13. A protected cell company is formed under this Part by a person—
(a)applying to the PRA for registration of a protected cell company in accordance with regulation 14; and
(b)complying with the requirements for registration set out in regulation 21.
14.—(1) An application to register a protected cell company may only be made to the PRA.
(2) The application must state—
(a)that the applicant wishes to form a protected cell company;
(b)the name of the proposed protected cell company;
(c)the address of the proposed protected cell company’s registered office;
(d)the names of the proposed directors of the protected cell company;
(e)for each proposed director, the particulars set out in regulation 18; and
(f)the names of the persons who are, on registration, to hold voting shares in the core of the protected cell company.
(3) The application must contain or be accompanied by—
(a)an application made in accordance with regulation 15 (application for permission to carry out a regulated activity);
(b)the proposed instrument of incorporation;
(c)a statement signed by each person who is to become a director of the protected cell company that the person consents to being a director; and
(d)a statement signed by each person who will, on registration, hold voting shares in the core of the protected cell company that the person consents to holding those shares.
(4) When the PRA receives an application under paragraph (1), the PRA must forward the application, and any documents received in accordance with paragraph (3), to the FCA without delay.
(5) At any time after receiving an application and before determining it, the FCA may require the applicant to provide such additional information as it may reasonably require.
(6) Any information to be provided to the FCA under paragraph (5) must be set out in such form and verified in such manner as the FCA may reasonably direct.
15.—(1) A person applying to register a protected cell company must make an application under section 55A (application for permission) of FSMA(1) for permission for the proposed protected cell company to carry out a regulated activity.
(2) That regulated activity must be, or include, the activity specified in article 13A (transformer vehicles: insurance risk transformation) of the Regulated Activities Order.
(3) Where an application is made in accordance with paragraphs (1) and (2)—
(a)the application is to be treated for the purposes of FSMA as an application made by the applicant on behalf of the proposed protected cell company;
(b)the PRA must decide whether it will, if the proposed protected cell company is registered by the FCA (see regulation 21), give the proposed protected cell company permission under section 55F (giving permission: the PRA) of FSMA(2);
(c)the FCA may only register the proposed protected cell company if the PRA has decided that it will, if the proposed protected cell company is registered by the FCA, give the proposed protected cell company permission under section 55F of FSMA to carry out a regulated activity which is, or includes, the activity specified in Article 13A of the Regulated Activities Order (see regulation 21); and
(d)if the FCA registers the proposed protected cell company, the PRA must, without delay, give the protected cell company permission under section 55F of FSMA in accordance with its decision.
(4) The provisions of FSMA apply to such an application, but the provisions specified in the first column of Table 1(3) apply with the modifications specified in the second column of Table 1(4).
| Provision of FSMA | Modification |
|---|---|
| Section 55A (application for permission) | For subsections (1) and (2) substitute— |
“(1) An application for permission to carry on one or more regulated activities may be made to the appropriate regulator on behalf of a proposed protected cell company by a person applying to register the protected cell company under Part 4 of the Risk Transformation Regulations 2017. (2) The “appropriate regulator”, in relation to such an application, means the PRA.” | |
| Ignore subsection (3). | |
| Section 55B (the threshold conditions) | In subsection (3), treat the references to giving permission, imposing a requirement or giving consent as including references to making a decision to do any of those things on the registration of the proposed protected cell company. |
| Section 55F (giving permission: the PRA) | In subsection (2), treat the reference to “the applicant” as a reference to “the protected cell company”. |
| The PRA may not give permission under subsection (2) until the FCA has registered the protected cell company. | |
| Section 55L (imposition of requirements by FCA) | For subsection (1) substitute— |
“(1) Where a person has applied, on behalf of a proposed protected cell company, to the PRA for a Part 4A permission, the FCA may, on the registration of the protected cell company, impose on the protected cell company such requirements, taking effect on or after the giving of permission, as the FCA considers appropriate.” | |
| Section 55M (imposition of requirements by PRA) | For subsection (1) substitute— |
“(1) Where a person has applied, on behalf of a proposed protected cell company, for a Part 4A permission, the PRA may, on the registration of the protected cell company, impose on the protected cell company such requirements, taking effect on or after the giving of permission, as the PRA considers appropriate.” | |
| Section 55R (persons connected with an applicant) | In subsection (1), treat the reference to the “applicant” as a reference to the proposed protected cell company. |
| Section 55U (applications under this Part) | For subsection (1)(a) substitute— |
“(a)contain a statement by the applicant of the regulated activity or regulated activities for which permission is sought on behalf of the proposed protected cell company, and” | |
