The Financial Services and Markets Act 2000 (Regulated Activities) Order 2001

Chapter II U.K. Accepting Deposits

The activity U.K.

Accepting deposits U.K.

5.—(1) Accepting deposits is a specified kind of activity if—

(a) money received by way of deposit is lent to others; or

(b) any other activity of the person accepting the deposit is financed wholly, or to a material extent, out of the capital of or interest on money received by way of deposit.

(2) In paragraph (1), “deposit" means a sum of money, other than one excluded by any of [F1 articles 6 to 9A], paid on terms—

(a) under which it will be repaid, with or without interest or premium, and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the person receiving it; and

(b) which are not referable to the provision of property (other than currency) or services or the giving of security.

(3) For the purposes of paragraph (2), money is paid on terms which are referable to the provision of property or services or the giving of security if, and only if—

(a) it is paid by way of advance or part payment under a contract for the sale, hire or other provision of property or services, and is repayable only in the event that the property or services is or are not in fact sold, hired or otherwise provided;

(b) it is paid by way of security for the performance of a contract or by way of security in respect of loss which may result from the non-performance of a contract; or

(c) without prejudice to sub-paragraph (b), it is paid by way of security for the delivery up or return of any property, whether in a particular state of repair or otherwise.

Textual Amendments

F1 Words in art. 5(2) substituted (27.4.2002) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2002 (S.I. 2002/682), arts. 1(2)(b), 3(1)

Exclusions U.K.

Sums paid by certain persons U.K.

6.—(1) A sum is not a deposit for the purposes of article 5 if it is—

(a) paid by any of the following persons—

(i) the Bank of EnglandF2 ...;

(ii) an authorised person who has permission to accept deposits, or to effect or carry out contracts of insurance;

F3 (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F4 (iv) National Savings and Investments;]

(v) a municipal bank, that is to say a company which was, immediately before the coming into force of this article, exempt from the prohibition in section 3 of the Banking Act 1987 M1 by virtue of section 4(1) of, and paragraph 4 of Schedule 2 to, that Act;

(vi) Keesler Federal Credit Union;

(vii) a body of persons certified as a school bank by the National Savings Bank or by an authorised person who has permission to accept deposits;

(viii) a local authority;

(xi) any body which by virtue of any enactment has power to issue a precept to a local authority in England and Wales or a requisition to a local authority in Scotland, or to the expenses of which, by virtue of any enactment, a local authority in the United Kingdom is or can be required to contribute (and in this paragraph, “enactment" includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament);

F5 (x) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(xi) the European Investment Bank;

(xii) the International Bank for Reconstruction and Development;

(xiii) the International Finance Corporation;

(xiv) the International Monetary Fund;

(xv) the African Development Bank;

(xvi) the Asian Development Bank;

(xvii) the Caribbean Development Bank;

(xviii) the Inter-American Development Bank;

(xix) the European Bank for Reconstruction and Development;

[F6 (xx) the Council of Europe Development Bank;]

(b) paid by a person other than one mentioned in sub-paragraph (a) in the course of carrying on a business consisting wholly or to a significant extent of lending money;

(c) paid by one company to another at a time when both are members of the same group or when the same individual is a majority shareholder controller of both of them; or

(d) paid by a person who, at the time when it is paid, is a close relative of the person receiving it or who is, or is a close relative of, a director or manager of that person or who is, or is a close relative of, a controller of that person.

(2) For the purposes of paragraph (1)(c), an individual is a majority shareholder controller of a company if he is a controller of the company by virtue of paragraph (a), (c), (e) or (g) of section 422(2) of the Act, and if in his case the greatest percentage of those referred to in those paragraphs is 50 or more.

(3) In the application of sub-paragraph (d) of paragraph (1) to a sum paid by a partnership, that sub-paragraph is to have effect as if, for the reference to the person paying the sum, there were substituted a reference to each of the partners.

