C1PART 4Amendments to the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005
C1Introduction and transitional provisionI3C1162
1
The Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 M1 is amended as set out in this Part.
2
Nothing in this Part causes a communication to constitute a breach of the prohibition in subsection (1) of section 21 of the Financial Services and Markets Act 2000 M2 (restrictions on financial promotion) if—
a
a contract entered into before F2IP completion day required the communication to be made, and
b
the communication would not have constituted a breach of the prohibition had it been made before F3IP completion day.
C1Article 2 (interpretation: general)I2C1163
In article 2 (interpretation: general), in paragraph (1), in the definition of “international organisation”, in paragraphs (a) and (b) omit “or another EEA State”.
C1Article 6 (interpretation: communications)I4C1164
In article 6 (interpretation: communications) omit paragraphs (g) and (h).
C1Article 8A (interpretation: outgoing electronic commerce communication)I5C1165
Omit article 8A M3 (interpretation: outgoing electronic commerce communication).
C1Article 10 (application to qualifying contracts of insurance)I6C1166
In article 10 (application to qualifying contracts of insurance), in paragraph 1—
a
omit sub-paragraph (c);
b
omit sub-paragraph (d).
C1Article 12 (communications to overseas recipients)I7C1167
In article 12 (communications to overseas recipients) omit paragraph 7.
C1Article 18A (electronic commerce communications: mere conduits, caching and hosting)I8C1168
1
Article 18A (electronic commerce communications: mere conduits, caching and hosting) is amended as follows.
2
In paragraph (a), for “paragraph 1 of Article 12, 13 or 14 of the electronic commerce directive” substitute “
regulation 17(1), 18 or 19 of the Electronic Commerce (EC Directive) Regulations 2002 M4
”
.
3
In paragraph (b), for “the conditions mentioned in the paragraph in question, to the extent” substitute “the conditions mentioned in—
i
regulation 17(1)(a) to (c) of those Regulations (where regulation 17 is the relevant regulation),
ii
regulation 18(b)(i) to (v) of those Regulations (where regulation 18 is the relevant regulation), or
iii
regulation 19(a)(i) and (ii) of those Regulations (where regulation 19 is the relevant regulation),
to the extent
C1Article 20B (incoming electronic commerce communications)I9C1169
Omit article 20B (incoming electronic commerce communications).
C1Article 25 (relevant insurance activity: non-real time communications: reinsurance and large risks)I10C1170
In article 25 (relevant insurance activity: non-real time communications: reinsurance and large risks), in paragraph (4) omit “(within the meaning of the Seventh Company Law Directive)”.
C1Article 29 (communications required or authorised by enactments)I1171
In article 29 (communications required or authorised by enactments), after paragraph (4) M5 insert—
4A
The reference in paragraph (4) to Regulation (EU) 345/2013 is a reference to that instrument as it has effect at the beginning of the day on which the Financial Services and Markets Act 2000 (Amendment) (EU Exit) Regulations 2019 are made (but see regulation 2 of the European Union (Withdrawal) Act 2018 (Consequential Modifications and Repeals and Revocations) Regulations 2019 M6, which may further update the reference).
C1Article 34 (governments, central banks etc)I11C1172
In article 34 (governments, central banks etc) omit sub-paragraph (b)(v).
C1Article 36 (nationals of EEA States other than United Kingdom)I12C1173
Omit article 36 (nationals of EEA States other than United Kingdom).
C1Article 59 (annual accounts and directors' report)I13C1174
1
Article 59 (annual accounts and directors' report) is amended as follows.
2
In paragraph (1)(b)—
a
at the end of sub-paragraph (ai) M7 insert “
or
”
;
b
at the end of sub-paragraph (i) M8 omit “or”;
c
omit sub-paragraph (iii) M9.
3
In paragraph (7) omit sub-paragraph (e).
4
The amendments made by this regulation do not apply in relation to any report for a financial year beginning before F4IP completion day.
Article 70 (promotions included in listing particulars etc)F1175
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C1Schedule 1 (controlled activities and controlled investments)I14C1176
1
In Schedule 1, Part 2 (controlled investments) is amended as follows.
2
In paragraph 14 (shares or stock)—
a
in sub-paragraph (2)(b) M10 omit “or in a body constituted under the law of another EEA State for purposes equivalent to those of such a body”;
b
omit sub-paragraph (3)(d).
3
In paragraph 15A M11 (alternative finance investment bonds), for sub-paragraph (f) M12 of paragraph (2) substitute—
f
the arrangements are—
i
a security that is admitted to the official list in accordance with Part 6 of the Act,
ii
a security that is admitted to an official list in the EEA (in accordance with the provisions of Directive 2001/34/EC of the European Parliament and of the Council on the admission of securities to official stock exchange listing and on information to be published on those securities) and has been so admitted since before F5IP completion day,
iii
a security that is admitted to trading on a recognised investment exchange or a UK trading venue, or
iv
a security that is admitted to trading on an EU trading venue and has been so admitted since before F5IP completion day.
