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Exercise of powers of intervention |
| Procedure. |
166. - (1) If the Authority proposes to exercise its power of intervention it must (except where section 167 applies) give the authorised person a warning notice.
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(2) The warning notice must specify the requirements which the Authority proposes to impose.
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(3) If the Authority decides to exercise its power of intervention-
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(a) it must give the authorised person a decision notice; and |
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(b) the authorised person may refer the matter to the Tribunal. |
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(4) The decision notice must specify the requirements which the Authority has decided to impose (which need not be those specified under subsection (2)).
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(5) A decision notice has the effect of imposing on the authorised person the requirements specified in the notice.
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| Procedure in cases of urgency. |
167. - (1) If the Authority considers that its power of intervention should be exercised as a matter of urgency, it may exercise its power by giving the authorised person a decision notice.
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(2) The decision notice must-
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(a) specify the requirements that are being imposed; |
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(b) give the Authority's reasons for exercising its power; and |
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(c) specify a reasonable period (which may not be less than 28 days) within which the person to whom it is given or copied may make representations to the Authority. |
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(3) The Authority must decide, within a reasonable period after the period for making representations has ended, whether to-
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(a) confirm or rescind its original decision; or |
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(b) exercise its power of intervention so as to impose requirements different from those originally imposed ("different requirements"). |
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(4) If the Authority decides to confirm or rescind its original decision, it must-
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(a) give written notice of its decision to the authorised person to whom the decision notice was given; and |
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(b) give a copy of that written notice to anyone to whom a copy of that decision notice was given. |
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(5) If the Authority decides to exercise its power of intervention so as to impose different requirements, it must give the authorised person a decision notice.
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(6) A decision notice under subsection (5) must specify the different requirements.
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(7) A decision notice under subsection (1) or (5) has the effect of imposing on the authorised person the requirements specified in the notice.
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(8) An authorised person to whom a decision notice is given under subsection (1) or (5) may refer the matter to the Tribunal.
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(9) If-
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(a) the Authority's power of intervention is exercised as provided by subsection (1) in respect of an authorised person, |
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(b) he refers the matter to the Tribunal under subsection (8), and |
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(c) no decision under subsection (3) is made before the reference is dealt with,
the Tribunal must determine whether the decision to exercise the power, or to impose a requirement, was (at the time it was made) reasonable in all the circumstances. |
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(10) In determining that question, the Tribunal must have regard to-
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(a) the risk, had the decision not been made or the requirement not been imposed, to persons for whose protection it was made; and |
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(b) the likely effect of the requirement on the person making the reference. |
| Power to apply to court for injunction in respect of certain overseas insurance companies. |
168. - (1) This section applies if the Authority has received a request made in respect of an incoming EEA firm in accordance with-
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(a) Article 20.5 of the first non-life insurance directive; or |
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(b) Article 24.5 of the first life insurance directive. |
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(2) The court may, on an application made to it by the Authority with respect to the firm, grant an injunction restraining (or in Scotland an interdict prohibiting) the firm disposing of or otherwise dealing with any of its assets.
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(3) If the court grants an injunction, it may by subsequent orders make provision for such incidental, consequential and supplementary matters as it considers necessary to enable the Authority to perform any of its functions under this Act.
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(4) "The court" means-
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(b) in Scotland, the Court of Session. |
| Additional procedure for EEA firms in certain cases. |
169. - (1) This section applies if it appears to the Authority that-
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(a) its power of intervention, or |
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(b) its power to impose a listed activity prohibition,
is exercisable in relation to an EEA firm exercising EEA rights in the United Kingdom ("an incoming EEA firm") in respect of the contravention of a relevant requirement. |
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(2) A requirement is relevant if-
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(a) it is imposed by the Authority under this Act; and |
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(b) as respects its contravention, any of the single market directives provides that a procedure of the kind set out in the following provisions of this section is to apply. |
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(3) The Authority must, in writing, require the firm to remedy the situation.
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(4) If the firm fails to comply with the requirement under subsection (3) within a reasonable time, the Authority must give a notice to that effect to the firm's home state regulator requesting it-
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(a) to take all appropriate measures for the purpose of ensuring that the firm remedies the situation which has given rise to the notice; and |
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(b) to inform the Authority of the measures it proposes to take or has taken or the reasons for not taking such measures. |
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(5) Except as mentioned in subsection (6), the Authority may not exercise its power of intervention or impose a listed activity prohibition unless satisfied-
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(a) that the firm's home state regulator has failed or refused to take measures for the purpose mentioned in subsection (4)(a); or |
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(b) that the measures taken by the home state regulator have proved inadequate for that purpose. |
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(6) If the Authority decides that it should exercise either of the powers mentioned in subsection (1) in respect of the incoming EEA firm as a matter of urgency in order to protect the interests of consumers, it may exercise the powers-
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(a) before complying with subsections (3) and (4); or |
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(b) where it has complied with those subsections, before it is satisfied as mentioned in subsection (5). |
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(7) In such a case the Authority must at the earliest opportunity inform the firm's home state regulator and the Commission.
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(8) If-
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(a) the Authority has (by virtue of subsection (6)) exercised its powers before complying with subsections (3) and (4) or before it is satisfied as mentioned in subsection (5), and |
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(b) the Commission decides under any of the single market directives that the Authority must rescind or vary any requirement imposed in the exercise of its powers,
the Authority must in accordance with the decision rescind or vary the requirement. |
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Supplemental |
| Rescission and variation of requirements. |
170. - (1) The Authority may rescind or vary-
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(a) a requirement imposed in exercise of its power of intervention, or |
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(b) a listed activity prohibition,
on its own initiative or on the application of the person subject to the requirement. |
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(2) The power to rescind or vary a requirement is exercisable by written notice given by the Authority to the person concerned, which takes effect on the date specified in the notice.
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(3) If the Authority refuses to rescind or vary a requirement on the application of the person subject to it-
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(a) the Authority must give that person written notice of the refusal; and |
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(b) that person may refer the matter to the Tribunal. |
