Financial Services and Markets Act 2000 (Financial Promotion) Order 2001
| Jurisdiction | UK Non-devolved |
2001 No. 1335
FINANCIAL SERVICES AND MARKETS
The Financial Services and Markets Act 2000 (Financial Promotion) Order 2001
Made 2nd April 2001
Coming into force in accordance with article 1
Whereas this is the first Order to be made under subsections (5), (9) and (10) of section 21 of the Financial Services and Markets Act 20001and is therefore an Order to which section 429(4) of that Act applies;
Whereas a draft of this Order has been approved by resolution of both Houses of Parliament;
The Treasury in the exercise of the powers conferred on them by section 21(5), (9) and (10), and section 428(3) of, and paragraph 25 of Schedule 2 to, the Financial Services and Markets Act 2000 and of all other powers enabling them in that behalf hereby make the following Order:—
PART I
CITATION, COMMENCEMENT AND INTERPRETATION
Citation and commencement
1.—(1) This Order may be cited as the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001.
(2) Except as provided by paragraph (3), this Order comes into force on the day on which section 19 of the Act comes into force.
(3) This Order comes into force—
(a)
(a) for the purposes of paragraphs 9 and 25 of Schedule 1 (qualifying funeral plan contracts) on 1st January 2002; and
(b)
(b) for the purposes of paragraphs 10 and 26 of Schedule 1 (qualifying credit) nine months after section 19 of the Act comes into force.
Interpretation: general
2.—(1) In this Order, except where the context otherwise requires—
“the 1985 Act” means the Companies Act 19852;
“the 1986 Order” means the Companies (Northern Ireland) Order 19863.
“the Act” means the Financial Services and Markets Act 2000;
“close relative” in relation to a person means—
(a) his spouse;
(b) his children and step-children, his parents and step-parents, his brothers and sisters and his step-brothers and step-sisters; and
(c) the spouse of any person within sub-paragraph (b);
“controlled activity” has the meaning given by article 4 and Schedule 1;
“controlled investment” has the meaning given by article 4 and Schedule 1;
“deposit” means a sum of money which is a deposit for the purposes of article 5 of the Regulated Activities Order;
“equity share capital” has the meaning given in the 1985 Act or in the 1986 Order;
“financial promotion restriction” has the meaning given by article 5;
“government” means the government of the United Kingdom, the Scottish Administration, the Executive Committee of the Northern Ireland Assembly, the National Assembly for Wales and any government of any country or territory outside the United Kingdom;
“instrument” includes any record whether or not in the form of a document;
“international organisation” means any body the members of which comprise—
(a) states including the United Kingdom or another EEA State; or
(b) bodies whose members comprise states including the United Kingdom or another EEA State;
“overseas communicator” has the meaning given by article 30;
“previously overseas customer” has the meaning given by article 31;
“publication” means—
(a) a newspaper, journal, magazine or other periodical publication;
(b) a web site;
(c) any programme forming part of a service consisting of the broadcast or transmission of television or radio programmes;
(d) any teletext service, that is to say a service consisting of television transmissions consisting of a succession of visual displays (with or without accompanying sound) capable of being selected and held for separate viewing or other use;
“qualifying contract of insurance” has the meaning given in the Regulated Activities Order;
“qualifying credit” has the meaning given by paragraph 10 of Schedule 1;
“the Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 20014;
“relevant insurance activity” has the meaning given by article 21;
“relevant investment activities” has the meaning given by article 30;
“solicited real time communication” has the meaning given by article 8;
“units”, in a collective investment scheme, has the meaning given by Part XVII of the Act;
“unsolicited real time communication” has the meaning given by article 8.
(2) References to a person engaging in investment activity are to be construed in accordance with subsection (8) of section 21 of the Act; and for these purposes, “controlled activity” and “controlled investment” in that subsection have the meaning given in this Order.
