|
| |
|
(6) | In relation to an issuer whose home state is a member state other than |
| |
the United Kingdom, any reference to an applicable transparency |
| |
obligation must be read subject to section 100A(2). |
| |
89J | Power to suspend or prohibit trading of securities |
| |
(1) | This section applies to securities admitted to trading on a regulated |
| 5 |
market situated or operating in the United Kingdom. |
| |
(2) | If the competent authority has reasonable grounds for suspecting that |
| |
an applicable transparency obligation has been infringed by the issuer, |
| |
it may require the market operator to suspend trading in the securities |
| |
for a period not exceeding 10 days. |
| 10 |
(3) | If the competent authority has reasonable grounds for suspecting that |
| |
an applicable transparency obligation has been infringed— |
| |
(a) | by an issuer whose home state is not the United Kingdom, or |
| |
(b) | by voteholders of an issuer whose home state is the United |
| |
| 15 |
| it may require the market operator to prohibit trading in the securities. |
| |
(4) | If the competent authority finds that an applicable transparency |
| |
obligation has been infringed, it may require the market operator to |
| |
prohibit trading in the securities. |
| |
(5) | In this section “transparency obligation” means an obligation under— |
| 20 |
(a) | a provision contained in transparency rules, or |
| |
(b) | any other provision made in accordance with the transparency |
| |
| |
(6) | In relation to an issuer whose home state is a member state other than |
| |
the United Kingdom, any reference to an applicable transparency |
| 25 |
obligation must be read subject to section 100A(2). |
| |
89K | Procedure under section 89J |
| |
(1) | A requirement under section 89J takes effect— |
| |
(a) | immediately, if the notice under subsection (2) states that that is |
| |
| 30 |
(b) | in any other case, on such date as may be specified in the notice. |
| |
(2) | If the competent authority— |
| |
(a) | proposes to exercise the powers in section 89J in relation to a |
| |
| |
(b) | exercises any of those powers in relation to a person with |
| 35 |
| |
| it must give that person written notice. |
| |
| |
(a) | give details of the competent authority’s action or proposed |
| |
| 40 |
(b) | state the competent authority’s reasons for taking the action in |
| |
question and choosing the date on which it took effect or takes |
| |
| |
(c) | inform the recipient that he may make representations to the |
| |
competent authority within such period as may be specified by |
| 45 |
|
| |
|
| |
|
the notice (whether or not he had referred the matter to the |
| |
| |
(d) | inform him of the date on which the action took effect or takes |
| |
| |
(e) | inform him of his right to refer the matter to the Tribunal (see |
| 5 |
section 89L) and give an indication of the procedure on such a |
| |
| |
(4) | The competent authority may extend the period within which |
| |
representations may be made to it. |
| |
(5) | If, having considered any representations made to it, the competent |
| 10 |
authority decides to maintain, vary or revoke its earlier decision, it |
| |
must give written notice to that effect to the person mentioned in |
| |
| |
89L | Right to refer matters to the Tribunal |
| |
| 15 |
(a) | to whom a decision notice is given under section 89I (public |
| |
| |
(b) | to whom a notice is given under section 89K (procedure in |
| |
connection with suspension or prohibition of trading), |
| |
may refer the matter to the Tribunal.”. |
| 20 |
| |
1233 | Corporate governance rules |
| |
In Part 6 of the Financial Services and Markets Act 2000 (c. 8), after the sections |
| |
inserted by section 1232 above insert— |
| |
| 25 |
89M | Corporate governance rules |
| |
(1) | The competent authority may make rules (“corporate governance |
| |
| |
(a) | for the purpose of implementing, enabling the implementation |
| |
of or dealing with matters arising out of or related to, any |
| 30 |
Community obligation relating to the corporate governance of |
| |
issuers who have requested or approved admission of their |
| |
securities to trading on a regulated market; |
| |
(b) | about corporate governance in relation to such issuers for the |
| |
purpose of implementing, or dealing with matters arising out of |
| 35 |
or related to, any Community obligation. |
| |
(2) | “Corporate governance”, in relation to an issuer, includes— |
| |
