Session 2012 - 13
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Financial Services Bill


Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000

69

 

(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).

(4)   

If the FCA issues the proposed statement it must publish an account, in

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general terms, of—

(a)   

the representations made to it in accordance with subsection (2),

and

(b)   

its response to them.

(5)   

If the statement differs from the draft published under subsection (1) in

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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

difference.

(6)   

The FCA may charge a reasonable fee for providing a person with a

copy of a draft published under subsection (1).

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(7)   

This section also applies to a proposal to alter or replace a statement.

88E     

Powers exercisable to advance operational objectives

(1)   

The FCA may take action against a sponsor under this section if it

considers that it is desirable to do so in order to advance one or more of

its operational objectives.

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(2)   

If the FCA is entitled to take action under this section against a sponsor,

it may—

(a)   

suspend, for such period as it considers appropriate, the

sponsor’s approval, or

(b)   

impose, for such period as it considers appropriate, such

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limitations or other restrictions in relation to the performance of

services to which the sponsor’s approval relates as it considers

appropriate.

(3)   

A suspension may relate only to the performance in specified

circumstances of a service to which the approval relates.

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(4)   

A restriction may, in particular, be imposed so as to require the sponsor

to take, or refrain from taking, specified action.

(5)   

The FCA may—

(a)   

withdraw a suspension or restriction, or

(b)   

vary a suspension or restriction so as to reduce the period for

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which it has effect or otherwise to limit its effect.

(6)   

A person against whom the FCA takes action under this section may

refer the matter to the Tribunal.

88F     

Action under s.88E: procedure

(1)   

Action against a sponsor under section 88E takes effect—

40

(a)   

immediately, if the notice given under subsection (3) so

provides, or

(b)   

on such later date as may be specified in the notice.

(2)   

If the FCA—

 
 

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000

70

 

(a)   

proposes to take action against a sponsor under that section, or

(b)   

takes action against a sponsor under that section with

immediate effect,

   

it must give the sponsor written notice.

(3)   

The notice must—

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(a)   

give details of the action,

(b)   

state the FCA’s reasons for taking the action and for its

determination as to when the action takes effect,

(c)   

inform the sponsor that the sponsor may make representations

to the FCA within such period as may be specified in the notice

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(whether or not the matter has been referred to the Tribunal),

(d)   

inform the sponsor of when the action takes effect,

(e)   

inform the sponsor of the right to refer the matter to the

Tribunal, and

(f)   

give an indication of the procedure on such a reference.

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(4)   

The FCA may extend the period allowed under the notice for making

representations.

(5)   

If the FCA decides—

(a)   

to take the action in the way proposed, or

(b)   

if the action has taken effect, not to rescind it,

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the FCA must give the sponsor written notice.

(6)   

If the FCA decides—

(a)   

not to take the action in the way proposed,

(b)   

to take action under section 88E that differs from the action

originally proposed, or

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(c)   

to rescind action which has taken effect,

   

the FCA must give the sponsor written notice.

(7)   

A notice under subsection (5) must—

(a)   

inform the sponsor of the right to refer the matter to the

Tribunal, and

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(b)   

give an indication of the procedure on such a reference.

(8)   

A notice under subsection (6)(b) must comply with subsection (3).”

(5)   

In section 392 (warning and decisions notices: application of provisions

relating to third party rights and access to evidence)—

(a)   

for “section 89(2),” substitute “section 88B(1),”, and

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(b)   

for “section 89(3),” substitute “section 88B(5),”.

(6)   

In section 395(13) (meaning of “supervisory notice”), after paragraph (bza)

insert—

“(bzb)   

section 88F(2), (5) or (6)(b);”.

 
 

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000

71

 

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Primary information providers

(1)   

In Part 6 of FSMA 2000 (official listing), after section 89O insert—

“Primary information providers

89P     

Primary information providers

(1)   

Part 6 rules may require issuers of financial instruments to use primary

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information providers for the purpose of giving information of a

specified description to a market of a specified description.