Textual Amendments

F2 Words in art. 6(1)(a)(i) omitted (31.12.2020) by virtue of The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 123(2) (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/1212, regs. 1(3), 22(3)); 2020 c. 1, Sch. 5 para. 1(1)

F3 Art. 6(1)(a)(iii) omitted (31.12.2020) by virtue of The EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018 (S.I. 2018/1149), reg. 1(3), Sch. para. 49(2) (with reg. 4); 2020 c. 1, Sch. 5 para. 1(1)

F4 Art. 6(1)(a)(iv) substituted (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), 3 (with reg. 5)

F5 Art. 6(1)(a)(x) omitted (31.12.2020) by virtue of The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 123(3) (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/1212, regs. 1(3), 22(3)); 2020 c. 1, Sch. 5 para. 1(1)

F6 Art. 6(1)(a)(xx) substituted (5.6.2002) by The Financial Services and Markets Act 2000 (Financial Promotion and Miscellaneous Amendments) Order 2002 (S.I. 2002/1310), arts. 1, 4(1)

Marginal Citations

M1 1987 c. 22. Section 3 was amended by the Bank of England Act 1998 (c. 11), Sch. 5, paras 1 and 3. “Municipal bank" is defined in section 103 of the Banking Act 1987, which was amended by the Local Government Act 1992 (c. 19), Sch. 3, para. 22, and by the Local Government and Rating Act 1997 (c. 29), Sch. 3, para. 21.

Sums received by solicitors etc. U.K.

7.—(1) A sum is not a deposit for the purposes of article 5 if it is received by a practising solicitor acting in the course of his profession.

(2) In paragraph (1), “practising solicitor" means—

(a) a solicitor who is qualified to act as such under section 1 of the Solicitors Act 1974 M2 , article 4 of the Solicitors (Northern Ireland) Order 1976 M3 or section 4 of the Solicitors (Scotland) Act 1980 M4 ;

(b) a recognised body;

(c) a registered foreign lawyer in the course of providing professional services as a member of a multi-national partnership; [F7 or]

(d) [F8 a Swiss lawyer who is a registered European lawyer]; F9 ...

F9 (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In this article—

(a) “a recognised body" means a body corporate recognised by—

(i) the Council of the Law Society under section 9 of the Administration of Justice Act 1985 M5 ;

(ii) the Incorporated Law Society of Northern Ireland under article 26A of the Solicitors (Northern Ireland) Order 1976 M6 ; or

(iii) the Council of the Law Society of Scotland under section 34 of the Solicitors (Scotland) Act 1980;

(b) “registered foreign lawyer" has the meaning given by section 89 of the Courts and Legal Services Act 1990 M7 or, in Scotland, section 65 of the Solicitors (Scotland) Act 1980 M8 ;

(c) “multi-national partnership" has the meaning given by section 89 of the Courts and Legal Services Act 1990 but, in Scotland, is a reference to a “multi-national practice" within the meaning of section 60A of the Solicitors (Scotland) Act 1980 M9 “registered European lawyer" has the meaning given by regulation 2(1) of the European Communities (Lawyer’s Practice) Regulations 2000 M10 or regulation 2(1) of the European Communities (Lawyer’s Practice) (Scotland) Regulation 2000 M11 ;F10 ...

(d) “registered European lawyer” has the meaning given by regulation 2(1) of the European Communities (Lawyer’s Practice) Regulations 2000F11 or regulation 2(1) of the European Communities (Lawyer’s Practice) (Scotland) Regulation 2000F12 ; [F13 and]

[F14 (e) “Swiss lawyer” means a national of the United Kingdom or a Swiss national who—

(i) immediately before IP completion day was authorised in Switzerland to pursue professional activities under the professional title of Avocat, Advokat, Rechtsanwalt, Anwalt, Fürsprecher, Fürsprech or Avvocato, or

(ii) had started training towards but not yet obtained their professional qualifications before IP completion day in order to be authorised in Switzerland to pursue professional activities under one of the professional titles referred to in paragraph (i) but who completed their qualifications and were so authorised before the end of the period of four years beginning with IP completion day.]