4
In paragraph 21 M13 (options)—
a
in sub-paragraph (1)(e) M14, for the words after “an option to which” substitute “
paragraph 5, 6, 7 or 10 of Part 1 of Schedule 2 (read with Articles 5, 6, 7, and 8 of the Commission Regulation) applies
”
;
b
in sub-paragraph (2)(d)(i) M15, for “Section C of Annex I to the markets in financial instruments directive” substitute “
Part 1 of Schedule 2
”
;
c
in sub-paragraph (2)(d)(ii), for “Section C of Annex I to the markets in financial instruments directive” substitute “
Part 1 of that Schedule
”
;
d
in sub-paragraph (3)(c) M16, for “Section C of Annex I to the markets in financial instruments directive” substitute “
Part 1 of Schedule 2
”
;
e
in sub-paragraph (4), for sub-paragraphs (a) to (d) M17 substitute—
a
an investment firm or qualifying credit institution is providing or performing investment services and activities on a professional basis;
b
a management company which has a Part 4A permission to do so is providing the investment service specified in paragraph 4 or 5 of Part 3 of Schedule 2 or the ancillary service specified in paragraph 1 of Part 3A of that Schedule;
c
a market operator is providing the investment service specified in paragraph 8 or 9 of Part 3 of that Schedule;
d
a full-scope UK AIFM which has a Part 4A permission to do so is providing the investment service specified in paragraph 1, 4 or 5 of Part 3 of that Schedule or the ancillary service specified in paragraph 1 of Part 3A of that Schedule.
f
omit sub-paragraph (5) M18.
5
In paragraph 22 (futures)—
a
in sub-paragraph (1A)(d), (1B)(e) and (1C)(c) M19, for “Section C of Annex I to the markets in financial instruments directive” substitute “
Part 1 of Schedule 2
”
;
b
in sub-paragraph (1CA) M20, for “Section C of Annex I to the markets in financial instruments directive” substitute “
Part 1 of Schedule 2
”
;
c
in sub-paragraph (1D), for sub-paragraphs (a) to (d) M21 substitute—
a
an investment firm or qualifying credit institution is providing or performing investment services and activities on a professional basis;
b
a management company which has a Part 4A permission to do so is providing the investment service specified in paragraph 4 or 5 of Part 3 of Schedule 2 or the ancillary service specified in paragraph 1 of Part 3A of that Schedule;
c
a market operator is providing the investment service specified in paragraph 8 or 9 of Part 3 of that Schedule;
d
a full-scope UK AIFM which has a Part 4A permission to do so is providing the investment service specified in paragraph 1, 4 or 5 of Part 3 of that Schedule or the ancillary service specified in paragraph 1 of Part 3A of that Schedule.
d
omit sub-paragraph (1E) M22.
6
In paragraph 23 (contracts for differences etc)—
a
b
in sub-paragraphs (4) and (4B) M25, for paragraphs (a) to (d) substitute—
a
an investment firm or qualifying credit institution is providing or performing investment services and activities on a professional basis;
b
a management company which has a Part 4A permission to do so is providing the investment service specified in paragraph 4 or 5 of Part 3 of Schedule 2 or the ancillary service specified in paragraph 1 of Part 3A of that Schedule;
c
a market operator is providing the investment service specified in paragraph 8 or 9 of Part 3 of that Schedule;
d
a full-scope UK AIFM which has a Part 4A permission to do so is providing the investment service specified in paragraph 1, 4 or 5 of Part 3 of that Schedule or the ancillary service specified in paragraph 1 of Part 3A of that Schedule.
c
omit sub-paragraph (5) M26.
7
In paragraph 23A M27 (emission allowances)—
a
in sub-paragraph (1), after “compliance” insert “
(by an EEA State)
”
;
b
in sub-paragraph (2), for paragraphs (a) to (d) substitute—
a
an investment firm or qualifying credit institution is providing or performing investment services and activities on a professional basis;
b
a management company which has a Part 4A permission to do so is providing the investment service specified in paragraph 4 or 5 of Part 3 of Schedule 2 or the ancillary service specified in paragraph 1 of Part 3A of that Schedule;
c
a market operator is providing the investment service specified in paragraph 8 or 9 of Part 3 of that Schedule;
d
a full-scope UK AIFM which has a Part 4A permission to do so is providing the investment service specified in paragraph 1, 4 or 5 of Part 3 of that Schedule or the ancillary service specified in paragraph 1 of Part 3A of that Schedule.
8
In paragraph 28 (interpretation) omit the definition of “credit institution” and insert at the appropriate places—
“EU trading venue” has the meaning given by Article 2.1.16B of the markets in financial instruments regulation;
“qualifying credit institution” has the meaning given in the Regulated Activities Order;
“UK trading venue” has the meaning given by Article 2.1.16 of the markets in financial instruments regulation.
Pts. 3-6 modified in part (31.12.2020) by The Gibraltar (Miscellaneous Amendments) (EU Exit) Regulations 2019 (S.I. 2019/680), regs. 1(2), 11(1)(4)(5) (with reg. 11(8)-(10)) (as amended by S.I. 2020/1301, regs. 1, 3, Sch. para. 40(f)); 2020 c. 1, Sch. 5 para. 1(1)