Financial Services and Markets Act 2000 (c. 8)

(The document as of February, 2008)

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(3) A certificate under sub-paragraph (1)(b) is one certifying that the Authority has received from the authority which it considers to be the authority responsible for supervising persons who effect or carry out contracts of insurance in the place to which the business is to be transferred that, taking the proposed transfer into account--

(a) the transferee possesses or will possess before the scheme takes effect the margin of solvency required under the law applicable in that place; or

(b) there is no such margin of solvency applicable to the transferee .

(4) "Necessary margin of solvency" means the margin of solvency required in relation to the transferee, taking the proposed transfer into account, under the law which it is the responsibility of the relevant authority to apply.

(5) "Margin of solvency" means the excess of the value of the assets of the transferee over the amount of its liabilities.

(6) "Relevant authority" means--

(a) if the transferee is an EEA firm falling within paragraph 5(d) of Schedule 3, its home state regulator;

(b) if the transferee is a Swiss general insurer, the authority responsible in Switzerland for supervising persons who effect or carry out contracts of insurance;

(7) In sub-paragraph (6), any reference to a transferee of a particular description includes a reference to a transferee who will be of that description if the proposed scheme takes effect.

(8) "Swiss general insurer" means a body--

(a) whose head office is in Switzerland;

(b) which has permission to carry on regulated activities consisting of the effecting and carrying out of contracts of general insurance; and

Certificates as to consent

3 A certificate under this paragraph is one given by the Authority and certifying that the host State regulator has been notified of the proposed scheme and that--

(a) that regulator has responded to the notification; or

(b) that it has not responded but the period of three months beginning with the notification has elapsed.

Certificates as to long-term business

4 A certificate under this paragraph is one given by the Authority and certifying that the authority responsible for supervising persons who effect or carry out contracts of insurance in the State of the commitment has been notified of the proposed scheme and that--

(a) that authority has consented to the proposed scheme; or

(b) the period of three months beginning with the notification has elapsed and that authority has not refused its consent.

Certificates as to general business

5 A certificate under this paragraph is one given by the Authority and certifying that the authority responsible for supervising persons who effect or carry out contracts of insurance in the EEA State in which the risk is situated has been notified of the proposed scheme and that--

(a) that authority has consented to the proposed scheme; or

(b) the period of three months beginning with the notification has elapsed and that authority has not refused its consent.

Interpretation of Part I

6 (1) "State of the commitment", in relation to a commitment entered into at any date, means--

(a) if the policyholder is an individual, the State in which he had his habitual residence at that date;

(b) if the policyholder is not an individual, the State in which the establishment of the policyholder to which the commitment relates was situated at that date.

(2) "Commitment" means a commitment represented by contracts of insurance of a prescribed class.

(3) References to the EEA State in which a risk is situated are--

(a) if the insurance relates to a building or to a building and its contents (so far as the contents are covered by the same policy), to the EEA State in which the building is situated;

(b) if the insurance relates to a vehicle of any type, to the EEA State of registration;

(c) in the case of policies of a duration of four months or less covering travel or holiday risks (whatever the class concerned), to the EEA State in which the policyholder took out the policy;

(d) in a case not covered by paragraphs (a) to (c)--

(i) if the policyholder is an individual, to the EEA State in which he has his habitual residence at the date when the contract is entered into; and

(ii) otherwise, to the EEA State in which the establishment of the policyholder to which the policy relates is situated at that date.

Part II Banking Business Transfer Schemes

7 (1) For the purposes of section 111(2) the appropriate certificates, in relation to a banking business transfer scheme, are--

(a) a certificate under paragraph 8; and

(b) if sub-paragraph (2) applies, a certificate under paragraph 9.

(2) This sub-paragraph applies if the authorised person concerned or the transferee is an EEA firm falling within paragraph 5(b) of Schedule 3.

Certificates as to financial resources

8 (1) A certificate under this paragraph is one given by the relevant authority and certifying that, taking the proposed transfer into account, the transferee possesses, or will possess before the scheme takes effect, adequate financial resources.

(2) "Relevant authority" means--

(a) if the transferee is a person with a Part IV permission or with permission under Schedule 4, the Authority;

(b) if the transferee is an EEA firm falling within paragraph 5(b) of Schedule 3, its home state regulator;

(c) if the transferee does not fall within paragraph (a) or (b), the authority responsible for the supervision of the transferee's business in the place in which the transferee has its head office.

(3) In sub-paragraph (2), any reference to a transferee of a particular description of person includes a reference to a transferee who will be of that description if the proposed banking business transfer scheme takes effect.

