32.—(1) Part 9 of the Act(1) (hearings and appeals) applies with respect to proceedings pursuant to references to the Tribunal under these Regulations and under the Act as applied by these Regulations (“relevant proceedings”) as it applies with respect to proceedings pursuant to references to the Tribunal under that Act, with the following modifications.
(2) Section 133 of the Act (proceedings before the Tribunal: general provision) applies as if—
(a)in subsection (1)—
(i)“(whether made under this or any other Act)” were omitted;
(ii)in paragraph (a) “or the PRA” were omitted;
(iii)paragraphs (b) and (c) were omitted;
(b)in subsection (2) “, (b) or (c)” were omitted;
(c)in subsection (5) the reference to section 393(11) were a reference to section 393(11) as applied by these Regulations;
(d)for subsection (7A) there were substituted—
“(7A) A reference is a “disciplinary reference” for the purposes of this section if it is in respect of either of the following decisions—
(a)a decision to publish a statement under regulation 23 of the Data Reporting Services Regulations 2017;
(b)a decision to impose a penalty under regulation 24 of those Regulations.”.
(3) Section 133A of the Act (proceedings before Tribunal: decision and supervisory notices, etc.) applies as if—
(a)for subsection (1) there were substituted—
“(1) In determining in accordance with section 133(5) (as applied by the Data Reporting Services Regulations 2017) a reference made as a result of a decision notice given by the FCA, the Tribunal may not direct the FCA to take action which it would not, under the Data Reporting Services Regulations 2017, have had power to take when giving the notice.”;
(b)in subsection (5) “or the PRA” were omitted.
(4) Section 133B of the Act (offences) applies as if in subsection (1)—
(a)in paragraph (a) “or the PRA” were omitted;
(b)paragraphs (b) and (c) were omitted.
33.—(1) Part 11 of the Act(2) (information gathering and investigations) applies with respect to the discharge by the FCA of its functions under these Regulations as it applies with respect to the discharge by the FCA of its functions under the Act, with the following modifications.
(2) Part 11 of the Act applies as if—
(a)each reference to the Act included a reference to these Regulations;
(b)each reference to a section or Part of, or Schedule to, the Act were a reference to that section, Part or Schedule as applied by these Regulations;
(c)each reference to an authorised person were a reference to a data reporting service provider;
(d)each reference to the PRA were omitted;
(e)each reference to a regulator were a reference to the FCA, and each reference to either regulator were a reference to the FCA only.
(3) Section 165 of the Act (regulators’ power to require information: authorised persons etc.) applies as if subsections (4)(b), (7)(b) to (e) and (8A) were omitted.
(4) Sections 165A (PRA’s power to require information: financial stability), 165B (safeguards etc. in relation to exercise of power under section 165A) and 165C (orders under section 165A(2)(d)) of the Act do not apply.
(5) Section 166 of the Act (reports by skilled persons) applies as if subsections (10) and (11) were omitted.
(6) Section 166A of the Act (appointment of skilled person to collect and update information) applies as if—
(a)for subsection (1) there were substituted—
“(1) This section applies if the FCA considers that a person has contravened a requirement imposed by or under the Data Reporting Services Regulations 2017 to collect, and keep up to date, information of a description specified in those Regulations.”;
(b)subsection (10) were omitted.
(7) Section 167 of the Act (appointment of persons to carry out general investigations) applies as if—
(a)for subsection (1) there were substituted—
“(1) If it appears to the FCA that there is good reason for doing so, the FCA may appoint one or more competent persons to conduct an investigation on its behalf into—
(a)the nature, conduct or state of the business of a person in respect of whom a requirement is imposed by or under the Data Reporting Services Regulations 2017 (“a person subject to the 2017 Regulations”);
(b)a particular aspect of that business; or
(c)the ownership or control of a person subject to the 2017 Regulations.”;
(b)subsections (2)(c) and (3A) were omitted;
(c)for subsection (4) there were substituted—
“(4) The power conferred by this section may be exercised in relation to a person who was formerly a person subject to the 2017 Regulations but only in relation to—
(a)business carried on when the person was a person subject to the 2017 Regulations; or
(b)the ownership or control of a person who was formerly a person subject to the 2017 Regulations at any time when the person was a person subject to the 2017 Regulations.”;
(d)subsections (5A) and (6) were omitted.
