53.— [F1(1)] Advising a person is a specified kind of activity if the advice is—
(a)given to the person in his capacity as an investor or potential investor, or in his capacity as agent for an investor or a potential investor; and
(b)advice on the merits of his doing any of the following (whether as principal or agent)—
(i)buying, selling, subscribing for or underwriting a particular investment which is a security or a [F2relevant investment], or
(ii)exercising any right conferred by such an investment to buy, sell, subscribe for or underwrite such an investment.
[F3(2) Advising a person is a specified kind of activity if the advice is—
(a)given to the person in that person’s capacity as a lender or potential lender under a relevant article 36H agreement, or in that person’s capacity as an agent for a lender or potential lender under such an agreement; and
(b)advice on the merits of that person doing any of the following (whether as principal or agent)—
(i)entering into a relevant article 36H agreement as a lender or assuming the rights of a lender under such an agreement by assignment or operation of law,
(ii)providing instructions to an operator with a view to entering into a relevant article 36H agreement as a lender or assuming the rights of a lender under such an agreement by assignment or operation of law, where the instructions involve—
(aa)accepting particular parameters for the terms of the agreement presented by an operator,
(bb)choosing between options governing the parameters of the terms of the agreement presented by an operator, or
(cc)specifying the parameters of the terms of the agreement by other means,
(iii)enforcing or exercising the lender’s rights under a relevant article 36H agreement, or
(iv)assigning rights under a relevant article 36H agreement.
(3) Paragraph (2) does not apply in so far as—
(a)the advice is given in relation to a relevant article 36H agreement which has been facilitated by the person giving the advice, in the course of carrying on an activity of a kind specified by article 36H and is given by—
(i)an authorised person with permission to carry on a regulated activity of the kind specified by article 36H(1) (operating an electronic system in relation to lending),
(ii)an appointed representative in relation to that activity,
(iii)an exempt person in relation to that activity, or
(iv)a person to whom, as a result of Part 20 of the Act, the general prohibition does not apply in relation to that activity;
(b)the advice is given in the course of carrying on an activity of a kind specified by article 39F (debt-collecting) by a person carrying on that activity not in contravention of the general prohibition; or
(c)the advice is given in the course of carrying on an activity of a kind specified by article 39G (debt administration) by a person carrying on that activity not in contravention of the general prohibition.
(4) In this article—
“operator” means a person carrying on an activity of the kind specified by article 36H(1) or (2D), and
“relevant article 36H agreement” means an article 36H agreement (within the meaning of article 36H (operating an electronic system in relation to lending)) which has been, or may be, entered into with the facilitation of a person carrying on an activity of the kind specified by article 36H(1) or (2D).
(5) For the purposes of the application of section 22(1) of the Act (regulated activities) to an activity of a kind specified by paragraph (2) of this article, article 88D (credit agreement), and article 73 (investments: general) in so far as it relates to that article, have effect as if the reference to a credit agreement in article 88D includes a reference to a relevant article 36H agreement.]
Textual Amendments
F1Art. 53(1): art. 53 renumbered as art. 53(1) (17.3.2016 for specified purposes, 6.4.2016 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2016 (S.I. 2016/392), art. 1(2)(3)(d), 2(6)(a) (with Pt. 5)
F2Words in art. 53(b)(i) substituted (31.10.2004 for specified purposes, 14.1.2005 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2003 (S.I. 2003/1476), arts. 1(3), 9(1)
F3Art. 53(2)-(5) inserted (17.3.2016 for specified purposes, 6.4.2016 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2016 (S.I. 2016/392), art. 1(2)(3)(d), 2(6)(b) (with Pt. 5)