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The Electronic Money Regulations 2011

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Regulation 62

SCHEDULE 3U.K.Application and modification of legislation

This schedule has no associated Explanatory Memorandum

PART 1U.K.Application and modification of the 2000 Act

Disciplinary powersU.K.

[F11.  Sections 66 (disciplinary powers) to 70 (statements of policy: procedure) of the 2000 Act apply with the following modifications—

(a)in section 66 omit subsections (3)(aa) to (ac), (3A) to (3D), (5A), (8) and (9); and

(b)for section 66A substitute—

“66A.—(1) For the purpose of action by the FCA, a person is guilty of misconduct if, while a relevant person, the person has been knowingly concerned in a contravention of the Electronic Money Regulations 2011 by an electronic money issuer which is an electronic money institution, credit institution, credit union or municipal bank.

(2) “Relevant person” means any person responsible for the management of the electronic money issuer or, where relevant, any person responsible for the management of electronic money issuance by the electronic money issuer.”; and

(c)in section 67—

(i)omit subsections (2A), (2B), (5A), (5B), (8) and (9);

(ii)in subsection (1) omit the words from “; and if it proposes” to the end;

(iii)in subsection (4) omit the words from “and if it decides” to the end; and

(iv)in subsection (7) omit the words “and if the regulator decides” to the end.]

Textual Amendments

The TribunalU.K.

2.  M1Part 9 of the 2000 Act (hearings and appeals) applies in respect of references to the Upper Tribunal made under these Regulations as it applies in respect of references to the Upper Tribunal made under that Act, with the following modifications—

(a)in section 133 M2 (proceedings before Tribunal: general provision)—

(i)omit subsection (1)(b) and (c);

(ii)in subsection (2) in the definition of “relevant decision” omit “, (b) or (c)”;

[F2(iia)for subsection (7A) substitute—

“(7A) A reference is a “disciplinary reference” for the purposes of this section if it is in respect of any of the following decisions—

(a)a decision to publish a statement under regulation 50 of the Electronic Money Regulations 2011;

(b)a decision to impose a penalty under regulation 51 of those Regulations;

(c)a decision to suspend or impose a restriction on authorisation under regulation 52 of those Regulations;

(d)a decision to take action under section 66 of the 2000 Act as applied by those Regulations;

(e)a decision to take action under section 345 of the 2000 Act as applied by those Regulations.”;]

(b)in section 133A (decision and supervisory notices, etc)—

(i)in subsection (1) omit “, as a result of section 388(2),”; and

F3(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)in section 133B (offences)—

(i)omit subsection (1)(b) and (c); and

(ii)in subsection (4)(a) for “the statutory maximum” substitute “ level 5 on the standard scale ”.

Textual Amendments

F3Sch. 3 para. 2(b)(ii) omitted (14.2.2014 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) Order 2014 (S.I. 2014/366), arts. 1(3)(4), 18(4)(a)

Marginal Citations

M1Sections 132 and 137 were repealed by S.I. 2010/22.

M2Substituted, together with sections 133A and 133B, by S.I. 2010/22.

Information gathering and investigationsU.K.

3.  M3Part 11 of the 2000 Act (information gathering and investigations) applies with the following modifications—

(a)in section 165 ([F4Regulator’s] power to require information: authorised persons etc)—

(i)for references to “an authorised person” substitute “ a person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011 ”;

(ii)in subsection (4) for “this Act” substitute “ the Electronic Money Regulations 2011 ”; and

(iii)in subsection (7) omit paragraphs [F5(b), (c) and (d)];

[F6(b)in section 166 (reports by skilled persons)—

(i)in subsection (2), for paragraph (a) substitute—

“(a)a person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011 (“A”)”;

(ii)omit subsections (10) and (11);]

[F7(ba)in section 166A (appointment of skilled person to collect and update information), for each reference to an “authorised person” substitute “person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011;]

(c)in section 167 M4 (appointment of persons to carry out general investigations)—

(i)in subsection (1)—

F8(aa). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(bb)in paragraph (a) for “a recognised investment exchange or an authorised person or of an appointed representative” substitute “ a person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011 ”;

(cc)in paragraph (c) for “a recognised investment exchange or an authorised person” substitute “ a person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011 ”;

(ii)in subsection (4)—

(aa)for “in relation to a former authorised person (or appointed representative)” substitute “ in relation to a person who was formerly a person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011 ”;

(bb)in paragraph (a) for “he was an authorised person (or appointed representative)” substitute “ it was a person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011 ”; and

(cc)for paragraph (b) substitute—

“(b)the ownership or control of a person who was formerly a person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011 at any time when it was such a person.”;

(iii)in subsection (5) for “regulated activities” substitute “ the activity of issuing electronic money ”; F9...