| Section 55V (determination of applications) | Treat references to the determination of an application as references to the decision made by the PRA as to what action the PRA will take under section 55F of FSMA if the FCA registers the proposed protected cell company. |
| After subsection (4) insert— | |
“(4A) Subsection (4B) applies where the PRA decides that it will, if the FCA decides to register the proposed protected cell company, give the proposed protected cell company permission under section 55F to carry out a regulated activity which is, or regulated activities which include, the activity specified in Article 13A of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001. (4B) The PRA must give the applicant written notice stating the activities which the proposed protected cell company will be given permission under section 55F to carry out if the FCA decides to register the proposed protected cell company. (4C) Where the PRA gives written notice under subsection (4B), a copy must be sent to the FCA without delay.” | |
| Section 55X (determination of applications: warning notices and decision notices) | In subsection (1), in paragraphs (a) and (b), after “Part 4A permission” insert “if the protected cell company is registered by the FCA,”. |
| The FCA or PRA need not give a warning notice under subsection (1) in the circumstances specified in paragraph (a), (b) or (e) of that subsection if the applicant has consented to the proposed exercise of power referred to in that paragraph. | |
| The PRA must give a copy of any warning notice given under subsection (1) to the FCA without delay. | |
| In subsection (2), ignore the reference to subsection (3). | |
| Ignore subsection (3). | |
| In subsection (4), in paragraphs (a) and (b), after “Part 4A permission” insert “if the protected cell company is registered by the FCA,”. | |
| The FCA or PRA need not give a decision notice under subsection (4) in the circumstances specified in paragraph (a), (b) or (e) of that subsection if the applicant has consented to the exercise of power referred to in that paragraph. Where the applicant consents to an exercise of power referred to in paragraph (a) or (b), the PRA must notify the FCA without delay. | |
| Section 55Z3 (right to refer matters to the tribunal) | In subsection (1), treat the reference to the determination of an application as a reference to the decision made by the PRA as to what action the PRA will take under section 55F of FSMA if the FCA registers the proposed protected cell company. |
| In subsection (2), treat the reference to the exercise of an own-initiative requirement power as a decision to exercise that power if the proposed protected cell company is registered. | |
| Section 390 (final notices)(5) | Where the PRA gives a final notice under this section, the PRA must send a copy of the final notice to the FCA without delay. |
16.—(1) Where a person makes an application to the PRA in accordance with paragraphs (1) and (2) of regulation 15, the person may also make an application under section 59 (approval for particular arrangements) of FSMA(6).
(2) The application is to be treated for the purposes of FSMA as an application made by the applicant on behalf of the proposed protected cell company.
(3) The provisions of FSMA apply to such an application, but the provisions specified in the first column of Table 2(7) apply with the modifications specified in the second column of Table 2.
| Provision of FSMA | Modification |
|---|---|
| Section 60 (applications for approval) | In subsection (1), treat the reference to the authorised person concerned as a reference to the applicant on behalf of the proposed protected cell company. |
| In the rest of the section, treat the references to the authorised person concerned as including references to the proposed protected cell company. | |
| Section 60A (vetting of candidate) | On the coming into force of paragraph 5 of Schedule 4 to the Bank of England and Financial Services Act 2016(8), references to an authorised person are to be treated as references to the applicant on behalf of the proposed protected cell company. |
| Section 61 (determination of applications) | In subsection (5), ignore paragraph (b). |
| Section 62 (applications for approval: procedure and right to refer to Tribunal) | Subsection (2) does not apply where the regulator to which an application is made proposes to grant the application subject to conditions or for a limited period, and the applicant and the person in respect of whom the application has been made have consented to those conditions or that limited period. |
| Subsection (3) does not apply where the regulator to which an application is made decides to grant the application subject to conditions or for a limited period, and the applicant and the person in respect of whom the application has been made have consented to those conditions or that limited period. | |
| In subsection (5), ignore paragraph (c). | |
| Section 62A (changes in responsibilities of senior managers) | An application made by the applicant on behalf of the proposed protected cell company is to be treated, for the purposes of subsection (1)(a), as an application made by the proposed protected cell company. |
| Section 63 (withdrawal of approvals) | On the coming into force of paragraph 8 of Schedule 4 to the Bank of England and Financial Services Act 2016, an application made by the applicant on behalf of the proposed protected cell company is to be treated, for the purposes of subsection (2A), as an application made by the proposed protected cell company. |
| Section 390 (final notices) | Where the PRA gives a final notice under this section, the PRA must send a copy of the final notice to the FCA without delay. |
17.—(1) A protected cell company’s name must include one of the following expressions (or their Welsh equivalents)—
“protected cell company”;
“PCC Limited”;
“PCC Ltd”.
