The Credit Rating Agencies (Amendment) Regulations 2011

Amendment of the Credit Rating Agencies Regulations 2010 U.K.

4.  The Credit Rating Agencies Regulations 2010 M1 are amended as follows—

(a) in regulation 2(1) (interpretation)—

(i) at the end of the definition of “the EC Regulation” insert “ , as amended by Regulation (EU) No. 513/2011 of the European Parliament and of the Council of 11 May 2011 amending Regulation (EC) No. 1060/2009 on credit rating agencies ”;

(ii) after the definition of “the EC Regulation” insert—

““ESMA” means the European Securities and Markets Authority established by Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No. 716/2009/EC and repealing Commission Decision 2009/77/EC M2 .”;

(iii) omit the definitions of “overseas competent authority” and “protected item”;

(b) omit regulation 4 (fees);

(c) for paragraph (1) of regulation 6 (guidance) substitute—

“(1) The Authority may give guidance consisting of such information and advice as it considers appropriate with respect to any matter relating to the functions of the Authority under the EC Regulation.”;

(d) omit Parts 3 (applications for certification and registration) to 8 (notices);

(e) after regulation 31 (amendments to the Capital Requirements Regulations 2006) insert—

“PART 10 U.K. ESMA: investigatory powers

Records of telephone and data traffic: Article 23c(1)(e) of the EC Regulation

32.— (1) ESMA must obtain authorisation from the High Court before any official of, or person authorised by, ESMA requests any records of telephone or data traffic under Article 23c(1)(e) of the EC Regulation from a person domiciled or established in the United Kingdom.

(2) The Authority must obtain authorisation from the High Court before requesting on behalf of ESMA any records of telephone or data traffic under Article 23c(1)(e) of the EC Regulation.

(3) The High Court may grant authorisation under paragraph (1) or (2) if satisfied, on an application made to the High Court in accordance with rules of court by ESMA or the Authority, that—

(a) ESMA has ordered an investigation under Article 23c(1) of the EC Regulation; and

(b) requiring the records of telephone or data traffic would be neither arbitrary nor excessive having regard to the subject matter of the investigation.

(4) The High Court must conduct the assessment referred to in paragraph (3) in accordance with Article 23c(6) of the EC Regulation, and may exercise the powers conferred by that paragraph for the purposes of making its assessment.

(5) In the application of this regulation to Scotland, references to the High Court are to be read as references to the Court of Session.

Inspections: Article 23d of the EC Regulation

33.— (1) ESMA must obtain authorisation from the High Court before any official of, or person authorised by, ESMA carries out an Article 23d inspection.

(2) Where ESMA requires the Authority to carry out an Article 23d inspection on its behalf, the Authority must obtain authorisation from the High Court before carrying out that inspection.

(3) The High Court may grant authorisation for the purposes of paragraph (1) or (2) if satisfied, on an application made to the High Court in accordance with rules of court by ESMA or the Authority, that—

(a) ESMA has ordered an Article 23d inspection; and

(b) the Article 23d inspection is neither arbitrary nor excessive having regard to the subject matter of the inspection.

(4) The High Court must conduct the assessment referred to in paragraph (3) in accordance with Article 23d(9) of the EC Regulation, and may exercise the powers conferred by that paragraph for the purposes of making its assessment.

(5) The High Court may issue a warrant if satisfied on information on oath given by or on behalf of ESMA or the Authority that there are reasonable grounds for believing that—

(a) the premises specified in the warrant are the business premises of any legal person referred to in Article 23b(1) of the EC Regulation; and

(b) the person referred to in sub-paragraph (a) has failed to comply with an Article 23d inspection, or would fail to comply with such an inspection if a warrant were not issued under this paragraph.

(6) A warrant issued under paragraph (5) shall authorise a constable, together with a named official of ESMA or the Authority and any other official or person authorised by ESMA or the Authority to accompany that official—

(a) to enter any premises specified in the warrant using such force as is reasonably necessary for the purpose;

(b) to search for such records, data, procedures and other material as may be examined under Article 23c(1) of the EC Regulation, or such records of telephone or data traffic as ESMA or the Authority has been authorised to request under regulation 32(3), using such force as is reasonably necessary for the purpose;

(c) to take or obtain certified copies of or extracts from such records, data, procedures and other material; and

(d) to seal any business premises and books or records in accordance with Article 23d(2) of the EC Regulation.

(7) In England and Wales, sections 15(5) to (8) and 16 of the Police and Criminal Evidence Act 1984 M3 (execution of search warrants and safeguards) apply to warrants issued under paragraph (5).

(8) In Northern Ireland, Articles 17(5) to (8) and 18 of the Police and Criminal Evidence (Northern Ireland) Order 1989 M4 apply to warrants issued under paragraph (5).

(9) In the application of this regulation to Scotland—

(a) references to the High Court are to be read as references to the Court of Session;

(b) references to information on oath are to be read as references to evidence on oath.

(10) In this regulation, an “Article 23d inspection” means an inspection ordered by decision of ESMA under Article 23d of the EC Regulation.

Offences: Article 23d inspections

34.   Any person who intentionally obstructs the exercise of any rights conferred by a warrant under regulation 33(5) is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.”.

Marginal Citations

M1 S.I. 2010/906.

M2 OJ L 331, 15.12.2010, p.84.

M3 1984 c. 60; subsections (5) to (8) of section 15 were amended by sections 113 and 114 of the Serious Organised Crime and Police Act 2005 (c. 15) and article 7 of S.I. 2005/3496; section 16 was amended by section 109(1) of, and paragraph 281 of Schedule 8 to, the Courts Act 2003 (c. 39), section 2 of the Criminal Justice Act 2003 (c. 44), sections 113 and 114 of the Serious Organised Crime and Police Act 2005 and article 8 of S.I. 2005/3496.

M4 S.I. 1989 No. 1341 (N.I. 12); article 17 was amended by article 9 of S.I. 2007 No. 288 (N.I. 2).