Part V

Performance of Regulated Activities

Removal of directors and senior executives and appointment of temporary manager

Sections 71B and 71C: conditions
71D
1
The condition in this subsection is met in relation to a relevant firm or a parent undertaking if—
a
there is a deterioration in the financial situation of the relevant firm or the parent undertaking which is a significant deterioration, or
b
there is a serious infringement by the relevant firm or the parent undertaking of—
i
a relevant requirement, or
ii
its memorandum or articles of association or other constituent instrument.
2
The condition in this subsection is met in relation to a relevant firm if it is not reasonably likely that the deterioration would be reversed or the infringement would be brought to an end by
any measure defined as a “relevant measure” by article 107 of the Bank Recovery and Resolution (No. 2) Order 2014 (S.I. 2014/3348)
which could be taken by the appropriate regulator under the provisions listed in subsection (3).
3
The provisions mentioned in subsection (2) are—
a
section 55J (variation or cancellation on initiative of regulator),
b
section 55L (imposition of requirements by FCA),
c
section 55M (imposition of requirements by PRA),
d
section 55PB (requirements relating to general meetings),
e
section 56 (prohibition orders),
f
section 63 (withdrawal of approval),
g
section 63ZA (variation of senior manager’s approval at request of authorised person),
h
section 63ZB (variation of senior manager’s approval on initiative of regulator),
i
section 63A (power to impose penalties),
j
section 66 (disciplinary powers),
k
Part 12A (powers exercisable in relation to parent undertakings), or
l
Part 14 (disciplinary measures).
4
The condition in this subsection is met if the following action would not be sufficient to reverse the deterioration or bring the infringement to an end—
a
in the case of a relevant firm, the imposition of one or more requirements under section 71B (removal and replacement of directors and senior executives); or
b
in the case of a parent undertaking which is not a relevant firm, the exercise of any of the appropriate regulator’s powers under Part 12A.
4A
The condition in this subsection is met in relation to a director of an institution, of a financial holding company or of a mixed financial holding company, if the director—
a
is no longer of sufficiently good repute to perform their duties,
b
no longer possesses sufficient knowledge, skills, experience, honesty, integrity or independence of mind to perform their duties, or
c
is no longer able to commit sufficient time to perform their duties.
5
For the purposes of this section—
a
“relevant requirement” has the meaning given in section 204A;
b
a deterioration in the financial situation of the relevant firm or the parent undertaking is significant if—
i
in the case of a relevant firm, or a parent undertaking which is an authorised person, it no longer satisfies, or is likely to fail to satisfy, the threshold conditions relating to its financial resources which apply to it under Schedule 6;
ii
in the case of a parent undertaking which is not an authorised person, the deterioration threatens the viability of the parent undertaking.
Pt. 5 modified (1.12.2001) by S.I. 2001/3592, arts. 1(2), 114(3)(a), 128(3)(a) (with art. 23(2))
Pt. 5 modified (7.11.2018) by The EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018 (S.I. 2018/1149), regs. 1(2), 23 (with regs. 4, 22, 26(1)(2)) (as amended (31.1.2020 immediately before exit day) by The Financial Services (Consequential Amendments) Regulations 2020 (S.I. 2020/56), regs. 1, 6(2))
S. 71D(4A) inserted (29.12.2020) by The Financial Holding Companies (Approval etc.) and Capital Requirements (Capital Buffers and Macro-prudential Measures) (Amendment) (EU Exit) Regulations 2020 (S.I. 2020/1406), regs. 1(4), 2(3) (with reg. 5)
Words in s. 71D(2) substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 29; 2020 c. 1, Sch. 5 para. 1(1)
Ss. 71B-71I and cross-heading inserted (16.12.2016) by The Bank Recovery and Resolution Order 2016 (S.I. 2016/1239), arts. 1(2), 32
Pt. 5 modified by S.I. 2018/1149, reg. 69 (as inserted (1.3.2019) by The Financial Services Contracts (Transitional and Saving Provision) (EU Exit) Regulations 2019 (S.I. 2019/405), regs. 1(2), 4)