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[F1PART 9AU.K.Rules and Guidance

Textual Amendments

F1Pt. 9A substituted for ss. 138-164 (24.1.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), ss. 24(1), 122(3) (with Sch. 20); S.I. 2013/113, art. 2(1)(c), Sch. Pt. 3; S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C4Pt. 9A applied (1.7.2021) by Regulation (EU) No. 600/2014, Art. 49A(12) (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 9; S.I. 2021/739, reg. 3(o))

CHAPTER 2U.K.Rules: modification, waiver, contravention and procedural provisions

Modifications etc. (not altering text)

C5Pt. 9A Ch. 2 applied (with modifications) by S.I. 2011/99, Sch. 3 para. 2A(2)(3) (as inserted (13.8.2017 for specified purposes, 13.10.2017 for specified purposes, 13.1.2018 in so far as not already in force) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(2)(c)(iii)(3)(f)(i)(6), Sch. 8 para. 5(31)(a) (with reg. 3) and as amended (18.9.2023) by The Electronic Money, Payment Card Interchange Fee and Payment Services (Amendment) Regulations 2023 (S.I. 2023/790), regs. 1(2)(a), 2(3)(a)(iii)-(v)))

C9Pt. 9A Ch. 2 applied in part (1.7.2021) by Regulation (EU) No. 600/2014, Art. 50D (as inserted by Financial Services Act 2021 (c. 22), s. 49(5), Sch. 10 para. 12 (with Sch. 10 para. 13); S.I. 2021/739, reg. 3(o))

Modification or waiver of rulesU.K.

138AModification or waiver of rulesU.K.

(1)Either regulator may, on the application or with the consent of a person who is subject to rules made by that regulator, direct that all or any of those rules—

(a)are not to apply to that person, or

(b)are to apply to that person with such modifications as may be specified in the direction.

(2)Subsection (1) does not apply to—

[F2(za)rules made by either regulator under section 64A (rules of conduct);]

(a)rules made by either regulator under section 137O (threshold condition code);

(b)rules made by the FCA under section 247 (trust scheme rules) [F3, section 248 (scheme particulars rules), section 261I (contractual scheme rules) or section 261J (contractual scheme particulars rules)];

[F4(c)rules made by the FCA under section 309Z1 (rules of conduct).]

(3)An application must be made in such manner as the regulator may direct.

(4)A regulator may not give a direction unless it is satisfied that—

(a)compliance by the person with the rules, or with the rules as unmodified, would be unduly burdensome or would not achieve the purpose for which the rules were made, and

(b)the direction would not adversely affect the advancement of any of the regulator's objectives.

(5)In subsection (4)(b) “objectives”, in relation to the FCA, means operational objectives.

(6)A direction may be given subject to conditions.

(7)The regulator may—

(a)revoke a direction, or

(b)vary it on the application, or with the consent, of the person to whom it relates.

(8)“Direction” means a direction under this section.

Textual Amendments

Modifications etc. (not altering text)

C13S. 138A applied (with modifications) by S.I. 2008/432, art. 15(2) (as amended) (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 136(d)(aa)(ii)

C21S. 138A applied in part (with modifications) (29.8.2023) by Regulation (EU) No. 648/2012, Art. 84c (as inserted by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 2 para. 30 (with s. 2(3)); S.I. 2023/779, reg. 4(zz)(ii))

C24Ss. 138A(3)-(7) modified by S.I. 2001/1228, reg. 7(3)(4) (as amended) (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 41(4)

C25Ss. 138A(3)-(7) applied (with modifications) by S.R. 2004/335, reg. 7(3)(4) (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 87(4)

138BPublication of directions under section 138AU.K.

(1)Subject to subsection (2), a direction must be published by the regulator concerned in the way appearing to the regulator to be best calculated for bringing it to the attention of—

(a)persons likely to be affected by it, and

(b)persons who are, in the opinion of the regulator, likely to make an application for a similar direction.

(2)Subsection (1) does not apply if the regulator is satisfied that it is inappropriate or unnecessary to publish the direction.

(3)In deciding whether it is satisfied as mentioned in subsection (2), the regulator must—

(a)consider whether the publication of the direction would be detrimental to the stability of the UK financial system,

(b)take into account whether the direction relates to a rule contravention of which is actionable in accordance with section 138D,

(c)consider whether publication of the direction would prejudice, to an unreasonable degree, the commercial interests of the person concerned or any other member of the person's immediate group, and

(d)consider whether its publication would be contrary to an international obligation of the United Kingdom.

(4)The FCA must consult the PRA before publishing or deciding not to publish a direction which relates to—

(a)a PRA-authorised person, or

(b)an authorised person who has as a member of its immediate group a PRA-authorised person.

(5)For the purposes of paragraphs (c) and (d) of subsection (3), the regulator must consider whether it would be possible to publish the direction without either of the consequences mentioned in those paragraphs by publishing it without disclosing the identity of the person concerned.

(6)“Direction” means a direction under section 138A.]

Modifications etc. (not altering text)

C35S. 138B applied (with modifications) by S.R. 2004/335, reg. 7(3)(4) (as amended (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 87(4))

C36S. 138B applied (with modifications) by 2013 c. 13, Sch. 4 para. 9A(5)(6) (as inserted (26.10.2018) by The Financial Regulators Powers (Technical Standards etc.) (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1115), regs. 1(2), 10(5)(c))

C39S. 138B applied in part (with modifications) (29.8.2023) by Regulation (EU) No. 648/2012, Art. 84c (as inserted by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 2 para. 30 (with s. 2(3)); S.I. 2023/779, reg. 4(zz)(ii))

[F5138BADisapplication or modification of rules in individual casesU.K.

(1)This section applies to rules made by a regulator if, or to the extent that, regulations made by the Treasury provide for it to apply.

(2)The regulator may, on the application or with the consent of a person who is subject to the rules, give the person a permission that enables the person—

(a)not to apply the rules, or

(b)to apply the rules with the modifications specified in the permission.

(3)Subsections (1) and (2) do not apply to—

(a)rules made by either regulator under section 64A (rules of conduct);

(b)rules made by either regulator under section 137O (threshold condition code);

(c)rules made by the FCA under section 247 (trust scheme rules), section 248 (scheme particular rules), section 261I (contractual scheme rules) or section 261J (contractual scheme particulars rules);

(d)rules made by the FCA under section 309Z(1) (rules of conduct).

(4)The regulator may—

(a)give permission under this section subject to conditions, and

(b)revoke or vary permission given under this section.

(5)Regulations under subsection (1) may make provision about procedural matters in relation to the giving of permission under this section.

(6)Provision under subsection (5) may (among other things) include provision about—

(a)the making of applications;

(b)the determination of applications (including matters to be taken into account in doing so);

(c)the giving and withdrawal of consent;

(d)requirements as to notification or publication of decisions of a regulator under this section;

(e)appeals in respect of decisions of a regulator under this section.

(7)Before making regulations under this section in relation to rules made by a regulator the Treasury must consult the regulator.]

Textual Amendments