PART 9A

Rules and Guidance
CHAPTER 1

Rule-making powers

General rule-making powers of the FCA and the PRA

FCA general rules: product intervention
137D
1
The power of the FCA to make general rules includes power to make such rules (“product intervention rules”) prohibiting authorised persons from doing anything mentioned in subsection (2) as appear to it to be necessary or expedient for the purpose of advancing—
a
the consumer protection objective or the competition objective, or
b
if the Treasury by order provide for this paragraph to apply, the integrity objective.
2
Those prohibited things are—
a
entering into specified agreements with any person or specified person;
b
entering into specified agreements with any person or specified person unless requirements specified in the rules have been satisfied;
c
doing anything that would or might result in the entering into of specified agreements by persons or specified persons, or the holding by them of a beneficial or other kind of economic interest in specified agreements;
d
doing anything within paragraph (c) unless requirements specified in the rules have been satisfied.
3
“
Specified agreements
” means agreements of a description specified in general rules made by the FCA.
4
“
Specified persons
” means persons of a description specified in general rules made by the FCA.
5
It is of no relevance—
a
whether the entering into of a specified agreement itself constitutes the carrying on of a regulated activity, or
b
whether, in a case within subsection (2)(c) or (d), the specified agreements are with the authorised persons concerned or anyone else.
6
The requirements that may be specified under subsection (2)(b) or (d) include in particular—
a
requirements as to the terms and conditions that are to be, or are not to be, included in specified or other agreements, and
b
requirements limiting invitations or inducements to enter into specified or other agreements to those made to specified persons.
7
In relation to contraventions of product intervention rules, the rules may—
a
provide for a relevant agreement or obligation to be unenforceable against any person or specified person;
b
provide for the recovery of any money or other property paid or transferred under a relevant agreement or obligation by any person or specified person;
c
provide for the payment of compensation for any loss sustained by any person or specified person as a result of paying or transferring any money or other property under a relevant agreement or obligation.
8
“
A relevant agreement or obligation
” means—
a
a specified agreement;
b
an agreement entered into in contravention of any rule made as a result of subsection (2)(c) or (d);
c
an obligation to which a person is subject as a result of exercising a right conferred by an agreement within paragraph (a) or (b) of this subsection.
9
The provision that may be made as a result of subsection (7) includes provision corresponding to that made by section 30 (enforceability of agreements resulting from unlawful communications).
10
In this section—
a
any reference to entering into an agreement includes inviting or inducing persons to enter into an agreement, and
b
any reference to an agreement includes an arrangement.
Pt. 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))
S. 137D applied (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), 13(1)
Pt. 9A applied (31.12.2020) by The Solvency 2 and Insurance (Amendment, etc.) (EU Exit) Regulations 2019 (S.I. 2019/407), regs. 1(2), 4, Sch. 3 (as amended by S.I. 2020/1301, regs. 1, 3, Sch. para. 27(a) and S.I. 2020/1385, regs. 1(2), 54(2))
Pt. 9A applied (with modifications) (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 74 (as amended by S.I. 2020/1385, regs. 1(4), 52(7)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Pt. 9A applied (with modifications) (31.12.2020) by The Transparency of Securities Financing Transactions and of Reuse (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/542), regs. 1, 35 (as amended by S.I. 2020/1385, regs. 1(4), 56(7)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
S. 137D applied (1.4.2017 for specified purposes) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2017 (S.I. 2017/488), arts. 1(2), 13(1)
Pt. 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.