[F10(iiia)for subsection (5A) substitute—

“(5A) “Investigating authority” means the FCA.”; and]

(iv)omit subsection (6) M5;

(d)M6in section 168 (appointment of persons to carry out investigations in particular cases)—

(i)in subsection (1)—

[F11(aa)before paragraph (b) insert—

“(ab)a person may have contravened any requirement of or imposed under the Electronic Money Regulations 2011;

[F12(ac)an EEA authorised electronic money institution exercising passport rights in the United Kingdom may have contravened, or may be likely to contravene, a restriction or prohibition within the meaning of paragraph 3 (interpretation) of Schedule 2A to the Electronic Money Regulations 2011 (credit agreements);

(ad)paragraph 1(4) of that Schedule 2A (power to prohibit the entry into credit agreements) may have been contravened, or may be likely to be contravened, as respects an EEA authorised electronic institution exercising passport rights in the United Kingdom”];]

(bb)in paragraph (b) for “, [F13191F],” to the end substitute “ or 191F or under regulation 63, 64 or 66 of the Electronic Money Regulations 2011. ”;

(ii)for subsection (2) substitute—

“(2) Subsection (3) also applies if it appears to an investigating authority that there are circumstances suggesting that a person may be guilty of an offence under, or has contravened a requirement of, the Money Laundering Regulations 2007.”;

(iii)omit subsections (4) and (5); and

[F14(iv)for subsection (6), substitute—

“(6) “Investigating authority” means the FCA.”;]

(e)in section 169 (investigations etc in support of overseas regulator)—

(i)in subsection (8) for “Part XXIII” substitute “ sections 348, 349F15... and 352, as applied with modifications by the Electronic Money Regulations 2011 ”; and

(ii)in subsection (13) for “has the same meaning as in section 195” substitute “ means a competent authority designated in accordance with Article 3 of the electronic money directive ”;

(f)in section 170 (investigations: general)—

(i)in subsection (1) omit “or (5)”;

(ii)in subsection (3)(a) omit “or (4)”; and

(iii)for subsection (10) substitute—

“(10) “Investigating authority”, in relation to an investigator, means [F16the FCA].”;

(g)in section 171 M7 (powers of persons appointed under section 167), omit subsections (3A) and (7);

(h)in subsection (4) of section 172 (additional power of persons appointed as a result of section 168(1) or (4)), omit “or (4)”;

(i)in section 174 (admissibility of statements made to investigators)—

(i)in subsection (2) omit “or in proceedings in relation to action to be taken against that person under section 123”;

(ii)in subsection (3)(a) for “398” substitute “ regulation 66 of the Electronic Money Regulations 2011 ”; and

(iii)in subsection (4) omit “or (5)”;

(j)in subsection (8) of section 175 (information and documents: supplemental provisions) omit “or (5)”;

(k)in section 176 M8(entry of premises under warrant)—

(i)in subsection (1)—

(aa)omit “the Secretary of State,”; and

(bb)for “the first, second or third” substitute “ the first or second ”;

(ii)in subsection (3)(a) for “an authorised person or an appointed representative” substitute “ a person mentioned in paragraph (a), (b), (c), (d), (h) or (i) of the definition of “electronic money issuer” in regulation 2(1) of the Electronic Money Regulations 2011 ”;

(iii)omit subsection (4);

(iv)in subsection (10) omit “or (5)”;

(v)in subsection (11)(a) omit “87C, 87J,”; and

(l)in subsection (5)(a) of section 177 (offences)—

(i)for “six months” substitute “ three months ”; and

(ii)for “the statutory maximum” substitute “ level 5 on the standard scale ”.