Interpretation: unlisted companies
3.—(1) In this Order, an “unlisted company” means a body corporate the shares in which are not—
(a)
(a) listed or quoted on an investment exchange whether in the United Kingdom or elsewhere;
(b)
(b) shares in respect of which information is, with the agreement or approval of any officer of the company, published for the purpose of facilitating deals in the shares indicating prices at which persons have dealt or are willing to deal in them other than persons who, at the time the information is published, are existing members of a relevant class;
(c)
(c) subject to a marketing arrangement which accords to the company the facilities referred to in section 163(2)(b) of the 1985 Act or article 173(2)(b) of the 1986 Order; or
(d)
(d) the subject of an offer (whether in the United Kingdom or elsewhere) in relation to which a copy of the prospectus must be delivered to the relevant registrar of companies in accordance with section 64 of the 1985 Act or article 74 of the 1986 Order or Part II of the Public Offers of Securities Regulations 19955.
(2) For the purpose of paragraph (1)(b), a person is to be regarded as a member of a relevant class if he was, at the relevant time—
(a)
(a) an existing member or debenture holder of the company;
(b)
(b) an existing employee of the company;
(c)
(c) a close relative of such a member or employee; or
(d)
(d) a trustee (acting in his capacity as such) of a trust, the principal beneficiary of which is a person within any of sub-paragraphs (a), (b) and (c).
(3) In this Order references to shares in and debentures of an unlisted company are references to—
(a)
(a) in the case of a body corporate which is a company within the meaning of the 1985 Act, shares and debentures within the meaning of that Act;
(b)
(b) in the case of a body corporate which is a company within the meaning of the 1986 Order, shares and debentures within the meaning of that Order;
(c)
(c) in the case of any other body corporate, investments falling within paragraph 14 or 15 of Schedule 1 to this Order.
PART II
CONTROLLED ACTIVITIES AND CONTROLLED INVESTMENTS
Definition of controlled activities and controlled investments
4.—(1) For the purposes of section 21(9) of the Act, a controlled activity is an activity which falls within any of paragraphs 1 to 11 of Schedule 1.
(2) For the purposes of section 21(10) of the Act, a controlled investment is an investment which falls within any of paragraphs 12 to 27 of Schedule 1.
PART III
EXEMPTIONS: INTERPRETATION AND APPLICATION
Interpretation: financial promotion restriction
5. In this Order, any reference to the financial promotion restriction is a reference to the restriction in section 21(1) of the Act.
Interpretation: communications
6. In this Order—
(a) any reference to a communication is a reference to the communication, in the course of business, of an invitation or inducement to engage in investment activity;
(b) any reference to a communication being made to another person is a reference to a communication being addressed, whether verbally or in legible form, to a particular person or persons (for example where it is contained in a telephone call or letter);
(c) any reference to a communication being directed at persons is a reference to a communication being addressed to persons generally (for example where it is contained in a television broadcast or web site);
(d) “communicate” includes causing a communication to be made or directed;
(e) a “recipient” of a communication is the person to whom the communication is made or, in the case of a non-real time communication which is directed at persons generally, any person who reads or hears the communication.
Interpretation: real time communications
7.—(1) In this Order, references to a real time communication are references to any communication made in the course of a personal visit, telephone conversation or other interactive dialogue.
(2) A non-real time communication is a communication not falling within paragraph (1).
(3) For the purposes of this Order, non-real time communications include communications made by letter or e-mail or contained in a publication.
(4) For the purposes of this Order, the factors in paragraph (5) are to be treated as indications that a communication is a non-real time communication.
(5) The factors are that—
(a)
(a) the communication is made to or directed at more than one recipient in identical terms (save for details of the recipient’s identity);
(b)
(b) the communication is made or directed by way of a system which in the normal course constitutes or creates a record of the communication which is available to the recipient to refer to at a later time;
(c)
(c) the communication is made or directed by way of a system which in the normal course does not enable or require the recipient to respond immediately to it.
Interpretation: solicited and unsolicited real time communications
8.—(1) A real time communication is solicited where it is made in the course of a personal visit, telephone call or other interactive...
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