The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001

[F1 [F2 PART 2 U.K. Articles 5 to 8, 10 and 11 of the Commission Regulation

Textual Amendments

F1 Sch. 2 substituted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 29

F2 Sch. 2 Pt. 2 substituted (1.4.2017 for specified purposes, 3.1.2018 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2017 (S.I. 2017/488), arts. 1(2), 10(4)

Article 5 U.K. Wholesale energy products that must be physically settled

1.   For the purposes of [F3 paragraphs 6 and 7 of Part 1 of Schedule 2 to this Order], a wholesale energy product must be physically settled where all the following conditions are satisfied: U.K.

(a) it contains provisions which ensure that parties to the contract have proportionate arrangements in place to be able to make or take delivery of the underlying commodity; a balancing agreement with the Transmission System Operator in the area of electricity and gas shall be considered a proportionate arrangement where the parties to the agreement have to ensure physical delivery of electricity or gas.

(b) it establishes unconditional, unrestricted and enforceable obligations of the parties to the contract to deliver and take delivery of the underlying commodity;

(c) it does not allow either party to replace physical delivery with cash settlement;

(d) the obligations under the contract cannot be offset against obligations from other contracts between the parties concerned, without prejudice to the rights of the parties to the contract, to net their cash payment obligations.

For the purposes of point (d), operational netting in power and gas markets shall not be considered as offsetting of obligations under a contract against obligations from other contracts.

Textual Amendments

F3 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(a)(i) (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/710, regs. 1(2), 16(2)(b)(i)); 2020 c. 1, Sch. 5 para. 1(1)

2.   Operational netting shall be understood as any nomination of quantities of power and gas to be fed into a gridwork upon being so required by the rules or requests of a Transmission System Operator as defined in Article 2(4) of Directive 2009/72/EC of the European Parliament and of the Council for an entity performing an equivalent function to a Transmission System Operator at the national level. Any nomination of quantities based on operational netting shall not be at the discretion of the parties to the contract. U.K.

3.   For the purposes of [F4 paragraphs 6 and 7 of Part 1 of Schedule 2 to this Order], force majeure shall include any exceptional event or a set of circumstances which are outside the control of the parties to the contract, which the parties to the contract could not have reasonably foreseen or avoided by the exercise of appropriate and reasonable due diligence and which prevent one or both parties to the contract from fulfilling their contractual obligations. U.K.

Textual Amendments

F4 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(a)(ii) (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/710, regs. 1(2), 16(2)(b)(i)); 2020 c. 1, Sch. 5 para. 1(1)

4.   For the purposes of [F5 paragraphs 6 and 7 of Part 1 of Schedule 2 to this Order] bona fide inability to settle shall include any event or set of circumstances, not qualifying as force majeure as referred to in paragraph 3, which are objectively and expressly defined in the contract terms, for one or both parties to the contract, acting in good faith, not to fulfil their contractual obligations. U.K.

Textual Amendments

F5 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(a)(ii) (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/710, regs. 1(2), 16(2)(b)(i)); 2020 c. 1, Sch. 5 para. 1(1)

5.   The existence of force majeure or bona fide inability to settle provisions shall not prevent a contract from being considered as ‘physically settled’ for the purposes of [F6 paragraphs 6 and 7 of Part 1 of Schedule 2 to this Order]. U.K.

Textual Amendments

F6 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(a)(ii) (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/710, regs. 1(2), 16(2)(b)(i))); 2020 c. 1, Sch. 5 para. 1(1)

6.   The existence of default clauses providing that a party is entitled to financial compensation in the case of non- or defective performance of the contract shall not prevent the contract from being considered as ‘physically settled’ within the meaning of [F7 paragraphs 6 and 7 of Part 1 of Schedule 2 to this Order]. U.K.

Textual Amendments

F7 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(a)(ii) (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/710, regs. 1(2), 16(2)(b)(i)); 2020 c. 1, Sch. 5 para. 1(1)

7.   The delivery methods for the contracts being considered as ‘physically settled’ within the meaning of [F8 paragraphs 6 and 7 of Part 1 of Schedule 2 to this Order] shall include at least: U.K.

(a) physical delivery of the relevant commodities themselves;

(b) delivery of a document giving rights of an ownership nature to the relevant commodities or the relevant quantity of the commodities concerned;

(c) other methods of bringing about the transfer of rights of an ownership nature in relation to the relevant quantity of goods without physically delivering them including notification, scheduling or nomination to the operator of an energy supply network, that entitles the recipient to the relevant quantity of the goods.

Textual Amendments

F8 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(a)(ii) (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/710, regs. 1(2), 16(2)(b)(i)); 2020 c. 1, Sch. 5 para. 1(1)

Article 6 U.K. Energy derivative contracts relating to oil and coal and wholesale energy products

1.   For the purposes of [F9 paragraph 6 of Part 1 of Schedule 2 to this Order], energy derivative contracts relating to oil shall be contracts with mineral oil, of any description and petroleum gases, whether in liquid or vapour form, including products, components and derivatives of oil and oil transport fuels, including those with biofuel additives, as an underlying. U.K.