(8) Section 168 of the Act (appointment of persons to carry out investigations in particular cases) applies as if—
(a)for subsection (1) there were substituted—
“(1) Subsection (3) applies if it appears to the FCA that there are circumstances suggesting that—
(a)a data reporting service provider may have contravened a requirement imposed by or under the Data Reporting Services Regulations 2017;
(b)an authorised person who is not a data reporting service provider may have contravened a requirement imposed by or under those Regulations;
(c)a recognised body or a recognised CSD which is not a data reporting service provider may have contravened a requirement imposed by or under those Regulations;
(d)a member of the management body of a person referred to in paragraph (a), (b) or (c) or another member of the senior management of a person referred to in paragraph (a), (b) or (c) may be responsible for the contravention of a requirement imposed by or under those Regulations; or
(e)a person may be guilty of an offence under those Regulations or under this Act as applied by those Regulations.”;
(b)subsections (2), (4) and (5) were omitted;
(c)for subsection (6) there were substituted—
“(6) “Investigating authority” means the FCA.”.
(9) Section 169 of the Act (investigations etc. in support of overseas regulator) applies as if—
(a)subsection (2A) were omitted;
(b)for subsection (13) there were substituted—
“(13) “Overseas regulator” means an authority in a country or territory outside the United Kingdom which has functions corresponding to those of the FCA under the Data Reporting Services Regulations 2017.”.
(10) Section 169A of the Act (support of overseas regulator with respect to financial stability) does not apply.
(11) Section 170 of the Act (investigations: general) applies as if—
(a)each reference to the investigating authority were a reference to the FCA;
(b)in subsection (1) “or (5)” were omitted;
(c)for subsection (3) there were substituted—
“(3) Subsections (2) and (9) do not apply if the investigator is appointed as a result of section 168(1) and the FCA believes that the notice required by subsection (2) or (9) would be likely to result in the investigation being frustrated.”;
(d)subsection (10) were omitted.
(12) Section 171 of the Act (powers of persons appointed under section 167) applies as if subsections (3A) and (7) were omitted;
(13) Section 172 of the Act (additional power of persons appointed as a result of section 168(1) or (4)) applies as if in the heading and in subsection (4) “or (4)” were omitted.
(14) Section 173 of the Act (powers of persons appointed as a result of section 168(2)) does not apply.
(15) Section 174 of the Act (admissibility of statements made to investigators) applies as if—
(a)in subsection (2) “or in proceedings in relation to action to be taken against that person under section 123 to which this section applies” were omitted;
(b)in subsection (3)(a) for “398” substitute “regulation 29 of the Data Reporting Services Regulations 2017”;
(c)subsection (3A) were omitted;
(d)in subsection (4) the words from “or (5),” to the end were omitted;
(e)in subsection (5) “, 173” were omitted.
(16) Section 175 of the Act (information and documents: supplemental provisions) applies as if in subsection (8) “or (5)” were omitted.
(17) Section 176 of the Act (entry of premises under warrant) applies as if—
(a)for subsection (1) there were substituted—
“(1) A justice of the peace may issue a warrant under this section if satisfied on information on oath given by or on behalf of the FCA or an investigator that there are reasonable grounds for believing that the first, second or third set of conditions is satisfied.”;
(b)in subsection (3)(a) “or an appointed representative” were omitted;
(c)in subsection (10) “or (5)” were omitted;
(d)in subsection (11)—
(i)in paragraph (a) “87C, 87J,” and “,165A, 169A” were omitted;
(ii)in paragraph (b) “, 173” were omitted.
34. Sections 342 (information given by auditor or actuary to a regulator), 343 (information given by auditor or actuary to a regulator: persons with close links) and 344 (duty of auditor or actuary resigning etc. to give notice) of the Act(3) apply with respect to the auditor of a data reporting service provider as if—
(a)each reference to an authorised person were a reference to a data reporting service provider;
(b)each reference to a regulator were a reference to the FCA;
(c)each reference to “the appropriate regulator” were a reference to the FCA;
(d)references to an actuary were omitted;
(e)sections 342(2), 343(2) and 344(4) were omitted.
