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Financial Services and Markets Bill - continued        House of Commons
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  PART XXVII
  INTERPRETATION
Definitions.     363. - (1) In this Act-
 
 
    "appointed representative" has the meaning given in section 35(2);
 
    "auditors and actuaries rules" means rules made under section 304;
 
    "authorisation offence" has the meaning given in section 21(2);
 
    "authorised person" has the meaning given in section 28(2);
 
    "the Authority" means the Financial Services Authority;
 
    "body corporate" includes a body corporate constituted under the law of a country or territory outside the United Kingdom;
 
    "chief executive"-
 
      (a) in relation to a body corporate whose principal place of business is within the United Kingdom, means an employee of that body who, alone or jointly with one or more others, is responsible under the immediate authority of the directors, for the conduct of the whole of the business of that body; and
 
      (b) in relation to a body corporate whose principal place of business is outside the United Kingdom, means the person who, alone or jointly with one or more others, is responsible for the conduct of its business within the United Kingdom;
 
    "collective investment scheme" has the meaning given in section 210;
 
    "the Commission" means the European Commission;
 
    "the compensation scheme" has the meaning given in section 187(2);
 
    "director", in relation to a body corporate, includes-
 
      (a) a person occupying in relation to it the position of a director (by whatever name called); and
 
      (b) a person in accordance with whose directions or instructions (not being advice given in a professional capacity) the directors of that body are accustomed to act;
 
    "documents" includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include references to producing a copy of the information in legible form;
 
    "financial promotion rules" means rules made under section 118;
 
    "friendly society" means an incorporated or registered friendly society;
 
    "general prohibition" has the meaning given in section 17(2);
 
    "general rules" has the meaning given in section 110(2);
 
    "incorporated friendly society" means a society incorporated under the Friendly Societies Act 1992;
 
    "industrial and provident society" means a society registered or deemed to be registered under the Industrial and Provident Societies Act 1965 or the Industrial and Provident Societies Act (Northern Ireland) 1969;
 
    "market abuse" has the meaning given in section 95;
 
    "Minister of the Crown" has the same meaning as in the Ministers of the Crown Act 1975;
 
    "money laundering rules" means rules made under section 119;
 
    "notice of control" has the meaning given in section 150(5);
 
    "non-regulated activity rules" has the meaning given in section 111(2);
 
    "the ombudsman scheme" has the meaning given in section 200(3);
 
    "open-ended investment company" has the meaning given in section 211(2);
 
    "Part IV permission" has the meaning given in section 36(3);
 
    "Part XVI qualifier" has the meaning given in paragraph 1 of Schedule 5;
 
    "partnership" includes a partnership constituted under the law of a country or territory outside the United Kingdom;
 
    "prescribed" (where not otherwise defined) means prescribed in regulations made by the Treasury;
 
    "price stabilising rules" means rules made under section 117;
 
    "private company" has the meaning given in section 1(3) of the Companies Act 1985 or in Article 12(3) of the Companies (Northern Ireland) Order 1986;
 
    "prohibition order" has the meaning given in section 53(2);
 
    "recognised clearing house" and "recognised investment exchange" have the meaning given in section 260;
 
    "registered friendly society" means a society which is-
 
      (a) a friendly society within the meaning of section 7(1)(a) of the Friendly Societies Act 1974; and
 
      (b) registered within the meaning of that Act;
 
    "regulated activity" has the meaning given in section 20;
 
    "regulating provisions" has the meaning given in section 131(1);
 
    "regulatory objectives" means the objectives mentioned in section 2;
 
    "regulatory provisions" has the meaning given in section 277;
 
    "rule" means a rule made by the Authority under this Act;
 
    "the scheme manager" has the meaning given in section 186(1);
 
    "the scheme operator" has the meaning given in section 200(2);
 
    "scheme particulars rules" has the meaning given in section 222(1);
 
    "Seventh Company Law Directive" means the European Council Seventh Company Law Directive of 13 June 1983 on consolidated accounts (No. 83/349/EEC);
 
    "Stock Exchange" means the London Stock Exchange Limited (by whatever name it is from time to time known);
 
    "the Treaty" means the treaty establishing the European Community;
 
    "trust scheme rules" has the meaning given in section 221(1);
 
    "UK authorised person" has the meaning given in section 150(4); and
 
    "unit trust scheme" has the meaning given in section 211.
      (2) In the application of this Act to Scotland, references to a matter being actionable at the suit of a person are to be read as references to the matter being actionable at the instance of that person.
 
