66.—(1) A person (“X") does not carry on an activity of the kind specified by article 14 where he enters into a transaction as bare trustee or, in Scotland, as nominee for another person (“Y") and—
(a)X is acting on Y’s instructions; and
(b)X does not hold himself out as providing a service of buying and selling securities or contractually based investments.
(2) Subject to paragraph (7), there are excluded from [F1articles 25(1) and (2)][F2, [F325A(1), (2) and (2A)], 25B(1) and (2) [F4, 25C(1) and (2) and 25E (1) and (2)]] arrangements made by a person acting as trustee or personal representative for or with a view to a transaction which is or is to be entered into—
(a)by that person and a fellow trustee or personal representative (acting in their capacity as such); or
(b)by a beneficiary under the trust, will or intestacy.
(3) Subject to paragraph (7), there is excluded from article 37 any activity carried on by a person acting as trustee or personal representative, unless—
(a)he holds himself out as providing a service comprising an activity of the kind specified by article 37; or
(b)the assets in question are held for the purposes of an occupational pension scheme, and, by virtue of article 4 of the Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001 M1, he is to be treated as carrying on that activity by way of business.
[F5(3A) Subject to paragraph (7), there is excluded from article 39A any activity carried on by a person acting as trustee or personal representative, unless he holds himself out as providing a service comprising an activity of the kind specified by article 39A.]
(4) Subject to paragraph (7), there is excluded from article 40 any activity carried on by a person acting as trustee or personal representative, unless he holds himself out as providing a service comprising an activity of the kind specified by article 40.
[F6(4A) There is excluded from article 40 any activity carried on by a person acting as trustee which consists of arranging for one or more other persons to safeguard and administer trust assets where—
(a)that other person is a qualifying custodian; or
(b)that safeguarding and administration is also arranged by a qualifying custodian.
In this paragraph, “qualifying custodian” has the meaning given by article 41(2).]
(5) A person does not, by sending or causing to be sent a dematerialised instruction (within the meaning of article 45), carry on an activity of the kind specified by that article if the instruction relates to an investment which that person holds as trustee or personal representative.
(6) Subject to paragraph (7), there is excluded from [F7articles 53][F8, 53A, 53B, [F953C, 53D and 53DA]] the giving of advice by a person acting as trustee or personal representative where he gives the advice to—
(a)a fellow trustee or personal representative for the purposes of the trust or the estate; or
(b)a beneficiary under the trust, will or intestacy concerning his interest in the trust fund or estate.
[F10(6A) Subject to paragraph (7), a person acting as trustee or personal representative does not carry on an activity of the kind specified by article 61(1) or (2) where the borrower under the regulated mortgage contract in question is a beneficiary under the trust, will or intestacy.]
[F11(6B) Subject to paragraph (7), a person acting as trustee or personal representative does not carry on an activity of the kind specified by article 63B(1) or (2) where the reversion seller under the regulated home reversion plan in question is a beneficiary under the trust, will or intestacy.
(6C) Subject to paragraph (7), a person acting as trustee or personal representative does not carry on an activity of the kind specified by article 63F(1) or (2) where the home purchaser under the regulated home purchase plan in question is a beneficiary under the trust, will or intestacy.]
[F12(6D) Subject to paragraph (7), a person acting as a trustee or personal representative does not carry on an activity of the kind specified by article 63J(1) or (2) where the agreement seller under the regulated sale and rent back agreement is a beneficiary under the trust, will or intestacy.]
(7) Paragraphs (2), (3) [F13, (3A)], [F14(4), (6)] [F15, (6A), (6B) [F16, (6C) and (6D)]] do not apply if the person carrying on the activity is remunerated for what he does in addition to any remuneration he receives as trustee or personal representative, and for these purposes a person is not to be regarded as receiving additional remuneration merely because his remuneration is calculated by reference to time spent.
[F17(8) This article is subject to article 4(4A) [F18and (4B)].]
Textual Amendments
F1Words in art. 66(2) substituted (31.10.2004) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 1) Order 2003 (S.I. 2003/1475), arts. 1(3), 18(a)
F2Words in art. 66(2) substituted (6.11.2006 for specified purposes, 6.4.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2006 (S.I. 2006/2383), arts. 1(2), 19(a)
F3Words in art. 66(2) substituted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(24)(a) (with Pt. 4)
F4Words in art. 66(2) substituted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 18(a)
F5Art. 66(3A) inserted (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), 10(1)(a)
F6Art. 66(4A) inserted (6.4.2005) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2005 (S.I. 2005/593), arts. 1, 2(4)
F7Words in art. 66(6) substituted (31.10.2004) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 1) Order 2003 (S.I. 2003/1475), arts. 1(3), 18(b)
F8Words in art. 66(6) substituted (6.11.2006 for specified purposes, 6.4.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2006 (S.I. 2006/2383), arts. 1(2), 19(b)
F9Words in art. 66(6) substituted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(24)(b) (with Pt. 4)
F10Art. 66(6A) inserted (31.10.2004) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 1) Order 2003 (S.I. 2003/1475), arts. 1(3), 18(c)
F11Art. 66(6B)(6C) inserted (6.11.2006 for specified purposes, 6.4.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2006 (S.I. 2006/2383), arts. 1(2), 19(c)
F12Art. 66(6D) inserted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 18(c)
F13Word in art. 66(7) inserted (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), 10(1)(b)
F14Words in art. 66(7) substituted (31.10.2004) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 1) Order 2003 (S.I. 2003/1475), arts. 1(3), 18(d)
F15Words in art. 66(7) inserted (6.11.2006 for specified purposes, 6.4.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2006 (S.I. 2006/2383), arts. 1(2), 19(d)
F16Words in art. 66(7) substituted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 18(d)
F17Art. 66(8) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 19
F18Words in art. 66(8) inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(24)(c) (with Pt. 4)
Marginal Citations
M1S.I. 2001/ .
67.—(1) There is excluded from articles 21, 25(1) and (2) [F19, 25A], [F2025B, 25C,] [F2125E,] [F2239A, 40] [F2353][F24, 53A, 53B, [F2553C, 53D and 53DA]] any activity which—
(a)is carried on in the course of carrying on any profession or business which does not otherwise consist of [F26the carrying on of regulated activities in the United Kingdom]; and
(b)may reasonably be regarded as a necessary part of other services provided in the course of that profession or business.
(2) But the exclusion in paragraph (1) does not apply if the activity in question is remunerated separately from the other services.
[F27(3) This article is subject to article [F284(4), (4A) and (4B)].]
