PART 9A

Rules and Guidance
CHAPTER 2

Rules: modification, waiver, contravention and procedural provisions

Modification or waiver of rules

Modification or waiver of rules
138A
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—
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)
, section 248 (scheme particulars rules), section 261I (contractual scheme rules) or section 261J (contractual scheme particulars rules)
;
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.
Ss. 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)
S. 138A 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. 10 (with art. 11)
S. 138A modified (13.3.2023 at 8.00 a.m.) by The Amendments of the Law (Resolution of Silicon Valley Bank UK Limited) Order 2023 (S.I. 2023/319), arts. 1(2), 3(2) (as amended (23.6.2023) by S.I. 2023/694, arts. 1(2), 3(4))
S. 138A(4) restricted by S.I. 2008/2674, art. 29(3) (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. 149(b)(aa)(iii)
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. 138A applied by S.I. 2008/2546, art. 37(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. 146(c)(aa)(ii)
Pt. 9A Ch. 2 applied in part (with modifications) (29.10.2024 for specified purposes) by S.I. 2017/701, reg. 15A (as inserted by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 2 para. 45 (with s. 2(3)); S.I. 2024/1071, reg. 3(c)(ii))
S. 138A applied (31.12.2020) by The Credit Rating Agencies (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/266), regs. 1(3), 4(2)(a) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
S. 138A(4) modified by S.I. 2009/814, art. 9(3)-(5) (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. 167(b)(iii)(iv)
Words in s. 138A(2)(b) substituted (6.6.2013) by The Collective Investment in Transferable Securities (Contractual Scheme) Regulations 2013 (S.I. 2013/1388), regs. 1, 3(4) (with reg. 24)
S. 138A(4) excluded by S.I. 2006/3221, reg. 8(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. 118(h)(iii) (with Sch. 2 para. 119)
S. 138A applied by S.I. 2008/2666, art. 18(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. 148(b)(aa)(ii)
Ss. 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)
Pt. 9A Ch. 2 applied (1.1.2026) by The Financial Services and Markets Act 2023 (Mutual Recognition Agreement) (Switzerland) Regulations 2025 (S.I. 2025/1145), regs. 1(2), 13(3), 34(3)
S. 138A applied by S.I. 2009/3226, art. 20(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. 182(a)(aa)(ii)
Pt. 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))
Pt. 9A Ch. 2 applied (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 209(6) (with reg. 209(7)); 2020 c. 1, Sch. 5 para. 1(1)
S. 138A applied (30.1.2024 for specified purposes, 1.11.2024 in so far as not already in force) by The Securitisation Regulations 2024 (S.I. 2024/102), reg. 2(1)(e)(2), Sch. 1 para. 9(2)(b) (with reg. 52(3), Sch. 3); as amended by S.I. 2024/705, regs. 1(2), 2(2)
S. 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)
S. 138A(4) restricted by S.I. 2008/2644, art. 27(3) (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. 147(b)(aa)(ii)
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))
S. 138A(1) modified by S.I. 2009/814, art. 9(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. 167(b)(ii)
S. 138A modified by S.I. 2002/1775, reg. 3(2)(a) (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. 77(4)(b)
S. 138A(4) restricted by S.I. 2008/2666, art. 18(3) (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. 148(b)(aa)(iii)
Pt. 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))
S. 138A(4) restricted by S.I. 2008/2546, art. 37(3) (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. 146(c)(aa)(iii)
Pt. 9A Ch. 2 applied (with modifications) (13.8.2017 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)(b)(ii)(6), Sch. 6 para. 3(2) (with reg. 3) (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), 4(5)(a)(iii))
S. 138A applied by S.I. 2008/2644, art. 27(2) (as substituted (1.4.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) Order 2013 (S.I. 2013/472), Sch. 2 para. 147(b)(aa)(ii))
S. 138A(4) restricted by S.I. 2009/3226, art. 20(3) (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. 182(a)(aa)(iii)
S. 138A(4) restricted by S.I. 2008/432, art. 15(3) (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)(iii)
Pt. 9A Ch. 2 applied (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 208(7) (with reg. 208(8)); 2020 c. 1, Sch. 5 para. 1(1)
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. 138A(2)(za) inserted (25.7.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 3 para. 8; S.I. 2014/1819, art. 2(4)(b)
S. 138A(1)(6)(7) excluded by S.I. 2006/3221, reg. 8(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. 118(h)(iii) (with Sch. 2 para. 119)
S. 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))
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.
S. 138A applied by S.I. 2008/2674, art. 29(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. 149(b)(aa)(ii)
S. 138A(2)(c) inserted (29.6.2023 for specified purposes) by Financial Services and Markets Act 2023 (c. 29), s. 86(1)(e), Sch. 10 para. 7
S. 138A 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))