C2C4 Part XIII Incoming Firms: Intervention by F11FCA or PRA
Pt. 13 modified (1.12.2001) by S.I. 2001/3592, arts. 1(2), 114(3)(a) (with art. 23(2))
Pt. 13 extended (1.12.2001) by S.I. 2001/2636, arts. 1(2)(b), 32; S.I. 2001/3538, art. 2(1)
Pt. 13 extended (5.10.2001 for specified purposes otherwise 1.12.2001) by S.I. 2001/3084, art. 2(7); S.I. 2001/3538, art. 2(1)
Pt 13 excluded (1.12.2001) by S.I. 2001/3592, art. 107(2) (with art. 23(2))
Pt. 13 applied (with modifications) (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services Act 2012 (Consumer Credit) Order 2013 (S.I. 2013/1882), arts. 1(1), 3(6)
Exercise of power of intervention
C1I1199 Additional procedure for EEA firms in certain cases.
1
This section applies if it appears to F12a regulator that its power of intervention is exercisable in relation to an EEA firm exercising EEA rights in the United Kingdom (“an incoming EEA firm”) in respect of the contravention of a relevant requirement.
2
A requirement is relevant if—
F1a
it is imposed—
i
by F13that regulator under this Act, or
ii
under any directly applicable Community regulation or decision made under a single market directive; and
F2b
as respects its contravention, the single market directive in question provides that a procedure of the kind set out in the following provisions of this section (so far as they are relevant in the firm's case) is to apply.
3
F14The regulator must, in writing, require the firm to remedy the situation.
F33A
F143B
4
If the firm fails to comply with the requirement under subsection (3) within a reasonable time, F14the regulator must give a notice to that effect to the firm’s home state regulator requesting it—
a
to take all appropriate measures for the purpose of ensuring that the firm remedies the situation which has given rise to the notice; and
b
to inform F14the regulator of the measures it proposes to take or has taken or the reasons for not taking such measures.
5
Except as mentioned in subsection (6), F14the regulator may not exercise its power of intervention F4before informing the firm's home state regulator and unless satisfied—
a
that the firm’s home state regulator has failed or refused to take measures for the purpose mentioned in subsection (4)(a); or
b
that the measures taken by the home state regulator have proved inadequate for that purpose.
F165A
Subsections (6) to (8) apply to an incoming EEA firm other than a firm falling within paragraph 5(da) or (h) of Schedule 3.
6
If F14the regulator decides that it should exercise its power of intervention in respect of the incoming EEA firm as a matter of urgency in order to protect the interests of consumers, it may exercise that power—
a
before complying with subsections (3) and (4); or
b
where it has complied with those subsections, before it is satisfied as mentioned in subsection (5).
F197
In such case, the regulator must at the earliest opportunity—
a
where the single market directive or directly applicable Community regulation in question is the capital requirements directive or the capital requirements regulation, inform the firm’s home state regulator, the Commission, EBA and any other affected regulators of other EEA States;
b
in the case of any other single market directive or directly applicable Community regulation, inform the firm’s home state regulator, ESMA and the Commission.
7A
Where the single market directive or directly applicable Community regulation in question is the capital requirements directive or the capital requirements regulation the regulator must rescind any requirement imposed on the firm where the home state regulator has taken appropriate measures in accordance with section 199B(4).
8
If—
a
F14the regulator has (by virtue of subsection (6)) exercised its power of intervention before complying with subsections (3) and (4) or before it is satisfied as mentioned in subsection (5), and
b
F14the regulator must in accordance with the decision rescind or vary the requirement.
F69
In the case of a firm falling within paragraph 5(da) of Schedule 3, F14the regulator may not exercise its power of intervention before informing the firm's home state regulator and unless satisfied—
a
that the firm's home state regulator has failed or refused to take all appropriate measures for the purpose of ensuring that the firm remedies the situation which gave rise to the notice under subsection (3); or
b
that the measures taken by the home state regulator have proved inadequate for that purpose.
C3F710
F911
If, in the case of a home state regulator of an incoming EEA firm exercising EEA rights under the UCITS directive, F14the regulator is satisfied as mentioned in subsection (5), it may refer the matter to ESMA (and ESMA may act in accordance with the powers conferred on it under Article 19 of Regulation ( EU ) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority)).
F1512
Subsection (3) is not to be regarded as requiring the PRA to take action in relation to the contravention of a relevant requirement in a case where it is satisfied that the FCA is required to act, and is acting or has acted, under subsection (3)—
a
in relation to that requirement, or
b
where that requirement is imposed by rules made by the PRA, in relation to an identical requirement imposed by rules made by the FCA.
Words in Pt. 13 heading substituted (27.2.2013 for specified purposes, 1.4.2013 in so far as not already in force) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 4 para. 30 (with Sch. 20); S.I. 2013/423, arts. 2, 3, Sch.