(2) No protected cell company may have a name that—
(a)is undesirable or misleading;
(b)includes any of the following words or expressions (or, where applicable, their Welsh equivalents)—
(i)“unlimited” or “public limited company”;
(ii)“insurance”, “insurer”, “insured”, “reinsurance”, “reinsurer”, “reinsured”;
(iii)European Economic Interest Grouping or any equivalent set out in Schedule 3 to the European Economic Interest Grouping Regulations 1989;
(c)includes an abbreviation of any of the words or expressions referred to in sub-paragraph (b);
(d)is the same as the name of any other protected cell company registered by the FCA;
(e)is the same as the name of any other protected cell company which was registered by the FCA and then dissolved; or
(f)is the same as the name of any other company appearing on the appropriate registrar’s index of company names.
(3) The following are to be disregarded for the purposes of determining whether one name is the same as another name—
(a)the definite article, where it is the first word of the name;
(b)the following words and expressions (or, where applicable, their Welsh equivalents) where they appear at the end of the name—
“company”;
“and company”;
“company limited”;
“limited”;
“unlimited”;
“public limited company”;
“protected cell company”;
“PCC Limited”;
“PCC Ltd”;
“European Economic Interest Grouping” or any equivalent set out in Schedule 3 to the European Economic Interest Grouping Regulations 1989;
(c)abbreviations of the words and expressions referred to in sub-paragraph (b) where they appear at the end of the name; and
(d)type and case of letters, accents, spaces between letters and punctuation marks.
(4) For the purposes of determining whether one name is the same as another name, “and” and “&” are to be taken to be the same.
18.—(1) The particulars which must be provided in relation to a director are—
(a)in the case of an individual, the individual’s—
(i)name;
(ii)former name (if any);
(iii)usual residential address;
(iv)nationality;
(v)date of birth;
(b)in the case of a body corporate, the body corporate’s—
(i)corporate or firm name;
(ii)registered or principal office;
(c)whether the director or proposed director has authority to act on behalf of the protected cell company alone or jointly with another director or proposed director; and
(d)if the director or proposed director only has authority to act jointly with another director or proposed director, the name of the other director or proposed director.
(2) In paragraph (1)(a)—
(a)a reference to an individual’s name means the person’s forename and surname, except that in the case of a peer or an individual usually known by a British title, the title may be stated instead of or in addition to the individual’s forename and surname;
(b)the reference to an individual’s former name does not include—
(i)in the case of a peer or an individual usually known by a British title, the name by which the individual was known before the adoption of or succession to the title;
(ii)a name which the individual changed or ceased to use before the individual attained the age of 18 years;
(iii)a name which the individual changed or ceased to use before a period of 20 years ending on the date the application to register a protected cell company is made to the PRA;
(iv)in the case of a married person, the name by which the person was known before marriage.
19.—(1) The instrument of incorporation of a protected cell company must include—
(a)the statements set out in paragraph (3); and
(b)provision as to the matters mentioned in paragraph (4).
(2) The instrument of incorporation must not include—
(a)anything that conflicts with a statement required by paragraph (1)(a); or
(b)a statement to the effect that the protected cell company is a public company.
