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The Financial Services and Markets (Disclosure of Information to the European Securities and Markets Authority etc. and Other Provisions) Regulations 2016

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Amendment of the Financial Services and Markets Act 2000

This section has no associated Explanatory Memorandum

3.—(1) The Financial Services and Markets Act 2000 is amended as follows.

(2) In section 87D(1) (procedure for decision on application for approval)—

(a)in subsection (1) after “the applicant” insert “and ESMA”; and

(b)after subsection (1) insert—

(1A) The written notice to ESMA must be accompanied by a copy of the prospectus as approved..

(3) After section 354C(2) insert—

Provision of information to ESMA, the Commission and other EEA States

Information under the markets in financial instruments directive

354D.(1) The appropriate regulator must give ESMA—

(a)information about any general difficulties encountered by UK investment firms in relation to their establishment of a branch or their provision of investment services and activities in a country or territory other than an EEA State;

(b)a return for each calendar year showing aggregated information about all—

(i)cases dealt with under section 177(2)(3) (failure to comply with information gathering and investigation requirements treated as contempt of court) where the requirement was imposed in connection with the regulator’s markets in financial instruments directive functions;

(ii)convictions for an offence under section 177(3), (4) or (6) where the proceedings were instituted by the regulator in connection with the regulator’s markets in financial instruments directive functions;

(iii)final notices and supervisory notices given by the regulator in relation to the contravention of a markets in financial instruments directive requirement; and

(c)information about any complaint and redress procedures of the kind referred to in Article 53.1 of the markets in financial instruments directive which are available in the United Kingdom.

(2) The appropriate regulator must also give the information specified in subsection (1)(a) to the Commission.

(3) The PRA is the “appropriate regulator”—

(a)for the purposes of subsection (1)(a), in relation to UK investment firms which are PRA-authorised persons;

(b)for the purposes of subsection (1)(b)(i), where the case relates to a failure to comply with a requirement imposed by the PRA or by a person appointed by the PRA;

(c)for the purposes of subsection (1)(b)(ii), where the conviction is for an offence in relation to which the PRA is the appropriate regulator under section 401(3A)(4);

(d)for the purposes of subsection (1)(b)(iii), where the notice was given by the PRA; and

(e)for the purposes of subsection (1)(c), where the procedure is only available in relation to investment firms which are PRA-authorised persons.

(4) The FCA is the “appropriate regulator” in any other case.

(5) The FCA must give ESMA—

(a)notice of any determination which the FCA makes in relation to any shares in compliance with Article 27.2 of the markets in financial instruments directive;

(b)a list of the regulated markets (within the meaning given by Article 4.1.14 of the markets in financial instruments directive) for which the United Kingdom is the home Member State (within the meaning given by Article 4.1.20(b) of that directive); and

(c)notice of any change to that list.

(6) The FCA must also give the information specified in subsection (5)(b) and (c) to all EEA States other than the United Kingdom.

(7) Section 424A(5) (meaning of “investment firm”) has effect for the purposes of this section as if subsections (3) and (4) were omitted.

(8) In this section—

“final notice” means a notice given under section 390(6);

“markets in financial instruments directive function” means a function conferred by any provision made by or under this Act to the extent that it implements the markets in financial instruments directive;

“markets in financial instruments directive requirement” means a requirement imposed—

(a)

by or under any provision made by or under this Act which implements the markets in financial instruments directive; or

(b)

by any directly applicable EU regulation made under the markets in financial instruments directive;

“supervisory notice” has the meaning given by section 395(13)(7); and

“UK investment firm” means an investment firm whose home Member State (within the meaning given by Article 4.1.20(a) of the markets in financial instruments directive) is the United Kingdom.

Competent authorities under the markets in financial instruments directive: designation and co-operation

354E.(1) The Treasury must inform the Commission, ESMA and the competent authorities established in EEA States other than the United Kingdom—

(a)of the identity of the authority (or authorities) for the time being designated by the Treasury under Article 48.1 of the markets in financial instruments directive (designation of authorities competent to carry out duties under that directive); and

(b)if more than one authority is designated, of the division of responsibilities between them.

(2) The Treasury must inform the Commission, ESMA and EEA States other than the United Kingdom of the identity of the authority for the time being designated by the Treasury under Article 56.1 of the markets in financial instruments directive as a contact point for the purposes of that directive (obligation to co-operate with competent authorities of other member States).

(3) Subsection (4) applies where the FCA or the PRA has good reason to suspect that any person, other than an authorised person who has a Part 4A permission or a recognised investment exchange, has acted or is acting in an EEA State other than the United Kingdom in a manner contrary to the markets in financial instruments directive.