Textual Amendments

F7 Word in art. 7(2)(c) inserted (31.12.2020) by S.I. 2019/710, reg. 6(a)(i) (as substituted by The Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2020 (S.I. 2020/1342), reg. 1(3), Sch. para. 19 (with Sch. para. 13))

F8 Words in art. 7(2)(d) substituted (31.12.2020) by S.I. 2019/710, reg. 6(a)(ii) (as substituted by The Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2020 (S.I. 2020/1342), reg. 1(3), Sch. para. 19 (with Sch. para. 13))

F9 Art. 7(2)(e) and word omitted (31.12.2020) by virtue of S.I. 2019/710, reg. 6(a)(iii) (as substituted by The Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2020 (S.I. 2020/1342), reg. 1(3), Sch. para. 19 (with Sch. para. 13))

F10 Word in art. 7(3)(c) omitted (31.12.2020) by virtue of S.I. 2019/710, reg. 6(b)(i) (as substituted by The Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2020 (S.I. 2020/1342), reg. 1(3), Sch. para. 19 (with Sch. para. 13))

F11 S.I. 2000/1119.

F12 Scottish Statutory Instruments 2000 No. 121.

F13 Word in art. 7(3)(d) inserted (31.12.2020) by S.I. 2019/710, reg. 6(b)(ii) (as substituted by The Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2020 (S.I. 2020/1342), reg. 1(3), Sch. para. 19 (with Sch. para. 13))

F14 Art. 7(3)(e) inserted by S.I. 2019/710, reg. 6(b)(iii) (as substituted by The Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2020 (S.I. 2020/1342), reg. 1(3), Sch. para. 19 (with Sch. para. 13))

Modifications etc. (not altering text)

C1 Art. 7(1) applied (with modifications) (E.W.S.) (23.12.2011) by The Legal Services Act 2007 (Designation as a Licensing Authority) (No. 2) Order 2011 (S.I. 2011/2866), arts. 1(2), 8(3), Sch. 3

Marginal Citations

M2 1974 c. 47.

M3 S.I. 1976/582 (N.I. 12); relevant amending instrument is S.I. 1989/1343 (N.I. 14).

M4 1980 c. 46.

M5 1985 c. 61; section 9 was amended by para. 54 of Sch. 18 to the Courts and Legal Services Act 1990, and by para. 1 of Sch. 4 to the European Communities (Lawyer's Practice) Regulations 2000 (S.I. 2000/1119), and was repealed in part by Part II of Sch. 15 to the Access to Justice Act 1999.

M6 Inserted by article 10 of the Solicitors (Amendment) (Northern Ireland) Order 1989 (S.I. 1989/1343) (N.I. 14).

M7 1990 c. 41; section 89 was amended by para. 14 of Sch. 4 to the European Communities (Lawyer's Practice) Regulations 2000 (S.I. 2000/1119).

M8 Amended by para. 29(15) of Sch. 8 to the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40).

M9 Inserted by section 32 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 (c. 40).

M10 S.I. 2000/1119.

M11 Scottish Statutory Instruments 2000 No. 121.

Sums received by persons authorised to deal etc. U.K.

8.  A sum is not a deposit for the purposes of article 5 if it is received by a person who is—

(a) an authorised person with permission to carry on an activity of the kind specified by any of articles 14, 21, 25, 37, [F15 51ZA, 51ZB, 51ZC, 51ZD, 51ZE] and 52, or

(b) an exempt person in relation to any such activity,

in the course of, or for the purpose of, [F16 carrying on any such activity (or any activity which would be such an activity but for any exclusion made by this Part)] with or on behalf of the person by or on behalf of whom the sum is paid.

Textual Amendments

F15 Words in art. 8(a) substituted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 1(3)

F16 Words in art. 8 substituted (1.12.2001) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2001 (S.I. 2001/3544), arts. 1(a), 3

Sums received in consideration for the issue of debt securities U.K.

9.—(1) Subject to paragraph (2), a sum is not a deposit for the purposes of article 5 if it is received by a person as consideration for the issue by him of any investment of the kind specified by article 77 or 78.

(2) The exclusion in paragraph (1) does not apply to the receipt by a person of a sum as consideration for the issue by him of commercial paper unless—

(a) the commercial paper is issued to persons—

(i) whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses; or

(ii) who it is reasonable to expect will acquire, hold, manage or dispose of investments (as principal or agent) for the purposes of their businesses; and

(b) the redemption value of the commercial paper is not less than £100,000 (or an amount of equivalent value denominated wholly or partly in a currency other than sterling), and no part of the commercial paper may be transferred unless the redemption value of that part is not less than £100,000 (or such an equivalent amount).

