The Financial Services Act 2012 (Consumer Credit) Order 2013
| Jurisdiction | UK Non-devolved |
| Citation | SI 2013/1882 |
| Year | 2013 |
2013 No. 1882
Financial Services And Markets
The Financial Services Act 2012 (Consumer Credit) Order 2013
Made 25th July 2013
Coming into force in accordance with article 1
In accordance with section 116(1) of the Financial Services Act 20121, a draft of this Order has been laid before Parliament and approved by a resolution of each House.
In accordance with section 107(5) of the Financial Services Act 2012, the Department of Enterprise, Trade and Investment in Northern Ireland has consented to the provisions of this Order which are made by virtue of section 107(2)(i).
The Treasury make the following Order in exercise of the powers conferred by sections 107 and 115(2) of the Financial Services Act 2012:
Citation, commencement and interpretation
1.—(1) This Order may be cited as the Financial Services Act 2012 (Consumer Credit) Order 2013 and comes into force—
(a)
(a) on the day after the day on which it is made, for the purpose of the FCA—
(i) preparing and issuing statements of policy or altering or replacing a statement of policy;
(ii) making determinations under the 1974 Act;
(iii) preparing and issuing information sheets under the 1974 Act;
(iv) giving notices, directions or certificates under the 1974 Act;
(v) imposing requirements under the 1974 Act;
(b)
(b) in so far as it is not already in force, on 1st April 2014.
(2) In this Order, “the 1974 Act” means the Consumer Credit Act 19742.
Functions of the FCA under the 1974 Act
2. References in FSMA 20003to the FCA’s functions under FSMA 2000 are to be treated as including the FCA’s functions under the 1974 Act resulting from this Order.
Application of provisions of FSMA 2000 in connection with failure to comply with the 1974 Act
3.—(1) The following provisions of FSMA 2000 apply in relation to a requirement imposed by or under the provisions of Parts 2, 4, 5 and 6 to 12 of the 1974 Act (“a relevant requirement”) with the modifications specified.
(2) Section 1L (supervision, monitoring and enforcement)4applies as if—
(a)
(a) in subsection (1) the reference to “supervising authorised persons” included a reference to determining whether authorised persons are complying with relevant requirements;
(b)
(b) in subsection (2), the reference to requirements imposed by or under FSMA 2000 in a case where the FCA is the appropriate regulator for the purposes of Part 14 of FSMA 2000 (disciplinary measures)5included a reference to relevant requirements.
(3) Section 66 (disciplinary powers)6applies as if the reference in subsection (2)(b)(i) to a requirement imposed by or under FSMA 2000 included a reference to a relevant requirement, and sections 67 (disciplinary measures: procedure and right to refer to Tribunal)7and 68 (publication)8apply as if the references to section 66 were to that section as applied by this Order.
(4) Part 9 (hearings and appeals)9applies as if in section 133 (proceedings before Tribunal: general provision)10—
(a)
(a) the references to decisions under sections 66 (disciplinary powers), 205 (public censure)11, 206 (financial penalties)12and 206A (suspending permission to carry on regulated activities etc.)13of FSMA 2000 were references to decisions under those sections as applied by this Order;
(b)
(b) the references to a reference or appeal to the Tribunal includes a reference to a reference or appeal to the Tribunal under FSMA 2000 as applied by this Order.
(5) Part 11 (information gathering and investigations)14(with the exception of section 169 (investigations etc. in support of overseas regulator)15) applies as if—
(a)
(a) the reference in section 165(4) (regulators’ power to require information: authorised persons etc.) to functions conferred on the FCA by or under FSMA 2000 included a reference to functions conferred on it by this Order;
(b)
(b) the reference in section 167(1) (appointment of persons to carry out general investigations) to a good reason included a good reason by virtue of the functions conferred on the FCA by this Order;
(c)
(c) in section 168 (appointment of persons to carry out investigations in particular cases)—
(i) subsection (1) included a reference to an offence under the 1974 Act;
(ii) subsection (4) included a reference to circumstances suggesting that a person may have failed to comply with a relevant requirement (excluding circumstances suggesting that an offence under the 1974 Act may have been committed).
