The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2012
| Jurisdiction | UK Non-devolved |
| Citation | SI 2012/1906 |
| Year | 2012 |
2012 No. 1906
Financial Services
The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2012
Made 19th July 2012
Coming into force in accordance with Article 1
In the opinion of the Treasury, one of the effects of the following order is that an activity which is not a regulated activity (within the meaning of the Financial Services and Markets Act 20001) will become a regulated activity.
The Treasury are a government department designated2for the purposes of section 2(2) of the European Communities Act 19723in relation to measures relating to the operation of regulated markets and clearing or settlement systems and in relation to insider dealing and market manipulation.
A draft of this Order was laid before Parliament, and approved by a resolution of each House of Parliament, in accordance with paragraphs 2(2) and 2A4of Schedule 2 to the European Communities Act 1972.
The Treasury, in exercise of the powers conferred upon them by section 2(2) of the European Communities Act 1972, and sections 22(1) and (5), 426 and 428(3) of, and paragraph 25 of Schedule 2 to, the Financial Services and Markets Act 2000, make the following Order.
PART 1
GENERAL
Citation and commencement
1. This Order may be cited as the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2012 and comes into force on the day after the day on which it is made.
PART 2
AMENDMENT OF THE REGULATED ACTIVITIES ORDER
Amendment of the Regulated Activities Order
2.—(1) The Financial Services and Markets Act 2000 (Regulated Activities) Order 20015is amended as follows.
(2) In article 3(1) (interpretation)—
(a)
(a) for the definition of “investment services and activities”6, substitute—
““investment services and activities” means—
(a) any service provided to third parties listed in Section A of Annex 1 to the markets in financial instruments directive (the text of which is set out in Part 3 of Schedule 2) read with Article 52 of Commission Directive 2006/73/ECof 10 August 20067(the text of which is set out in Part 4 of Schedule 2), including the reception, transmission or submission of a bid by an investment firm or credit institution on any auction platform, in relation to any financial instrument; or
(b) any activity listed in Section A of Annex 1 to that directive, in relation to any financial instrument;”;
(b)
(b) insert the following definitions in the appropriate places—
““aircraft operator” has the same meaning as in the emission allowance trading directive;”;
““auction platform” means a platform on which auctions of greenhouse gas emissions allowances are held in accordance with the emission allowance auctioning regulation;”;
““emission allowance trading directive” means Directive 2003/87/ECof the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowances trading within the Community8;”;
““emission allowance auctioning regulation” means Commission Regulation (EU) No 1031/2010 of 12 November 2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to the emission allowance trading directive9;”;
““greenhouse gas emissions allowances” mean “allowances” as defined in Article 3(a) of the emission allowance trading directive;”;
““operator” has the same meaning as in the emission allowance trading directive;”;
““reception”, “transmission” and “submission” have the same meaning in relation to a bid at an auction for an investment of the kind specified in article 82A as in the emission allowance auctioning regulation;”.
(3) Insert after article 24 (other exclusions)—
“CHAPTER 5A
BIDDING IN EMISSIONS AUCTIONS
The activity
(24A) Bidding in emissions auctions
(1)
(1) The reception, transmission or submission of a bid at an auction of an investment of the kind specified by article 82A conducted—
(a) on a recognised auction platform, or
(b) on any other auction platform which has been appointed under the emission allowance auctioning regulation,
is a specified kind of activity.
(2)
(2) An activity which falls within paragraph (1) (or would do so but for the exclusions in article 24B) does not form part of any other activity specified under any other article of this Order.
(3)
(3) In this article, “recognised auction platform” has the meaning given in regulation 1(3) of the Recognised Auction Platform Regulations 201110.
Exclusions
(24B) Miscellaneous exclusions
(1)
(1) There is excluded from article 24A any activity carried on by—
(a) an operator or an aircraft operator having an operator holding account, in either case bidding on its own account, including any parent undertaking, subsidiary undertaking or affiliate undertaking forming part of the same group of undertakings as the operator or the aircraft operator;
(b) business groupings of persons listed in sub-paragraph (a) bidding on their own account or acting as an agent on behalf of their members; or
(c) public bodies or state-owned entities of the Member States that control any of the persons listed in sub-paragraph (a).
