PART 2

Amendments of Financial Services and Markets Act 2000

Official listing

Primary information providers
19
1
In Part 6 of FSMA 2000 (official listing), after section 89O insert—

Primary information providers

Primary information providers
89P
1
Part 6 rules may require issuers of financial instruments to use primary information providers for the purpose of giving information of a specified description to a market of a specified description.
2
“Primary information provider” means a person approved by the FCA for the purposes of this section.
3
“Specified” means specified in the Part 6 rules.
4
Part 6 rules made by virtue of subsection (1) may—
a
provide for the FCA to maintain a list of providers;
b
impose requirements on a provider in relation to the giving of information or of information of a specified description;
c
specify the circumstances in which a person is qualified for being approved as a provider;
d
provide for limitations or other restrictions to be imposed on the giving of information to which an approval relates (whether or not the approval has already been granted);
e
provide for the approval of a provider to be suspended on the application of the provider.
5
If the FCA proposes—
a
to refuse a person's application under information provider rules,
b
to impose limitations or other restrictions on the giving of information to which a person's approval relates, or
c
to cancel a person's approval as a provider otherwise than at the person's request,
it must give the person a warning notice.
6
If the FCA decides—
a
to grant the application under information provider rules,
b
not to impose limitations or other restrictions on the giving of information to which a person's approval relates, or
c
not to cancel the approval,
it must give the person concerned written notice of its decision.
7
If the FCA decides—
a
to refuse to grant the application under information provider rules,
b
to impose limitations or other restrictions on the giving of information to which a person's approval relates, or
c
to cancel the approval,
it must give the person concerned a decision notice.
8
A person to whom a decision notice is given under this section may refer the matter to the Tribunal.
9
In this section any reference to an application under information provider rules means—
a
an application for approval as a provider,
b
an application for the suspension of an approval as a provider,
c
an application for the withdrawal of the suspension of an approval as a provider, or
d
an application for the withdrawal or variation of a limitation or other restriction on the giving of information to which a provider's approval relates.

Disciplinary powers: contravention of s.89P(4)(b) or (d)
89Q
1
The FCA may take action against a provider under this section if it considers that the provider has contravened a requirement or restriction imposed on the provider by rules made as a result of section 89P(4)(b) or (d).
2
If the FCA is entitled to take action under this section against a provider, it may do one or more of the following—
a
impose a penalty on the provider of such amount as it considers appropriate;
b
suspend, for such period as it considers appropriate, the provider's approval;
c
impose, for such period as it considers appropriate, such limitations or other restrictions in relation to the giving by the provider of information as it considers appropriate;
d
publish a statement to the effect that the provider has contravened a requirement or restriction imposed on the provider by rules made as a result of section 89P(4)(b) or (d).
3
The period for which a suspension or restriction is to have effect may not exceed 12 months.
4
A suspension may relate only to the giving of information in specified circumstances.
5
A restriction may, in particular, be imposed so as to require the provider to take, or refrain from taking, specified action.
6
The FCA may—
a
withdraw a suspension or restriction, or
b
vary a suspension or restriction so as to reduce the period for which it has effect or otherwise to limit its effect.
7
The FCA may not take action against a provider under this section after the end of the limitation period unless, before the end of that period, it has given a warning notice to the provider under section 89R(1).
8
“The limitation period” means the period of 3 years beginning with the first day on which the FCA knew that the provider had contravened the requirement or restriction.
9
For this purpose the FCA is to be treated as knowing that a provider has contravened a requirement or restriction if it has information from which that can reasonably be inferred.

Action under s.89Q: procedure and right to refer to Tribunal
89R
1
If the FCA proposes to take action against a provider under section 89Q, it must give the provider a warning notice.
2
A warning notice about a proposal to impose a penalty must state the amount of the penalty.
3
A warning notice about a proposal—
a
to suspend an approval, or
b
to impose a restriction in relation to the giving of information,
must state the period for which the suspension or restriction is to have effect.
4
A warning notice about a proposal to publish a statement must set out the terms of the statement.
5
If the FCA decides to take action against a provider under section 89Q, it must give the provider a decision notice.
6
A decision notice about the imposition of a penalty must state the amount of the penalty.
7
A decision notice about—
a
the suspension of an approval, or
b
the imposition of a restriction in relation to the giving of information,
must state the period for which the suspension or restriction is to have effect.
8
A decision notice about the publication of a statement must set out the terms of the statement.
9
If the FCA decides to take action against a provider under section 89Q, the provider may refer the matter to the Tribunal.

