Statutory Instruments
2023 No. 1410
Financial Services And Markets
The Financial Services and Markets Act 2023 (Consequential Amendments) Regulations 2023
Made
19th December 2023
Coming into force
1st January 2024
The Treasury make these Regulations in exercise of the powers conferred by sections 83(1), 83(2) and 84(2) of the Financial Services and Markets Act 2023( 1 ).
In accordance with sections 83(3), 84(3) and 84(5) of the Financial Services and Markets Act 2023, a draft of these Regulations has been laid before and approved by a resolution of each House of Parliament.
PART 1 Introduction
Citation, commencement and extent
1. —(1) These Regulations may be cited as the Financial Services and Markets Act 2023 (Consequential Amendments) Regulations 2023.
(2) These Regulations come into force on 1st January 2024.
(3) These Regulations extend to England and Wales, Scotland and Northern Ireland.
PART 2 Amendment of Primary Legislation
Financial Services and Markets Act 2000
2. —(1)The Financial Services and Markets Act 2000( 2 ) is amended as follows.
(2) In section 55J (variation or cancellation on initiative of regulator)( 3 )—
(a) in subsection (6A)(e) (variation or cancellation in respect of UK AIFMs), omit sub-paragraph (iv) but not the “or” immediately following that sub-paragraph;
(b) in subsection (6AA) (definition of AIFMD, ELTIF and MMF requirements for the purposes of subsection (6A)(e)), omit paragraph (b).
(3) In section 143C (duty to make rules applying to FCA investment firms)( 4 ), omit subsection (4).
(4) In section 143D (duty to make rules applying to parent undertakings), omit subsections (5) and (6).
(5) In section 143E (powers to make rules applying to parent undertakings)—
(a) in subsection (5)—
(i) for “and (6) apply” substitute “applies” ;
(ii) for “they apply” substitute “it applies” ;
(b) in subsection (6), omit “(5), ”.
(6) In section 398(1A) (misleading FCA or PRA: residual cases)( 5 ), omit paragraph (f).
Enterprise Act 2002
3. In Schedule 13 to the Enterprise Act 2002 (listed enactments)( 6 ), in paragraph 28A—
(a) for “Parts 2 and 3” substitute “Part 3” ;
(b) for “Schedules 1 to 6” substitute “Schedules 3 to 6” .
Banking Act 2009
4. In section 3 of the Banking Act 2009(interpretation: other expressions)( 7 ), in subsection (1), for the definition of ““relevant internal liabilities” of a bank or banking group company” substitute—
“ “relevant internal liabilities” of a bank or banking group company means eligible liabilities held by a resolution entity in the same resolution group as the bank or banking group company, either directly or indirectly (through other entities in the same resolution group that bought the liabilities from the bank or banking group company), ” .
Financial Services and Markets Act 2023
5. In section 50(12) of the Financial Services and Markets Act 2023(application of the Financial Services and Markets Act 2000 to the Bank of England: annual reports), for “(fa)” substitute “(fb)” .
PART 3 Amendment of Secondary Legislation
Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001
6. In article 16 of the Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001 (communications required or authorised by enactments)( 8 ), omit paragraph (4).
Financial Services and Markets Act 2000 (Financial Promotion) Order 2005
7. In article 29 of the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005 (communications required or authorised by enactments)( 9 ), omit paragraph (5).
Financial Services and Markets Act 2000 (Qualifying Provisions) Order 2013
8. —(1)The Financial Services and Markets Act 2000 (Qualifying Provisions) Order 2013( 10 ) is amended as follows.
(2) In article 1(2) (interpretation), omit the definition of “ELTIF Regulation”.
(3) In article 2 (qualifying provisions: general), in paragraph (2), omit sub-paragraph (i).
(4) In article 3 (qualifying provisions: disciplinary measures)—
(a) in paragraph (2), omit sub-paragraph (j);
(b) in paragraph (3), omit sub-paragraph (h).
(5) In article 5 (qualifying provisions: injunctions and restitution)—
(a) in paragraph (2), omit sub-paragraph (j);
(b) in paragraph (5), omit sub-paragraph (i).
(6) In article 6 (qualifying provisions: fees), in paragraph (2), omit sub-paragraph (l).
Alternative Investment Fund Managers Regulations 2013
9. —(1)The Alternative Investment Fund Managers Regulations 2013( 11 ) are amended as follows.
(2) In regulation 2(1) (interpretation)( 12 ), omit the following definitions—
(a) “EEA ELTIF”;
(b) “ELTIF Regulation”;
(c) “UK LTIF”.
(3) Omit Part 3A (LTIFs)( 13 ).
(4) In regulation 30 (depositary liability for loss of financial instruments held in custody), omit paragraph (7)( 14 ).
(5) In regulation 32 (depositary liability and third country custodians), omit paragraph (3)( 15 ).
(6) In regulation 52 (contravention by unauthorised person), in paragraph (1), omit sub-paragraph (c)( 16 ).