(a) | the nature, constitution or functions of the organs of the issuer; |
| |
(b) | the manner in which organs of the issuer conduct themselves; |
| |
(c) | the requirements imposed on organs of the issuer; |
| 40 |
(d) | the relationship between the different organs of the issuer; |
| |
(e) | the relationship between the organs of the issuer and the |
| |
members of the issuer or holders of the issuer’s securities. |
| |
|
| |
|
| |
|
(3) | The burdens and restrictions imposed by rules under this section on |
| |
foreign-traded issuers must not be greater than the burdens and |
| |
restrictions imposed on UK-traded issuers by— |
| |
(a) | rules under this section, and |
| |
| 5 |
| |
“foreign-traded issuer” means an issuer who has requested or |
| |
approved admission of the issuer’s securities to trading on a |
| |
regulated market situated or operating outside the United |
| |
| 10 |
“UK-traded issuer” means an issuer who has requested or |
| |
approved admission of the issuer’s securities to trading on a |
| |
regulated market situated or operating in the United Kingdom. |
| |
(5) | This section is without prejudice to any other power conferred by this |
| |
Part to make Part 6 rules.”. |
| 15 |
1234 | Liability for false or misleading statements in certain publications |
| |
In Part 6 of the Financial Services and Markets Act 2000 (c. 8), after section 90 |
| |
| |
“90A | Compensation for statements in certain publications |
| |
(1) | The publications to which this section applies are any reports and |
| 20 |
statements published in response to a requirement imposed by a |
| |
provision implementing Article 4, 5 or 6 of the transparency obligations |
| |
| |
(2) | The issuer of securities traded on a regulated UK market is liable to pay |
| |
compensation to a person who has— |
| 25 |
(a) | acquired such securities issued by it, and |
| |
(b) | suffered loss in respect of them as a result of— |
| |
(i) | any untrue or misleading statement in a publication to |
| |
which this section applies, or |
| |
(ii) | the omission from any such publication of any matter |
| 30 |
required to be included in it. |
| |
(3) | The issuer is so liable only if a person discharging managerial |
| |
responsibilities within the issuer in relation to the publication— |
| |
(a) | knew the statement to be untrue or misleading or was reckless |
| |
as to whether it was untrue or misleading, or |
| 35 |
(b) | knew the omission to be dishonest concealment of a material |
| |
| |
(4) | A loss is not regarded as suffered as a result of the statement or |
| |
omission in the publication unless the person suffering it acquired the |
| |
| 40 |
(a) | in reliance on the information in the publication, and |
| |
(b) | at a time when, and in circumstances in which, it was |
| |
reasonable for him to rely on that information. |
| |
(5) | Except as mentioned in subsection (7)— |
| |
|
| |
|
| |
|
(a) | the issuer is not subject to any other liability than that provided |
| |
for by this section in respect of loss suffered as a result of |
| |
reliance by any person on— |
| |
(i) | an untrue or misleading statement in a publication to |
| |
which this section applies, or |
| 5 |
(ii) | the omission from any such publication of any matter |
| |
required to be included in it, and |
| |
(b) | a person other than the issuer is not subject to any liability, other |
| |
than to the issuer, in respect of any such loss. |
| |
(6) | Any reference in subsection (5) to a person being subject to a liability |
| 10 |
includes a reference to another person being entitled as against him to |
| |
be granted any civil remedy or to rescind or repudiate an agreement. |
| |
(7) | This section does not affect— |
| |
(a) | the powers conferred by section 382 and 384 (powers of the |
| |
court to make a restitution order and of the Authority to require |
| 15 |
| |
(b) | liability for a civil penalty; |
| |
(c) | liability for a criminal offence. |
| |
(8) | For the purposes of this section— |
| |
(a) | the following are persons “discharging managerial |
| 20 |
responsibilities” in relation to a publication— |
| |
(i) | any director of the issuer (or person occupying the |
| |
position of director, by whatever name called), |
| |
(ii) | in the case of an issuer whose affairs are managed by its |
| |
members, any member of the issuer, |
| 25 |
(iii) | any senior executive of the issuer having responsibilities |
| |
in relation to the publication; |
| |
(b) | “regulated UK market” means a regulated market situated or |