Textual Amendments
F19Word in art. 67(1) inserted (31.10.2004) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 1) Order 2003 (S.I. 2003/1475), arts. 1(3), 19(a)
F20Words in art. 67(1) inserted (6.11.2006 for specified purposes, 6.4.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2006 (S.I. 2006/2383), arts. 1(2), 20(a)
F21Word in art. 67(1) inserted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 19(a)
F22Words in art. 67 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), 10(2)
F23Words in art. 67(1) substituted (31.10.2004) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 1) Order 2003 (S.I. 2003/1475), arts. 1(3), 19(b)
F24Words in art. 67(1) substituted (6.11.2006 for specified purposes, 6.4.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2006 (S.I. 2006/2383), arts. 1(2), 20(b)
F25Words in art. 67(1) substituted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(25)(a) (with Pt. 4)
F26Words in art. 67(1)(a) substituted (1.12.2001) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2001 (S.I. 2001/3544), arts. 1(a), 9
F27Art. 67(3) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 20
F28Words in art. 67(3) substituted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(25)(b) (with Pt. 4)
68.—(1) Subject to paragraphs (9), (10) and (11), this article concerns certain activities carried on for the purposes of or in connection with the sale of goods or supply of services by a supplier to a customer, where—
“supplier" means a person whose main business is to sell goods or supply services and not to carry on any activities of the kind specified by any of articles 14, 21, 25, 37 [F29, 39A], 40, 45, [F3051ZA, 51ZB, 51ZC, 51ZD, 51ZE], 52 and 53 and, where the supplier is a member of a group, also means any other member of that group; and
“customer" means a person, other than an individual, to whom a supplier sells goods or supplies services, or agrees to do so, and, where the customer is a member of a group, also means any other member of that group;
and in this article “related sale or supply" means a sale of goods or supply of services to the customer otherwise than by the supplier, but for or in connection with the same purpose as the sale or supply mentioned above.
(2) There is excluded from article 14 any transaction entered into by a supplier with a customer, if the transaction is entered into for the purposes of or in connection with the sale of goods or supply of services, or a related sale or supply.
(3) There is excluded from article 21 any transaction entered into [F31by a supplier as agent for a customer], if the transaction is entered into for the purposes of or in connection with the sale of goods or supply of services, or a related sale or supply, and provided that—
(a)where the investment to which the transaction relates is a security, the supplier does not hold himself out (other than to the customer) as engaging in the business of buying securities of the kind to which the transaction relates with a view to selling them, and does not regularly solicit members of the public for the purpose of inducing them (as principals or agents) to buy, sell, subscribe for or underwrite securities;
(b)where the investment to which the transaction relates is a contractually based investment, the supplier enters into the transaction—
(i)with or through an authorised person, or an exempt person acting in the course of a business comprising a regulated activity in relation to which he is exempt; or
(ii)through an office outside the United Kingdom maintained by a party to the transaction, and with or through a person whose head office is situated outside the United Kingdom and whose ordinary business involves him in carrying on activities of the kind specified by any of articles 14, 21, 25, 37, 40, 45, [F3251ZA, 51ZB, 51ZC, 51ZD, 51ZE], 52 and 53 or, so far as relevant to any of those articles, article 64, or would do so apart from any exclusion from any of those articles made by this Order.
(4) In paragraph (3)(a), “members of the public" has the meaning given by article 15(2), references to “A" being read as references to the supplier.
(5) There are excluded from article 25(1) and (2) arrangements made by a supplier for, or with a view to, a transaction which is or is to be entered into by a customer for the purposes of or in connection with the sale of goods or supply of services, or a related sale or supply.
(6) There is excluded from article 37 any activity carried on by a supplier where the assets in question—
(a)are those of a customer; and
(b)are managed for the purposes of or in connection with the sale of goods or supply of services, or a related sale or supply.
(7) There is excluded from article 40 any activity carried on by a supplier where the assets in question are or are to be safeguarded and administered for the purposes of or in connection with the sale of goods or supply of services, or a related sale or supply.
(8) There is excluded from article 53 the giving of advice by a supplier to a customer for the purposes of or in connection with the sale of goods or supply of services, or a related sale or supply, or to a person with whom the customer proposes to enter into a transaction for the purposes of or in connection with such a sale or supply or related sale or supply.
(9) Paragraphs (2), (3) and (5) do not apply in the case of a transaction for the sale or purchase of a [F33contract of insurance], an investment of the kind specified by article 81, or an investment of the kind specified by article 89 so far as relevant to such a contract or such an investment.
(10) Paragraph (6) does not apply where the assets managed consist of qualifying contracts of insurance, investments of the kind specified by article 81, or investments of the kind specified by article 89 so far as relevant to such contracts or such investments.
(11) Paragraph (8) does not apply in the case of advice in relation to an investment which is a [F34contract of insurance], is of the kind specified by article 81, or is of the kind specified by article 89 so far as relevant to such a contract or such an investment.
[F35(12) This article is subject to article 4(4).]
Textual Amendments
F29Word in art. 68(1) inserted (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), 10(3)(a)
F30Words in art. 68(1) substituted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 1(14)
F31Words in art. 68(3) substituted (1.12.2001) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2001 (S.I. 2001/3544), arts. 1(a), 10
F32Words in art. 68(3)(b)(ii) substituted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 1(14)
F33Words in art. 68(9) 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), 10(3)(b)
F34Words in art. 68(11) 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), 10(3)(c)
F35Art. 68(12) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 21
69.—(1) There is excluded from article 14 any transaction into which a person enters as principal with another person if that other person is also acting as principal and—
(a)they are members of the same group; or
(b)they are, or propose to become, participators in a joint enterprise and the transaction is entered into for the purposes of or in connection with that enterprise.
(2) There is excluded from article 21 any transaction into which a person enters as agent for another person if that other person is acting as principal, and the condition in paragraph (1)(a) or (b) is met, provided that—
(a)where the investment to which the transaction relates is a security, the agent does not hold himself out (other than to members of the same group or persons who are or propose to become participators with him in a joint enterprise) as engaging in the business of buying securities of the kind to which the transaction relates with a view to selling them, and does not regularly solicit members of the public for the purpose of inducing them (as principals or agents) to buy, sell, subscribe for or underwrite securities;
(b)where the investment to which the transaction relates is a contractually based investment, the agent enters into the transaction—
(i)with or through an authorised person, or an exempt person acting in the course of a business comprising a regulated activity in relation to which he is exempt; or
(ii)through an office outside the United Kingdom maintained by a party to the transaction, and with or through a person whose head office is situated outside the United Kingdom and whose ordinary business involves him in carrying on activities of the kind specified by any of articles 14, 21, 25, 37, 40, 45, [F3651ZA, 51ZB, 51ZC, 51ZD, 51ZE], 52 and 53 or, so far as relevant to any of those articles, article 64, or would do so apart from any exclusion from any of those articles made by this Order.
(3) In paragraph (2)(a), “members of the public" has the meaning given by article 15(2), references to “A" being read as references to the agent.
(4) There are excluded from article 25(1) and (2) arrangements made by a person if—
(a)he is a member of a group and the arrangements in question are for, or with a view to, a transaction which is or is to be entered into, as principal, by another member of the same group; or
(b)he is or proposes to become a participator in a joint enterprise, and the arrangements in question are for, or with a view to, a transaction which is or is to be entered into, as principal, by another person who is or proposes to become a participator in that enterprise, for the purposes of or in connection with that enterprise.