(7) In regulation 53 (contravention by authorised person), in paragraph (1), omit sub-paragraph (c)( 17 ).
Payment Card Interchange Fee Regulations 2015
10. In the Payment Card Interchange Fee Regulations 2015( 18 ), after regulation 4A (directions: payment card schemes)( 19 ), insert—
“ Directions: co-operation between regulators
4B. For the purposes of section 98 of the 2013 Act (duty of regulators to ensure co-ordinated exercise of functions) ( 20 ) , the reference in section 98(6)(a) to the interchange fee regulation ( 21 ) is to be read as including a reference to a direction given under regulation 4A.
Power of FCA to require Regulator to refrain from specified action
4C. For the purposes of section 101 of the 2013 Act (power of FCA to require the Regulator to refrain from specified action), in section 101(2)—
(a) the reference to “this Part” is to be read as including a reference to regulation 4A;
(b) the reference to “a participant in a regulated payment system” is to be read as a person referred to in regulation 4A(1). ” .
Payment Accounts Regulations 2015
11. —(1)The Payment Accounts Regulations 2015( 22 ) are amended as follows.
(2) In regulation 2(1) (interpretation), omit the following definitions—
(a) “fee information document”;
(b) “linked services list”;
(c) “statement of fees”.
(3) In regulation 28(1) (monitoring and enforcement), in sub-paragraph (a), omit “2, ”.
(4) In regulation 29(1) (reporting requirements), omit “2, ”.
(5) In regulation 30(1) (power to direct payment service providers), omit “2, ”.
(6) Omit regulation 40A (technical standards)( 23 ).
Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017
12. In regulation 47B of the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (statements of policy)( 24 ), in paragraph (1)(a), omit paragraph (i).
Financial Regulators’ Powers (Technical Standards etc.) (Amendment etc.) (EU Exit) Regulations 2018
13. In Part 1 of the Schedule to the Financial Regulators’ Powers (Technical Standards etc.) (Amendment etc.) (EU Exit) Regulations 2018 (EU Regulations for which the FCA is the appropriate regulator)( 25 ), omit paragraph 6A.
EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018
14. In regulation 24 of the EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018 (Financial Services Compensation Scheme - modifications of Part 15 of the Financial Services and Markets Act 2000)( 26 ), in paragraph (2)(b), in the modification of section 213 of the Financial Services and Markets Act 2000—
(a) in subsection (9B)(f)—
(i) after sub-paragraph (i) omit “, or”;
(ii) omit sub-paragraph (ii);
(b) in subsection (9C), omit the following definitions—
(i) “ELTIF”;
(ii) “ELTIF Regulation”.
Gibraltar (Miscellaneous Amendments) (EU Exit) Regulations 2019
15. In regulation 11 of the Gibraltar (Miscellaneous Amendments) (EU Exit) Regulations 2019 (saving for certain financial services legislation relating to Gibraltar)( 27 ), in paragraph (5), omit sub-paragraph (m).
PART 4 Amendment of Retained Direct EU Legislation
Regulation (EU) No 575/2013
16. —(1) of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 575/2013 ( Regulation (EU) No 648/2012 28 ) is amended as follows.
(2) In Article 6 (general principles)( 29 ), in paragraph 1a, omit the words from “material subsidiaries” to the end of the paragraph.
(3) In Article 11 (general treatment)( 30 ), in paragraph 3a, omit the words from “only UK parent undertakings” to the end of the paragraph.
(4) In Article 18 (methods of prudential consolidation)( 31 ), in paragraph 1, omit “or 92b”.
(5) In Article 49 (requirement for deduction where consolidation or supplementary supervision is applied)( 32 ), in paragraph 2, for “Articles 92a and 92b” substitute “Article 92a” .
Regulation (EU) No 600/2014
17. —(1) of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 600/2014 ( Regulation (EU) No 648/2012 33 ) is amended as follows.
(2) In Article 4 (waivers for equity instruments)—
(a) in paragraph 1(a), omit the final sentence;
(b) in paragraph 1(b)(i), omit “, subject to the conditions set out in Article 5”.
(3) In the following provisions, for “5(3A)”, in each place where it occurs, substitute “14(6D)” ( 34 )—
(a) in Article 9 (waivers for non-equity instruments), paragraph 4A;
(b) in Article 11 (authorisation of deferred publication), paragraph 2A;
(c) in Article 21 (post-trade disclosure by investment firms, including systematic internalisers, in respect of bonds, structured finance products, emission allowances and derivatives), paragraph 4A.
Commission Delegated Regulation (EU) 2015/35
18. In Article 168 of Commission Delegated Regulation (EU) 2015/35 of 10 October 2014 supplementing of the European Parliament and of the Council on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II)( Directive 2009/138/EC 35 ), in paragraph 6 (general provisions: equities considered as type 1), omit point (d).
Commission Delegated Regulation (EU) 2017/565
19. —(1) Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 supplementing of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive( Directive 2014/65/EU 36 ) is amended as follows.
