Schedule 8: Gibraltar: minor and consequential amendments
- This Schedule introduces consequential amendments to FSMA for the primary purpose of ensuring the legal operability of the Act once the new Schedules 2A and 2B come into force.
- Paragraph 4 inserts a new provision applying Part 5 of FSMA to Gibraltar-based persons. The effect of this is that (i) Gibraltar-based persons with a Schedule 2A permission that operate through a branch in the UK and (ii) Gibraltar-based persons with both Schedule 2A and Part 4A permissions will be required to comply with the Senior Managers Certification Regime. The Senior Managers Certification Regime for financial services firms is an accountability framework focused on senior managers, and employees performing certain functions and aims to improve standards in the financial services sector.
- Paragraphs 5 and 6 insert new provisions after sections 137A and 137G of FSMA. Under new sections 137AA(1) and 137GA(1) the UK regulators’ general rules may not prohibit a Gibraltar-based person with a Schedule 2A permission from carrying on an approved activity in the UK. This prohibition does not apply to FCA’s rules described in sections 137C, 137D and 137FD. New sections 137AA(3) and 137GA(2) confer on HM Treasury power to limit by regulations the general rule-making powers of the UK regulators in respect of Gibraltar-based persons with a Schedule 2A permission except for the FCA’s power under sections 137C, 137D and 137FD. Under new sections 137AA(4) and 137GA(3), HM Treasury must consult the UK regulators before limiting their general rule-making powers.
- Paragraphs 7 to 9 amend sections 213, 214 and 224 of FSMA in relation to the FSCS, to adapt the provisions to the new framework for Gibraltar-based persons. A Gibraltar-based person with a Schedule 2A permission will be regarded as a relevant person and thus be FSCS-participating, unless it falls into a prescribed category which HM Treasury has set out in regulations. Paragraph 8 provides for the FSCS to differentiate depending on whether a relevant person is a member of a compensation scheme in the UK and another comparable scheme. Amendments to section 224 introduce a carve out that complements that being added to section 213, for categories of Gibraltar-based persons prescribed by regulations.
- Paragraph 10 inserts a prohibition after section 367 of FSMA in relation to insolvency proceedings. The provisions set out that the UK regulators cannot present a winding up petition to the Court in respect of a Gibraltar-based person with a Schedule 2A permission unless the Gibraltar regulator has asked them to do so. This provision replicates the existing arrangements for Gibraltar-based persons under section 368 of FSMA and ensures clarity in relation to the responsibilities of each regulator in an insolvency case.
- Paragraphs 11–16 make amendments to ensure the legal operability of the new Schedules 2A and 2B.
- Paragraphs 17 and 18 enable the PRA and the FCA to charge fees in relation to the operation of the new regime, however they may not charge fees for considering a notification from a Gibraltar-based person intending to carry on approved activities in the UK, and they may not charge fees for considering and refusing a notification from a UK-based person intending to operate in Gibraltar. The appropriate fee levels will be consulted on by the PRA and the FCA through their annual fees’ consultations.
- Paragraph 19 revokes the Financial Services and Markets Act 2000 (Gibraltar) Order 2001, which currently grants UK market access rights to specified types of Gibraltar-based firms.