(3) The statements required by paragraph (1)(a) are that—
(a)the company is a protected cell company registered by the Financial Conduct Authority under the Risk Transformation Regulations 2017;
(b)the registered office of the protected cell company is situated in England and Wales (or Wales), Scotland or Northern Ireland (as the case may be);
(c)the objects of the protected cell company are the activities specified in regulation 57;
(d)the protected cell company is comprised of a core and the cells created by the protected cell company after its registration and authorisation;
(e)the core administers the protected cell company and the cells are used to assume risk from undertakings, issue investments to investors to fund the protected cell company’s exposure to that risk, hold the proceeds of sale of those investments and, where permitted by the instrument of incorporation, enter into arrangements between cells (see regulation 68);
(f)the cells are segregated from each other and from the core;
(g)the assets held on behalf of a cell are treated as if they belong exclusively to that cell and shall not be used to discharge liabilities incurred on behalf of or attributable to the core or any other cell, and shall not be available for any such purpose;
(h)the protected cell company may issue non-voting and voting shares on behalf of the core;
(i)the protected cell company may issue non-voting shares on behalf of a cell, but not voting shares;
(j)the liability of a person holding a share issued by the protected cell company is limited to the amount (if any) unpaid on the share.
(4) The matters referred to in paragraph (1)(b) are—
(a)the name of the protected cell company;
(b)the address of the protected cell company’s registered office;
(c)the procedure for creating and dissolving a cell;
(d)when the creation of a new cell takes effect;
(e)the way in which cells in the protected cell company are to be named or numbered;
(f)whether the protected cell company may make arrangements between cells and, if so, whether they may be amended or cancelled (see regulation 70);
(g)the rights attaching to shares issued on behalf of the core and the cells;
(h)the maximum and minimum sizes of the voting share capital in the core;
(i)the classes of shares which may be issued on behalf of the core and the cells;
(j)if the protected cell company is to have a company seal, the form, custody and use of the seal;
(k)the procedure for the appointment and removal of a director of the protected cell company (for which provision is not made in this Part); and
(l)the currency in which the accounts of the protected cell company must be prepared.
(5) The way in which the cells of a protected cell company are given a name or number in accordance with the instrument of incorporation must not result in a cell having a name or number which would contravene the requirements of regulation 17(2) if it were the name of the protected cell company.
20. A protected cell company’s instrument of incorporation may apply (with or without modification) all or any part of the model articles set out in the Companies (Model Articles) Regulations 2008(9), except to the extent that it would contravene a requirement of this Part.
21.—(1) The FCA must register a protected cell company where all of the following conditions are satisfied—
(a)the application for registration satisfies the requirements of regulation 14;
(b)the registered office of the protected cell company is situated in the United Kingdom;
(c)the name of the protected cell company is not prohibited by regulation 17;
(d)the protected cell company’s instrument of incorporation satisfies the requirements of regulation 19;
(e)the protected cell company will have at least one director;
(f)there is at least one person who will, on registration, hold voting shares in the core of the protected cell company;
(g)the PRA has notified the FCA that the PRA will, if the FCA registers the proposed protected cell company, give the protected cell company permission under section 55F of FSMA to carry out the regulated activity referred to in Article 13A of the Regulated Activities Order; and
(h)if a warning notice has been served by a regulator on the applicant under paragraph (a), (b) or (e) of section 55X(1) of FSMA, then one of the following conditions is satisfied—
(i)the applicant has consented to the proposed action to which the warning notice relates;
(ii)where the regulator is the FCA, the FCA has decided not to exercise the power referred to in paragraph (e) of section 55X(1) of FSMA; or
(iii)in any other case, the regulator has served a final notice on the applicant which relates to—
(aa)the proposed action to which the warning notice relates; or
(bb)action which the regulator has decided to take instead of, or in addition to, that proposed action.
(2) For the purposes of determining whether the protected cell company’s instrument of incorporation satisfies the requirements of regulation 19, the FCA may rely on a statement signed by the solicitor or counsel for the applicant confirming that the instrument of incorporation satisfies the requirements of regulation 19.
22.—(1) If the FCA proposes to refuse an application made under regulation 14 to register a protected cell company, it must give the applicant a warning notice.
(2) If the FCA decides to refuse the application—
(a)the FCA must give the applicant a decision notice; and
(b)the applicant may refer the matter to the Tribunal.
(3) Paragraphs (1) and (2) do not apply where the PRA has decided not to give the protected cell company permission to carry out the activity specified in Article 13A of the Regulated Activity Order.
