|
| |
|
138L | Consultation: general exemptions |
| |
(1) | Sections 138I(1)(b) and (2) to (5) and 138K do not apply in relation to |
| |
rules made by the FCA if the FCA considers that the delay involved in |
| |
complying with them would be prejudicial to the interests of |
| |
consumers, as defined in section 425A. |
| 5 |
(2) | Sections 138J(1)(b) and (2) to (5) and 138K do not apply in relation to |
| |
rules made by the PRA if the PRA considers that the delay involved in |
| |
complying with them would— |
| |
(a) | be prejudicial to the safety and soundness of PRA-authorised |
| |
| 10 |
(b) | in a case where section 2C applies, be prejudicial to securing the |
| |
appropriate degree of protection for policy holders. |
| |
(3) | The exception in subsection (1) does not apply in relation to rules made |
| |
by the FCA under section 131B (short selling rules). |
| |
(4) | The provisions listed in subsection (5) do not apply if the regulator |
| 15 |
concerned considers that, making the appropriate comparison— |
| |
(a) | there will be no increase in costs, or |
| |
(b) | there will be an increase in costs but that increase will be of |
| |
| |
(5) | Those provisions are— |
| 20 |
(a) | subsections (2)(a) and (5)(a) of section 138I; |
| |
(b) | subsections (2)(a) and (5)(a) of section 138J. |
| |
(6) | The “appropriate comparison” means— |
| |
(a) | in relation to section 138I(2)(a) or 138J(2)(a), a comparison |
| |
between the overall position if the rules are made and the |
| 25 |
overall position if the rules are not made; |
| |
(b) | in relation to section 138I(5)(a) or 138J(5)(a), a comparison |
| |
between the overall position after the making of the rules and |
| |
the overall position before they were made. |
| |
138M | Consultation: exemptions for temporary product intervention rules |
| 30 |
(1) | Sections 138I(1)(b) and (2) to (5) and 138K do not apply in relation to |
| |
product intervention rules made by the FCA if it considers that it is |
| |
necessary or expedient not to comply with them for the purpose of |
| |
| |
(a) | the consumer protection objective or the competition objective, |
| 35 |
| |
(b) | if an order under section 137C(1)(b) is in force, the integrity |
| |
| |
(2) | Any rules made as a result of subsection (1) (“temporary product |
| |
intervention rules”) are to cease to have effect at the end of the period |
| 40 |
| |
(3) | The longest period that may be specified is the period of 12 months |
| |
beginning with the day on which the rules come into force. |
| |
(4) | Nothing in subsection (2) prevents the FCA from revoking temporary |
| |
product intervention rules before the end of the period mentioned |
| 45 |
| |
|
| |
|
| |
|
(5) | If the FCA has made temporary product intervention rules (“the initial |
| |
rules”), it may not make further temporary product intervention rules |
| |
containing the same, or substantially the same, provision as that |
| |
contained in the initial rules until the prohibited period has ended. |
| |
(6) | “The prohibited period” means the period of one year beginning with |
| 5 |
the day on which the period mentioned in subsection (2) ends (whether |
| |
or not the initial rules have been revoked before the end of the period |
| |
| |
138N | Temporary product intervention rules: statement of policy |
| |
(1) | The FCA must prepare and issue a statement of its policy with respect |
| 10 |
to the making of temporary product intervention rules. |
| |
(2) | The FCA may at any time alter or replace a statement issued under this |
| |
| |
(3) | If a statement issued under this section is altered or replaced, the FCA |
| |
must issue the altered or replaced statement. |
| 15 |
(4) | The FCA must, without delay, give the Treasury a copy of any |
| |
statement which it publishes under this section. |
| |
(5) | A statement issued under this section must be published by the FCA in |
| |
the way appearing to the FCA to be best calculated to bring it to the |
| |
| 20 |
(6) | The FCA may charge a reasonable fee for providing a person with a |
| |
| |
138O | Statement of policy under section 138N: procedure |
| |
(1) | Before issuing a statement under section 138N, the FCA must publish a |
| |
draft of the proposed statement in the way appearing to the FCA to be |
| 25 |
best calculated to bring it to the attention of the public. |
| |
(2) | The draft must be accompanied by notice that representations about the |
| |
proposal may be made to the FCA within a specified time. |
| |