35. Sections 348 (restrictions on disclosure of confidential information by FCA, PRA etc.), 349 (exceptions from section 348) and 352 (offences) of the Act(4) apply with respect to information received under these Regulations and under the Act as applied by these Regulations as they apply with respect to information received under the Act as if—
(a)each reference to the Act included a reference to these Regulations;
(b)each reference to a section or Part of the Act were a reference to that section or Part as applied by these Regulations;
(c)in section 348(2), for “In this Part” there were substituted “In sections 348, 349 and 352 as applied by the Data Reporting Services Regulations 2017”;
(d)in section 352—
(i)in subsection (1) “or 350(5)” were omitted;
(ii)subsection (4) were omitted;
(iii)in subsection (5) “or (4)” were omitted;
(iv)in subsection (6)(a) “or that it had been disclosed in accordance with section 350” were omitted.
36.—(1) Part 25 of the Act(5) (injunctions and restitution) applies for the purposes of these Regulations and the Act as applied by these Regulations, with the following modifications.
(2) Part 25 of the Act applies as if—
(a)each reference to the Act included a reference to these Regulations;
(b)each reference to a section of the Act were a reference to that section as applied by these Regulations;
(c)each reference to a regulator, the regulator concerned or the appropriate regulator were a reference to the FCA;
(d)references to the Secretary of State were omitted;
(e)each reference to a relevant requirement were a reference to a requirement which is imposed by or under these Regulations, or the Act as applied by these Regulations.
(3) Section 380 of the Act (injunctions) applies as if subsections (6) to (12) were omitted.
(4) Section 381 of the Act (injunctions in cases of market abuse) does not apply.
(5) Section 382 of the Act (restitution orders) applies as if subsections (9) to (15) were omitted.
(6) Section 383 of the Act (restitution orders in cases of market abuse) does not apply.
(7) Section 384 of the Act (power of FCA or PRA to require restitution) applies as if—
(a)subsections (2) and (3) and references to those subsections were omitted;
(b)subsections (7) to (13) were omitted.
37.—(1) Part 26 of the Act(6) (notices) applies with respect to the giving of notices under these Regulations and under the Act as applied by these Regulations as it applies with respect to the giving of notices under the Act, with the following modifications.
(2) Part 26 of the Act applies as if—
(a)each reference to the Act included a reference to these Regulations;
(b)each reference to a section of the Act were a reference to that section as applied by these Regulations;
(c)each reference to a regulator or to the regulator concerned were a reference to the FCA;
(d)references to the PRA were omitted.
(3) Section 387 of the Act (warning notices) applies as if subsections (1A) and (3A) were omitted.
(4) Section 388 of the Act (decision notices) applies as if subsections (1A) and (2) were omitted.
(5) Section 391 of the Act (publication) applies as if—
(a)in subsection (1) the reference to a warning notice falling within subsection (1ZB) were to a warning notice given under regulation 25;
(b)in subsection (1ZA) the reference to a warning notice not falling within subsection (1ZB) were to a warning notice given under any other provision of these Regulations or under the Act as applied by these Regulations;
(c)subsection (1ZB) were omitted;
(d)in subsection (4A) the reference to sections 391A, 391B and 391C were omitted;
(e)subsections (5A), (6A), (8A), (8B) and (8C) were omitted;
(f)for subsection (11) there were substituted—
“(11) Section 425A(7) (meaning of “consumers”) applies for the purposes of this section as if—
(a)subsection (2)(c) were omitted;
(b)for subsection (3) there were substituted—
“(3) The services within this subsection are data reporting services within the meaning of the Data Reporting Services Regulations 2017.”;
(c)subsection (7) were omitted.”.
(6) Sections 391A (publication: special provisions relating to the capital requirements directive), 391B (publication: special provisions relating to the transparency obligations directive) and 391C (publication: special provisions relating to the UCITS directive) of the Act do not apply.