23.—(1) If the FCA determines that the requirements of regulation 21 as to registration are satisfied, the FCA must register the documents delivered to it.
(2) On registration, the FCA must issue a certificate that the protected cell company is incorporated.
(3) The certificate must state—
(a)the name of the protected cell company;
(b)the registered number of the protected cell company;
(c)the date of incorporation;
(d)that the protected cell company is a protected cell company incorporated under the Risk Transformation Regulations 2017; and
(e)whether the registered office is situated in England and Wales (or Wales), Scotland or Northern Ireland.
(4) The certificate must not state that the protected cell company is a public company.
(5) The certificate must be signed on behalf of the FCA or authenticated by the FCA’s company seal.
(6) The certificate is conclusive evidence that the requirements of regulation 21 as to registration are satisfied.
(7) The FCA may issue duplicate certificates at any time after registration.
(8) Where the FCA registers a protected cell company, the FCA must notify the PRA without delay.
24. When the FCA registers a protected cell company under regulation 23, the FCA must notify the appropriate registrar of the name of the protected cell company.
25.—(1) The registration of a protected cell company has the following effects from the date of incorporation.
(2) The following persons are a body corporate by the name stated in the certificate of incorporation—
(a)the persons named in the application for registration as the persons who will, on registration, hold voting shares in the core of the protected cell company; and
(b)such other persons as may from time to time hold shares issued on behalf of the core of the protected cell company.
(3) That body corporate is capable of exercising all the functions of an incorporated company.
(4) The registered office of the protected cell company is as stated in the application for registration.
(5) The persons named as proposed directors in the application for registration are appointed to that office.
(6) The persons named in the application for registration as the persons who will, on registration, hold voting shares in the core of the protected cell company become the holders of those shares.
(7) The shares referred to in paragraph (6) are deemed to be have been issued by the protected cell company on behalf of the core.
(8) The provisions of the protected cell company’s instrument of incorporation are binding on the following persons to the same extent as if there were covenants between them—
(a)the protected cell company;
(b)each person holding shares issued by the protected cell company on behalf of any part of the protected cell company.
(9) All the persons mentioned in paragraph (8) (but no others) are to be taken to have notice of the provisions of the protected cell company’s instrument of incorporation.
26. A protected cell company may change its name or the address of its registered office by amending the relevant part of its instrument of incorporation.
27.—(1) A protected cell company must give written notice to the FCA of a proposed amendment to the protected cell company’s instrument of incorporation.
(2) Notice under paragraph (1) must be accompanied by—
(a)the proposed amendment; and
(b)a draft of the protected cell company’s instrument of incorporation as amended by the proposed amendment.
(3) The FCA must approve the proposed amendment unless the proposed amendment would affect the protected cell company’s compliance with the requirements of regulations 17 and 19.
(4) For the purposes of determining whether the proposed amendment will affect the protected cell company’s compliance with the requirements of regulation 19, the FCA may rely on a statement signed by the solicitor or counsel for the protected cell company confirming that the proposed amendment does not affect the protected cell company’s compliance with regulation 19.
(5) Effect must not be given to any proposed amendment to the protected cell company’s instrument of incorporation unless—
(a)the FCA has given its approval to the proposal by notice in writing; or
(b)the FCA has failed to give the protected cell company a warning notice within a period of six weeks beginning with the date on which written notice referred to in paragraph (1) was given to the FCA.
28.—(1) If the FCA proposes to refuse approval, it must give the protected cell company a warning notice.
(2) To be valid, the warning notice must be received by the protected cell company within a period of six weeks beginning with the date on which written notice was given to the FCA in accordance with regulation 27(1).
(3) If the FCA decides to refuse approval—
(a)the FCA must give the protected cell company a decision notice; and
(b)the protected cell company may refer the matter to the Tribunal.
29. If an amendment to a protected cell company’s instrument of incorporation results in a change to the protected cell company’s name, the FCA must notify the appropriate registrar of the change.
30. The FCA must maintain a register of protected cell companies.
31.—(1) The FCA must allocate to every protected cell company a number, which is to be known as the protected cell company’s registered number.
(2) Protected cell companies’ registered numbers must be in such form as the FCA may determine from time to time, and may consist of one or more sequences of numbers or letters.
