Financial Services and Markets Act 2000

39 Exemption of appointed representatives.U.K.

This section has no associated Explanatory Notes

(1)If a person (other than an authorised person)—

(a)is a party to a contract with an authorised person (“his principal”) which—

(i)permits or requires him to carry on business of a prescribed description, and

(ii)complies with such requirements as may be prescribed, and

(b)is someone for whose activities in carrying on the whole or part of that business his principal has accepted responsibility in writing,

he is exempt from the general prohibition in relation to any regulated activity comprised in the carrying on of that business for which his principal has accepted responsibility.

[F1(1A)But a person is not exempt as a result of subsection (1)—

(a)if his principal is an investment firm or a credit institution, and

(b)so far as the business for which his principal has accepted responsibility is investment services business,

unless he is entered on the applicable register.

(1B)The “applicable register” is—

(a)in the case of a person established in an EEA State (other than the United Kingdom) which permits investment firms authorised by the competent authority of that State to appoint tied agents, the register of tied agents maintained in that State pursuant to Article 23 of the markets in financial instruments directive;

(b)in the case of a person established in an EEA State which does not permit investment firms authorised as mentioned in paragraph (a) to appoint tied agents—

(i)if his principal has his relevant office in the United Kingdom, the record maintained by the Authority by virtue of section 347(1)(ha), and

(ii)if his principal is established in an EEA State (other than the United Kingdom) which permits investment firms authorised by the competent authority of the State to appoint tied agents, the register of tied agents maintained by that State pursuant to Article 23 of the markets in financial instruments directive; and

(c)in any other case, the record maintained by the Authority by virtue of section 347(1)(ha).]

(2)A person who is exempt as a result of subsection (1) is referred to in this Act as an appointed representative.

(3)The principal of an appointed representative is responsible, to the same extent as if he had expressly permitted it, for anything done or omitted by the representative in carrying on the business for which he has accepted responsibility.

(4)In determining whether an authorised person has complied with a provision contained in or made under this Act, [F2or with a provision contained in any directly applicable Community regulation made under the markets in financial instruments directive,] anything which a relevant person has done or omitted as respects business for which the authorised person has accepted responsibility is to be treated as having been done or omitted by the authorised person.

(5)Relevant person” means a person who at the material time is or was an appointed representative by virtue of being a party to a contract with the authorised person.

(6)Nothing in subsection (4) is to cause the knowledge or intentions of an appointed representative to be attributed to his principal for the purpose of determining whether the principal has committed an offence, unless in all the circumstances it is reasonable for them to be attributed to him.

[F3(7)A person carries on “investment services business” if—

(a)the business includes providing services or carrying on activities of the kind mentioned in Article 4.1.25 of the markets in financial instruments directive, and

(b)as a result of providing such services or carrying on such activities he is a tied agent or would be if he were established in an EEA State.

(8)In this section—

  • competent authority” has the meaning given in Article 4.1.22 of the markets in financial instruments directive;

  • 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 relevant office in an EEA State;

  • relevant office” means—

    (a)

    in relation to a body corporate, its registered office or, if it has no registered office, its head office, and

    (b)

    in relation to a person other than a body corporate, the person's head office.]

Textual Amendments

Modifications etc. (not altering text)

C1S. 39(2) modified (31.10.2001) by S.I. 2001/3374, art. 1, Sch. para. 7

Commencement Information

I1S. 39 wholly in force at 1.12.2001; s. 39 not in force at Royal Assent see s. 431(2); s. 39(1) in force for certain purposes at 25.2.2001 by S.I. 2001/516, art. 2(b), Sch. Pt. 2; s. 39 in force in so far as not already in force at 1.12.2001 by S.I. 2001/3538, art. 2(1)