Textual Amendments

F12Words in Sch. 3 para. 3(d)(i)(aa) 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), arts. 1(3)(4), 18(4)(b)

Marginal Citations

M3Part 11 was amended by section 18 of, and paragraphs 15, 16 and 17 of Schedule 2 to, the Financial Services Act 2010.

M4Amended by S.I. 2007/126.

M5Subsection (6) was inserted by S.I. 2007/126.

M6Amended by S.I. 2007/126.

M7Amended by S.I.2007/126.

M8Amended by S.I. 2005/1433.

Control over electronic money institutionsU.K.

4.  Part 12 M9 of the 2000 Act (control over authorised persons) applies with the following modifications—

(a)for references to “UK authorised person” substitute “ electronic money institution ”;

[F17(aa)in section 178 for subsection (2A) substitute—

“(2A) In this Part, “the appropriate regulator” means the FCA.”;

(ab)in section 187(2)(b) omit “section 187A(3)(b) or”;

(ac)omit section 187A;]

(b)in section 188 (assessment: consultation with EC competent authorities)—

(i)in subsections (1) and (2) after “home state regulator” insert “ or home state competent authority ”; and

(ii)in subsection (3) after “host state regulator” insert “ or host state competent authority ”;

[F18(ba)in section 191A omit subsection (4A);]

[F19(c)in section 191B (restriction notices)—

(i)omit subsection (2A);

(ii)after subsection (2B) insert—

“(2C) In a restriction notice, the FCA must direct that voting power to which the notice relates is, until further notice, not to be exercisable.”;

(iii)for subsection (3)(b) substitute—

“(b)voting power that has been exercised as a result of the acquisition is void;”;]

[F20(ca)in section 191C omit subsection (2A);

(cb)in section 191D omit subsection (1A);]

(d)after section 191E (requirements for notices under section 191D) insert—

“191EA.    Direction by [F21the FCA]

[F21The FCA] may direct that this Part does not apply in respect of an electronic money institution which carries on business activities other than the issuance of electronic money and payment services.”;

(e)in section 191F (offences) in subsections (8)(a) and (9)(a), for “the statutory maximum” substitute in each case “ level 5 on the standard scale ”;

(f)in section 191G (interpretation), in subsection (1), omit the definition of “UK authorised person”; and

(g)omit section 192 (power to change definitions of control etc.).

Textual Amendments

Marginal Citations

M9Sections 178 to 191G were substituted by S.I. 2009/534.

Auditors and actuariesU.K.

5.  Part 22 (auditors and actuaries) applies with the following modifications—

(a)for references to “authorised person” substitute “ electronic money institution ”; F22...

[F23(aa)for references to “appropriate regulator” or “regulator” substitute “FCA”;

(ab)omit all references to “recognised investment exchange”;

(ac)in section 340 omit subsections (3A),(5A) and (8)(b);

(ad)in section 344 omit subsection (4);

(ae)in section 345—

(i)in subsection (2)(a) omit “or any particular class of authorised person;”;

(ii)omit subsection (2)(b);

(iii)in subsection (3)(a), for “FCA-authorised person” substitute “electronic money institution”;

(iv)omit subsection (3)(b), (c) and (d);

(v)omit subsection (4);

(af)omit section 345A;

(ag)in section 345B—

(i)in paragraph (1) omit “or the PRA proposes to act under section 345A(3)”;

(ii)in paragraphs (4) and (7) omit “or the PRA decides to act under section 345A(3)”;

(ah)in section 345C omit “or 345A(4)(b)”;

(ai)in section 345D omit subsections (2) and (9);]

(b)in subsection (1)(a) of section 346 (provision of false or misleading information)—

(i)for “six months” substitute “ three months ”; and

(ii)for “the statutory maximum” substitute “ level 5 on the standard scale ”.

Textual Amendments

Restriction on disclosure of informationU.K.