(3) The FCA may, upon adopting a new form of registered number, make such changes to existing registered numbers as appear to it to be necessary.
(4) A change to a protected cell company’s registered number has effect from the date on which the protected cell company is notified by the FCA of the change.
32.—(1) The following information must be recorded on the register in relation to every protected cell company—
(a)the protected cell company’s name;
(b)any names by which the protected cell company was previously known;
(c)the protected cell company’s registered number;
(d)the date of the protected cell company’s registration;
(e)the address of the protected cell company’s registered office;
(f)if an alternative inspection location has been notified to the FCA in accordance with regulation 67, the alternative inspection location;
(g)the protected cell company’s instrument of incorporation as at the date of incorporation;
(h)any amendments to the protected cell company’s instrument of incorporation which have been approved by the FCA under regulation 27;
(i)the protected cell company’s instrument of incorporation, as amended by any amendments approved by the FCA under regulation 27;
(j)the names or numbers of all the cells which have been created by the protected cell company;
(k)in respect of each cell, the time and date when the cell was created;
(l)if a cell has been dissolved, the time and date when the cell was dissolved;
(m)copies of any written resolutions of the directors of the protected cell company provided in accordance with regulation 69(2)(c) (creation of arrangements between cells: procedure) or regulation 70(4)(b) (arrangements between cells: amendment and cancellation);
(n)the names of the directors of the protected cell company;
(o)the date on which each director was appointed;
(p)the particulars of each director, with the exception, in the case of a director who is an individual, of the director’s usual residential address and date of birth;
(q)whether each director has or had the authority to act alone or jointly with another director, and if the director may or could only act jointly with another director, the name of that other director;
(r)if a director was removed from office, the date on which the director was removed;
(s)the information provided by the protected cell company in accordance with regulation 114(5)(b) (single members);
(t)the information provided by the protected cell company in accordance with regulation 133 (information on capital subscribed);
(u)all documents required to be delivered to the FCA for registration under Part 25 (company charges) of the Companies Act 2006, as applied by regulation 155 (registration of charges);
(v)all documents required to be delivered to the FCA under the following provisions of the Companies Act 2006, as applied by regulation 163 (application of Companies Act regime)—
(i)section 394A(2)(e) (individual accounts: exemption for dormant subsidiaries)(10);
(ii)section 441 (annual accounts and reports)(11);
(iii)section 448A(2)(e) (dormant subsidiaries exempt from obligation to file accounts)(12);
(iv)section 479A(2)(e) (subsidiary companies: conditions for exemption from audit)(13);
(w)anything that must be given to the FCA under Part 15 (accounts and reports) of the Companies Act 2006, as applied by regulation 163, other than a document referred to in sub-paragraph (v);
(x)any application registered under regulation 174 (fast track transfers);
(y)any order made under regulation 175 or 177 (transfers sanctioned by court order);
(z)anything that must be registered as a result of a court order made under regulation 41;
(aa)a copy of any winding-up order made in respect of any part of the protected cell company;
(bb)a notice of the appointment of liquidators in respect of any part of a protected cell company;
(cc)an order for the dissolution of a part of the protected cell company on its winding up;
(dd)a return by a liquidator of the final meeting of part of a protected cell company on its winding up;
(ee)anything which must be given to the FCA in accordance with a requirement imposed by the insolvency legislation (as applied by regulations 166 and 167), other than the documents referred to in sub-paragraphs (aa) to (dd);
(ff)whether the protected cell company has been dissolved and, if so, the date of dissolution; and
(gg)any notice given to the FCA in accordance with section 1013(6) of the Companies Act 2006 (crown disclaimer of property vesting as bona vacantia) as applied by regulation 180(10) (dissolution of a protected cell company).
(2) For the purposes of paragraph (1), the FCA may rely on information provided by the protected cell company.
33.—(1) This regulation applies where a director is an individual.
(2) Where the FCA is notified that a document, other than a document setting out the particulars of a director, includes a statement of the director’s usual residential address or date of birth, the FCA must redact that statement from the document where the document is to be included on the register.
(3) Notification under paragraph (2) must state where in the document the statement is to be found.
