C3C6C11C10C12C13C14C16 Part XXV Injunctions and Restitution
Pt. 25 applied (with modifications) (E.W.) (9.7.2013) by The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Referral Fees) Regulations 2013 (S.I. 2013/1635), regs. 1, 24(1)
Pt. 25 applied (with modifications) (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 1 para. 21 (with reg. 7)
Pt. 25 applied (with modifications) (1.1.2018) by The Packaged Retail and Insurance-based Investment Products Regulations 2017 (S.I. 2017/1127), reg. 1, Sch. 1 para. 5
Pt. 25 applied (with modifications) (3.1.2018) by The Data Reporting Services Regulations 2017 (S.I. 2017/699), regs. 1(2)(b), 36
Pt. 25 applied (with modifications) (27.2.2018) by The Financial Services and Markets Act 2000 (Benchmarks) Regulations 2018 (S.I. 2018/135), regs. 1(2), 22
Pt. 25 applied (with modifications) (1.1.2019) by The Securitisation Regulations 2018 (S.I. 2018/1288), reg. 1, Sch. 1 para. 6 (with Sch. 1 paras. 13, 14)
Pt. 25 applied (with modifications) (10.6.2019) by The Proxy Advisors (Shareholders Rights) Regulations 2019 (S.I. 2019/926), regs. 1, 20, 25
Restitution required by F12FCA or PRA
Words in s. 384 cross-heading substituted (24.1.2013 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. 9 para. 23(10) (with Sch. 20); S.I. 2013/113, art. 2(1)(b), Sch. Pt. 2; S.I. 2013/423, art. 3, Sch.
C1C5C4C7C8C9C15384 Power of F11FCA or PRA to require restitution.
1
F2The appropriate regulator may exercise the power in subsection (5) if it is satisfied that an authorised person F3or recognised investment exchange (“the person concerned”) has contravened a relevant requirement, or been knowingly concerned in the contravention of such a requirement, and—
a
that profits have accrued to him as a result of the contravention; or
b
that one or more persons have suffered loss or been otherwise adversely affected as a result of the contravention.
F172
The FCA may exercise the power in subsection (5) if it is satisfied that—
a
a person (“the person concerned”) has contravened Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or Article 15 (prohibition of market manipulation) of the market abuse regulation; and
b
the condition mentioned in subsection (3) is fulfilled.
3
The condition is—
a
that profits have accrued to the person concerned as a result of the F19contravention of Article 14 or 15 of the market abuse regulation; or
b
that one or more persons have suffered loss or been otherwise adversely affected as a result of the F19contravention of Article 14 or 15 of the market abuse regulation.
F184
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C25
The power referred to in subsections (1) and (2) is a power to require the person concerned, in accordance with such arrangements as the F4regulator exercising the power (“the regulator concerned”) considers appropriate, to pay to the appropriate person or distribute among the appropriate persons such amount as appears to the F5regulator concerned to be just having regard—
a
in a case within paragraph (a) of subsection (1) or (3), to the profits appearing to the F5regulator concerned to have accrued;
b
in a case within paragraph (b) of subsection (1) or (3), to the extent of the loss or other adverse effect;
c
in a case within paragraphs (a) and (b) of subsection (1) or (3), to the profits appearing to the F5regulator concerned to have accrued and to the extent of the loss or other adverse effect.
6
“Appropriate person” means a person appearing to the F6regulator concerned to be someone—
a
to whom the profits mentioned in paragraph (a) of subsection (1) or (3) are attributable; or
b
who has suffered the loss or adverse effect mentioned in paragraph (b) of subsection (1) or (3).
7
“Relevant requirement” means—
a
b
c
a requirement imposed by the Alternative Investment Fund Managers Regulations 2013. F15and
d
a requirement which is imposed by Part 7 of the Financial Services Act 2012 (offences relating to financial services) and whose contravention constitutes an offence under that Part.
F98
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F109
The PRA is the “appropriate regulator” in the case of a contravention of—
a
a requirement that is imposed by the PRA under any provision of this Act,
b
a requirement under section 56(6) where the authorised person concerned is a PRA-authorised person and the prohibition order concerned is made by the PRA, or
c
a requirement under section 59(1) or (2) where the authorised person concerned is a PRA-authorised person and the approval concerned falls to be given by the PRA.
10
In the case of a contravention of a requirement that is imposed by a qualifying EU provision, “the appropriate regulator” is whichever of the PRA or the FCA (or both) is specified by the Treasury by order in relation to the qualifying EU provision for the purposes of this section.
11
In the case of a contravention of a requirement where the contravention constitutes an offence under this Act, the “appropriate regulator” is the regulator which has power to prosecute the offence (see section 401).
12
The FCA is the “appropriate regulator” in the case of a contravention of any other requirement.
13
The Treasury may by order amend the definition of “appropriate regulator”.
Pt. 25 amended (1.12.2001) by S.I. 2001/2657, arts. 1(1), 10(10), 11(10) (which was revoked (8.10.2001) by S.I. 2001/3083, arts. 1(2), 23); S.I. 2001/3538, art. 2(1)
Pt. 25 amended (1.12.2001) by S.I. 2001/3083, arts. 1(2), 10(10), 11(10); S.I. 2001/3538, art. 2(1)
Pt. 25 extended (1.12.2001) by S.I. 2001/3646, arts. 1(1), 3(1)(a)