(4) The FCA must give a competent authority established in that State and ESMA notice of those suspicions, together with information, which is as specific as reasonably practicable under the circumstances, about the reason for those suspicions.

(5) Subsections (6) and (7) apply where a competent authority established in an EEA State other than the United Kingdom informs the FCA that it has good reason to suspect that an authorised person who has a Part 4A permission or a recognised investment exchange has acted or is acting in a manner contrary to the markets in financial instruments directive.

(6) If the information relates to a PRA-authorised person, the FCA must inform the PRA.

(7) The FCA must inform the competent authority and ESMA—

(a)of the outcome of any action taken by the FCA or PRA in response to receiving that information; and

(b)if reasonably practicable under the circumstances, of significant interim developments resulting from that action.

(8) Subsections (9) and (10) apply where the FCA receives a request by a competent authority established in an EEA State other than the United Kingdom—

(a)under Article 57 of the markets in financial instruments directive for co-operation in carrying out any investigation, on-the-spot verification or supervisory activity; or

(b)for the supply of information required for the purposes referred to in Article 58.1 of that directive.

(9) If the request relates to a PRA-authorised person, the FCA must inform the PRA.

(10) Where the FCA or the PRA refuses on the grounds in Article 59(a), (b) or (c) of the markets in financial instruments directive to act on the request, the FCA must give the competent authority and ESMA notice of the refusal, together with as much detailed information as possible about the reasons for the refusal.

(11) The PRA must provide the FCA with information required by the FCA for the purposes of complying with subsections (4), (7) and (10)(8).

(12) In this section “competent authority” means an authority designated by an EEA State under Article 48.1 of the markets in financial instruments directive.

Information under the transparency obligations directive

354F.(1) The FCA must give ESMA notice of any exemption which the FCA grants from a requirement referred to in Article 23.1 of the transparency obligations directive(9) (requirement relating to the provision of information by issuers of transferable securities situated in third countries).

(2) “Transparency obligations directive” has the meaning given in section 103(1)(10).

Information under the UCITS directive

354G.(1) The FCA must give the Commission and ESMA—

(a)information about any general difficulties which UK UCITS (within the meaning given in section 237(3)(11)) encounter in marketing their units in a country or territory other than an EEA State; and

(b)the lists referred to in the third sub-paragraph of Article 52.4 of the UCITS directive(12) (categories of bonds and of authorised issuers) and the notice required to be attached to those lists (specifying the status of guarantees offered).

(2) The Treasury must inform the Commission and ESMA—

(a)of the identity of the authority (or authorities) for the time being designated by the Treasury under Article 97.1 of the UCITS directive (designation of authorities competent to carry out duties under that directive);

(b)if more than one authority is designated, of the division of responsibilities between them; and

(c)of the names of the authorities with which the authority (or authorities) so designated may exchange information pursuant to Article 103.1 and 103.4 of the UCITS directive.

(3) The Treasury must also give the information specified in subsection (2)(c) to all other EEA States.

(4) In this section “units” means the rights or interests (however described) of the participants in a UK UCITS..

(1)

Section 87D, together with sections 84 to 87, 87A to 87C and 87E to 87R, was substituted by S.I. 2005/1433.

(2)

Section 354C was substituted by the Financial Services Act 2012 (c. 21), Schedule 12, paragraph 25.

(3)

Section 177(2) was amended by the Financial Services Act 2012, Schedule 18, paragraphs 1 and 25, and by S.I. 2001/1090.

(4)

Subsection (3A) of section 401 was inserted by the Financial Services Act 2012, Schedule 9, paragraphs 1 and 38(1) and (4).

(5)

Section 424A was inserted by S.I. 2006/2975.

(6)

Section 390 was amended by the Financial Services Act 2012, Schedule 9, paragraphs 1 and 29, and by S.I. 2010/22.

(7)

Section 395(13) was amended by the Financial Services Act 2012, sections 17(1) and (3), 18(1) and (6), 19(2) and 24(3) and Schedule 9, paragraphs 1 and 34(1) and (13); by the Financial Services (Banking Reform) Act 2013 (c. 33), Schedule 3, paragraph 14; and by S.I. 2005/381, 2005/1433, 2007/1973, 2009/534 and 2013/1388.

(8)

By a letter to the European Commission dated 29 April 2013 the Treasury notified its designation of the FCA under Article 56.1 of the markets in financial instruments directive as a contact point for the purposes of that directive.

(9)

OJ No. L 390, 31.12.2004, p. 38-57.

(10)

The definition was inserted by the Companies Act 2006 (c. 46), section 1265, and was amended by S.I. 2012/1538.

(11)

The definition was inserted by S.I. 2011/1613 and amended by S.I. 2013/1388.

(12)

OJ No. L 302, 17.11.2009, p. 32-96.

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