(3) | Before issuing the proposed statement, the FCA must have regard to |
| |
any representations made to it in accordance with subsection (2). |
| 30 |
(4) | If the FCA issues the proposed statement it must publish an account, in |
| |
| |
(a) | the representations made to it in accordance with subsection (2), |
| |
| |
(b) | its response to them. |
| 35 |
(5) | If the statement differs from the draft published under subsection (1) in |
| |
a way which is, in the opinion of the FCA, significant, the FCA must (in |
| |
addition to complying with subsection (4)) publish details of the |
| |
| |
(6) | The FCA may charge a reasonable fee for providing a person with a |
| 40 |
copy of a draft published under subsection (1). |
| |
(7) | This section also applies to a proposal to alter or replace a statement. |
| |
|
| |
|
| |
|
| |
| |
139A | Power of the FCA to give guidance |
| |
(1) | The FCA may give guidance consisting of such information and advice |
| |
as it considers appropriate— |
| 5 |
(a) | with respect to the operation of specified parts of this Act and of |
| |
any rules made by the FCA; |
| |
(b) | with respect to any other matter relating to functions of the |
| |
| |
(c) | with respect to any other matters about which it appears to the |
| 10 |
FCA to be desirable to give information or advice. |
| |
(2) | The FCA may give financial or other assistance to persons giving |
| |
information or advice of a kind which the FCA could give under this |
| |
| |
(3) | Subsection (5) applies where the FCA proposes to give guidance to |
| 15 |
FCA-regulated persons generally, or to a class of FCA-regulated |
| |
persons, in relation to rules to which those persons are subject. |
| |
(4) | Subsection (5) also applies in relation to guidance which the FCA |
| |
proposes to give to persons generally, or to a class of person, in relation |
| |
to rules under section 131B (short selling rules) to which those persons |
| 20 |
| |
(5) | Where this subsection applies, subsections (1), (2)(e) and (3) of section |
| |
138I (consultation) apply to the proposed guidance as they apply to |
| |
proposed rules, unless the FCA considers that the delay in complying |
| |
with those provisions would be prejudicial to the interests of |
| 25 |
| |
| |
(a) | publish its guidance, |
| |
(b) | offer copies of its published guidance for sale at a reasonable |
| |
| 30 |
(c) | if it gives guidance in response to a request made by any person, |
| |
make a reasonable charge for that guidance. |
| |
(7) | In this Chapter, references to guidance made by the FCA include |
| |
references to any recommendations made by the FCA to FCA- |
| |
regulated persons generally, or to any class of FCA-regulated person. |
| 35 |
(8) | “Consumers” has the meaning given in section 1G. |
| |
(9) | “FCA-regulated person” means— |
| |
(a) | an authorised person, or |
| |
(b) | any person who is otherwise subject to rules made by the FCA. |
| |
139B | Notification of FCA guidance to the Treasury |
| 40 |
(1) | On giving any general guidance, the FCA must give written notice to |
| |
the Treasury without delay. |
| |
(2) | If the FCA alters any of its guidance, it must give written notice to the |
| |
| |
|
| |
|
| |
|
(3) | The notice under subsection (2) must include details of the alteration. |
| |
(4) | If the FCA revokes any of its general guidance, it must give written |
| |
notice to the Treasury without delay. |
| |
(5) | “General guidance” means guidance given by the FCA under section |
| |
| 5 |
(a) | given to persons generally, to FCA-regulated persons generally |
| |
or to a class of FCA-regulated person, |
| |
(b) | intended to have continuing effect, and |
| |
(c) | given in writing or other legible form. |
| |
(6) | “FCA-regulated person” has the same meaning as in section 139A. |
| 10 |
| |
| |
| |
| |
“market in the United Kingdom” includes— |
| 15 |
(a) | so far as it operates in the United Kingdom or a part of |
| |
the United Kingdom, any market which operates there |
| |
and in another country or territory or in a part of another |
| |
country or territory, and |
| |
(b) | any market which operates only in a part of the United |
| 20 |
| |
“the OFT” means the Office of Fair Trading; |
| |
“practices”, in relation to each regulator, means practices adopted |
| |
by that regulator in the exercise of functions under this Act; |
| |
“regulating provisions” means— |
| 25 |
(a) | in relation to the FCA, any— |
| |
| |
(ii) | general guidance (as defined by section 139B(5)); |
| |