      (3) For the purposes of any provision of this Act authorising or requiring a person to do anything within a specified number of days no account is to be taken of any day which is a public holiday in any part of the United Kingdom.
 
Carrying on activities in the United Kingdom.     364. - (1) In the three cases described in this section, a person who-
 
 
    (a) is carrying on a regulated activity, but
 
    (b) would not otherwise be regarded as carrying it on in the United Kingdom,
  is, for the purposes of this Act, to be regarded as carrying it on in the United Kingdom.
 
      (2) The first case is where-
 
 
    (a) his registered office (or if he does not have a registered office his head office) is in the United Kingdom; and
 
    (b) the regulated activity is carried on in another EEA State.
      (3) The second case is where-
 
 
    (a) his registered office (or if he does not have a registered office his head office) is in the United Kingdom;
 
    (b) the regulated activity is carried on otherwise than in any EEA State; but
 
    (c) the day-to-day management of the carrying on of that activity is the responsibility of-
 
      (i) his registered office (or head office); or
 
      (ii) another establishment maintained by him in the United Kingdom.
      (4) The third case is where-
 
 
    (a) his head office is not in the United Kingdom; but
 
    (b) the activity is carried on from an establishment maintained by him in the United Kingdom.
      (5) For the purposes of subsections (2) to (4) it is irrelevant where the person with whom the activity is carried on is situated.
 
Parent and subsidiary undertaking.     365. - (1) In this Act, except in relation to an incorporated friendly society, "parent undertaking" and "subsidiary undertaking" have the same meaning as in Part VII of the Companies Act 1985 (or Part VIII of the Companies (Northern Ireland) Order 1986).
 
      (2) But-
 
 
    (a) "parent undertaking" also includes an individual who would be a parent undertaking for the purposes of those provisions if he were taken to be an undertaking (and "subsidiary undertaking" is to be read accordingly);
 
    (b) "subsidiary undertaking" also includes, in relation to a body incorporated in or formed under the law of an EEA State other than the United Kingdom, an undertaking which is a subsidiary undertaking within the meaning of any rule of law in force in that State for purposes connected with implementation of the Seventh Company Law Directive (and "parent undertaking" is to be read accordingly).
      (3) In this Act "subsidiary undertaking", in relation to an incorporated friendly society, means a body corporate of which the society has control within the meaning of section 13(9)(a) of the Friendly Societies Act 1992 (and "parent undertaking" is to be read accordingly).
 
Group.     366. - (1) In this Act "group", in relation to a person ("A"), means A and any person who is-
 
 
    (a) a parent undertaking of A;
 
    (b) a subsidiary undertaking of A;
 
    (c) a subsidiary undertaking of a parent undertaking of A;
 
    (d) a parent undertaking of a subsidiary undertaking of A;
 
    (e) an undertaking in which A or an undertaking mentioned in paragraph (a), (b), (c) or (d) has a participating interest;
 
    (f) if A or an undertaking mentioned in paragraph (a) or (d) is a building society, an associated undertaking of the society; or
 
    (g) if A or an undertaking mentioned in paragraph (a) or (d) is an incorporated friendly society, a body corporate of which the society has joint control (within the meaning of section 13(9)(c) of the Friendly Societies Act 1992).
      (2) "Participating interest" has the same meaning as in Part VII of the Companies Act 1985 or Part VIII of the Companies (Northern Ireland) Order 1986; but also includes an interest held by an individual which would be a participating interest for the purposes of those provisions if he were taken to be an undertaking.
 
      (3) "Associated undertaking" has the meaning given in section 119(1) of the Building Societies Act 1986.
 
Controller.     367. - (1) In this Act "controller", in relation to an undertaking ("A"), means a person who falls within any of the cases in subsection (2).
 
      (2) The cases are where the person-
 
 
    (a) holds 10% or more of the shares in A;
 
    (b) is able to exercise significant influence over the management of A by virtue of his shareholding in A;
 
    (c) holds 10% or more of the shares in a parent undertaking ("P") of A;
 
    (d) is able to exercise significant influence over the management of P by virtue of his shareholding in P;
 
    (e) is entitled to exercise, or control the exercise of, 10% or more of the voting power in A;
 
    (f) is able to exercise significant influence over the management of A by virtue of his voting power in A;
 
    (g) is entitled to exercise, or control the exercise of, 10% or more of the voting power in P; or
 
    (h) is able to exercise significant influence over the management of P by virtue of his voting power in P.
      (3) In subsection (2) "the person" means-
 