Certificates as to consent of home state regulator

9 A certificate under this paragraph is one given by the Authority and certifying that the home State regulator of the authorised person concerned or of the transferee has been notified of the proposed scheme and that--

(a) the home State regulator has responded to the notification; or

(b) the period of three months beginning with the notification has elapsed.

Part III Insurance business transfers effected outside the United Kingdom

10 (1) This paragraph applies to a proposal to execute under provisions corresponding to Part VII in a country or territory other than the United Kingdom an instrument transferring all the rights and obligations of the transferor under general or long-term insurance policies, or under such descriptions of such policies as may be specified in the instrument, to the transferee if any of the conditions in sub-paragraphs (2), (3) or (4) is met in relation to it.

(2) The transferor is an EEA firm falling within paragraph 5(d) of Schedule 3 and the transferee is an authorised person whose margin of solvency is supervised by the Authority.

(3) The transferor is a company authorised in an EEA State other than the United Kingdom under Article 27 of the first life insurance directive, or Article 23 of the first non-life insurance directive and the transferee is a UK authorised person which has received authorisation under Article 6 of either of those directives.

(4) The transferor is a Swiss general insurer and the transferee is a UK authorised person which has received authorisation under Article 6 of the first life insurance directive or the first non-life insurance directive.

(5) In relation to a proposed transfer to which this paragraph applies, the Authority may, if it is satisfied that the transferee possesses the necessary margin of solvency, issue a certificate to that effect.

(6) "Necessary margin of solvency" means the margin of solvency which the transferee, taking the proposed transfer into account, is required by the Authority to maintain.

(7) "Swiss general insurer" has the same meaning as in paragraph 2.

(8) "General policy" means a policy evidencing a contract which, if it had been effected by the transferee, would have constituted the carrying on of a regulated activity consisting of the effecting of contracts of general insurance.

(9) "Long-term policy" means a policy evidencing a contract which, if it had been effected by the transferee, would have constituted the carrying on of a regulated activity consisting of the effecting of contracts of long-term insurance.

Section 132(4).

SCHEDULE 13 The Financial Services and Markets Tribunal

Part I General

Interpretation

1 In this Schedule--

"panel of chairmen" means the panel established under paragraph 3(1);
"lay panel" means the panel established under paragraph 3(4);
"rules" means rules made by the Lord Chancellor under section 132.

Part II The Tribunal

President

2 (1) The Lord Chancellor must appoint one of the members of the panel of chairmen to preside over the discharge of the Tribunal's functions.

(2) The member so appointed is to be known as the President of the Financial Services and Markets Tribunal (but is referred to in this Act as "the President").

(3) The Lord Chancellor may appoint one of the members of the panel of chairmen to be Deputy President.

(4) The Deputy President is to have such functions in relation to the Tribunal as the President may assign to him.

(5) The Lord Chancellor may not appoint a person to be the President or Deputy President unless that person--

(a) has a ten year general qualification within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;

(b) is an advocate or solicitor in Scotland of at least ten years' standing; or

(i) a member of the Bar of Northern Ireland of at least ten years' standing; or

(ii) a solicitor of the Supreme Court of Northern Ireland of at least ten years' standing.

(6) If the President (or Deputy President) ceases to be a member of the panel of chairmen, he also ceases to be the President (or Deputy President).

(7) The functions of the President may, if he is absent or is otherwise unable to act, be discharged--

(a) by the Deputy President; or

(b) if there is no Deputy President or he too is absent or otherwise unable to act, by a person appointed for that purpose from the panel of chairmen by the Lord Chancellor.

Panels

3 (1) The Lord Chancellor must appoint a panel of persons for the purposes of serving as chairmen of the Tribunal.

(2) A person is qualified for membership of the panel of chairmen if--

(a) he has a seven year general qualification within the meaning of section 71 of the [1990 c. 41.] Courts and Legal Services Act 1990;

(b) he is an advocate or solicitor in Scotland of at least seven years' standing; or

(i) a member of the Bar of Northern Ireland of at least seven years' standing; or

(ii) a solicitor of the Supreme Court of Northern Ireland of at least seven years' standing.

(3) The panel of chairmen must include at least one member who is a person of the kind mentioned in sub-paragraph (2)(b).

(4) The Lord Chancellor must also appoint a panel of persons who appear to him to be qualified by experience or otherwise to deal with matters of the kind that may be referred to the Tribunal.