(5) There is excluded from article 37 any activity carried on by a person if—
(a)he is a member of a group and the assets in question belong to another member of the same group; or
(b)he is or proposes to become a participator in a joint enterprise with the person to whom the assets belong, and the assets are managed for the purposes of or in connection with that enterprise.
(6) There is excluded from article 40 any activity carried on by a person if—
(a)he is a member of a group and the assets in question belong to another member of the same group; or
(b)he is or proposes to become a participator in a joint enterprise, and the assets in question—
(i)belong to another person who is or proposes to become a participator in that joint enterprise; and
(ii)are or are to be safeguarded and administered for the purposes of or in connection with that enterprise.
(7) A person who is a member of a group does not carry on an activity of the kind specified by article 45 where he sends a dematerialised instruction, or causes one to be sent, on behalf of another member of the same group, if the investment to which the instruction relates is one in respect of which a member of the same group is registered as holder in the appropriate register of securities, or will be so registered as a result of the instruction.
(8) In paragraph (7), “dematerialised instruction" and “register of securities" have the meaning given by regulation 3 of the Uncertificated Securities Regulations [F372001].
(9) There is excluded from article 53 the giving of advice by a person if—
(a)he is a member of a group and gives the advice in question to another member of the same group; or
(b)he is, or proposes to become, a participator in a joint enterprise and the advice in question is given to another person who is, or proposes to become, a participator in that enterprise for the purposes of or in connection with that enterprise.
[F38(10) Paragraph (2) does not apply to a transaction for the sale or purchase of a contract of insurance.
(11) Paragraph (4) does not apply to arrangements for, or with a view to, a transaction for the sale or purchase of a contract of insurance.
(12) Paragraph (9) does not apply where the advice relates to a transaction for the sale or purchase of a contract of insurance.]
[F39(13) This article is subject to article 4(4).]
Textual Amendments
F36Words in art. 69(2)(b)(ii) substituted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 1(14)
F37Word in art. 69(8) 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), 13(4)
F38Art. 69(10)-(12) inserted (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), 10(4)
F39Art. 69(13) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 22
70.—(1) A person does not carry on an activity of the kind specified by article 14 by entering as principal into a transaction if—
(a)the transaction is one to acquire or dispose of shares in a body corporate other than an open-ended investment company, or is entered into for the purposes of such an acquisition or disposal; and
(b)either—
(i)the conditions set out in paragraph (2) are met; or
(ii)those conditions are not met, but the object of the transaction may nevertheless reasonably be regarded as being the acquisition of day to day control of the affairs of the body corporate.
(2) The conditions mentioned in paragraph (1)(b) are that—
(a)the shares consist of or include 50 per cent or more of the voting shares in the body corporate; or
(b)the shares, together with any already held by the person acquiring them, consist of or include at least that percentage of such shares; and
(c)in either case, the acquisition or disposal is between parties each of whom is a body corporate, a partnership, a single individual or a group of connected individuals.
(3) In paragraph (2)(c), “a group of connected individuals" means—
(a)in relation to a party disposing of shares in a body corporate, a single group of persons each of whom is—
(i)a director or manager of the body corporate;
(ii)a close relative of any such director or manager;
(iii)a person acting as trustee for any person falling within paragraph (i) or (ii); and
(b)in relation to a party acquiring shares in a body corporate, a single group of persons each of whom is—
(i)a person who is or is to be a director or manager of the body corporate;
(ii)a close relative of any such person; or
(iii)a person acting as trustee for any person falling within paragraph (i) or (ii).
(4) A person does not carry on an activity of the kind specified by article 21 by entering as agent into a transaction of the kind described in paragraph (1).
(5) There are excluded from article 25(1) and (2) arrangements made for, or with a view to, a transaction of the kind described in paragraph (1).
(6) There is excluded from article 53 the giving of advice in connection with a transaction (or proposed transaction) of the kind described in paragraph (1).
[F40(7) Paragraphs (4), (5) and (6) do not apply in the case of a transaction for the sale or purchase of a contract of insurance.]
[F41(8) This article is subject to article 4(4).]
Textual Amendments
F40Art. 70(7) inserted (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), 10(5)
F41Art. 70(8) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 23
71.—(1) A person (“C"), a member of the same group as C or a relevant trustee does not carry on an activity of the kind specified by article 14 by entering as principal into a transaction the purpose of which is to enable or facilitate—
(a)transactions in shares in, or debentures issued by, C between, or for the benefit of, any of the persons mentioned in paragraph (2); or
(b)the holding of such shares or debentures by, or for the benefit of, such persons.
(2) The persons referred to in paragraph (1) are—
(a)the bona fide employees or former employees of C or of another member of the same group as C;
(b)the wives, husbands, widows, widowers, [F42civil partners, surviving civil partners,] or children or step-children under the age of eighteen of such employees or former employees.
(3) C, a member of the same group as C or a relevant trustee does not carry on an activity of the kind specified by article 21 by entering as agent into a transaction of the kind described in paragraph (1).
(4) There are excluded from article 25(1) or (2) arrangements made by C, a member of the same group as C or a relevant trustee if the arrangements in question are for, or with a view to, a transaction of the kind described in paragraph (1).
(5) There is excluded from article 40 any activity if the assets in question are, or are to be, safeguarded and administered by C, a member of the same group as C or a relevant trustee for the purpose of enabling or facilitating transactions of the kind described in paragraph (1).
(6) In this article—
(a)“shares" and “debentures" include—
(i)any investment of the kind specified by article 76 [F43, 77 or 77A];
(ii)any investment of the kind specified by article 79 or 80 so far as relevant to articles 76 [F44, 77 and 77A]; and
(iii)any investment of the kind specified by article 89 so far as relevant to investments of the kind mentioned in paragraph (i) or (ii);
(b)“relevant trustee" means a person who, in pursuance of the arrangements made for the purpose mentioned in paragraph (1), holds, as trustee, shares in or debentures issued by C.
Textual Amendments
F42Words in art. 71(2)(b) inserted (5.12.2005) by The Civil Partnership Act 2004 (Amendments to Subordinate Legislation) Order 2005 (S.I. 2005/2114), reg. 1, Sch. 16 para. 1(4)
F43Words in art. 71(6)(a)(i) substituted (24.2.2010) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2010 (S.I. 2010/86), art. 1(2), Sch. para. 5(c)
F44Words in art. 71(6)(a)(ii) substituted (24.2.2010) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2010 (S.I. 2010/86), art. 1(2), Sch. para. 5(d)
72.—(1) An overseas person does not carry on an activity of the kind specified by article 14 [F45or 25D] by—
(a)entering into a transaction as principal with or though an authorised person, or an exempt person acting in the course of a business comprising a regulated activity in relation to which he is exempt; or
(b)entering into a transaction as principal with a person in the United Kingdom, if the transaction is the result of a legitimate approach.