(6) Part 13 (incoming firms: intervention by FCA or PRA)16(with the exception of sections 195 (exercise of power in support of overseas regulator), 195A (contravention by relevant EEA firm or EEAUCITS of directive requirements), 198 (power to apply to court for injunction in respect of certain overseas insurance companies) and 199A (management companies: loss of authorisation)) applies as if—
(a)
(a) in section 194(1) (general grounds on which power of intervention is exercisable) each reference to a requirement imposed by or under FSMA 2000 included a reference to a relevant requirement;
(b)
(b) in section 199 (additional procedure for EEA firms in certain cases) the reference in subsection (2)(a)(i) to a requirement imposed by the regulator under FSMA 2000 included a reference to a relevant requirement.
(7) Part 14 (disciplinary measures) applies (with the exception of sections 210 (statements of policy)17and 211 (statements of policy: procedure)18) as if in section 204A (meaning of “relevant requirement” and “appropriate regulator”)19—
(a)
(a) in subsection (2), the definition of “relevant requirement” included a relevant requirement;
(b)
(b) in subsection (6), the reference to any other requirement imposed by or under the Act included a relevant requirement.
(8) Section 380 (injunctions)20applies as if the reference in subsection (6)(a)(i) to a requirement imposed by or under FSMA 2000 included a reference to a relevant requirement.
(9) Section 382 (restitution orders)21applies as if the reference in subsection (9)(a)(i) to a requirement imposed by or under FSMA 2000 included a reference to a relevant requirement.
(10) Section 384 (power of FCA or PRA to require restitution)22applies as if the reference in subsection (7)(a) to a relevant requirement imposed by or under FSMA 2000 included a reference to a relevant requirement; and accordingly sections 385 (warning notices)23and 386 (decision notices)24apply where there has been a contravention of a requirement under section 384 as applied by this Order.
(11) Part 26 (notices)25applies as if—
(a)
(a) in section 391 (publication)26, the references in subsection (1ZB) to warning notices given under sections 67 (disciplinary measures: procedure and right to refer to Tribunal) and 207 (proposal to take disciplinary measures)27of FSMA 2000 were to warning notices given under those sections as applied by this Order;
(b)
(b) in section 392 (application of sections 393 and 394)28, the references to a warning notice and a decision notice given under any of the provisions specified in that section included a warning notice and a decision notice given under any of those provisions as applied by this Order.
(12) Part 27 (offences)29applies as if—
(a)
(a) references to an offence under FSMA 2000 included an offence under that Act as applied by this Order;
(b)
(b) in section 401 (proceedings for offences)30, in subsection (1), the definition of “offence” included an offence under the 1974 Act.
Statements of policy
4.—(1) The FCA must prepare and issue a statement of its policy with respect to—
(a)
(a) the imposition of penalties, suspensions or restrictions imposed under sections 66 (disciplinary powers), 205 (public censure), 206 (financial penalties) and 206A (suspending permission to carry on regulated activities etc.) of FSMA 2000 as applied by article 3;
(b)
(b) the amount of penalties imposed under sections 66 and 206 of FSMA 2000 as so applied;
(c)
(c) the period for which suspensions or restrictions imposed under sections 66 and 206A of FSMA 2000 as so applied are to have effect.
(2) The FCA’s policy in determining what the amount of a penalty should be, or what the period for which a suspension or restriction is to have effect should be, must include having regard to—
(a)
(a) the seriousness of the failure in question in relation to the nature of the requirement concerned;
(b)
(b) the extent to which that failure was deliberate or reckless; and
(c)
(c) whether the person against whom the action is to be taken is an individual.
(3) The FCA may at any time alter or replace a statement issued by it under this article.
(4) If a statement issued under this article is altered or replaced by the FCA, the FCA must issue the altered or replacement statement.
(5) The FCA must, without delay, give the Treasury a copy of any statement which it publishes under this article.
(6) A statement by the FCA issued under this article must be published by the FCA in the way appearing to the FCA to be best calculated to bring it to the attention of the public.
(7) In exercising, or deciding whether to exercise, its powers under section 66, 205, 206 or 206A of FSMA 2000 as applied by article 3 in the case of any particular contravention, the FCA must have regard to any statement published by it under this article and in force at the time when the contravention in question occurred.
Statements of policy: procedure
5.—(1) Before the FCA issues a statement under article 4, the FCA must publish a draft of the proposed statement in the way appearing to it to be best calculated to bring it to the attention of the public.
(2) The draft must be accompanied by notice that representations about the proposal may be made to the FCA within a specified time.
(3) Before issuing the proposed statement, the FCA must have regard to any...
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