6.  Sections 348 (restrictions on disclosure of confidential information by [F24FCA, PRA] etc), 349 (exceptions from section 348)F25... and 352M10 (offences) of the 2000 Act apply with the following modifications—

(a)in section 348—

[F26(i)in subsection (2)(b) for the words from “, the PRA” to the end substitute “under the Electronic Money Regulations 2011; and]

(ii)in subsection (3)(a) for “this Act” substitute “ the Electronic Money Regulations 2011 ”;

(iii)in subsection (5)—

(aa)for “this Part”, substitute “ the Electronic Money Regulations 2011 ”;

(bb)omit paragraphs [F27(aa) and (c)];

(cc)in paragraph (e) for “a person mentioned in paragraphs (a) to (c)” substitute “[F28the FCA]”;

[F29(dd)in paragraph (ea) for “a person mentioned in those paragraphs” substitute “the FCA”;

(ee)in paragraph (f) for “a person mentioned in those paragraphs” substitute “the FCA]

[F30(iv)in subsection (6) for paragraphs (a) and (b) substitute “any body or person appointed under regulation 48 of the Electronic Money Regulations 2011”; and]

[F31(b)in section 349—

(i)in subsection (2)(c) omit “or the PRA”;

(ii)omit subsections (3A) and (3B).]

Textual Amendments

Marginal Citations

M10Section 352 was amended by section 208 of, and Schedule 26 to, the Criminal Justice Act 2003 (c.44).

InsolvencyU.K.

7.  Sections 359M11 (administration order), 367 (winding-up petitions) and 368 (winding-up petitions: EEA and Treaty firms) of the 2000 Act apply with the following modifications—

(a)for references to “an authorised person” substitute “ an electronic money institution or an EEA electronic money institution ”;

[F32(aa)omit references to a recognised investment exchange;]

(b)in section 359—

(i)omit subsections (1)(b), (3)(b) and (c) M12 and (5);

(ii)for subsection (1)(c) substitute—

“(c)is issuing or has issued electronic money in contravention of regulation 63(1) of the Electronic Money Regulations 2011.”;

(iii)in subsection (3)(a) omit “or partnership” and for “an agreement” substitute “ a contract for electronic issuance or payment services ”; and

(iv)in subsection (4) omit the definitions of “agreement”, “authorised deposit taker”, “authorised reclaim fund”M13 and “relevant deposit”;

(c)in section 367—

(i)omit subsections (1)(b), (2), (5), (6) and (7);

(ii)for subsection (1)(c) substitute—

“(c)is issuing or has issued electronic money in contravention of regulation 63(1) of the Electronic Money Regulations 2011.”; and

(iii)in subsection (4) for “an agreement” substitute “ a contract for electronic money issuance or payment services ”; and

[F33(d)in section 368, for “a regulator” in each place it appears substitute “the FCA”;]

Textual Amendments

Marginal Citations

M11Substituted by the Enterprise Act 2002, section 248(3), Schedule 17, paragraphs 53 and 55 and amended by S.I. 2005/1455.

M13Inserted by the Dormant Bank and Building Society Accounts Act 2008.

Warning notices and decision noticesU.K.

8.  Part 26 of the 2000 Act (notices) applies with the following modifications—

[F34(za)in section 387 (warning notices), omit subsections (1A) and (3A);]

(a)in section 388 (decision notices), [F35omit subsections (1A) and (2)];

(b)in section 390 M14 (final notices)—

(i)omit subsections (6) and (10); and

(ii)in subsection (8) omit “or (6)(c)”;

(c)in section 391 (publication)—

[F36(iza)for subsection (1ZB) substitute—

“(1ZB) A warning notice falls within this subsection if it is given under—

(a)section 67;

(b)section 345B;

(c)regulation 10 of the Electronic Money Regulations 2011 (including regulation 10 as applied by regulation 15 of those Regulations);

(d)regulation 29 of those Regulations;

(e)regulation 35 of those Regulations;

(f)regulation 53 of those Regulations; or

(g)regulation 56 of those Regulations.”;

(izb)omit subsection (6A);]

(i)in subsection (10) for “has the same meaning as in section 395” substitute “ means a notice given under regulation 11(6), (9) or (10)(b) (including as applied by regulation 15) of [F37, or paragraph 4 of Schedule 4A to,] the Electronic Money Regulations 2011 ”; and

(ii)omit subsection (11).