Textual Amendments

F9 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by S.I. 2018/1403, reg. 4(4)(b)(i) (as substituted by The Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/710), regs. 1(2), 16(2)(b)(ii) (as amended by S.I. 2018/1403, reg. 004(04)(b)(i)); 2020 c. 1, Sch. 5 para. 1(1))

2.   For the purposes of [F10 paragraph 6 of Part 1 of Schedule 2 to this Order], energy derivative contracts relating to coal shall be contracts with coal, defined as a black or dark-brown combustible mineral substance consisting of carbonised vegetable matter, used as a fuel, as an underlying. U.K.

Textual Amendments

F10 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by S.I. 2018/1403, reg. 4(4)(b)(i) (as substituted by The Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/710), regs. 1(2), 16(2)(b)(ii) (as amended by S.I. 2018/1403, reg. 004(04)(b)(i)); 2020 c. 1, Sch. 5 para. 1(1))

3.   For the purposes of [F11 paragraphs 6 and 7 of Schedule 2 to this Order], energy derivative contracts that have the characteristics of wholesale energy products as defined in Article 2(4) of Regulation (EU) 1227/2011 of the European Parliament and Council shall be derivatives with electricity or natural gas as an underlying, in accordance with points (b) and (d) of Article 2(4) of that Regulation. U.K.

Textual Amendments

F11 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by S.I. 2018/1403, reg. 4(4)(b)(ii) (as substituted by The Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/710), regs. 1(2), 16(2)(b)(ii) (as amended by S.I. 2018/1403, reg. 004(04)(b)(ii)); 2020 c. 1, Sch. 5 para. 1(1))

Article 7 U.K. Other derivative financial instruments

1.   For the purposes of [F12 paragraph 7 of Part 1 of Schedule 2 to this Order], a contract which is not a spot contract in accordance with paragraph 2 and which is not for commercial purposes as laid down in paragraph 4 shall be considered as having the characteristics of other derivative financial instruments where it satisfies the following conditions: U.K.

(a) it meets one of the following criteria:

[F13 (i) it is traded on a third country trading venue which is a regulated market, an MTF or an OTF (as defined by Article 2(1)(13), (14) and (15) respectively of the markets in financial instruments regulation);]

(ii) it is expressly stated to be traded on, or is subject to the rules of, [F14 a UK regulated market, a UK MTF, a UK OTF (as defined by Article 2(1)(13A), (14A) and (15A) respectively of the markets in financial instruments regulation);] or such a third country trading venue;

(iii) it is equivalent to a contract traded on [F15 a UK regulated market, a UK MTF, a UK OTF] or such a third country trading venue, with regards to the price, the lot, the delivery date and other contractual terms;

(b) it is standardised so that the price, the lot, the delivery date and other terms are determined principally by reference to regularly published prices, standard lots or standard delivery dates.

Textual Amendments

F12 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(c)(i)(aa) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F13 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(c)(i)(bb) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F14 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(c)(i)(cc) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F15 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(c)(i)(dd) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

2.   A spot contract for the purposes of paragraph 1 shall be a contract for the sale of a commodity, asset or right, under the terms of which delivery is scheduled to be made within the longer of the following periods: U.K.

(a) 2 trading days;

(b) the period generally accepted in the market for that commodity, asset or right as the standard delivery period.

A contract shall not be considered a spot contract where, irrespective of its explicit terms, there is an understanding between the parties to the contract that delivery of the underlying is to be postponed and not to be performed within the period referred to in paragraph 2.

3.   For the purposes of [F16 paragraph 10 of Part 1 of Schedule 2 to this Order], a derivative contract relating to an underlying referred to in that Section or in Article 8 of this Regulation shall be considered to have the characteristics of other derivative financial instruments where one of the following conditions is satisfied: U.K.

(a) it is settled in cash or may be settled in cash at the option of one or more of the parties, otherwise than by reason of a default or other termination event;

(b) it is traded on a regulated market, an MTF, an OTF F17 ...;

(c) the conditions laid down in paragraph 1 are satisfied in relation to that contract.

Textual Amendments

F16 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(c)(ii)(aa) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F17 Words in Sch. 2 Pt. 2 omitted (31.12.2020) by virtue of The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(c)(ii)(bb) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

4.   A contract shall be considered to be for commercial purposes for the purposes of [F18 paragraph 7 of Part 1 of Schedule 2 to this Order], and as not having the characteristics of other derivative financial instruments for the purposes of [F19 paragraphs 7 and 10 of Part 1 of Schedule 2 to this Order], where the following conditions are both met: U.K.

(a) it is entered into with or by an operator or administrator of an energy transmission grid, energy balancing mechanism or pipeline network,

(b) it is necessary to keep in balance the supplies and uses of energy at a given time, including the case when the reserve capacity contracted by an electricity transmission system operator as defined in Article 2(4) of Directive 2009/72/EC is being transferred from one prequalified balancing service provider to another prequalified balancing service provider with the consent of the relevant transmission system operator.