Terms of office etc

4 (1) Subject to the provisions of this Schedule, each member of the panel of chairmen and the lay panel is to hold and vacate office in accordance with the terms of his appointment.

(2) The Lord Chancellor may remove a member of either panel (including the President) on the ground of incapacity or misbehaviour.

(3) A member of either panel--

(a) may at any time resign office by notice in writing to the Lord Chancellor;

(b) is eligible for re-appointment if he ceases to hold office.

Remuneration and expenses

5 The Lord Chancellor may pay to any person, in respect of his service--

(a) as a member of the Tribunal (including service as the President or Deputy President), or

(b) as a person appointed under paragraph 7(4),

such remuneration and allowances as he may determine.

Staff

6 (1) The Lord Chancellor may appoint such staff for the Tribunal as he may determine.

(2) The remuneration of the Tribunal's staff is to be defrayed by the Lord Chancellor.

(3) Such expenses of the Tribunal as the Lord Chancellor may determine are to be defrayed by the Lord Chancellor.

Part III Constitution of Tribunal

7 (1) On a reference to the Tribunal, the persons to act as members of the Tribunal for the purposes of the reference are to be selected from the panel of chairmen or the lay panel in accordance with arrangements made by the President for the purposes of this paragraph ("the standing arrangements").

(2) The standing arrangements must provide for at least one member to be selected from the panel of chairmen.

(3) If while a reference is being dealt with, a person serving as member of the Tribunal in respect of the reference becomes unable to act, the reference may be dealt with by--

(a) the other members selected in respect of that reference; or

(b) if it is being dealt with by a single member, such other member of the panel of chairmen as may be selected in accordance with the standing arrangements for the purposes of the reference.

(4) If it appears to the Tribunal that a matter before it involves a question of fact of special difficulty, it may appoint one or more experts to provide assistance.

Part IV Tribunal Procedure

8 For the purpose of dealing with references, or any matter preliminary or incidental to a reference, the Tribunal must sit at such times and in such place or places as the Lord Chancellor may direct.

9 Rules made by the Lord Chancellor under section 132 may, in particular, include provision--

(a) as to the manner in which references are to be instituted;

(b) for the holding of hearings in private in such circumstances as may be specified in the rules;

(d) for a member of the panel of chairmen to hear and determine interlocutory matters arising on a reference;

(e) for the suspension of decisions of the Authority which have taken effect;

(f) as to the withdrawal of references;

(g) as to the registration, publication and proof of decisions and orders.

Practice directions

10 The President of the Tribunal may give directions as to the practice and procedure to be followed by the Tribunal in relation to references to it.

Evidence

11 (1) The Tribunal may by summons require any person to attend, at such time and place as is specified in the summons, to give evidence or to produce any document in his custody or under his control which the Tribunal considers it necessary to examine.

(2) The Tribunal may--

(a) take evidence on oath and for that purpose administer oaths; or

(b) instead of administering an oath, require the person examined to make and subscribe a declaration of the truth of the matters in respect of which he is examined.

(3) A person who without reasonable excuse--

(a) refuses or fails--

(i) to attend following the issue of a summons by the Tribunal, or

(ii) to give evidence, or

(b) alters, suppresses, conceals or destroys, or refuses to produce a document which he may be required to produce for the purposes of proceedings before the Tribunal,

is guilty of an offence.

(4) A person guilty of an offence under sub-paragraph (3)(a) is liable on summary conviction to a fine not exceeding the statutory maximum.

(5) A person guilty of an offence under sub-paragraph (3)(b) is liable--

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.

Decisions of Tribunal

12 (1) A decision of the Tribunal may be taken by a majority.

(2) The decision must--

(a) state whether it was unanimous or taken by a majority;

(b) be recorded in a document which--

(i) contains a statement of the reasons for the decision; and

(ii) is signed and dated by the member of the panel of chairmen dealing with the reference.

(3) The Tribunal must--

(a) inform each party of its decision; and

(b) as soon as reasonably practicable, send to each party and, if different, to any authorised person concerned, a copy of the document mentioned in sub-paragraph (2).

(4) The Tribunal must send the Treasury a copy of its decision.

Costs

13 (1) If the Tribunal considers that a party to any proceedings on a reference has acted vexatiously, frivolously or unreasonably it may order that party to pay to another party to the proceedings the whole or part of the costs or expenses incurred by the other party in connection with the proceedings.

(2) If, in any proceedings on a reference, the Tribunal considers that a decision of the Authority which is the subject of the reference was unreasonable it may order the Authority to pay to another party to the proceedings the whole or part of the costs or expenses incurred by the other party in connection with the proceedings.

