PART 9A

Rules and Guidance
CHAPTER 1

Rule-making powers

Specific rule-making powers

Financial promotion rules: directions given by FCA
137S
1
The FCA may give a direction under this section if—
a
an authorised person has made, or proposes to make, a communication or has approved, or proposes to approve, another person's communication, and
b
the FCA considers that there has been, or is likely to be, a contravention of financial promotion rules in respect of the communication or approval.
2
A direction under this section may require the authorised person—
a
to withdraw the communication or approval;
b
to refrain from making the communication or giving the approval (whether or not it has previously been made or given);
c
to publish details of the direction;
d
to do anything else specified in the direction in relation to the communication or approval.
3
A requirement in a direction under this section to refrain from making or approving a communication includes a requirement to refrain from making or approving another communication where—
a
the other communication is in all material respects the same as, or substantially the same as, the communication to which the direction relates, and
b
in all the circumstances a reasonable person would think that another direction would be given under this section in relation to the other communication.
4
The requirements contained in a direction under this section have effect as follows—
a
a requirement to publish details of the direction has effect at such time (if any) as the FCA gives a notice under subsection (8)(a);
b
any other requirement takes effect immediately.
5
If the FCA gives a direction under this section to an authorised person—
a
it must give written notice to the authorised person, and
b
if the direction relates to the approval by the authorised person of another person's communication, it must also give written notice to that other person.
6
The notice must—
a
give details of the direction,
b
inform the person to whom the notice is given that the direction takes effect immediately,
c
state the FCA's reasons for giving the direction, and
d
inform the person to whom the notice is given that the person may make representations to the FCA within such period as may be specified in the notice (which may be extended by the FCA).
7
The FCA may amend the direction if, having considered any representations made by a person to whom notice is given under subsection (5), it considers it appropriate to do so.
8
If, having considered any such representations, the FCA decides not to revoke the direction—
a
the FCA must give separate written notice to the persons mentioned in subsection (5)(a) or (b), and
b
any such person may refer the matter to the Tribunal.
9
A notice under subsection (8)(a) must—
a
give details of the direction and of any amendment of it,
b
state the FCA's reasons for deciding not to revoke the direction and, if relevant, for amending it,
c
inform the person to whom the notice is given of the person's right to refer the matter to the Tribunal, and
d
give an indication of the procedure on such a reference.
10
If, having considered any representations made by a person to whom notice is given under subsection (5), the FCA decides to revoke the direction, it must give separate written notice to those persons.
11
After the period for making representations in relation to a direction given under this section has ended, the FCA may publish such information about the direction as it considers appropriate (even if the direction is revoked).
12
Nothing in this section requires a notice to be given to a person mentioned in subsection (5)(b) if the FCA considers it impracticable to do so.
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))
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. 137S applied (with modifications) (8.6.2023 for specified purposes, 7.10.2023 in so far as not already in force) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2023 (S.I. 2023/612), art. 1(2), Sch. para. 9 (with art. 11)
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.