 
    (a) the person;
 
    (b) any of the person's associates; or
 
    (c) the person and any of his associates.
      (4) "Associate", in relation to a person ("H") holding shares in an undertaking ("C") or entitled to exercise or control the exercise of voting power in relation to another undertaking ("D"), means-
 
 
    (a) the spouse of H;
 
    (b) a child or stepchild of H (if under 18);
 
    (c) the trustee of any settlement under which H has a life interest in possession (or in Scotland a life interest);
 
    (d) an undertaking of which H is a director;
 
    (e) a person who is an employee or partner of H;
 
    (f) if H is an undertaking-
 
      (i) a director of H;
 
      (ii) a subsidiary undertaking of H;
 
      (iii) a director or employee of such a subsidiary undertaking; and
 
    (g) if H has with any other person an agreement or arrangement with respect to the acquisition, holding or disposal of shares or other interests in C or D or under which they undertake to act together in exercising their voting power in relation to C or D, that other person.
      (5) "Settlement", in subsection (4)(c), includes any disposition or arrangement under which property is held on trust (or subject to a comparable obligation).
 
      (6) "Shares"-
 
 
    (a) in relation to an undertaking with a share capital, means allotted shares;
 
    (b) in relation to an undertaking with capital but no share capital, means rights to share in the capital of the undertaking;
 
    (c) in relation to an undertaking without capital, means interests-
 
      (i) conferring any right to share in the profits, or liability to contribute to the losses, of the undertaking; or
 
      (ii) giving rise to an obligation to contribute to the debts or expenses of the undertaking in the event of a winding up.
      (7) "Voting power", in relation to an undertaking which does not have general meetings at which matters are decided by the exercise of voting rights, means the right under the constitution of the undertaking to direct the overall policy of the undertaking or alter the terms of its constitution.
 
Manager.     368. - (1) In this Act, except in relation to a unit trust scheme or a registered friendly society, "manager" means an employee who-
 
 
    (a) under the immediate authority of his employer is responsible, either alone or jointly with one or more other persons, for the conduct of his employer's business; or
 
    (b) under the immediate authority of his employer or of a person who is a manager by virtue of paragraph (a) exercises managerial functions or is responsible for maintaining accounts or other records of his employer.
      (2) If the employer is not an individual, references in subsection (1) to the authority of the employer are references to the authority-
 
 
    (a) in the case of a body corporate, of the directors;
 
    (b) in the case of a partnership, of the partners; and
 
    (c) in the case of an unincorporated association, of its officers or the members of its governing body.
      (3) "Manager", in relation to a body corporate, means a person (other than an employee of the body) who is appointed by the body to manage any part of its business and includes an employee of the body corporate (other than the chief executive) who under the immediate authority of a director or chief executive of the body corporate exercises managerial functions or is responsible for maintaining accounts or other records of the body corporate.
 
Expressions relating to insurance.     369. - (1) "The 1982 Act" means the Insurance Companies Act 1982.
 
      (2) In this Act-
 
 
    "insurance business", "insurance company" and "contract of insurance" have the same meaning as in the 1982 Act;
 
    "general insurance business" and "long-term insurance business" have the meaning given by section 1 of the 1982 Act;
 
    "main agent" has the same meaning as in section 96E of the 1982 Act.
Expressions relating to authorisation elsewhere in the single market.     370. - (1) In this Act-
 
 
    (a) "home state authorisation" has the meaning given in Schedule 4;
 
    (a) "Treaty firm" has the meaning given in Schedule 4; and
 
    (c) "home state regulator", in relation to a Treaty firm, has the meaning given in Schedule 4.
      (2) In this Act-
 
 
    (a) "EEA authorisation", "EEA firm", "EEA right", "EEA State", "first life insurance directive", "first non-life insurance directive", "insurance directives", "investment services directive", "single market directives" and "second banking coordination directive" have the meaning given in Schedule 3; and
 
    (b) "home state regulator", in relation to an EEA firm, has the meaning given in Schedule 3.
Privileged communications.     371. - (1) In this Act "privileged communication" means a communication-
 
 
    (a) between a professional legal adviser and his client, or
 
    (b) made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings,
  which in proceedings in the High Court would be protected from disclosure on grounds of legal professional privilege.
 
      (2) In the application of this section to Scotland-
 
 
    (a) the reference to the High Court is to be read as a reference to the Court of Session; and
 
    (b) the reference to legal professional privilege is to be read as a reference to confidentiality of communications.
 
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