Financial Services and Markets Act 2000

138 General rule-making power.U.K.

This section has no associated Explanatory Notes

(1)The Authority may make such rules applying to authorised persons—

(a)with respect to the carrying on by them of regulated activities, or

(b)with respect to the carrying on by them of activities which are not regulated activities,

as appear to it to be necessary or expedient for the purpose of protecting the interests of consumers.

[F1(1A)The Authority may also make such rules applying to authorised persons who are investment firms or credit institutions, with respect to the provision by them of a relevant ancillary service, as appear to the Authority to be necessary or expedient for the purpose of protecting the interests of consumers.

(1B)“Credit institution” means—

(a)a credit institution authorised under the banking consolidation directive, or

(b)an institution which would satisfy the requirements for authorisation as a credit institution under that directive if it had its registered office (or if it does not have a registered office, its head office) in an EEA State.

(1C)”Relevant ancillary service” means any service of a kind mentioned in Section B of Annex I to the markets in financial instruments directive the provision of which does not involve the carrying on of a regulated activity.]

(2)Rules made under this section are referred to in this Act as the Authority’s general rules.

(3)The Authority’s power to make general rules is not limited by any other power which it has to make regulating provisions.

(4)The Authority’s general rules may make provision applying to authorised persons even though there is no relationship between the authorised persons to whom the rules will apply and the persons whose interests will be protected by the rules.

(5)General rules may contain requirements which take into account, in the case of an authorised person who is a member of a group, any activity of another member of the group.

(6)General rules may not—

(a)make provision prohibiting an EEA firm from carrying on, or holding itself out as carrying on, any activity which it has permission conferred by Part II of Schedule 3 to carry on in the United Kingdom;

(b)make provision, as respects an EEA firm, about any matter responsibility for which is, under any of the single market directives, reserved to the firm’s home state regulator.

(7)“Consumers” means persons—

(a)who use, have used, or are or may be contemplating using, any of the services provided by—

(i)authorised persons in carrying on regulated activities; F2. . .

[F3(ia)authorised persons who are investment firms or credit institutions in providing a relevant ancillary service; or]

(ii)persons acting as appointed representatives;

(b)who have rights or interests which are derived from, or are otherwise attributable to, the use of any such services by other persons; or

(c)who have rights or interests which may be adversely affected by the use of any such services by persons acting on their behalf or in a fiduciary capacity in relation to them.

(8)If an authorised person is carrying on a regulated activity in his capacity as a trustee, the persons who are, have been or may be beneficiaries of the trust are to be treated as persons who use, have used or are or may be contemplating using services provided by the authorised person in his carrying on of that activity.

(9)For the purposes of subsection (7) a person who deals with an authorised person in the course of the authorised person’s carrying on of a regulated activity is to be treated as using services provided by the authorised person in carrying on those activities.

Textual Amendments

Modifications etc. (not altering text)

C1S. 138 modified (18.6.2001) by S.I. 2001/1821, arts. 1(1), 3(1)-(3)

C4S. 138(1)(1A) modified (22.2.2008) by The Northern Rock plc Transfer Order 2008 (S.I. 2008/432), art. 15(1)

C5S. 138(1)(1A) modified (29.9.2008 at 8.00 a.m.) by The Bradford & Bingley plc Transfer of Securities and Property etc. Order 2008 (S.I. 2008/2546), art. 37(1)

C6S. 138(1)(1A) modified (7.10.2008 at 9.30 a.m.) by The Heritable Bank plc Transfer of Certain Rights and Liabilities Order 2008 (S.I. 2008/2644), art. 27(1)

C7S. 138(1)(1A) modified (8.10.2008 at 10.10 a.m.) by The Transfer of Rights and Liabilities to ING Order 2008 (S.I. 2008/2666), art. 18(1)

C10S. 138(1)(1A) modified (1.1.2010) by The Northern Rock plc Transfer Order 2009 (S.I. 2009/3226), arts. 1(2)(b), 20(1)