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PART XII |
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INCOMING FIRMS: INTERVENTION BY AUTHORITY |
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Interpretation |
| Interpretation of this Part. |
162. - (1) In this Part-
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"additional procedure" means the procedure described in section 169; |
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(a) an EEA firm which is exercising, or has exercised, its right to carry on a regulated activity in the United Kingdom in accordance with Schedule 3; or
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(b) a Treaty firm which is exercising, or has exercised, its right to carry on a regulated activity in the United Kingdom in accordance with Schedule 4; and
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"power of intervention" means the power conferred on the Authority by section 165. |
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(2) In relation to an incoming firm which is an EEA firm, expressions used in this Part and in Schedule 3 have the same meaning in this Part as they have in that Schedule.
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| General grounds on which powers of intervention are exercisable. |
163. - (1) The Authority may exercise its power of intervention in respect of an incoming firm if it appears to it that-
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(a) the firm has contravened a requirement imposed by the Authority under this Act, compliance with which is the responsibility of the Authority in accordance with the relevant single market directive; |
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(b) the firm has, in purported compliance with any requirement imposed by the Authority under this Act, knowingly or recklessly given the Authority information which is false or misleading in a material particular; or |
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(c) it is desirable to exercise the power in order to protect the interests of actual or potential customers in relation to a regulated activity carried on by the firm. |
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(2) Subsection (3) applies to an incoming EEA firm which-
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(a) is an authorised person; and |
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(b) is exercising or has exercised an EEA right in relation to an activity which constitutes deposit-taking or which is listed in the annex to the investment services directive. |
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(3) The Authority may exercise its power of intervention in respect of the firm if the Director General of Fair Trading has informed the Authority that-
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(b) any of the firm's employees, agents or associates (whether past or present), or |
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(c) if the firm is a body corporate, a controller of the authorised person or an associate of such controller,
has done any of the things specified in paragraphs (a) to (d) of section 25(2) of the Consumer Credit Act 1974. |
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(4) But subsection (3) applies only if the power of intervention is exercised-
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(a) in relation to an activity carried on by the firm in the United Kingdom under a Part IV permission; and |
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(b) in a way which does not affect (except incidentally) the exercise by the firm in the United Kingdom of an EEA right. |
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(5) "Associate" has the same meaning as in section 25(2) of the Consumer Credit Act 1974.
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(6) "Controller" has the meaning given by section 189(1) of that Act.
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| Exercise of powers in support of overseas regulator. |
164. - (1) The Authority may exercise its power of intervention in respect of an incoming firm at the request of, or for the purpose of assisting, an overseas regulator.
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(2) Subsection (1) applies whether or not the Authority's power of intervention is also exercisable as a result of section 163.
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(3) "An overseas regulator" means an authority in a country or territory outside the United Kingdom-
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(a) which is a competent authority for the purposes of any of the single market directives ("an EEA regulator"); or |
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(b) which exercises any function of a kind mentioned in subsection (4). |
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(4) The functions are-
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(a) a function corresponding to any function of the Authority under this Act; |
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(b) a function corresponding to any function exercised by the competent authority under Part VI in relation to the listing of shares; |
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(c) a function corresponding to any function exercised by the Secretary of State under the Companies Act 1985; |
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(d) a function in connection with - |
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(i) the investigation of conduct of the kind prohibited by Part V of the Criminal Justice Act 1993 (insider dealing); or
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(ii) the enforcement of rules (whether or not having the force of law) relating to such conduct;
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(e) a function prescribed by regulations made for the purposes of this subsection which, in the opinion of the Treasury, relates to companies or financial services. |
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(5) If-
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(a) a request to the Authority for the exercise of its power of intervention has been made by an EEA regulator in pursuance of any of the single market directives, or |
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(b) an EEA regulator has notified the Authority that a firm's EEA authorisation has been withdrawn,
the Authority must, in deciding whether or not to exercise its power of intervention, consider whether exercising it is necessary in order to comply with any of the single market directives. |
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(6) In deciding in any other case whether or not to exercise its power of intervention, the Authority may take into account in particular-
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(a) whether in the country or territory of the overseas regulator concerned, corresponding assistance would be given to a United Kingdom regulatory authority; |
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(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; |
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(c) the seriousness of the case and its importance to persons in the United Kingdom; |
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(d) whether it is otherwise appropriate in the public interest to give the assistance sought. |
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(7) The Authority may decline to exercise its power of intervention unless the overseas regulator undertakes to make such contribution towards the cost of exercising it as the Authority considers appropriate.
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(8) Subsection (7) does not apply in a case to which subsection (5) applies.
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| The power of intervention. |
165. If the Authority is entitled to exercise its power of intervention in respect of an incoming firm under this Part, it may impose any requirement in relation to the firm which it could impose if-
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(a) the firm's permission was a Part IV permission; and |
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(b) the Authority was entitled to exercise its power under that Part to vary that permission. |