(2) An overseas person does not carry on an activity of the kind specified by article 21 [F46or 25D] by—
(a)entering into a transaction as agent for any person with or through an authorised person or an exempt person acting in the course of a business comprising a regulated activity in relation to which he is exempt; or
(b)entering into a transaction with another party (“X") as agent for any person (“Y"), other than with or through an authorised person or such an exempt person, unless—
(i)either X or Y is in the United Kingdom; and
(ii)the transaction is the result of an approach (other than a legitimate approach) made by or on behalf of, or to, whichever of X or Y is in the United Kingdom.
(3) There are excluded from article 25(1) [F47or 25D] arrangements made by an overseas person with an authorised person, or an exempt person acting in the course of a business comprising a regulated activity in relation to which he is exempt.
(4) There are excluded from article 25(2) [F48or 25D] arrangements made by an overseas person with a view to transactions which are, as respects transactions in the United Kingdom, confined to—
(a)transactions entered into by authorised persons as principal or agent; and
(b)transactions entered into by exempt persons, as principal or agent, in the course of business comprising regulated activities in relation to which they are exempt.
(5) There is excluded from article 53 the giving of advice by an overseas person as a result of a legitimate approach.
[F49(5A) An overseas person does not carry on an activity of the kind specified by article 25A(1)(a), [F5025A(2A),] 25B(1)(a) [F51, 25C(1)(a) or 25E(1)(a)] if each person who may be contemplating entering into the relevant type of agreement in the relevant capacity is non-resident.
(5B) There are excluded from articles 25A(1)(b), 25B(1)(b) [F52, 25C(1)(b) and 25E(1)(b)] arrangements made by an overseas person to vary the terms of a qualifying agreement.
(5C) There are excluded from articles 25A(2), 25B(2) [F53, 25C(2) and 25E(2)], arrangements made by an overseas person which are made solely with a view to non-resident persons who participate in those arrangements entering, in the relevant capacity, into the relevant type of agreement.
(5D) An overseas person does not carry on an activity of the kind specified in article 61(1), 63B(1) [F54, 63F(1) or 63J(1)] by entering into a qualifying agreement.
(5E) An overseas person does not carry on an activity of the kind specified in article 61(2), 63B(2) [F55, 63F(2) or 63J(2)] where he administers a qualifying agreement.
(5F) In paragraphs (5A) to (5E)—
(a)“non-resident” means not normally resident in the United Kingdom;
(b)“qualifying agreement” means—
(i)in relation to articles 25A and 61, a regulated mortgage contract where the borrower (or each borrower) is non-resident when he enters into it;
(ii)in relation to articles 25B and 63B, a regulated home reversion plan where the reversion seller (or each reversion seller) is non-resident when he enters into it;
(iii)in relation to articles 25C and 63F, a regulated home purchase plan where the home purchaser (or each home purchaser) is non-resident when he enters into it;
[F56(iv)in relation to articles 25E and 63J, a regulated sale and rent back agreement where the agreement seller (or each agreement seller) is non-resident when the agreement seller enters into it;]
(c)“the relevant capacity” means—
(i)in the case of a regulated mortgage contract, as borrower;
(ii)in the case of a regulated home reversion plan, as reversion seller or plan provider;
(iii)in the case of a regulated home purchase plan, as home purchaser;
[F57(iv)in the case of a regulated sale and rent back agreement, as agreement seller or agreement provider;]
(d)“the relevant type of agreement” means—
(i)in relation to article 25A, a regulated mortgage contract;
(ii)in relation to article 25B, a regulated home reversion plan;
(iii)in relation to article 25C, a regulated home purchase plan[F58;
(iv)in relation to article 25E, a regulated sale and rent back agreement].]
(6) There is excluded from article 64 any agreement made by an overseas person to carry on an activity of the kind specified by article 25(1) or (2), 37 [F59, 39A], 40 or 45 if the agreement is the result of a legitimate approach.
(7) In this article, “legitimate approach" means—
(a)an approach made to the overseas person which has not been solicited by him in any way, or has been solicited by him in a way which does not contravene section 21 of the Act; or
(b)an approach made by or on behalf of the overseas person in a way which does not contravene that section.
[F60(8) Paragraphs (1) to (5) do not apply where the overseas person is an investment firm or credit institution—
(a)who is providing or performing investment services and activities on a professional basis; and
(b)whose home Member State is the United Kingdom.]
[F61(9) Paragraphs (1) to (5) do not apply where the overseas person is providing clearing services as a central counterparty (within the meaning of section 313(1) of the Act).]
[F62(10) Paragraphs (5A) and (5C) do not apply where the overseas person is a mortgage intermediary whose home Member State is the United Kingdom.]
Textual Amendments
F45Words in art. 72(1) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 24(a)
F46Words in art. 72(2) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 24(b)
F47Words in art. 72(3) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 24(c)
F48Words in art. 72(4) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 24(d)
F49Art. 72(5A)-(5F) substituted (6.11.2006 for specified purposes, 6.4.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2006 (S.I. 2006/2383), arts. 1(2), 21
F50Word in art. 72(5A) inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(26)(a) (with Pt. 4)
F51Words in art. 72(5A) substituted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 20(a)
F52Words in art. 72(5B) substituted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 20(b)
F53Words in art. 72(5C) substituted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 20(c)
F54Words in art. 72(5D) substituted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 20(d)
F55Words in art. 72(5E) substituted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 20(e)
F56Art. 72(5F)(b)(iv) inserted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 20(f)
F57Art. 72(5F)(c)(iv) inserted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 20(g)
F58Art. 72(5F)(d)(iv) and semi-colon inserted (1.7.2009 for specified purposes, 30.6.2010 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2009 (S.I. 2009/1342), arts. 1(2), 20(h)
F59Word in art. 72(6) inserted (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), 10(6)
F60Art. 72(8) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 24(e)
F61Art. 72(9) inserted (1.4.2013) by The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 (S.I. 2013/504), regs. 1(2), 33(5) (with regs. 52-58)
F62Art. 72(10) inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(26)(b) (with Pt. 4)
Modifications etc. (not altering text)
C1Art. 72 modified in part (31.10.2001) by The Financial Services and Markets Act 2000 (Interim Permissions) Order 2001 (S.I. 2001/3374), art. 1, Sch. para. 12 (with Sch. para. 4)
C2Art. 72 modified in part (31.10.2004) by The Financial Services and Markets Act 2000 (Transitional Provisions) (Mortgages) Order 2004 (S.I. 2004/2615), art. 1(2)(b), Sch. para. 12 (with Sch. para. 4)
C3Art. 72 modified in part (14.1.2005) by The Financial Services and Markets Act 2000 (Transitional Provisions) (General Insurance Intermediaries) Order 2004 (S.I. 2004/3351), art. 1(2)(b), Sch. para. 11 (with Sch. para. 4)
C4Art. 72 modified in part (6.4.2007) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2006 (S.I. 2006/1969), art. 1(3), Sch. para. 13 (with Sch. para. 4)
72A.—(1) There is excluded from this Part any activity consisting of the provision of an information society service from an EEA State other than the United Kingdom.
