The Financial Services and Markets Act 2000 (Markets in Financial Instruments) (No. 2) Regulations 2017
| Year | 2017 |
2017 No. 1255
Financial Services And Markets
The Financial Services and Markets Act 2000 (Markets in Financial Instruments) (No.2) Regulations 2017
Made 12th December 2017
Laid before Parliament 13th December 2017
Coming into force in accordance with regulation 2
The Treasury are a government department designated1for the purposes of section 2(2) of the European Communities Act 19722in relation to financial services.
The Treasury, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and sections 22(1) and (5), and 428(3) of, and paragraph 25 of Schedule 2 to, the Financial Services and Markets Act 20003, make the following Regulations.
Citation and commencement
1. These Regulations may be cited as the Financial Services and Markets Act 2000 (Markets in Financial Instruments) (No.2) Regulations 2017.
2. These Regulations come into force as follows—
(a) regulations 10 to 38 come into force on 2nd January 2018; and
(b) the remaining provisions of these Regulations come into force on 3rd January 2018.
Financial Services and Markets Act 2000
3.—(1) The Financial Services and Markets Act 2000 is amended as follows.
(2) In section 1294(power of court to impose administrative sanctions in cases of market abuse)—
(a)
(a) in the opening words of subsection (1) for the words “sections 380 to 383 which relates to a market abuse requirement” substitute “Part 25 which relates to the market abuse regulation”;
(b)
(b) in subsection (7) omit the definition of “market abuse requirement”; and
(c)
(c) after subsection (8) insert—
“9 An application under Part 25 relates to the market abuse regulation if—
(a) it is made under section 380 or 382 and the relevant requirement for the purposes of that section is a requirement imposed by the market abuse regulation or a supplementary EU regulation; or
(b) it is made under section 381 or 383.”.
(3) In section 165A(9)(b) for “4.1(17)” substitute “4.1(15)”.
(4) For section 168(4)(jb)5(appointment of persons to carry out investigations in particular cases) substitute—
“(jb)
“(jb) a person may have contravened—
(i) any provision made by or under this Act for the purposes of the market abuse regulation; or
(ii) a requirement imposed on that person under sections 122A to 122C, 122G to 122I, 123A or 123B;
(jc)
(jc) a person may have been knowingly concerned in the contravention of—
(i) a provision of the market abuse regulation other than Article 14 (prohibition of insider dealing) or 15 (prohibition of market manipulation) of that regulation; or
(ii) a directly applicable EU regulation made under the market abuse regulation; or”.
Financial Services and Markets Act 2000 (Regulated Activities) Order 2001
4.—(1) The Financial Services and Markets Act 2000 (Regulated Activities) Order 20016is amended as follows.
(2) In article 54(1)(b)(i)7(advice given in newspapers etc) after “securities” insert “, structured deposits,”.
(3) After article 72I8(registered consumer buy-to-let mortgage firms) insert—
“Persons seeking to use the exemption under Article 2.1(j) of the markets in financial instruments directive
72J.—(1) An activity which falls within Article 2.1(j)(i) or (ii) (exemptions) of the markets in financial instruments directive (“an Article 2.1(j) activity”) is excluded from the activities specified by articles 14, 21 and 25 if during a calendar year the person carrying on the activity—
(a)
(a) cannot perform the market threshold calculation to establish if the Article 2.1(j) activity falls within the exemption under Article 2.1(j) of the markets in financial instruments directive because the relevant data is not publicly available from an official source;
(b)
(b) carries on the Article 2.1(j) activity during a period of 8 weeks beginning with the day after the day on which the relevant data is made publicly available from an official source; or
(c)
(c) has made an application to the appropriate regulator for a Part 4A permission to carry on a regulated activity specified by articles 14, 21 and 25 which constitutes the Article 2.1(j) activity and the application has not been determined or withdrawn.
(2) The exclusion in paragraph (1) does not apply to an Article 2.1(j) activity carried on by a person who is an authorised person in relation to an activity which constitutes the Article 2.1(j) activity.
(3) In this paragraph—
“market threshold calculation” means the calculation of the size of trading activities referred to in Article 2 of the delegated regulation that must be carried out annually in the first quarter of a calendar year under the procedure set out in Article 4 (procedure for calculation) of that delegated regulation;
“official source” means an EU institution or a regulator;
“relevant data” means any data or other information that enables a calculation to be made of the overall market trading activity in an asset class under the procedure in Article 2.3 (overall market threshold) of the delegated regulation;
“the appropriate regulator” in relation to an application for a Part 4A permission means the appropriate regulator in relation to that application for the purposes of section 55A9(application for permission) of the Act; and
“the delegated regulation” means Commission Delegated Regulation (EU) 2017/592 of 1 December 2016 supplementing Directive 2014/65/EUof the European Parliament and the Council with regard to regulatory technical standards for the criteria to establish when an activity is considered to be ancillary to the main business10.”.
Financial Services and Markets Act 2000 (Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 2001
5. Omit paragraph 7C(4)11of Schedule to the Financial Services and Markets Act 2000 (Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 200112.
Occupational Pension Schemes (Investment) Regulations (Northern Ireland) 2005
6. In regulation 4(11) (investment by trustees) of the Occupational Pension Schemes (Investment) Regulations (Northern Ireland) 200513—
(a) in the definition of “derivative instrument” for “ Directive 2004/39/EC” substitute “ Directive 2014/65/EU14”; and
(b) in paragraph (b) of the definition of “regulated market” for “ Directive 2004/39/EC” substitute “ Directive 2014/65/EU”.
7.—(1) The Companies Act 200615is amended as follows.
(2) In section 474(1)16in the definition of “MiFID investment firm” —
(a)
(a) for sub-paragraph (b) substitute—
“(b)
“(b) a company which is an exempt investment firm as defined by regulation 8 (meaning of “exempt investment firm”) of the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017( S.I. 2017/701);”; and
(b)
(b) in paragraph (c) for “4C(3)” substitute “6(3)”.
Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations (Northern Ireland) 2010
8. In regulation 35(2)17of the Occupational and Personal Pension Schemes (Automatic Enrolment) Regulations (Northern Ireland) 201018in paragraph (b) of the definition of “competent authority” for “Article 4(22) of Directive 2004/39/EC” substitute “Article 4(26) of Directive 2014/65/EU”.
Recognised Auction Platform Regulations 2011
9. In paragraph 1119of Schedule 1 (modifications of the Act for the purposes of Articles 37 to 43 of the emission allowance auctioning regulation) of the Recognised Auction Platforms Regulations 201120—
(a) for paragraph (a) substitute—
“(a)
“(a) in subsection (1) the reference to the market abuse regulation were to the emission allowance market abuse regime;”;”
(b) omit paragraph (c)(ii); and
(c) after paragraph (c) insert –
“; and
(d)
(d) for subsection (8) there were substituted—
“(8) An application under Part 25 relates to the emission allowance market abuse regime if —
(a)
(a) it is made under section 380 or 382 and the relevant requirement for the purposes of that section is a requirement imposed by the emission allowance market abuse regime; or
(b)
(b) it is made under section 381 or 383.””.
Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2017
10. In article 16 (transitional provision: structured deposits) of the Financial Services and Markets Act (Regulated Activities) (Amendment) Order 201721—
(a) in paragraph (1)(a) for “3rd January 2018” substitute “1st April 2018”; and
(b) after paragraph (2) insert—
“2A Notwithstanding article 15, paragraph (2B) applies where—
(a) an EEA firm gives notice to the appropriate regulator before 1st April 2018, in such form as the appropriate regulator directs, that the EEA firm wishes to carry on a permitted activity in relation to...
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