(2) In Article 12 (systematic internalisers for shares, depositary receipts, ETFs, certificates and other similar financial instruments)—
(a) in paragraph 2, omit “5, ”;
(b) in paragraph 3, for “5(3A)” substitute “14(6D)” .
(3) In the following provisions, for “5(3A)”, in each place where it occurs, substitute “14(6D)” —
(a) in Article 13 (systematic internalisers for bonds), paragraph 2;
(b) in Article 14 (systematic internalisers for structured finance products), paragraph 2;
(c) in Article 15 (systematic internalisers for derivatives), paragraph 2;
(d) in Article 16 (systematic internalisers for emission allowances), paragraph 2;
(e) in Article 16ZA (transitional period: data for calculations)( 37 ), paragraph 1.
Commission Delegated Regulation (EU) 2017/567
20. In Article 5 of Commission Delegated Regulation (EU) 2017/567 of 18 May 2016 supplementing of the European Parliament and of the Council with regard to definitions, transparency, portfolio compression and supervisory measures on product intervention and positions (assessment of liquidity of equity instruments by the competent authorities (Article 2(1)(17)(b) of Regulation (EU) No 600/2014 ))( Regulation (EU) No 600/2014 38 )—
(a) in paragraph 1A, for “5(3A)” substitute “14(6D)” ;
(b) in paragraph 6, omit “5, ”.
Joy Morrissey
Amanda Milling
Two of the Lords Commissioners of His Majesty’s Treasury
19th December 2023
Section 55J was substituted by section 11 of the Financial Services Act 2012 (c. 21) . Subsection (6A) was inserted by S.I. 2013/1773 and paragraph (e)(iv) was substituted by S.I. 2019/632 . Subsection (6AA) was inserted by S.I. 2019/632 .
Sections 143C, 143D and 143E were inserted by paragraph 1 of Schedule 2 to the Financial Services Act 2021 (c. 22) .
Section 398(1A) was inserted by S.I. 2013/1773 . Paragraph (f) of section 398(1A) was inserted by S.I. 2015/1882 and amended by S.I. 2018/135 .
2002 c. 40 . Schedule 13 was substituted by S.I. 2019/203 (as amended by S.I. 2020/1347 ).
2009 c. 1 . The definition of ““relevant internal liabilities” of a bank or banking group company” in section 3 was inserted by S.I. 2020/1350 .
S.I. 2001/1060 . Article 16(4) was inserted by S.I. 2015/1882 .
S.I. 2005/1529 . Article 29(5) was inserted by S.I. 2015/1882 .
S.I. 2013/419 was amended by S.I. 2015/1882 , S.I. 2019/632 and S.I. 2020/628 ; there are other amending instruments but none is relevant.
Regulation 2(1) was amended by S.I. 2015/1882 and S.I. 2019/328 ; there are other amending instruments but none is relevant.
Part 3A was inserted by S.I. 2015/1882 and amended by S.I. 2019/328 .
Regulation 30(7) was inserted by S.I. 2015/1882 and amended by S.I. 2019/328 .
Regulation 32(3) was inserted by S.I. 2015/1882 and amended by S.I. 2019/328 .
Regulation 52(1)(c) was inserted by S.I. 2015/1882 .
Regulation 53(1)(c) was inserted by S.I. 2015/1882 .
Regulation 4A was inserted by S.I. 2023/790 .
2013 c. 33 . Section 98(6)(a) was amended by S.I. 2015/1911 .
EUR 2015/751.
Regulation 40A was inserted by S.I. 2019/661 .
S.I. 2017/701 . Regulation 47B was inserted by S.I. 2018/1403 .
S.I. 2018/1115 . Paragraph 6A was inserted by S.I. 2019/336 . S.I. 2019/576 purported to make the same insertion at a later date.
S.I. 2018/1149 . Regulation 24 was amended by S.I. 2020/1301 .
EUR 575/2013.
Article 6 was amended by S.I. 2018/1401 , S.I. 2019/1232 and S.I. 2021/1078 .
Article 11 was amended by S.I. 2020/1385 and S.I. 2021/1078 .
Article 18 was amended by Schedule 1 to the Financial Services Act 2021 (c. 22) , S.I. 2020/1385 and S.I. 2021/1078 .
Article 49 was amended by Schedule 1 to the Financial Services Act 2021, S.I. 2018/1401 , S.I. 2019/264 and S.I. 2021/1376 .
EUR 600/2014 was amended by Schedule 2 to the Financial Services and Markets Act 2023 (c. 29) and S.I. 2018/1403 ; there are other amending instruments but none is relevant.
Paragraph (6D) of Article 14 was inserted by paragraph 6 of Schedule 2 to the Financial Services and Markets Act 2023.
EUR 2015/35. Paragraph 6(d) of Article 168 was amended by S.I. 2019/407 .
EUR 2017/565 was amended by S.I. 2018/1403 and S.I. 2021/774 .
Article 16ZA was inserted by S.I. 2018/1403 (as amended by S.I. 2020/1301 ).
EUR 2017/567 was amended by S.I. 2018/1403 .