(7) Section 392 of the Act (application of sections 393 and 394) applies as if for paragraphs (a) and (b) there were substituted—
“(a)a warning notice given in accordance with—
(i)regulation 11(4)(a) of the Data Reporting Services Regulations 2017 (including that provision as applied by regulation 8),
(ii)regulation 25 of those Regulations, or
(iii)section 385 as applied by those Regulations;
(b)a decision notice given in accordance with—
(i)regulation 11(5)(b)(i) of those Regulations (including that provision as applied by regulation 8),
(ii)regulation 26 of those Regulations, or
(iii)section 386 as applied by those Regulations.”.
(8) Section 395 of the Act (the FCA’s and PRA’s procedures) applies as if—
(a)for subsection (1) there were substituted—
“(1) The FCA must determine the procedure that it proposes to follow in relation to a decision which gives rise to an obligation for it to give—
(a)a supervisory notice, warning notice or decision notice; or
(b)a decision under section 391(1)(c) to publish information about the matter to which a warning notice relates.”;
(b)in subsection (2)(a) for “any of paragraphs (a) to (c)” there were substituted “paragraph (a)”;
(c)in subsection (2)(b) for “(d)” there were substituted “(b)”;
(d)in subsection (2)(c)—
(i)for “(d)” there were substituted “(b)”;
(ii)for “(b) or (c)” there were substituted “(a)”;
(e)subsections (3)(b) and (4) were omitted;
(f)in subsection (9) “other than a warning notice or decision notice relating to a decision of the PRA that is required by a decision of the FCA of the kind mentioned in subsection (1)(b)(ii)” were omitted;
(g)subsection (9A) were omitted;
(h)for subsection (13) there were substituted—
“(13) “Supervisory notice” means a notice given in accordance with section 55Y of the Act(8) as applied by regulation 22 of the Data Reporting Services Regulations 2017.”.
(9) In paragraph (1), “notices under these Regulations” does not include a notice under—
(a)regulation 8(3) or (6)(a);
(b)regulation 10(6)(a) or (9)(a);
(c)regulation 11(5)(a) (including that provision as applied by regulation 8).
38.—(1) Part 27 of the Act(9) (offences) applies with respect to offences under these Regulations and the Act as applied by these Regulations as it applies with respect to offences under the Act, with the following modifications.
(2) Part 27 of the Act applies as if—
(a)each reference to the Act included a reference to these Regulations;
(b)each reference to a section of the Act were a reference to that section as applied by these Regulations;
(c)references to the Secretary of State were omitted;
(d)references to the appropriate regulator were references to the FCA.
(3) Sections 398 (misleading the FCA or PRA: residual cases) and 399 (misleading the CMA) of the Act do not apply.
(4) Section 400 of the Act (offences by bodies corporate) applies as if subsection (6A) were omitted.
(5) Section 401 of the Act (proceedings for offences) applies as if—
(a)subsection (1)(c) were omitted;
(b)subsections (3A), (3AB) and (3B) were omitted.
(6) Section 402 of the Act (power of FCA to institute proceedings for certain other offences) does not apply.
(7) Section 403(7) of the Act (jurisdiction and procedure in respect of offences) applies as if the words from “or an offence” to the end were omitted.
39. Section 413 of the Act (protected items) applies for the purposes of these Regulations as it applies for the purposes of the Act.
40.—(1) Paragraphs 19 to 23 (penalties and fees) and 25 (exemption from liability in damages) of Schedule 1ZA to the Act(10) apply with respect to the discharge by the FCA of its functions under these Regulations as they apply with respect to the discharge by it of its functions under the Act, with the following modifications.
(2) Those paragraphs apply as if—
(a)each reference to penalties imposed under the Act included a reference to penalties imposed under these Regulations;
(b)each reference to a section or Part of the Act included a reference to that section or Part as applied by these Regulations;
(c)each reference to the functions of the FCA included a reference to its functions under these Regulations.
(3) Paragraph 20 applies as if references to the FCA’s enforcement powers included—
(a)its powers under these Regulations and under Part 25 of the Act as applied by these Regulations;
(b)its powers in relation to the investigation of offences under these Regulations or under the Act as applied by these Regulations;
(c)its powers in England and Wales or Northern Ireland in relation to the prosecution of offences under these Regulations or under the Act as applied by these Regulations.
(4) Paragraph 21 applies as if regulated persons included data reporting service providers.
(5) Paragraph 23 applies as if references to qualifying functions included references to the functions of the FCA under these Regulations and under the Act as applied by these Regulations.