[F17 (3) In paragraph (2), “commercial paper” means an investment of the kind specified by article 77 or 78 having a maturity of less than one year from the date of issue.]

Textual Amendments

F17 Art. 9(3) substituted (27.4.2002) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2002 (S.I. 2002/682), arts. 1(2)(b), 12

[F18 Sums received in exchange for electronic money U.K.

9A.   A sum is not a deposit for the purposes of article 5 if it is immediately exchanged for electronic money.]

Textual Amendments

F18 Art. 9A inserted (27.4.2002) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2002 (S.I. 2002/682), arts. 1(2)(b), 3(2)

[F19 F20 ...[F21 Managers of UCITS and AIFs] U.K.

9AA.   Article 5 is subject to the [F22 exclusion] in F23 ... [F24 article 72AA (managers of [F25 UK UCITS] and AIFs).]]

Textual Amendments

F19 Art. 9AA inserted (21.8.2002) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2002 (S.I. 2002/1776), arts. 1, 3(2)

F20 Words in art. 9AA heading omitted (31.12.2020) by virtue of The Electronic Commerce and Solvency 2 (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1361), regs. 1(2), 5(3)(a)(iii) (as amended by S.I. 2019/1390, regs. 1(2), 6); 2020 c. 1, Sch. 5 para. 1(1)

F21 Words in art. 9AA heading inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 1(4)(a)

F22 Word in art. 9AA substituted (31.12.2020) by The Electronic Commerce and Solvency 2 (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1361), regs. 1(2), 5(3)(a)(i) (as amended by S.I. 2019/1390, regs. 1(2), 6); 2020 c. 1, Sch. 5 para. 1(1)

F23 Words in art. 9AA omitted (31.12.2020) by virtue of The Electronic Commerce and Solvency 2 (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/1361), regs. 1(2), 5(3)(a)(ii) (as amended by S.I. 2019/1390, regs. 1(2), 6); 2020 c. 1, Sch. 5 para. 1(1)

F24 Words in art. 9AA inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 1(4)(c)

F25 Words in art. 9AA substituted (31.12.2020) by The Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/632), regs. 1(3), 148(2)(a) (with savings in S.I. 2019/680, reg. 11 (as amended by S.I. 2019/1212, regs. 1(3), 22(3)); 2020 c. 1, Sch. 5 para. 1(1)

[F26 Funds received for payment services U.K.

9AB.— (1) A sum is not a deposit for the purposes of article 5 if it is received by an authorised payment institution, an EEA authorised payment institution[F27 , a small payment institution, an electronic money institution or an EEA authorised electronic money institution] from a payment service user with a view to the provision of payment services.

(2) For the purposes of paragraph (1), “authorised payment institution”, “EEA authorised payment institution”, “small payment institution”, “payment services” and “payment service user” have the meanings given in the Payment Services Regulations [F28 2017] [F29 and “electronic money institution” and “EEA authorised electronic money institution” have the meanings given in the Electronic Money Regulations 2011.]]

Textual Amendments

F26 Art. 9AB inserted (1.11.2009) by The Payment Services Regulations 2009 (S.I. 2009/209), reg. 1(2)(c), Sch. 6 para. 4(a)

F27 Words in art. 9AB(1) substituted (9.2.2011 for specified purposes, 30.4.2011 in so far as not already in force) by The Electronic Money Regulations 2011 (S.I. 2011/99), reg. 1(2), Sch. 4 para. 12(b)(i) (with reg. 3)

F28 Word in art. 9AB(2) substituted (13.1.2018) by The Payment Services Regulations 2017 (S.I. 2017/752), reg. 1(6), Sch. 8 para. 8(a) (with reg. 3)

F29 Words in art. 9AB(2) inserted (9.2.2011 for specified purposes, 30.4.2011 in so far as not already in force) by The Electronic Money Regulations 2011 (S.I. 2011/99), reg. 1(2), Sch. 4 para. 12(b)(ii) (with reg. 3)

[F30 Local authorities U.K.

9AC.   Article 5 is subject to the exclusion in article 72G (local authorities).]

Textual Amendments

F30 Art. 9AC inserted (14.2.2014 for specified purposes, 1.4.2014 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2014 (S.I. 2014/366), art. 1(3)(4), 2(3)