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| Additional procedure for EEA firms in certain cases. |
172. - (1) This section applies if it appears to the Authority that its power of intervention 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 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 its power of intervention in respect of the incoming EEA firm as a matter of urgency in order to protect the interests of consumers, it may exercise that power-
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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 power of intervention 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 power of intervention, |
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the Authority must in accordance with the decision rescind or vary the requirement.
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Supplemental |
| Rescission and variation of requirements. |
173. - (1) The Authority may rescind or vary a requirement imposed in exercise of its power of intervention 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. |
| Re-issue of certificate of authorisation. |
174. - (1) This section applies if the Authority exercises its power of intervention so as to prohibit an authorised person from carrying on a regulated activity which he has previously been given permission under Part IV to carry on.
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(2) This section also applies if the Authority exercises its power of intervention so as to restrict the carrying on by an authorised person of such a regulated activity.
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(3) The Authority may-
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(a) require the authorised person to deliver up to it for cancellation the certificate of authorisation issued to him; and |
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(b) issue a new certificate so as to reflect the exercise of its power. |
| Effect of certain requirements on other persons. |
175. If the Authority, in exercising its power of intervention, imposes on an incoming firm a requirement of a kind mentioned in subsection (1) of section 43, the requirement has the same effect in relation to the firm as it would have in relation to an authorised person if it had been imposed on the authorised person by the Authority acting under section 40.
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| Actions for damages. |
176. If a person contravenes a requirement imposed on him by the Authority in the exercise of its power of intervention, section 122 applies to the contravention as it applies to a contravention mentioned in that section.
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Powers of Director General of Fair Trading |
| Power to prohibit the carrying on of Consumer Credit Act business. |
177. - (1) If it appears to the Director General of Fair Trading ("the Director") that subsection (3) has been, or is likely to be, contravened as respects a consumer credit EEA firm, he may by written notice given to the firm impose on the firm a consumer credit prohibition.
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(2) "Consumer credit prohibition" means a prohibition on carrying on, or purporting to carry on, in the United Kingdom any Consumer Credit Act business which consists of or includes carrying on one or more listed activities.
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(3) This subsection is contravened as respects a firm if-
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(a) the firm or any of its employees, agents or associates (whether past or present), or |
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(b) if the firm is a body corporate, any controller of the firm or an associate of any such controller, |
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does 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) A consumer credit prohibition may be absolute or may be imposed-
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(b) until the occurrence of such event, or |
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(c) until such conditions are complied with, |
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as may be specified in the notice given under subsection (1).
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(5) Any period, event or condition so specified may be varied by the Director on the application of the firm concerned.
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(6) A consumer credit prohibition may be withdrawn by written notice served by the Director on the firm concerned, and any such notice takes effect on such date as is specified in the notice.
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(7) Schedule 13 has effect as respects consumer credit prohibitions and restrictions under section 178.
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(8) A firm contravening a prohibition under this section is guilty of an offence and liable-
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(a) on summary conviction, to a fine not exceeding the statutory maximum; |
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(b) on conviction on indictment, to a fine. |
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(9) In this section and section 178-
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"a consumer credit EEA firm" means an EEA firm falling within any of paragraphs (a) to (c) of paragraph 5 of Schedule 3 whose EEA authorisation covers any Consumer Credit Act business; |
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"Consumer Credit Act business" means consumer credit business, consumer hire business or ancillary credit business; |
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"consumer credit business", "consumer hire business" and "ancillary credit business" have the same meaning as in the Consumer Credit Act 1974; |
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"listed activity" means an activity listed in the Annex to the second banking co-ordination directive or the Annex to the investment services directive; |
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"associate" has the same meaning as in section 25(2) of the Consumer Credit Act 1974; |
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"controller" has the meaning given by section 189(1) of that Act. |
| Power to restrict the carrying on of Consumer Credit Act business. |
178. - (1) In this section "restriction" means a direction that a consumer credit EEA firm may not carry on in the United Kingdom, otherwise than in accordance with such condition or conditions as may be specified in the direction, any Consumer Credit Act business which-
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(a) consists of or includes carrying on any listed activity; and |
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(b) is specified in the direction. |
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(2) If it appears to the Director that the situation as respects a consumer credit EEA firm is such that the powers conferred by section 177(1) are exercisable, the Director may, instead of imposing a prohibition, impose such restriction as appears to him desirable.
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(3) A restriction-
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(b) may be varied with the agreement of the firm concerned, |
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by written notice served by the Director on the firm, and any such notice takes effect on such date as is specified in the notice.
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(4) A firm contravening a restriction is guilty of an offence and liable-
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(a) on summary conviction, to a fine not exceeding the statutory maximum; |
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(b) on conviction on indictment, to a fine. |
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(5) The fact that a restriction has not been complied with (whether or not constituting an offence under subsection (4)) is a ground for the imposition of a prohibition under section 177.
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