Section 162.

SCHEDULE 14 Role of the Competition Commission

Provision of information by Treasury

1 (1) The Treasury's powers under this paragraph are to be exercised only for the purpose of assisting the Commission in carrying out an investigation under section 162.

(2) The Treasury may give to the Commission--

(a) any information in their possession which relates to matters falling within the scope of the investigation; and

(b) other assistance in relation to any such matters.

(3) In carrying out an investigation under section 162, the Commission must have regard to any information given to it under this paragraph.

Consideration of matters arising on a report

2 In considering any matter arising from a report made by the Director under section 160, the Commission must have regard to--

(a) any representations made to it in connection with the matter by any person appearing to the Commission to have a substantial interest in the matter; and

(b) any cost benefit analysis prepared by the Authority (at any time) in connection with the regulatory provision or practice, or any of the regulatory provisions or practices, which are the subject of the report.

Applied provisions

3 (1) The provisions mentioned in sub-paragraph (2) are to apply in relation to the functions of the Commission under section 162 as they apply in relation to the functions of the Commission in relation to a reference to the Commission under the [1973 c. 41.] Fair Trading Act 1973.

(2) The provisions are--

(a) section 82(2), (3) and (4) of the Fair Trading Act 1973 (general provisions about reports);

(b) section 85 of that Act (attendance of witnesses and production of documents);

(d) section 24 of the [1980 c. 21.] Competition Act 1980 (modifications of provisions about the performance of the Commission's functions);

(d) Part II of Schedule 7 to the [1998 c. 41.] Competition Act 1998 (performance by the Commission of its general functions).

(3) But the reference in paragraph 15(7)(b) in Schedule 7 to the 1998 Act to section 75(5) of that Act is to be read as a reference to the power of the Commission to decide not to make a report in accordance with section 162(2).

Publication of reports

4 (1) If the Commission makes a report under section 162, it must publish it in such a way as appears to it to be best calculated to bring it to the attention of the public.

(2) Before publishing the report the Commission must, so far as practicable, exclude any matter which relates to the private affairs of a particular individual the publication of which, in the opinion of the Commission, would or might seriously and prejudicially affect his interests.

(3) Before publishing the report the Commission must, so far as practicable, also exclude any matter which relates to the affairs of a particular body the publication of which, in the opinion of the Commission, would or might seriously and prejudicially affect its interests.

(4) Sub-paragraphs (2) and (3) do not apply in relation to copies of a report which the Commission is required to send under section 162(10).

Sections 165(11) and 171(4).

SCHEDULE 15 Information and Investigations: Connected Persons

Part I Rules for Specific Bodies

Corporate bodies

1 If the authorised person ("BC") is a body corporate, a person who is or has been--

(a) an officer or manager of BC or of a parent undertaking of BC;

(b) an employee of BC;

Partnerships

2 If the authorised person ("PP") is a partnership, a person who is or has been a member, manager, employee or agent of PP.

Unincorporated associations

3 If the authorised person ("UA") is an unincorporated association of persons which is neither a partnership nor an unincorporated friendly society, a person who is or has been an officer, manager, employee or agent of UA.

Friendly societies

4 (1) If the authorised person ("FS") is a friendly society, a person who is or has been an officer, manager or employee of FS.

(2) In relation to FS, "officer" and "manager" have the same meaning as in section 119(1) of the [1992 c. 40.] Friendly Societies Act 1992.

Building societies

5 (1) If the authorised person ("BS") is a building society, a person who is or has been an officer or employee of BS.

(2) In relation to BS, "officer" has the same meaning as it has in section 119(1) of the [1986 c. 53.] Building Societies Act 1986.

Individuals

6 If the authorised person ("IP") is an individual, a person who is or has been an employee or agent of IP.

Application to sections 171 and 172

7 For the purposes of sections 171 and 172, if the person under investigation is not an authorised person the references in this Part of this Schedule to an authorised person are to be taken to be references to the person under investigation.

Part II Additional Rules

8 A person who is, or at the relevant time was, the partner, manager, employee, agent, appointed representative, banker, auditor, actuary or solicitor of--

(a) the person under investigation ("A");

(b) a parent undertaking of A;

(d) a subsidiary undertaking of a parent undertaking of A; or

(e) a parent undertaking of a subsidiary undertaking of A.

Section 203(8).

SCHEDULE 16 Prohibitions and Restrictions imposed by Director General of Fair Trading

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