(2) The exclusion in paragraph (1) does not apply to the activity of effecting or carrying out a contract of insurance as principal, where [F64the insurance falls within the scope of the Solvency 2 Directive.]
F65(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F65(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
[F66(3) The exclusion in paragraph (1) does not apply to an activity carried on by a person (“P”) if—
(a)the FCA has given a final notice to P under section 390 of the Act, as applied by regulation 11C of the Electronic Commerce Directive (Financial Services and Markets) Regulations 2002, in relation to that activity; and
(b)a determination made by that notice is in effect.]]
Textual Amendments
F63Art. 72A 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, 2
F64Words in art. 72A(2) inserted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 2 para. 11(4)(b)
F65Art. 72A(2)(a)(b) omitted (1.1.2016) by virtue of The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 2 para. 11(4)(a)
F66Art. 72A(3) inserted (24.3.2015) by The Electronic Commerce Directive (Financial Services and Markets) (Amendment) Order 2015 (S.I. 2015/852), arts. 1(2), 3
72AA.—(1) This article applies to a person with a Part 4A permission to carry on the activity of the kind specified by article 51ZA or 51ZC.
(2) Activities carried on by the person in connection with or for the purposes of managing a UCITS or, as the case may be, managing an AIF, are excluded from the activities specified by this Part, other than the activities mentioned in paragraph (1).]
Textual Amendments
F67Art. 72AA inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 1(16)
Modifications etc. (not altering text)
C5Art. 72AA excluded by S.I. 2013/1773, reg. 74(4) (as substituted (16.6.2014) by The Alternative Investment Fund Managers Order 2014 (S.I. 2014/1292), arts. 1(2), 4(6)(b) (as amended by S.I. 2014/1313, arts. 1, 2(a)))
C6Art. 72AA excluded by S.I. 2013/1773, reg. 75(2A) (as inserted (16.6.2014) by The Alternative Investment Fund Managers Order 2014 (S.I. 2014/1292), arts. 1(2), 4(7)(b) (as amended by S.I. 2014/1313, arts. 1, 2(a)))
72B.—(1) In this article—
“connected contract of insurance” means a contract of insurance which—
is not a contract of long-term insurance;
has a total duration (or would have a total duration were any right to renew conferred by the contract exercised) of five years or less;
has an annual premium (or, where the premium is paid otherwise than by way of annual premium, the equivalent of an annual premium) of 500 euro or less, or the equivalent amount in sterling or other currency;
covers the risk of—
breakdown, loss of, or damage to, non-motor goods supplied by the provider; or
[F69damage to, or loss of, baggage and other risks linked to the travel booked with the provider (“travel risks”) in circumstances where—
the travel booked with the provider relates to attendance at an event organised or managed by that provider and the party seeking insurance is not an individual (acting in his private capacity) or a small business; or
the travel booked with the provider is only the hire of an aircraft, vehicle or vessel which does not provide sleeping accommodation;]
does not cover any liability risks (except, in the case of a contract which covers travel risks, where that cover is ancillary to the main cover provided by the contract);
is complementary to the non-motor goods being supplied or service being provided by the provider; and
is of such a nature that the only information that a person requires in order to carry on an activity of the kind specified by article 21, 25, 39A or 53 in relation to it is the cover provided by the contract;
“non-motor goods” means goods which are not mechanically propelled road vehicles;
“provider” means a person who supplies non-motor goods or provides services related to travel in the course of carrying on a profession or business which does not otherwise consist of the carrying on of regulated activities. [F70For these purposes, the transfer of possession of an aircraft, vehicle or vessel under an agreement for hire which is not—
a hire-purchase agreement F71..., or
any other agreement which contemplates that the property in those goods will also pass at some time in the future,
is the provision of a service related to travel, not a supply of goods;
“small business” means—
subject to paragraph (b) a sole trader, body corporate, partnership or an unincorporated association which had a turnover in the last financial year of less than £1,000,000;
where the business concerned is a member of a group within the meaning of [F72section 474(1) of the Companies Act 2006], reference to its turnover means the combined turnover of the group;
“turnover” means the amounts derived from the provision of goods and services falling within the business’s ordinary activities, after deduction of trade discounts, value added tax and any other taxes based on the amounts so derived.]
(2) There is excluded from article 21 any transaction for the sale or purchase of a connected contract of insurance into which a provider enters as agent.
(3) There are excluded from article 25(1) and (2) any arrangements made by a provider for, or with a view to, a transaction for the sale or purchase of a connected contract of insurance.
(4) There is excluded from article 39A any activity carried on by a provider where the contract of insurance in question is a connected contract of insurance.
(5) There is excluded from article 53 the giving of advice by a provider in relation to a transaction for the sale or purchase of a connected contract of insurance.
(6) For the purposes of this article, a contract of insurance which covers travel risks is not to be treated as a contract of long-term insurance, notwithstanding the fact that it contains related and subsidiary provisions such that it might be regarded as a contract of long-term insurance, if the cover to which those provisions relate is ancillary to the main cover provided by the contract.
Textual Amendments
F68Arts. 72B-72D inserted (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), 11
F69Words in art. 72B(1) substituted (30.6.2008 for specified purposes, 1.1.2009 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2007 (S.I. 2007/3510), arts. 1(2), 2(2) (with regs. 3-9)
F70Words in art. 72B(1) inserted (30.6.2008 for specified purposes, 1.1.2009 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2007 (S.I. 2007/3510), arts. 1(2), 2(3) (with regs. 3-9)
F71Words in art. 72B(1) omitted (26.7.2013 for specified purposes, 1.4.2014 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013 (S.I. 2013/1881), art. 1(2)(6), 9(1)
F72Words in art. 72B(1) substituted (12.5.2011) by The Companies Act 2006 (Consequential Amendments and Transitional Provisions) Order 2011 (S.I. 2011/1265), arts. 1(2), 13(5)
72C.—(1) There is excluded from articles 25(1) and (2) the making of arrangements for, or with a view to, a transaction for the sale or purchase of a contract of insurance or an investment of the kind specified by article 89, so far as relevant to such a contract, where that activity meets the conditions specified in paragraph (4).
(2) There is excluded from articles 37 and 40 any activity—
(a)where the assets in question are rights under a contract of insurance or an investment of the kind specified by article 89, so far as relevant to such a contract; and
(b)which meets the conditions specified in paragraph (4).
(3) There is excluded from article 39A any activity which meets the conditions specified in paragraph (4).
(4) The conditions specified in this paragraph are that the activity—
(a)consists of the provision of information to the policyholder or potential policyholder;
(b)is carried on by a person in the course of carrying on a profession or business which does not otherwise consist of the carrying on of regulated activities; and
(c)may reasonably be regarded as being incidental to that profession or business.
