Legislation – Financial Services and Markets Act 2023

In Schedule 17A to FSMA 2000 (further provision in relation to exercise of Part 18 functions by Bank of England), before paragraph 10 (and the heading before it) insert—

“Requirements

9B

(1)

The powers conferred by section 55L(3) (FCA own-initiative power to impose requirements on authorised persons) are exercisable by the Bank to impose requirements on a relevant FMI entity.

(2)

In this paragraph “relevant FMI entity” means—

(a)

a recognised central counterparty,

(b)

a recognised CSD, or

(c)

a systemic third country CCP as defined by section 300G(7).

(3)

The power under sub-paragraph (1) is exercisable only if it appears to the Bank that either (or both) of the following conditions is met.

(4)

The first condition is that it is desirable to exercise the power in order to advance the Financial Stability Objective.

(5)

The second condition is that the relevant FMI entity—

(a)

has failed, or is likely to fail, to satisfy the recognition requirements, or

(b)

has failed to comply with any other obligation imposed on it by or under this Act.

(6)

The power conferred by sub-paragraph (1) may not be exercised so as to restrict or prohibit discretionary payments to employees or shareholders of a recognised central counterparty (and for this purpose “discretionary payment” has the meaning given by paragraph 13(11) of Schedule 11 to the Financial Services and Markets Act 2023 and “employee” has the meaning given by paragraph 154 of that Schedule).

(7)

The powers conferred by section 55L(5) (FCA power to impose requirements on application of authorised persons with Part 4A permission) are exercisable by the Bank to impose requirements on a relevant FMI entity on the application of that entity.

(8)

A power conferred by this paragraph is exercisable whether or not there is a relationship between the entity in relation to which it is exercised and the persons whose interests will be protected by its exercise.

(9)

The following provisions apply in relation to requirements imposed by the Bank under this paragraph as they apply in relation to requirements imposed by the FCA under section 55L, with the modifications in sub-paragraph (10)—

(a)

section 55L(6) (power to refuse application to impose etc requirements);

(b)

section 55N (further provision in relation to requirements);

(c)

section 55P (prohibitions and restrictions);

(d)

section 55Q (exercise of power in support of overseas regulator);

(e)

section 55R(1) (persons connected with applicant);

(f)

section 55U(3) to (8) (applications for requirement to be imposed etc);

(g)

section 55V(1) to (6) (determination of applications);

(h)

section 55X(2) and (4)(f) (warning and decision notices on refusal of applications);

(i)

section 55Y (exercise of own-initiative power: procedure);

(j)

section 55Z3(1) and (2) (right to refer matters to the Tribunal).

(10)

The modifications are—

(a)

any reference to the FCA is to be read as a reference to the Bank;

(b)

any references to own-initiative powers are to be read as references to the power conferred by sub-paragraph (1);

(c)

any references to an authorised person are to be read as references to relevant FMI entities;

(d)

in section 55L(6), the reference to the FCA’s operational objectives is to be read as a reference to the Bank’s Financial Stability Objective;

(e)

section 55N has effect as if the reference to regulated activities in subsection (2) were a reference to activities in respect of which a recognition order is in force.”