(d)for section 392 M15 (application of sections 393 and 394) substitute—

Sections 393 and 394 apply to—

(a)a warning notice given in accordance with regulations 10(4) (including as applied by regulation 15), 29(2) (in relation to the cancellation of a registration), 35(2), 53(1) or 56(1) of the Electronic Money Regulations 2011;

(b)a decision notice given in accordance with regulations 10(5)(a) (including as applied by regulation 15), 29(3)(a) (in relation to the cancellation of a registration), 35(3)(a), 53(3) or 56(3) of the Electronic Money Regulations 2011.”; and

(e)in section 395 [F38(the FCA’s and PRA’s procedures)] in subsection (13) for “in accordance with” to the end substitute “ under regulation 11(6), (9) or (10)(b) (including as applied by regulation 15) of [F39, or paragraph 4 of Schedule 2A to,] the Electronic Money Regulations 2011. ”.

Textual Amendments

F37Words in Sch. 3 para. 8(c)(i) 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), arts. 1(3)(4), 18(4)(c)(i)

F39Words in Sch. 3 para. 8(e) 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), arts. 1(3)(4), 18(4)(c)(ii)

Marginal Citations

M14Amended by S.I. 2010/22.

M15Section 392 was amended by sections 24 and 29 of, and Schedule 2 to, the Financial Services Act 2010.

Limitation on powers to require documentsU.K.

9.  Section 413 of the 2000 Act (protected items) applies for the purposes of these Regulations as it applies for the purposes of that Act.

PART 2U.K.Application and modification of secondary legislation

The Financial Services and Markets Act 2000 (Service of Notices) Regulations 2001U.K.

10.  The Financial Services and Markets Act 2000 (Service of Notices) Regulations 2001 M16 apply to any notice, direction or document of any kind given by or to the Authority under these Regulations as they apply to any notice, direction or document of any kind under the 2000 Act.

Marginal Citations

M16S.I. 2001/1420; a relevant amending instrument is S.I 2005/274.

The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001U.K.

11.  The Financial Services and Markets Act 2000 (Disclosure of Confidential Information Regulations 2001 M17 apply with the following modifications—

(a)in regulation 2—

(i)in the definition of “directive restrictions” for “and article 9 of the insurance mediation directive” substitute “ , article 9 of the insurance mediation directive and Article 3 of the electronic money directive insofar as it applies Article 22 of the payment services directive ”;

(ii)after the definition of “EEA regulatory authority” insert—

““electronic money directive” means Directive 2009/110/EC of the European Parliament and of the Council of 16th September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions;

“electronic money directive information” means confidential information received by the Authority in the course of discharging its functions as the competent authority under the electronic money directive;”; and

(iii)in paragraph (a) of the definition of “overseas regulatory authority” after “of the Act” insert “ or any function conferred under national legislation in implementation of the electronic money directive ”;

(b)in regulation 5(4)(a) and (6)(d) and (e) for “an authorised person, former authorised person or former regulated person” substitute in each case “ an electronic money institution or former electronic money institution ”;

(c)in regulation 8 after paragraph (b) insert—

“(c)electronic money directive information.”;

(d)for regulation 9(4) substitute—

“(4) Paragraph (1) does not permit disclosure to the persons specified in the first column in Part 6 of Schedule 1 unless the disclosure is of electronic money directive information.”;

(e)in regulation 11 after paragraph (d) insert—

“(e)electronic money directive information.”;

(f)in the second column in Part 1 of Schedule 1, in the list of functions beside—

(i)“An official receiver appointed under section 399 of the Insolvency Act 1986, or an official receiver for Northern Ireland appointed under article 355 of the Insolvency (Northern Ireland) Order 1989”, after paragraph (ii) insert—

“or

(iii)

electronic money issuers or former electronic money issuers”;

(ii)“The Department of Enterprise, Trade and Investment in Northern Ireland”, after paragraph (c)(ii) insert—

“or

(iii)

electronic money issuers or former electronic money issuers”;

(iii)“The Pensions Regulator”, after paragraph (ii) insert—

“or

(iii)

electronic money issuers or former electronic money issuers”;

(iv)“The Charity Commissioners for England and Wales”, after paragraph (ii) insert—

“or

(iii)

electronic money issuers or former electronic money issuers”; and

(g)in Schedule 1, after Part 5 insert—

“PART 6U.K.
PersonFunctions
The Commissioners for Her Majesty's Revenue and CustomsTheir functions under the Money Laundering Regulations 2007”

Marginal Citations

M17S.I. 2001/2188; relevant amending instruments are S.I. 2003/1473, 2005/3071, 2006/3413 and 2010/2628.

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