Textual Amendments
F68Arts. 72B-72D inserted (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), 11
72D.—(1) There is excluded from articles 21, 25(1) and (2), 39A and 53 any activity which is carried on in relation to a large risks contract of insurance, to the extent that the risk or commitment covered by the contract is not situated in an EEA State.
(2) In this article, a “large risks contract of insurance” is a contract of insurance the principal object of which is to cover—
(a)risks falling within paragraph 4 (railway rolling stock), 5 (aircraft), 6 (ships), 7 (goods in transit), 11 (aircraft liability) or 12 (liability of ships) of Part 1 of Schedule 1;
(b)risks falling within paragraph 14 (credit) or 15 (suretyship) of that Part provided that the risks relate to a business carried on by the policyholder; or
(c)risks falling within paragraph 3 (land vehicles), 8 (fire and natural forces), 9 (damage to property), 10 (motor vehicle liability), 13 (general liability) or 16 (miscellaneous financial loss) of that Part provided that the risks relate to a business carried on by the policyholder and that the condition specified in paragraph (3) is met in relation to that business.
(3) The condition specified in this paragraph is that at least two of the three following criteria were met in the most recent financial year for which information is available—
(a)the balance sheet total of the business [F73(within the meaning of section 382(5) or 465(5) of the Companies Act 2006)] exceeded 6.2 million euro,
(b)the net turnover [F74(within the meaning given to “turnover” by section 474(1) of the Companies Act 2006)] exceeded 12.8 million euro,
(c)the number of employees [F75(within the meaning given by sections 382(6) and 465(6) of the Companies Act 2006)] exceeded 250,
and for a financial year which is a company’s financial year but not in fact a year, the net turnover of the policyholder shall be proportionately adjusted.
(4) For the purposes of paragraph (3), where the policyholder is a member of a group for which consolidated accounts (within the meaning of the Seventh Company Law Directive) are drawn up, the question whether the condition specified by that paragraph is met is to be determined by reference to those accounts.]
Textual Amendments
F68Arts. 72B-72D inserted (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), 11
F73Words in art. 72D(3)(a) substituted (12.5.2011) by The Companies Act 2006 (Consequential Amendments and Transitional Provisions) Order 2011 (S.I. 2011/1265), arts. 1(2), 13(6)(a)
F74Words in art. 72D(3)(b) substituted (12.5.2011) by The Companies Act 2006 (Consequential Amendments and Transitional Provisions) Order 2011 (S.I. 2011/1265), arts. 1(2), 13(6)(b)
F75Words in art. 72D(3)(c) substituted (12.5.2011) by The Companies Act 2006 (Consequential Amendments and Transitional Provisions) Order 2011 (S.I. 2011/1265), arts. 1(2), 13(6)(c)
72E.—(1) A body corporate of a type specified in paragraph (7) does not carry on the activity of the kind specified by article 21 by entering as agent into a transaction on behalf of the participants of a Business Angel-led Enterprise Capital Fund.
(2) There are excluded from article 25(1) and (2) arrangements, made by a body corporate of a type specified in paragraph (7), for or with a view to a transaction which is or is to be entered into by or on behalf of the participants in a Business Angel-led Enterprise Capital Fund.
(3) There is excluded from article 37 any activity, carried on by a body corporate of a type specified in paragraph (7), which consists in the managing of assets belonging to the participants in a Business Angel-led Enterprise Capital Fund.
(4) There is excluded from article 40 any activity, carried on by a body corporate of a type specified in paragraph (7), in respect of assets belonging to the participants in a Business Angel-led Enterprise Capital Fund.
(5) A body corporate of a type specified in paragraph (7) does not carry on the activity of the kind specified in article [F7751ZA, 51ZC or 51ZE] where it carries on the activity of establishing, operating or winding up a Business Angel-led Enterprise Capital Fund.
(6) A body corporate of a type specified in paragraph (7) does not carry on the activity of the kind specified in article 53 where it is advising the participants in a Business Angel-led Enterprise Capital Fund on investments to be made by or on behalf of the participants of that Business Angel-led Enterprise Capital Fund.
(7) The type of body corporate specified is a limited company—
(i)which operates a Business Angel-led Enterprise Capital Fund; and
(ii)the members of which are participants in the Business Angel-led Enterprise Capital Fund operated by that limited company and between them have invested at least 50 per cent of the total investment in that Business Angel-led Enterprise Capital Fund excluding any investment made by the Secretary of State.
(8) For the purposes of paragraph (7), “a limited company” means a body corporate with limited liability which is a company or firm formed in accordance with the law of an EEA State and having its registered office, central administration or principal place of business within the territory of an EEA State.
(9) Nothing in this article has the effect of excluding a body corporate from the application of the Money Laundering Regulations [F782007], in so far as those Regulations would have applied to it but for this article.
(10) Nothing in this article has the effect of excluding a body corporate from the application of section 397 of the Act (misleading statements and practices), in so far as that section would have applied to it but for this article.
[F79(11) This article is subject to article 4(4).]]
Textual Amendments
F76Arts. 72E, 72F inserted (1.10.2005) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2005 (S.I. 2005/1518), arts. 1, 2(3)
F77Words in art. 72E(5) substituted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 1(15)
F78Word in art. 72E(9) substituted (15.12.2007) by The Money Laundering Regulations 2007 (S.I. 2007/2157), reg. 1(1), Sch. 6 para. 10
F79Art. 72E(11) inserted (1.4.2007 for specified purposes, 1.11.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment No. 3) Order 2006 (S.I. 2006/3384), arts. 1(2), 25
72F.—(1) For the purposes of this article and of article 72E—
“Business Angel-led Enterprise Capital Fund” means a collective investment scheme which—
is established for the purpose of enabling participants to participate in or receive profits or income arising from the acquisition, holding, management or disposal of investments falling within one or more of—
article 76, being shares in an unlisted company;
article 77, being instruments creating or acknowledging indebtedness in respect of an unlisted company;
[F80article 77A, being rights under an alternative finance investment bond issued by an unlisted company;] and
article 79, being warrants or other instruments entitling the holder to subscribe for shares in an unlisted company;
has only the following as its participants—
the Secretary of State;
a body corporate of a type specified in article 72E(7); and
one or more persons each of whom at the time they became a participant was—
a sophisticated investor;
a high net worth individual;
a high net worth company;
a high net worth unincorporated association;
a trustee of a high value trust; or
a self-certified sophisticated investor;
is prevented, by the arrangements by which it is established, from—
acquiring investments, other than those falling within paragraphs (i) to (iii) of sub-paragraph (a); and
acquiring investments falling within paragraphs (i) to (iii) of sub-paragraph (a) in an unlisted company, where the aggregated cost of those investments exceeds £2 million, unless that acquisition is necessary to prevent or reduce the dilution of an existing share-holding in that unlisted company;
“high net worth company” means a body corporate which—
falls within article 49(2)(a) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001 (high net worth companies, unincorporated associations etc.); and
has executed a document [F81(in a manner which binds the company)] in the following terms:
“This company is a high net worth company and falls within article 49(2)(a) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001. We understand that any Business Angel-led Enterprise Capital Fund (within the meaning of article 72F of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001), in which this company participates, or any person who operates that Business Angel-led Enterprise Capital Fund, in which this company participates, will not be authorised under the Financial Services and Markets Act 2000 (and so will not have to satisfy the threshold conditions set out in Part I of Schedule 6 to that Act and will not be subject to Financial Services Authority rules such as those on holding client money). We understand that this means that redress through the Financial Services Authority, the Financial Ombudsman Scheme or the Financial Services Compensation Scheme will not be available. We also understand the risks associated in investing in a Business Angel-led Enterprise Capital Fund and are aware that it is open to us to seek advice from someone who is authorised under the Financial Services and Markets Act 2000 and who specialises in advising on this kind of investment.”