Part 9 was amended by section 23 of the Financial Services Act 2012, section 4 of the Financial Services (Banking Reform) Act 2013 (c.33), paragraph 83 of Schedule 9 to the Crime and Courts Act 2013 (c.22), S.I. 2010/22, 2013/1388, 2014/3329 and 2016/680.
Part 11 was amended by paragraph 54 of Schedule 26 to the Criminal Justice Act 2003 (c.44), paragraph 33 of Schedule 7 to the Counter Terrorism Act 2008 (c.28), section 18 of and Schedule 2 to the Financial Services Act 2010 (c.28), Schedule 12 to and paragraph 8 of Schedule 18 to the Financial Services Act 2012, paragraphs 36 and 37 of Schedule 2 to the Bank of England and Financial Services Act 2016 (c.14), paragraph 9 of Schedule 2 to the Investigatory Powers Act 2016 (c.25), S.I. 2001/1090, 2005/1433, 2007/126, 2011/1043, 2012/2554, 2013/1773, 2015/575 and 2016/680. There are other amendments but none is relevant.
Section 342 was amended by paragraph 4 of Schedule 13 to the Financial Services Act 2012 and S.I. 2013/3115. Section 343 was amended by paragraph 5 of Schedule 13 to the Financial Services Act 2012 and S.I. 2013/3115. Section 344 was amended by paragraph 6 of Schedule 13 to the Financial Services Act 2012.
Section 348 was amended by paragraph 26 of Schedule 2 to the Financial Services Act 2010 (c.28), paragraph 18 of Schedule 12 to the Financial Services Act 2012, paragraph 5 of Schedule 8 to the Financial Services (Banking Reform) Act 2013, paragraph 45 of Schedule 2 to the Bank of England and Financial Services Act 2016 and S.I. 2016/1239. Section 349 was amended by section 964 of the Companies Act 2006 (c.46), paragraph 19 of Schedule 12 to the Financial Services Act 2012, S.I. 2006/1183, 2007/1093 and 2011/1043. Section 352 was amended by paragraph 54 of Schedule 26 to the Criminal Justice Act 2003 (c.44).
Part 25 was amended by paragraphs 19, 21, 23, 24 and 25 of Schedule 9 to the Financial Services Act 2012, paragraph 3 of Schedule 10 to the Financial Services (Banking Reform) Act 2013 and S.I. 2007/126, 2013/1773, 2015/1755, 2016/225 and 680. There are other amendments but none is relevant.
Part 26 was amended by paragraph 11 of Schedule 4 to the Regulation of Investigatory Powers Act 2000 (c.23), sections 13 and 24 of and paragraphs 28 and 29 of Schedule 2 to the Financial Services Act 2010, sections 17, 18, 19 and 24 of and paragraph 37 of Schedule 8, Schedule 9 and paragraph 8 of Schedule 13 to the Financial Services Act 2012, section 4 of and Schedule 3 to the Financial Services (Banking Reform) Act 2013, paragraph 43 of Schedule 10 to the Investigatory Powers Act 2016, S.I. 2005/381, 2005/1433, 2007/126, 2007/1973, 2009/534, 2010/22, 2010/747, 2012/916, 2013/1388, 2013/3115, 2014/2879, 2015/1755, 2016/225, 2016/680, 2016/715 and 2016/1239. There are other amendments but none is relevant.
Section 425A was inserted by paragraph 32 of Schedule 2 to the Financial Services Act 2010 and amended by S.I. 2013/655 and 2013/3115.
Section 55Y was inserted by section 11 of the Financial Services Act 2012.
Part 27 was amended by section 95 of and paragraphs 37, 38 and 40 of Schedule 9 to the Financial Services Act 2012 and S.I. 2013/1881 and 2016/1239. There are other amendments but none is relevant.
Schedule 1ZA was inserted by Schedule 3 to the Financial Services Act 2012 and is amended by section 109 of, paragraph 7 of Schedule 8 to and paragraph 4 of Schedule 10 to the Financial Services (Banking Reform) Act 2013, section 29 of the Bank of England and Financial Services Act 2016 and S.I. 2013/1773. There are other amendments but none is relevant.