(2)
(2) There is excluded from article 24A the reception, transmission or submission of a bid by an investment firm or a credit institution on any auction platform on their own account for investments of the kind specified by article 82A which are not financial instruments.
(3)
(3) In this article, the expressions “parent undertaking”, “subsidiary undertaking”, “affiliate undertaking”, “business grouping”, “public bodies” and “state-owned entities” have the same meaning as in the emission allowance auctioning regulation.”
(4) Insert after article 82 (rights under a pension scheme)—
“Greenhouse gas emissions allowances
82A. Greenhouse gas emissions allowances which are auctioned as financial instruments or as two-day spots within the meaning of Article 3.3 of the emission allowance auctioning regulation.”.
PART 3
CONSEQUENTIAL AND MISCELLANEOUS AMENDMENTS
Amendment of the Financial Services and Markets Act 2000
3.—(1) The Financial Services and Markets Act 2000 is amended as follows.
(2) In section 39(4)11(exemption of appointed representatives), after “markets in financial instruments directive” insert “or contained in the emission allowance auctioning regulation”.
(3) In section 45 (variation etc. on the Authority’s own initiative), after subsection (2B)12, insert—
“2C Without prejudice to the generality of subsections (1) and (2), the Authority may, in relation to an authorised person who has permission to carry on the regulated activity specified in article 24A of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, exercise its power under this section to vary the Part 4 permission of the person concerned by removing that activity from those to which the permission relates if it appears to the Authority that that person has seriously and systematically infringed the provisions of paragraph 2 or 3 of Article 59 of the emission allowance auctioning regulation.”.
(4) In section 59(8) (approval for particular arrangements), after “the single market directives” insert “or the emission allowance auctioning regulation”.
(5) In section 66(2)13(disciplinary powers), after “the markets in financial instruments directive or the UCITS directive” insert “or by the emission allowance auctioning regulation”.
(6) In section 138(6)(b) (general rule-making power), after “the single market directives” insert “or the emission allowance auctioning regulation”.
(7) In section 168(4)(j)14(appointment of persons to carry out investigations in particular cases), insert at the end “or made by the emission allowance auctioning regulation”.
(8) In section 20515(public censure), after “the UCITS directive” insert “or by the emission allowance auctioning regulation”.
(9) In section 206(1)16(financial penalties), after “the UCITS directive” insert “or by the emission allowance auctioning regulation”.
(10) In section 206A(2)17(suspending permission to carry on regulated activities etc.), in the definition of “relevant requirement”, omit the word “or” before paragraph (e), and at the end of that paragraph insert—
“; or
(f)
(f) by the emission allowance auctioning regulation.”.
(11) In section 380(6)(a)(i)18(injunctions), after “the UCITS directive” insert “or by the emission allowance auctioning regulation”.
(12) In section 382(9)(a)(i)19(restitution orders), after “the UCITS directive” insert “or by the emission allowance auctioning regulation”.
(13) In section 384(7)(a)20(power of Authority to require restitution), after “the UCITS directive” insert “or by the emission allowance auctioning regulation”.
(14) In section 417(1)21(definitions), in the definition of “investment services and activities”—
(a)
(a) at the end of paragraph (a), omit “and”;
(b)
(b) at the end of paragraph (b), insert—
“and
(c)
(c) Article 6(5) of the emission allowance auctioning regulation;”.
(15) In section 418 (carrying on regulated activities in the United Kingdom), after subsection (6), insert—
“7 For the purposes of subsection (2)(b) and (c), the emission allowance auctioning regulation is a single market directive.”.
(16) In section 425(1)(a)22(expressions relating to authorisation elsewhere in the single market), after ““EEA State”,” insert ““emission allowance auctioning regulation”,”.
(17) In Schedule 1, paragraph 623(monitoring and enforcement)—
(a)
(a) in sub-paragraph (1), after “under this Act, insert “by the emission allowance auctioning regulation”;
(b)
(b) in sub-paragraph (3), after “under this Act”, insert “, the emission allowance auctioning regulation,”.
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