“high net worth individual” means an individual who—
is a “certified high net worth individual” within the meaning of article 48(2) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001 (certified high net worth individuals); and
has signed a statement in the following terms:
“I declare that I am a certified high net worth individual within the meaning of article 48(2) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001 and that I understand that any Business Angel-led Enterprise Capital Fund (within the meaning of article 72F of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001), in which I participate, or any person who operates that Business Angel-led Enterprise Capital Fund, in which I participate, will not be authorised under the Financial Services and Markets Act 2000 (and so will not have to satisfy the threshold conditions set out in Part I of Schedule 6 to that Act and will not be subject to Financial Services Authority rules such as those on holding client money). I understand that this means that redress through the Financial Services Authority, the Financial Ombudsman Scheme or the Financial Services Compensation Scheme will not be available. I also understand the risks associated in investing in a Business Angel-led Enterprise Capital Fund and am aware that it is open to me to seek advice from someone who is authorised under the Financial Services and Markets Act 2000 and who specialises in advising on this kind of investment.”;
“high net worth unincorporated association” means an unincorporated association—
which falls within article 49(2)(b) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001; and
on behalf of which an officer of that association or a member of its governing body has signed a statement in the following terms:
“This unincorporated association is a high net worth unincorporated association and falls within article 49(2)(b) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001. I understand that any Business Angel-led Enterprise Capital Fund (within the meaning of article 72F of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001), in which this association participates, or any person who operates that Business Angel-led Enterprise Capital Fund, in which this association participates, will not be authorised under the Financial Services and Markets Act 2000 (and so will not have to satisfy the threshold conditions set out in Part I of Schedule 6 to that Act and will not be subject to Financial Services Authority rules such as those on holding client money). I understand that this means that redress through the Financial Services Authority, the Financial Ombudsman Scheme or the Financial Services Compensation Scheme will not be available. I also understand the risks associated in investing in a Business Angel-led Enterprise Capital Fund and am aware that it is open to the association to seek advice from someone who is authorised under the Financial Services and Markets Act 2000 and who specialises in advising on this kind of investment.”;
“high value trust” means a trust—
where the aggregate value of the cash and investments which form a part of the trust’s assets (before deducting the amount of its liabilities) is £10 million or more;
on behalf of which a trustee has signed a statement in the following terms:
“This trust is a high value trust. I understand that any Business Angel-led Enterprise Capital Fund (within the meaning of article 72F of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001), in which this trust participates, or any person who operates that Business Angel-led Enterprise Capital Fund, in which this trust participates, will not be authorised under the Financial Services and Markets Act 2000 (and so will not have to satisfy the threshold conditions set out in Part I of Schedule 6 to that Act and will not be subject to Financial Services Authority rules such as those on holding client money). I understand that this means that redress through the Financial Services Authority, the Financial Ombudsman Scheme or the Financial Services Compensation Scheme will not be available. I also understand the risks associated in investing in a Business Angel-led Enterprise Capital Fund and am aware that it is open to the trust to seek advice from someone who is authorised under the Financial Services and Markets Act 2000 and who specialises in advising on this kind of investment.”;
“self-certified sophisticated investor” means an individual who—
is a “self-certified sophisticated investor” within the meaning of article 50A of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001;
has signed a statement in the following terms:
“I declare that I am a self-certified sophisticated investor within the meaning of article 50A of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001 and that I understand that any Business Angel-led Enterprise Capital Fund (within the meaning of article 72F of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001), in which I participate, or any person who operates that Business Angel-led Enterprise Capital Fund, in which I participate, will not be authorised under the Financial Services and Markets Act 2000 (and so will not have to satisfy the threshold conditions set out in Part I of Schedule 6 to that Act and will not be subject to Financial Services Authority rules such as those on holding client money). I understand that this means that redress through the Financial Services Authority, the Financial Ombudsman Scheme or the Financial Services Compensation Scheme will not be available. I also understand the risks associated in investing in a Business Angel-led Enterprise Capital Fund and am aware that it is open to me to seek advice from someone who is authorised under the Financial Services and Markets Act 2000 and who specialises in advising on this kind of investment.”;
“sophisticated investor” means an individual who—
is a “certified sophisticated investor” within the meaning of article 50(1) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001; and
has signed a statement in the following terms:
“I declare that I am a certified sophisticated investor within the meaning of article 50(1) of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001 and that I understand that any Business Angel-led Enterprise Capital Fund (within the meaning of article 72F of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001), in which I participate, or any person who operates that Business Angel-led Enterprise Capital Fund, in which I participate, will not be authorised under the Financial Services and Markets Act 2000 (and so will not have to satisfy the threshold conditions set out in Part I of Schedule 6 to that Act and will not be subject to Financial Services Authority rules such as those on holding client money). I understand that this means that redress through the Financial Services Authority, the Financial Ombudsman Scheme or the Financial Services Compensation Scheme will not be available. I also understand the risks associated in investing in a Business Angel-led Enterprise Capital Fund and am aware that it is open to me to seek advice from someone who is authorised under the Financial Services and Markets Act 2000 and who specialises in advising on this kind of investment.”;
“unlisted company” has the meaning given by article 3 of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001.
(2) References in this Article and in Article 72E to a participant in a Business Angel-led Enterprise Capital Fund, doing things on behalf of such a participant and property belonging to such a participant are, respectively, references to that participant in that capacity, to doing things on behalf of that participant in that capacity or to the property of that participant held in that capacity.]
Textual Amendments
F76Arts. 72E, 72F inserted (1.10.2005) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2005 (S.I. 2005/1518), arts. 1, 2(3)
F80Words in art. 72F(1) inserted (24.2.2010) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2010 (S.I. 2010/86), art. 1(2), Sch. para. 5(e)
F81Words in art. 72F(1) substituted (6.11.2006 for specified purposes, 6.4.2007 in so far as not already in force) by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2006 (S.I. 2006/2383), arts. 1(2), 22
72G.—(1) There is excluded from article 5 any activity which is carried on by a local authority.
