies as if—

(a)

in subsection (2) “or in proceedings in relation to action to be taken against that person under section 123 to which this subsection applies” were omitted;

(b)

subsection (3A) were omitted;

(c)

in subsection (4) the words from “or (5),” to the end were omitted;

(d)

in subsection (5) “, 173” were omitted.

(16)

Section 175 of FSMA 2000 (information and documents: supplemental provisions) applies as if —

(a)

in subsection (5)(d) for “investigating authority” there were substituted “FCA”;

(b)

subsection (8) were omitted.

(17)

Section 176 of FSMA 2000 (entry of premises under warrant) applies as if—

(a)

for subsection (1) there were substituted—

“(1)

A justice of the peace may issue a warrant under this section if satisfied on information on oath given by or on behalf of the FCA or an investigator that there are reasonable grounds for believing that the first, second or third set of conditions is satisfied.”

(b)

in subsection (3A)—

(i)

paragraph (b) were omitted;

(ii)

for paragraphs (c) and (d) there were substituted—

“(c)

a relevant parent undertaking of a data reporting service provider;

(d)

a person who provides a service to such a data reporting service provider or to a relevant parent undertaking of that service provider.”;

(c)

in subsection (10) “or (5)” were omitted;

(d)

in subsection (11)—

(i)

in paragraph (a) “87C, 87J,” and “,165A, 169A” were omitted;

(ii)

in paragraph (b) “, 173” were omitted.

(18)

Section 177A of FSMA 2000 (interpretation of part 11) applies as if—

(a)

for the definition of “FCA investment firm” there were substituted—

““data reporting service provider” has the meaning given in regulation 2(1) of the Data Reporting Services Regulations 2024;”;

(b)

in the definition of “relevant parent undertaking”, for “an FCA investment firm” there were substituted “a data reporting service provider”.