(iii) | statement issued by the FCA under section 64; |
| |
(iv) | code issued by the FCA under section 64 or 119; |
| 30 |
(b) | in relation to the PRA, any— |
| |
| |
(ii) | statement issued by the PRA under section 64; |
| |
(iii) | code issued by the PRA under section 64. |
| |
(2) | In this Chapter each of the Competition Commission and the OFT is “a |
| 35 |
| |
(3) | For the purposes of this Chapter, any reference to a feature of a market |
| |
in the United Kingdom for goods or services is to be read as a reference |
| |
| |
(a) | the structure of the market concerned or any aspect of that |
| 40 |
| |
(b) | any conduct (whether or not in the market concerned) of one or |
| |
more than one person who supplies or acquires goods or |
| |
services in the market concerned, or |
| |
|
| |
|
| |
|
(c) | any conduct relating to the market concerned of customers of |
| |
any person who supplies or acquires goods or services. |
| |
(4) | In subsection (3) “conduct” includes any failure to act (whether or not |
| |
intentional) and any other unintentional conduct. |
| |
140B | Advice about effect of regulating provision or practice |
| 5 |
(1) | In this Chapter, any reference to the giving of “section 140B advice” to |
| |
a regulator is to be read in accordance with this section. |
| |
(2) | The OFT gives “section 140B advice” to a regulator if— |
| |
(a) | it gives advice to the regulator under section 7 of the Enterprise |
| |
Act 2002 (provision of competition advice to Ministers etc.), and |
| 10 |
(b) | the advice states that in the opinion of the OFT one or more of |
| |
the things mentioned in subsection (4) may cause, or contribute |
| |
to, the effect mentioned in subsection (5), or might be expected |
| |
| |
(3) | The Competition Commission gives “section 140B advice” to a |
| 15 |
regulator if a report published by it under section 136 of the Enterprise |
| |
Act 2002 (investigations and reports on market investigation reference) |
| |
| |
(a) | a decision that one or more of the things mentioned in |
| |
subsection (4) may cause, or contribute to, the effect mentioned |
| 20 |
| |
(b) | a recommendation that any action should be taken by that |
| |
| |
| |
(a) | a regulating provision or practice of the regulator, |
| 25 |
(b) | two or more regulating provisions or practices (of that regulator |
| |
or of both regulators) taken together, |
| |
(c) | a particular combination of regulating provision or practices (of |
| |
that regulator or of both regulators), or |
| |
(d) | a feature, or combination of features, of a market in the United |
| 30 |
Kingdom that could be dealt with by regulating provision or |
| |
practices (of that regulator or of both regulators). |
| |
(5) | That effect is the prevention, restriction or distortion of competition in |
| |
connection with the supply or acquisition of any goods or services in |
| |
the United Kingdom or a part of the United Kingdom. |
| 35 |
140C | Consultation with regulator |
| |
Before giving section 140B advice, a competition authority must consult |
| |
the regulator to which the advice is to be given. |
| |
140D | Investigation powers of OFT |
| |
Where the OFT is deciding whether to exercise its power under section |
| 40 |
7 of the Enterprise Act 2002 to give advice which, if given, would be |
| |
section 140B advice, section 174 of that Act has effect as if— |
| |
(a) | in subsection (1), for the words from “make a reference” to the |
| |
end there were substituted “give advice which would for the |
| |
purposes of Chapter 4 of Part 9A of the Financial Services and |
| 45 |
Markets Act 2000 be section 140B advice”, and |
| |
|
| |
|
| |
|
(b) | in subsection (2), for “make such a reference” there were |
| |
substituted “give such advice”. |
| |
140E | Publication by OFT of section 140B advice |
| |
The OFT must publish in such manner as it thinks fit any section 140B |
| |
advice given by it to either regulator. |
| 5 |
140F | Duty of Competition Commission to send report to regulator |
| |
(1) | Where the publication of a report of the Competition Commission |
| |
under section 142 of the Enterprise Act 2002 constitutes the giving of |
| |
section 140B advice to either regulator, the Commission must give a |
| |
copy of the report to that regulator. |
| 10 |
(2) | The day on which the copy is given is the day on which the regulator is |
| |
to be taken to receive the section 140B advice. |
| |
140G | Duty of regulator to publish response |
| |
(1) | A regulator must, within 90 days after the day on which it receives |