(2) There is excluded from articles 21, 25(1) and (2), 39A and 53 any activity carried on by a local authority which relates to a contract of insurance which is not a qualifying contract of insurance.
(3) There is excluded from articles [F8325A(1)(b), 25A(2)], 25B, 25C, 25E, 36A, 39D, 39E, 39F, 39G, F84... 53B, 53C, 53D, 60N, F84... 63B, 63F, 63J or 89A any activity which is carried on by a local authority.
[F85(3A) There is excluded from article 25A(1)(b) and (2) any activity which is carried on by a company which is a wholly-owned subsidiary of a local authority.
(3B) There is excluded from articles 25A(1)(a) and (2A), 53A, 53DA and 61 any activity which is carried on by a local authority, or a company which is a wholly-owned subsidiary of a local authority, in so far as the contract F86...—
[F87(a)was entered into before 21st March 2016; or
(b)is entered into on or after 21st March 2016 and—
(i)is of a kind to which the mortgages directive does not apply by virtue of Article 3(2) of that directive;
(ii)is a bridging loan; or
(iii)is a restricted public loan in relation to which the requirements of paragraph (6) are met.]]
[F88(4) There is excluded from article 60B—
[F89(a)any activity which is carried on by a local authority—
(i)in relation to a credit agreement which was entered into before 21st March 2016, or which is entered into on or after that date for a purpose other than acquiring or retaining property rights in land or in an existing or projected building; and
(ii)in so far as the activity is carried on in relation to a credit agreement of a kind to which the consumer credit directive does not apply by virtue of Article 2(2) of that directive;]
(b)any activity which is carried on by a local authority [F90in relation to a credit agreement entered into on or after 21st March 2016], the purpose of which is to acquire or retain property rights in land or in an existing or projected building, in so far as the credit agreement meets one of the following conditions—
(i)it is of a kind to which the mortgages directive does not apply by virtue of Article 3(2) of that directive;
(ii)it is a bridging loan; or
(iii)it is a restricted public loan in relation to which the requirements of paragraph (6) are met.]
(5) There is excluded from article 64 any agreement made by a local authority to carry on an activity of the kind excluded by paragraphs (2) to (4).
[F91(6) The requirements of this paragraph are that—
(a)the borrower receives timely information on the main features, risks and costs of the loan at the pre-contractual stage; and
(b)any advertising of the loan is fair, clear and not misleading.
(7) In this article—
“bridging loan” has the meaning given by Article 4(23) of the mortgages directive;
“borrower” means a person receiving credit;
“consumer credit directive” means Directive 2008/48/EC of the European Parliament and of the Council of 23rd April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EC;
“credit” includes a cash loan and any other form of financial accommodation;
“restricted public loan” means credit that is—
offered to a particular class of borrower and not offered to the public generally;
offered under an enactment with a general interest purpose; and
provided on terms which are more favourable to the borrower than those prevailing on the market, because the credit meets one of the following conditions—
it is interest free;
the rate of interest is lower than that prevailing on the market; or
the rate of interest is no higher than that prevailing on the market but the other terms on which the credit is provided are more favourable to the borrower; and
“wholly-owned subsidiary” has the same meaning as in section 1159 (meaning of “subsidiary” etc.) of the Companies Act 2006 and, for the purposes of this definition, a local authority is to be treated as a body corporate.]
Textual Amendments
F82Arts. 72G, 72H 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(43)
F83Words in art. 72G(3) substituted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(27)(a)(i) (with Pt. 4)
F84Words in art. 72G(3) omitted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by virtue of The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(27)(a)(ii) (with Pt. 4)
F85Art. 72G(3A)(3B) inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(27)(b) (with Pt. 4)
F86Word in art. 72G(3B) omitted (17.3.2016 for specified purposes, 21.3.2016 in so far as not already in force) by virtue of The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2016 (S.I. 2016/392), art. 1(2)(3)(c), 2(20)(a)(i) (with Pt. 5)
F87Art. 72G(3B)(a)(b) substituted for arts. 72G(3B)(a)-(c) (17.3.2016 for specified purposes, 21.3.2016 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)(c), 2(20)(a)(ii) (with Pt. 5)
F88Art. 72G(4) substituted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(27)(c) (with Pt. 4)
F89Art. 72G(4)(a) substituted (17.3.2016 for specified purposes, 21.3.2016 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)(c), 2(20)(b)(i) (with Pt. 5)
F90Words in art. 72G(4)(b) inserted (17.3.2016 for specified purposes, 21.3.2016 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)(c), 2(20)(b)(ii) (with Pt. 5)
F91Art. 72G(6)(7) inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(27)(d) (with Pt. 4)
72H.—(1) There is excluded from the provisions listed in paragraph (2) any activity carried on by a person acting as an insolvency practitioner.
(2) The provisions are—
(a)article 14 (dealing in investments as principal);
(b)article 21 (dealing in investments as agent);
(c)article 25 (arranging deals in investments);
(d)article 25D (operating a multilateral trading facility);
(e)article 37 (managing investments);
(f)article 39A (assisting in the administration and performance of a contract of insurance);
(g)article 39D (debt adjusting);
(h)article 39E (debt-counselling);
(i)article 39F (debt-collecting);
(j)article 39G (debt administration);
(k)article 40 (safeguarding and administering investments);
(l)article 45 (sending dematerialised instructions);
(m)article 51ZA (managing a UCITS);
(n)article 51ZB (acting as trustee or depositary of a UCITS);
(o)article 51ZC (managing an AIF);
(p)article 51ZD (acting as trustee or depositary of an AIF);
(q)article 51ZE (establishing etc. a collective investment scheme);
(r)article 52 (establishing etc. a pension scheme);
(s)article 53 (advising on investments);
(t)article 89A (providing credit information services).
(3) There is excluded from articles 39D, 39E and 89A any activity carried on by a person acting in reasonable contemplation of that person’s appointment as an insolvency practitioner.
(4) There is excluded from article 64 any agreement made by a person acting as an insolvency practitioner to carry on an activity of the kind excluded by paragraph (1).
(5) There is excluded from article 64 any agreement made by a person acting in reasonable contemplation of that person’s appointment as an insolvency practitioner to carry on an activity of the kind excluded by paragraph (3).]
Textual Amendments
F82Arts. 72G, 72H 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(43)
72I.—(1) There is excluded from articles 25A, 36A, 53A, 53DA, 60B and 61 any consumer buy-to-let mortgage business [F93which relates to an agreement entered into on or after 21st March 2016 and is] carried on by a registered consumer buy-to-let mortgage firm.
(2) In this article “consumer buy-to-let mortgage business” and “registered consumer buy-to-let mortgage firm” have the meanings given in article 4 of the Mortgage Credit Directive Order 2015 (interpretation of Part 3).]
Textual Amendments
F92Art. 72I inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 4(28) (with Pt. 4)
F93Words in art. 72I(1) inserted (17.3.2016 for specified purposes, 21.3.2016 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)(c), 2(21) (with Pt. 5)