(4) But the FCA is not required to search any document other than the director’s particulars for a statement of the director’s usual residential address or date of birth and, in the absence of notification in accordance with paragraphs (2) and (3), the FCA may include such a document on the register notwithstanding the fact that it includes such a statement.
34. Where these Regulations require a person to deliver a document to the FCA to be recorded on the register, the person—
(a)may deliver the document by electronic means; and
(b)subject to paragraph (a), must deliver the document in such form as the FCA may from time to time require.
35.—(1) The FCA must keep the register in electronic form.
(2) The FCA must put in place procedures to ensure that any change to the information referred to in regulation 32(1) is normally recorded on the register within a period of 21 days beginning with the day when the FCA receives notice of the change.
(3) But paragraph (2) does not apply to the protected cell company’s annual accounts.
(4) The originals of documents delivered in hard copy form to the FCA to be recorded on the register must be kept for a period of three years beginning with the date they are received by the FCA, after which they may be destroyed provided the information contained in them has been recorded on the register.
(5) The FCA is under no obligation to keep documents delivered in electronic form, provided the information contained in them has been recorded on the register.
(6) Where a protected cell company has been dissolved, the FCA may, at any time after a period of six years beginning with the date of dissolution, direct that any records in its custody relating to the protected cell company be removed to the Public Records Office.
(7) Where records are removed to the Public Records Office in accordance with a direction under paragraph (6), the records in respect of which the direction is given must be disposed of in accordance with the enactments relating to that Office and the rules made under them.
(8) Paragraphs (6) and (7) do not extend to Scotland.
36.—(1) The FCA must publish the information contained in the register on its website, with the exception of the information referred to in sub-paragraphs (m), (s), (u), (w), (x), (y), (z) and (ee) of regulation 32(1).
(2) Where information published in accordance with paragraph (1) has a chronological order, the FCA must ensure that it can be accessed in chronological order.
37.—(1) The FCA must on request provide a copy of the whole or part of a document or particular recorded on the register.
(2) The request may be made in hard copy form or by electronic means.
(3) The FCA must comply with a request made to have the document or particular provided in hard copy form or by electronic means.
(4) The FCA may satisfy the obligation to provide a document or particular by electronic means in response to a request made by electronic means by ensuring that—
(a)the document or particular may be downloaded from its website; and
(b)the person making the request is sent a message referring the person to its website.
(5) Where the FCA provides a hard copy of a document or particular, it must be certified as a “true copy” unless the person requesting it dispenses with certification.
(6) Where the FCA provides an electronic copy of a document or particular, it must not be certified as a “true copy” unless the applicant requests certification.
(7) Where the FCA certifies an electronic copy as a “true copy”, it must do so with an advanced electronic signature falling within the meaning given by Article 2(2) of Directive 1999/93/EC of the European Parliament and of the Council on a Community framework for electronic signatures(14).
(8) The FCA may charge a fee for the provision of any document or particular recorded on its register provided the fee does not exceed the administrative cost of providing it.
(9) Where the information available on the FCA’s website is illegible or unavailable, a person may inspect any copies of documents retained by the FCA in which the information is recorded.
(10) No process for compelling the production of a document kept by the FCA under these regulations is to issue from any court except with permission of the court.
(11) Where the FCA provides a certified copy of a document recorded on the register, the certified copy is deemed to be an accurate record of the contents of the original document and is in all legal proceedings admissible—
(a)as evidence of equal validity to the original document; and
(b)as evidence (in Scotland, sufficient evidence) of any fact stated in the original document of which direct oral evidence would be admissible.
38.—(1) The FCA must provide the information required by Article 17 of Directive (EU) 2017/1132 of the European Parliament and of the Council of 14 June 2017 relating to certain aspects of company law(15) for publication on the European e-Justice portal in accordance with the portal’s rules and technical requirements.
(2) In this regulation, the “European e-Justice portal” means the single European electronic access point for legal information, judicial and administrative institutions, registers, databases and other services referred to in that directive.
39.—(1) This regulation applies to any document which is delivered to the FCA under these Regulations and relates to a protected cell company or proposed protected cell company whose instrument of incorporation states that the registered office is situated in Wales.
(2) A document may be in Welsh, but must be accompanied by a certified English translation of the document unless it is in a form prescribed in Welsh (or partly in Welsh and partly in English) by virtue of section 26 (powers to prescribe Welsh forms) of the Welsh Language Act 1993(16).