| |
section 140B advice, publish a response stating how it proposes to deal |
| 15 |
with the advice and in particular— |
| |
(a) | whether it has decided to take any action, or to take no action, |
| |
in response to the advice, |
| |
(b) | if it has decided to take action, what action it proposes to take, |
| |
| 20 |
(c) | its reasons for its proposals. |
| |
(2) | Publication is to be in such manner as the regulator thinks fit. |
| |
140H | Role of the Treasury |
| |
(1) | This section applies where— |
| |
(a) | a competition authority has given section 140B advice and the |
| 25 |
regulator has published a response under section 140G, and |
| |
(b) | the competition authority remains of the opinion that one or |
| |
more of the things mentioned in section 140B(4) may cause or |
| |
contribute to, the effect mentioned in section 140B(5). |
| |
(2) | The competition authority may refer the section 140B advice to the |
| 30 |
Treasury by sending the Treasury— |
| |
(a) | a copy of the section 140B advice and of the response, and |
| |
(b) | a request to consider the advice and the response. |
| |
(3) | In referring the section 140B advice, the competition authority may give |
| |
advice to the Treasury as to what action, if any, ought to be taken by the |
| 35 |
| |
(4) | If section 140B advice is referred to them, the Treasury may give a |
| |
direction to the regulator to which the advice was given requiring the |
| |
regulator to take such action as may be specified in the direction. |
| |
(5) | In considering whether to give a direction and, if so, what action to |
| 40 |
specify, the Treasury must have regard to— |
| |
(a) | any advice the competition authority has given under |
| |
| |
|
| |
|
| |
|
(b) | any action which the section 140B advice suggests that the |
| |
regulator should take, and |
| |
(c) | the response of the regulator to the section 140B advice. |
| |
(6) | The direction may not require the regulator to do anything that it has |
| |
no power to do, but the existence of the direction is relevant to the |
| 5 |
exercise of any discretion conferred on the regulator. |
| |
(7) | Before giving a direction under this section, the Treasury must consult |
| |
the regulator to which it is to be given. |
| |
(8) | If the Treasury give a direction under this section they must— |
| |
(a) | publish in such manner as they think fit a statement giving |
| 10 |
details of the direction and of their reasons for giving it, and |
| |
(b) | lay a copy of the statement before Parliament. |
| |
| |
Power to make consequential amendments |
| |
141A | Power to make consequential amendments of references to rules etc. |
| 15 |
(1) | This section applies if— |
| |
(a) | a provision of primary or subordinate legislation (whenever |
| |
passed or made) contains a reference (however expressed) to |
| |
rules of either regulator or to guidance of the FCA, |
| |
(b) | it appears to the Treasury or the Secretary of State that the |
| 20 |
reference requires amendment in consequence of the exercise |
| |
by that regulator of its power under this Part to make, alter or |
| |
revoke its rules or the exercise by the FCA or its power to make, |
| |
alter or revoke its guidance. |
| |
(2) | The Treasury or the Secretary of State may by order make such |
| 25 |
amendment of the legislation referred to in subsection (1)(a) as appears |
| |
to them to be necessary or expedient in consequence of the exercise by |
| |
the regulator of the power mentioned in subsection (1)(b). |
| |
(3) | The power conferred by subsection (2) includes power— |
| |
(a) | to replace a reference to the rules of one regulator with a |
| 30 |
reference to the rules of the other regulator or to the rules of |
| |
| |
(b) | to replace a reference to the rules of both regulators with a |
| |
reference to the rules of one regulator. |
| |
(4) | In subsection (1)(a) “subordinate legislation” does not include rules of |
| 35 |
| |
(2) | In section 391 of FSMA 2000 (publication), after subsection (5) insert— |
| |
“(5A) | Subsection (5) does not apply in relation to a notice given in accordance |
| |
with section 137Q(5) or (8)(a) (but see section 137Q(11)).” |
| |
(3) | In section 395 of FSMA 2000 (procedures in relation to giving of supervisory |
| 40 |
notices etc), in subsection (13), after paragraph (bb) insert— |
| |
“(bba) | section 137Q(5) or (8)(a);”. |
| |
(4) | Omit Schedule 14 to FSMA 2000 (role of the Competition Commission). |
| |
|
| |
|