Textual Amendments

F18 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(c)(iii)(aa) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F19 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(c)(iii)(bb) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

Article 8 U.K. Derivatives under [F20 paragraph 10 of Part 1 of Schedule 2]

Textual Amendments

F20 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(d)(i) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

In addition to derivative contracts expressly referred to in [F21 paragraph 10 of Part 1 of Schedule 2 to this Order], a derivative contract shall be subject to the provisions in [F22 that Part] where it meets the criteria set out in [F22 that Part] and in Article 7(3) of this Regulation and it relates to any of the following:

(a) telecommunications bandwidth;

(b) commodity storage capacity;

(c) transmission or transportation capacity relating to commodities, whether cable, pipeline or other means with the exception of transmission rights related to electricity transmission cross zonal capacities when they are, on the primary market, entered into with or by a transmission system operator or any persons acting as service providers on their behalf and in order to allocate the transmission capacity;

(d) an allowance, credit, permit, right or similar asset which is directly linked to the supply, distribution or consumption of energy derived from renewable resources, except if the contract is already with the scope of [F23 paragraph 4 of Part 1 of Schedule 2 to this Order];

(e) a geological, environmental or other physical variable, except if the contract is relating to any [F24 emission allowances referred to in paragraph 11 of Part 1 of Schedule 2 to this Order];

(f) any other asset or right of a fungible nature, other than a right to receive a service, that is capable of being transferred;

(g) an index or measure related to the price or value of, or volume of transactions in any asset, right, service or obligation;

(h) an index or measure based on actuarial statistics.

Textual Amendments

F21 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(d)(ii)(aa) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F22 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(d)(ii)(bb) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F23 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(d)(iii) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F24 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(d)(iv) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

Article 10 U.K. Characteristics of other derivative contracts relating to currencies

1.   For the purposes of [F25 paragraph 4 of Part 1 of Schedule 2 to this Order], other derivative contracts relating to a currency shall not be a financial instrument where the contract is one of the following: U.K.

(a) a spot contract within the meaning of paragraph 2 of this Article,

(b) a means of payment that:

(i) must be settled physically otherwise than by reason of a default or other termination event;

(ii) is entered into by at least a person which is not a financial counterparty within the meaning of Article 2(8) of Regulation (EU) No. 648/2012 of the European Parliament and of the Council;

(iii) is entered into in order to facilitate payment for identifiable goods, services or direct investment; and

(iv) is not traded on a trading venue.

Textual Amendments

F25 Words in Sch. 2 Pt. 2 substituted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(e) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

2.   A spot contract for the purposes of paragraph 1 shall be a contract for the exchange of one currency against another currency, under the terms of which delivery is scheduled to be made within the longer of the following periods: U.K.

(a) 2 trading days in respect of any pair of the major currencies set out in paragraph 3;

(b) for any pair of currencies where at least one currency is not a major currency, the longer of 2 trading days or the period generally accepted in the market for that currency pair as the standard delivery period;

(c) where the contract for the exchange of those currencies is used for the main purpose of the sale or purchase of a transferable security or a unit in a collective investment undertaking, the period generally accepted in the market for the settlement of that transferable security or a unit in a collective investment undertaking as the standard delivery period or 5 trading days, whichever is shorter.

A contract shall not be considered a spot contract where, irrespective of its explicit terms, there is an understanding between the parties to the contract that delivery of the currency is to be postponed and not to be performed within the period set out in the first subparagraph.

3.   The major currencies for the purposes of paragraph 2 shall only include the US dollar, Euro, Japanese yen, Pound sterling, Australian dollar, Swiss franc, Canadian dollar, Hong Kong dollar, Swedish krona, New Zealand dollar, Singapore dollar, Norwegian krone, Mexican peso, Croatian kuna, Bulgarian lev, Czech koruna, Danish krone, Hungarian forint, Polish złoty and Romanian leu. U.K.

4.   For the purposes of paragraph 2, a trading day shall mean any day of normal trading in the jurisdiction of both the currencies that are exchanged pursuant to the contract for the exchange of those currencies and in the jurisdiction of a third currency where any of the following conditions are met: U.K.

(a) the exchange of those currencies involves converting them through that third currency for the purposes of liquidity;

(b) the standard delivery period for the exchange of those currencies references the jurisdiction of that third currency.

Article 11 U.K. Money-market instruments

[F26 (1)] Money-market instruments F27 ... shall include treasury bills, certificates of deposits, commercial papers and other instruments with substantively equivalent features where they have the following characteristics:

(a) they have a value that can be determined at any time;

(b) they are not derivatives;

(c) they have a maturity at issuance of 397 days or less.

[F28 (2) For the purposes of this Article, “money market instruments” means those classes of instruments which are normally dealt with on the money market, such as treasury bills, certificates of deposit and commercial papers and excluding instruments of payment.]]]

Textual Amendments

F26 Words in Sch. 2 Pt. 2 renumbered (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(f)(i) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F27 Words in Sch. 2 Pt. 2 omitted (31.12.2020) by virtue of The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(f)(ii) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

F28 Words in Sch. 2 Pt. 2 inserted (31.12.2020) by The Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/1403), regs. 1(3), 4(4)(f)(iii) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)