(3) Where a document is properly delivered to the FCA in Welsh without a certified English translation—
(a)the FCA must obtain such a translation if the document is to be available for public inspection; and
(b)the translation is to be treated as if delivered to the FCA in accordance with the same provision as the original.
(4) Where a document has been delivered to the FCA in English, the protected cell company may also deliver a certified translation of the document into Welsh.
40.—(1) Where it appears to the FCA that the information contained in a document delivered to the FCA is inconsistent with other information on the register, the FCA may give notice to the protected cell company to which the document relates—
(a)stating in what respects the information contained in it appears to be inconsistent with other information on the register; and
(b)requiring the protected cell company to resolve the inconsistency.
(2) The notice must—
(a)state the date on which it is issued; and
(b)require the delivery to the FCA, within a period of 14 days beginning with that date, of such replacement or additional documents as may be required to resolve the inconsistency.
41.—(1) The FCA must remove from the register any material—
(a)that derives from anything that the court has declared to be invalid or ineffective, or to have been done without the authority of the protected cell company; or
(b)that the court declares to be factually inaccurate, or to be derived from something that is factually inaccurate, or forged,
and that the court directs should be removed from the register.
(2) The court order must specify what is to be removed from the register and indicate where it is on the register.
(3) The court must not make an order for the removal of anything the registration of which has the legal consequences specified in paragraph (4) unless satisfied—
(a)that the presence of the material on the register has caused, or may cause, damage to the protected cell company; and
(b)that the protected cell company’s interest in removing the material outweighs any interest of other persons in the material continuing to appear on the register.
(4) The legal consequences mentioned in paragraph (3) are legal consequences for the protected cell company as regards—
(a)its formation;
(b)an amendment to its instrument of incorporation;
(c)the creation or dissolution of a cell;
(d)its dissolution.
(5) Where a court makes an order for removal under paragraph (3), the court may make such consequential orders as appear just with respect to the legal effect (if any) to be accorded to the material by virtue of its having appeared on the register.
(6) The court’s powers also include a power to order that any of the following be included on the register—
(a)a copy of the order;
(b)a note of such matters as may be determined by the court.
(7) In this regulation, “court” means the High Court or, in Scotland, the Court of Session.
Section 55A was inserted by section 11 of the Financial Services Act 2012.
Section 55F was inserted by section 11 of the Financial Services Act 2012.
All the provisions specified in the first column of Table 1, with the exception of section 390, were inserted into FSMA by section 11 of the Financial Services Act 2012. There are amendments to those provisions which are not relevant to these Regulations.
Note also the effect of regulation 7 on the PRA’s discretion under section 55F(4)(a) of FSMA.
Section 390 has been amended by section 37 of and Schedule 9 to the Financial Services Act 2012 and S.I. 2010/22.
Section 59 has been amended by sections 14 and 15 of and Schedule 5 to the Financial Services Act 2012, S.I. 2012/1906, sections 18 and 35 of and Schedule 3 to the Financial Services (Banking Reform) Act 2013, S.I. 2013/1773, and section 21 of and Schedule 4 to the Bank of England and Financial Services Act 2016.
Sections 60, 61 and 62 have been amended by sections 14 and 15 of and Schedules 4 and 5 to the Financial Services Act 2012, sections 20 to 23 of and schedule 4 to the Financial Services (Banking Reform) Act 2013, and section 21 of and Schedule 4 to the Bank of England and Financial Services Act 2016. Section 62A was inserted by section 24 of the Financial Services (Banking Reform) Act 2013 and amended by sections 21 and 23 of and Schedule 4 to the Bank of England and Financial Services Act 2016.
S.I. 2008/3229, as amended by section 3 of the Mental Health (Discrimination) Act 2013 (c. 8).
Section 394A(2)(e) was inserted by S.I. 2012/2301.
Section 441 was amended by S.I. 2008/393 and S.I. 2012/2301.
Section 448(2)(e) was inserted by S.I. 2012/2301.
Section 479A(2)(e) was inserted by S.I. 2012/2301.
O.J. no L169, 30.06.2017, p.46.
OJ No L169, 30.6.2017, p.46.