Action under s.89Q: statement of policy
89S
1
The FCA must prepare and issue a statement of its policy with respect to—
a
the imposition of penalties, suspensions or restrictions under section 89Q,
b
the amount of penalties under that section,
c
the period for which suspensions or restrictions under that section are to have effect, and
d
the matters in relation to which suspensions or restrictions under that section are to have effect.
2
The FCA's policy in determining what the amount of a penalty should be, or what the period for which a suspension or restriction is to have effect should be, must include having regard to—
a
the seriousness of the contravention in question in relation to the nature of the requirement concerned,
b
the extent to which that contravention was deliberate or reckless, and
c
whether the provider concerned is an individual.
3
The FCA may at any time alter or replace a statement issued under this section.
4
If a statement issued under this section is altered or replaced, the FCA must issue the altered or replacement statement.
5
In exercising, or deciding whether to exercise, its power under section 89Q in the case of any particular contravention, the FCA must have regard to any statement of policy published under this section and in force at a time when the contravention in question occurred.
6
A statement issued under this section must be published by the FCA in the way appearing to the FCA to be best calculated to bring it to the attention of the public.
7
The FCA may charge a reasonable fee for providing a person with a copy of the statement.
8
The FCA must, without delay, give the Treasury a copy of any statement which it publishes under this section.

Statement of policy under s.89S: procedure
89T
1
Before issuing a statement under section 89S, the FCA must publish a draft of the proposed statement in the way appearing to the FCA to be best calculated to bring it to the attention of the public.
2
The draft must be accompanied by notice that representations about the proposal may be made to the FCA within a specified time.
3
Before issuing the proposed statement, the FCA must have regard to any representations made to it in accordance with subsection (2).
4
If the FCA issues the proposed statement it must publish an account, in general terms, of—
a
the representations made to it in accordance with subsection (2); and
b
its response to them.
5
If the statement differs from the draft published under subsection (1) in a way which is, in the opinion of the FCA, significant, the FCA must (in addition to complying with subsection (4)) publish details of the difference.
6
The FCA may charge a reasonable fee for providing a person with a copy of a draft published under subsection (1).
7
This section also applies to a proposal to alter or replace a statement.

Powers exercisable to advance operational objectives
89U
1
The FCA may take action against a provider under this section if it considers that it is desirable to do so in order to advance one or more of its operational objectives.
2
If the FCA is entitled to take action under this section against a provider, it may—
a
suspend, for such period as it considers appropriate, the provider's approval, or
b
impose, for such period as it considers appropriate, such limitations or other restrictions in relation to the giving by the provider of information as it considers appropriate.
3
A suspension may relate only to the giving of information in specified circumstances.
4
A restriction may, in particular, be imposed so as to require the provider to take, or refrain from taking, specified action.
5
The FCA may—
a
withdraw a suspension or restriction, or
b
vary a suspension or restriction so as to reduce the period for which it has effect or otherwise to limit its effect.
6
A person against whom the FCA takes action under this section may refer the matter to the Tribunal.

Action under s.89U: procedure
89V
1
Action against a provider under section 89U takes effect—
a
immediately, if the notice given under subsection (2) so provides, or
b
on such later date as may be specified in the notice.
2
If the FCA—
a
proposes to take action against a provider under that section, or
b
takes action against a provider under that section with immediate effect,
it must give the provider written notice.
3
The notice must—
a
give details of the action,
b
state the FCA's reasons for taking the action and for its determination as to when the action takes effect,
c
inform the provider that the provider may make representations to the FCA within such period as may be specified in the notice (whether or not the matter has been referred to the Tribunal),
d
inform the provider of when the action takes effect,
e
inform the provider of the right to refer the matter to the Tribunal, and
f
give an indication of the procedure on such a reference.
4
The FCA may extend the period allowed under the notice for making representations.
5
If the FCA decides—
a
to take the action in the way proposed, or
b
if the action has taken effect, not to rescind it,
the FCA must give the provider written notice.
6
If the FCA decides—
a
not to take the action in the way proposed,
b
to take action under section 89U that differs from the action originally proposed, or
c
to rescind action which has taken effect,
the FCA must give the provider written notice.
7
A notice under subsection (5) must—
a
inform the provider of the right to refer the matter to the Tribunal, and
b
give an indication of the procedure on such a reference.
8
A notice under subsection (6)(b) must comply with subsection (3).
2
In section 395(13) (meaning of “supervisory notice”), after paragraph (bzb) (as inserted by section 18(6)) insert—
bzc
section 89V(2), (5) or (6)(b);
.