| |
operating in the United Kingdom; |
| |
(c) | references to the acquisition by a person of securities include his |
| 30 |
contracting to acquire them or any interest in them.”. |
| |
1235 | Exercise of powers where UK is host member state |
| |
In Part 6 of the Financial Services and Markets Act 2000 (c. 8), after section 100 |
| |
| |
“100A | Exercise of powers where UK is host member state |
| 35 |
(1) | This section applies to the exercise by the competent authority of any |
| |
power under this Part exercisable in case of infringement of— |
| |
(a) | a provision of prospectus rules or any other provision made in |
| |
accordance with the prospectus directive, or |
| |
(b) | a provision of transparency rules or any other provision made |
| 40 |
in accordance with the transparency obligations directive, |
| |
| in relation to an issuer whose home state is a member state other than |
| |
| |
(2) | The competent authority may act in such a case only in respect of the |
| |
infringement of a provision required by the relevant directive. |
| 45 |
|
| |
|
| |
|
| Any reference to an applicable provision or applicable transparency |
| |
obligation shall be read accordingly. |
| |
(3) | If the authority finds that there has been such an infringement, it must |
| |
give a notice to that effect to the competent authority of the person’s |
| |
home state requesting it— |
| 5 |
(a) | to take all appropriate measures for the purpose of ensuring |
| |
that the person remedies the situation that has given rise to the |
| |
| |
(b) | to inform the authority of the measures it proposes to take or |
| |
has taken or the reasons for not taking such measures. |
| 10 |
(4) | The authority may not act further unless satisfied— |
| |
(a) | that the competent authority of the person’s home state has |
| |
failed or refused to take measures for the purpose mentioned in |
| |
| |
(b) | that the measures taken by that authority have proved |
| 15 |
inadequate for that purpose. |
| |
| This does not affect exercise of the powers under section 87K(2), 87L(2) |
| |
or (3) or 89J(2) or (3) (powers to protect market). |
| |
(5) | If the authority is so satisfied, it must, after informing the competent |
| |
authority of the person’s home state, take all appropriate measures to |
| 20 |
| |
(6) | In such a case the authority must inform the Commission informed of |
| |
the measures at the earliest opportunity.”. |
| |
1236 | Transparency obligations and related matters: minor and consequential |
| |
| 25 |
(1) | Schedule 15 to this Act makes minor and consequential amendments in |
| |
connection with the provision made by this Part. |
| |
| |
Part 1 contains amendments of the Financial Services and Markets Act |
| |
| 30 |
Part 2 contains amendments of the Companies (Audit, Investigations and |
| |
Community Enterprise) Act 2004 (c. 27). |
| |
1237 | Corporate governance regulations |
| |
(1) | The Secretary of State may make regulations— |
| |
(a) | for the purpose of implementing, enabling the implementation of or |
| 35 |
dealing with matters arising out of or related to, any Community |
| |
obligation relating to the corporate governance of issuers who have |
| |
requested or approved admission of their securities to trading on a |
| |
| |
(b) | about corporate governance in relation to such issuers for the purpose |
| 40 |
of implementing, or dealing with matters arising out of or related to, |
| |
any Community obligation. |
| |
(2) | “Corporate governance”, in relation to an issuer, includes— |
| |
(a) | the nature, constitution or functions of the organs of the issuer; |
| |
(b) | the manner in which organs of the issuer conduct themselves; |
| 45 |
|
| |
|
| |
|
(c) | the requirements imposed on organs of the issuer; |
| |
(d) | the relationship between different organs of the issuer; |
| |
(e) | the relationship between the organs of the issuer and the members of |
| |
the issuer or holders of the issuer’s securities. |
| |
| 5 |
(a) | make provision by reference to any specified code on corporate |
| |
governance that may be issued from time to time by a specified body; |
| |
(b) | create new criminal offences (subject to subsection (4)); |
| |
(c) | make provision excluding liability in damages in respect of things done |
| |
or omitted for the purposes of, or in connection with, the carrying on, |
| 10 |
or purported carrying on, of any specified activities. |
| |
| “Specified” here means specified in the regulations. |
| |
