The Financial Services Act 2012 (Transitional Provisions) (Enforcement) Order 2013

CHAPTER 1 Transfer elections

Warning notices

19.—(1) Paragraph (2) applies where, before the commencement date, the Authority—

(a) gave a warning notice under FSMA 2000; and

(b) had not given a decision notice or a notice of discontinuance following that warning notice.

(2) The FCA may make a transfer election (see article 24) in respect of the whole or part of the warning notice.

(3) This article does not apply to a warning notice given under the following provisions—

(a) section 52(6) or (7) (determination of applications);

(b) section 189(4)(b) (assessment: procedure);

(c) section 191A(4) (objection);

(d) section 321(8) (requirements imposed under section 320);

(e) section 345(2) (disqualification), whether as a result of section 345 or of section 249;

(f) paragraph 19(8) of Schedule 3 (establishment).

Written notices

20.—(1) Paragraph (2) applies where, before the commencement date, the Authority gave a written notice under—

(a) section 53(4), (7) or (8)(b) (exercise of own-initiative power: procedure);

(b) section 197(3), (6) or (7)(b) (procedure on exercise of power of intervention);

(c) section 200(2) (rescission and variation of requirements).

(2) The FCA may make a transfer election (see article 24) in relation to the whole or part of the written notice provided that, before the transfer election is made—

(a) the written notice was not referred to the Tribunal; or

(b) where the written notice was referred to the Tribunal—

(i) the Tribunal remitted the matter to the Authority without an appeal being made in relation to the determination of the Tribunal, or

(ii) if such an appeal was brought, it was determined, and

the FCA had not taken action in reliance on the written notice or given a further written notice.

Decision notices

21.—(1) Paragraph (2) applies where, before the commencement date, the Authority gave a decision notice under FSMA 2000.

(2) The FCA may make a transfer election (see article 24) in relation to the whole or part of the decision notice provided that, before the transfer election is made—

(a) the decision notice was not referred to the Tribunal; or

(b) where the decision notice was referred to the Tribunal—

(i) the Tribunal remitted the matter to the Authority without an appeal being made in relation to the determination of the Tribunal, or

(ii) if such an appeal was brought, it was determined, and

the FCA had not given a final notice, a notice of discontinuance or a further decision notice.

(3) This article does not apply to a decision notice given under any of the following provisions—

(a) section 52(9) (determination of applications);

(b) section 189(7) (assessment: procedure);

(c) section 191A(6) (objection);

(d) section 321(9) (requirements imposed under section 320);

(e) section 345(3) (disqualification), whether as a result of section 345 or of section 249;

(f) paragraph 19(12) of Schedule 3 (establishment).

Final notices

22.—(1) Paragraph (2) applies where—

(a) the Authority gave a final notice before the commencement date in accordance with section 390(3) (final notices) and, on the commencement date, the statement had not been published;

(b) the Authority gave a final notice before the commencement date in accordance with section 390(4) and, on the commencement date, the order had not been complied with or had not yet come into effect;

(c) the Authority gave a final notice before the commencement date in accordance with section 390(5) and, on the commencement date, the penalty had not been paid;

(d) the Authority gave a final notice before the commencement date in accordance with section 390(6) and, on the commencement date, the required payment or distribution had not been made;

(e) the Authority gave a final notice before the commencement date in accordance with section 390(7) and, on the commencement date, action had not yet been taken.

(2) The FCA may make a transfer election (see article 24) in relation to the whole or part of the final notice.

Suspension of permission to carry on regulated activities etc

23.—(1) Paragraph (2) applies if, before the commencement date—

(a) the Authority had, under section 206A—

(i) suspended a permission, or

(ii) imposed a limitation or a restriction,

for such period as it considered appropriate;

(b) the period had not expired; and

(c) the Authority had not withdrawn the suspension, limitation or restriction.

(2) The FCA may make a transfer election (see article 24) in relation to the suspension, limitation or restriction.

Transfer elections

24.—(1) The FCA may only make a transfer election—

(a) within the period of 45 days which begins on the commencement date; and

(b) with the consent of the PRA.

(2) A transfer election must—

(a) be in writing;

(b) specify the notice, suspension, limitation or restriction to which the transfer election relates;

(c) in the case of a notice, specify whether the transfer election relates to the whole or to part of the notice; and

(d) if the transfer election relates to part of a notice, specify—

(i) the part to which the transfer election relates, and

(ii) whether that part is to be treated as is if it had been given—

(aa) by the PRA, or

(bb) by both regulators.

(3) The FCA must send the transfer election, or a copy of it, to—

(a) in the case of a notice—

(i) each person to whom the notice to which the election relates was sent, and

(ii) each person to whom a copy of the notice to which the election relates was sent;

(b) in the case of a suspension, limitation or restriction, the person on whom the suspension, limitation or restriction was imposed; and

(c) the PRA.

Effect of a transfer election

25.—(1) Where a transfer election relates to—

(a) the whole of a notice, the notice is to be treated as if it had been given by the PRA;

(b) a specified part of a notice, the specified part is to be treated as if it had been given by—

(i) where article 24(2)(d)(ii)(aa) applies, the PRA;

(ii) where article 24(2)(d)(ii)(bb) applies, both regulators;

and section 394(1) (access to FCA and PRA material) applies accordingly.

(2) Where the FCA makes a transfer election in relation to a notice or part of a notice—

(a) any representations made—

(i) on or before the date of the transfer election,

(ii) to the Authority or to the FCA, and

(iii) in respect of the notice or specified part to which the election relates,

are to be treated as if they had been made to the PRA (as well as, where relevant, to the FCA);

(b) if the period for making representations in respect of a notice or specified part had not expired before the date of the transfer election, representations are to be made to the PRA and, where article 24(2)(d)(ii)(bb) applies, the FCA, before the end of that period; and

(c) in a case to which article 20(2)(b) or 21(2)(b) applies, any directions given by the Tribunal in relation to the notice or the specified part are to be treated as if they had been given to the PRA (as well as, where relevant, to the FCA).

(1)

Section 394 is amended by the 2012 Act, Schedule 9, Part 1, paragraph 33.