(2)   

“Primary information provider” means a person approved by the FCA

for the purposes of this section.

(3)   

“Specified” means specified in the Part 6 rules.

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(4)   

Part 6 rules made by virtue of subsection (1) may—

(a)   

provide for the FCA to maintain a list of providers;

(b)   

impose requirements on a provider in relation to the giving of

information or of information of a specified description;

(c)   

specify the circumstances in which a person is qualified for

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being approved as a provider;

(d)   

provide for limitations or other restrictions to be imposed on the

giving of information to which an approval relates (whether or

not the approval has already been granted);

(e)   

provide for the approval of a provider to be suspended on the

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application of the provider.

(5)   

If the FCA proposes—

(a)   

to refuse a person’s application under information provider

rules,

(b)   

to impose limitations or other restrictions on the giving of

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information to which a person’s approval relates, or

(c)   

to cancel a person’s approval as a provider otherwise than at the

person’s request,

   

it must give the person a warning notice.

(6)   

If the FCA decides—

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(a)   

to grant the application under information provider rules,

(b)   

not to impose limitations or other restrictions on the giving of

information to which a person’s approval relates, or

(c)   

not to cancel the approval,

   

it must give the person concerned written notice of its decision.

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(7)   

If the FCA decides—

(a)   

to refuse to grant the application under information provider

rules,

(b)   

to impose limitations or other restrictions on the giving of

information to which a person’s approval relates, or

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(c)   

to cancel the approval,

   

it must give the person concerned a decision notice.

(8)   

A person to whom a decision notice is given under this section may

refer the matter to the Tribunal.

 
 

Financial Services Bill
Part 2 — Amendments of Financial Services and Markets Act 2000

72

 

(9)   

In this section any reference to an application under information

provider rules means—

(a)   

an application for approval as a provider,

(b)   

an application for the suspension of an approval as a provider,

(c)   

an application for the withdrawal of the suspension of an

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approval as a provider, or

(d)   

an application for the withdrawal or variation of a limitation or

other restriction on the giving of information to which a

provider’s approval relates.

89Q     

Disciplinary powers: contravention of s.89P(4)(b) or (d)

10

(1)   

The FCA may take action against a provider under this section if it

considers that the provider has contravened a requirement or

restriction imposed on the provider by rules made as a result of section

89P(4)(b) or (d).

(2)   

If the FCA is entitled to take action under this section against a

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provider, it may do one or more of the following—

(a)   

impose a penalty on the provider of such amount as it considers

appropriate;

(b)   

suspend, for such period as it considers appropriate, the

provider’s approval;

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(c)   

impose, for such period as it considers appropriate, such

limitations or other restrictions in relation to the giving by the

provider of information as it considers appropriate;

(d)   

publish a statement to the effect that the provider has

contravened a requirement or restriction imposed on the

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provider by rules made as a result of section 89P(4)(b) or (d).

(3)   

The period for which a suspension or restriction is to have effect may

not exceed 12 months.

(4)   

A suspension may relate only to the giving of information in specified

circumstances.

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(5)   

A restriction may, in particular, be imposed so as to require the

provider to take, or refrain from taking, specified action.

(6)   

The FCA may—

(a)   

withdraw a suspension or restriction, or

(b)   

vary a suspension or restriction so as to reduce the period for

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which it has effect or otherwise to limit its effect.

(7)   

The FCA may not take action against a provider under this section after

the end of the limitation period unless, before the end of that period, it

has given a warning notice to the provider under section 89R(1).

(8)   

“The limitation period” means the period of 3 years beginning with the

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first day on which the FCA knew that the provider had contravened the

requirement or restriction.

(9)   

For this purpose the FCA is to be treated as knowing that a provider has

contravened a requirement or restriction if it has information from

which that can reasonably be inferred.

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Revised 28 May 2012