(4) | The regulations may not create a criminal offence punishable by a greater |
| |
| |
(a) | on indictment, a fine; |
| 15 |
(b) | on summary conviction, a fine not exceeding the statutory maximum or |
| |
(if calculated on a daily basis) £100 a day. |
| |
(5) | Regulations under this section are subject to negative resolution procedure. |
| |
(6) | In this section “issuer”, “securities” and “regulated market” have the same |
| |
meaning as in Part 6 of the Financial Services and Markets Act 2000 (c. 8). |
| 20 |
| |
| |
Regulation of actuaries etc |
| |
1238 | Grants to bodies concerned with actuarial standards etc |
| |
(1) | Section 16 of the Companies (Audit, Investigations and Community |
| 25 |
Enterprise) Act 2004 (c. 27) (grants to bodies concerned with accounting |
| |
standards etc) is amended as follows. |
| |
(2) | In subsection (2) (matters carried on by bodies eligible for grants) for |
| |
paragraph (l) substitute— |
| |
“(l) | issuing standards to be applied in actuarial work; |
| 30 |
(m) | issuing standards in respect of matters to be contained in |
| |
reports or other communications required to be produced or |
| |
made by actuaries or in accordance with standards within |
| |
| |
(n) | investigating departures from standards within paragraph (l) |
| 35 |
| |
(o) | taking steps to secure compliance with standards within |
| |
| |
(p) | carrying out investigations into public interest cases arising in |
| |
connection with the performance of actuarial functions by |
| 40 |
members of professional actuarial bodies; |
| |
(q) | holding disciplinary hearings relating to members of |
| |
professional actuarial bodies following the conclusion of |
| |
investigations within paragraph (p); |
| |
|
| |
|
| |
|
(r) | deciding whether (and, if so, what) disciplinary action should |
| |
be taken against members of professional actuarial bodies to |
| |
whom hearings within paragraph (q) related; |
| |
(s) | supervising the exercise by professional actuarial bodies of |
| |
regulatory functions in relation to their members; |
| 5 |
(t) | overseeing or directing any of the matters mentioned above.”. |
| |
(3) | In subsection (5) (definitions) at the appropriate places insert— |
| |
““professional actuarial body” means— |
| |
(a) | the Institute of Actuaries, or |
| |
(b) | the Faculty of Actuaries in Scotland, |
| 10 |
and the “members” of a professional actuarial body include |
| |
persons who, although not members of the body, are subject to |
| |
its rules in performing actuarial functions;” |
| |
““regulatory functions”, in relation to professional actuarial |
| |
bodies, means any of the following— |
| 15 |
(a) | investigatory or disciplinary functions exercised by |
| |
such bodies in relation to the performance by their |
| |
members of actuarial functions, |
| |
(b) | the setting by such bodies of standards in relation to the |
| |
performance by their members of actuarial functions, |
| 20 |
| |
(c) | the determining by such bodies of requirements in |
| |
relation to the education and training of their |
| |
| |
1239 | Levy to pay expenses of bodies concerned with actuarial standards etc |
| 25 |
(1) | Section 17 of the Companies (Audit, Investigations and Community |
| |
Enterprise) Act 2004 (c. 27) (levy to pay expenses of bodies concerned with |
| |
accounting standards etc) is amended in accordance with subsections (2) to (5). |
| |
(2) | In subsection (3)(a) after “to which” insert “, or persons within subsection (3A) |
| |
| 30 |
(3) | After subsection (3) insert— |
| |
“(3A) | The following persons are within this subsection— |
| |
(a) | the administrators of a public service pension scheme (within |
| |
the meaning of section 1 of the Pension Schemes Act 1993); |
| |
(b) | the trustees or managers of an occupational or personal pension |
| 35 |
scheme (within the meaning of that section).”. |
| |
(4) | After subsection (4)(b) insert— |
| |
“(c) | make different provision for different cases.”. |
| |
(5) | After subsection (12) insert— |
| |
“(13) | If a draft of any regulations to which subsection (10) applies would, |
| 40 |
apart from this subsection, be treated for the purposes of the standing |
| |
orders of either House of Parliament as a hybrid instrument, it is to |
| |
proceed in that House as if it were not such an instrument.”. |
| |
(6) | The above amendments have effect in relation to any exercise of the power to |
| |
make regulations under section 17 of the Companies (Audit, Investigations |
| 45 |
|
| |
|