Office of Public Sector Information
PART XVII continued CHAPTER III continued
(2) A direction under this section may—
(a) require the manager of the scheme to cease the issue or redemption, or both the issue and redemption, of units under the scheme;
(b) require the manager and trustee of the scheme to wind it up.
(3) If the authorisation order is revoked, the revocation does not affect any direction under this section which is then in force.
(4) A direction may be given under this section in relation to a scheme in the case of which the authorisation order has been revoked if a direction under this section was already in force at the time of revocation.
(5) If a person contravenes a direction under this section, section 150 applies to the contravention as it applies to a contravention mentioned in that section.
(6) The Authority may, either on its own initiative or on the application of the manager or trustee of the scheme concerned, revoke or vary a direction given under this section if it appears to the Authority—
(a) in the case of revocation, that it is no longer necessary for the direction to take effect or continue in force;
(b) in the case of variation, that the direction should take effect or continue in force in a different form.
(1) If the Authority could give a direction under section 257, it may also apply to the court for an order—
(a) removing the manager or the trustee, or both the manager and the trustee, of the scheme; and
(b) replacing the person or persons removed with a suitable person or persons nominated by the Authority.
(2) The Authority may nominate a person for the purposes of subsection (1)(b) only if it is satisfied that, if the order was made, the requirements of section 243(4) to (7) would be complied with.
(3) If it appears to the Authority that there is no person it can nominate for the purposes of subsection (1)(b), it may apply to the court for an order—
(a) removing the manager or the trustee, or both the manager and the trustee, of the scheme; and
(b) appointing an authorised person to wind up the scheme.
(4) On an application under this section the court may make such order as it thinks fit.
(5) The court may, on the application of the Authority, rescind any such order as is mentioned in subsection (3) and substitute such an order as is mentioned in subsection (1).
(6) The Authority must give written notice of the making of an application under this section to the manager and trustee of the scheme concerned.
(7) The jurisdiction conferred by this section may be exercised by—
(a) the High Court;
(b) in Scotland, the Court of Session.
(1) A direction takes effect—
(a) immediately, if the notice given under subsection (3) states that that is the case;
(b) on such date as may be specified in the notice; or
(c) if no date is specified in the notice, when the matter to which it relates is no longer open to review.
(2) A direction may be expressed to take effect immediately (or on a specified date) only if the Authority, having regard to the ground on which it is exercising its power under section 257, considers that it is necessary for the direction to take effect immediately (or on that date).
(3) If the Authority proposes to give a direction under section 257, or gives such a direction with immediate effect, it must give separate written notice to the manager and the trustee of the scheme concerned.
(4) The notice must—
(a) give details of the direction;
(b) inform the person to whom it is given of when the direction takes effect;
(c) state the Authority’s reasons for giving the direction and for its determination as to when the direction takes effect;
(d) inform the person to whom it is given that he may make representations to the Authority within such period as may be specified in it (whether or not he has referred the matter to the Tribunal); and
(e) inform him of his right to refer the matter to the Tribunal.
(5) If the direction imposes a requirement under section 257(2)(a), the notice must state that the requirement has effect until—
(a) a specified date; or
(b) a further direction.
(6) If the direction imposes a requirement under section 257(2)(b), the scheme must be wound up—
(a) by a date specified in the notice; or
(b) if no date is specified, as soon as practicable.
(7) The Authority may extend the period allowed under the notice for making representations.
(8) If, having considered any representations made by a person to whom the notice was given, the Authority decides—
(a) to give the direction in the way proposed, or
(b) if it has been given, not to revoke the direction,
it must give separate written notice to the manager and the trustee of the scheme concerned.
(9) If, having considered any representations made by a person to whom the notice was given, the Authority decides—
(a) not to give the direction in the way proposed,
(b) to give the direction in a way other than that proposed, or
(c) to revoke a direction which has effect,
it must give separate written notice to the manager and the trustee of the scheme concerned.
(10) A notice given under subsection (8) must inform the person to whom it is given of his right to refer the matter to the Tribunal.
(11) A notice under subsection (9)(b) must comply with subsection (4).
(12) If a notice informs a person of his right to refer a matter to the Tribunal, it must give an indication of the procedure on such a reference.
(13) This section applies to the variation of a direction on the Authority’s own initiative as it applies to the giving of a direction.
(14) For the purposes of subsection (1)(c), whether a matter is open to review is to be determined in accordance with section 391(8).
(1) If on an application under section 257(6) for a direction to be revoked or varied the Authority proposes—
(a) to vary the direction otherwise than in accordance with the application, or
(b) to refuse to revoke or vary the direction,
it must give the applicant a warning notice.
(2) If the Authority decides to refuse to revoke or vary the direction—
(a) it must give the applicant a decision notice; and
(b) the applicant may refer the matter to the Tribunal.
(1) If the Authority decides on its own initiative to revoke a direction under section 257 it must give separate written notices of its decision to the manager and trustee of the scheme.
(2) If on an application under section 257(6) for a direction to be revoked or varied the Authority decides to revoke the direction or vary it in accordance with the application, it must give the applicant written notice of its decision.
(3) A notice under this section must specify the date on which the decision takes effect.
(4) The Authority may publish such information about the revocation or variation, in such way, as it considers appropriate.
(1) The Treasury may by regulations make provision for—
(a) facilitating the carrying on of collective investment by means of open-ended investment companies;
(b) regulating such companies.
(2) The regulations may, in particular, make provision—
(a) for the incorporation and registration in Great Britain of bodies corporate;
(b) for a body incorporated by virtue of the regulations to take such form as may be determined in accordance with the regulations;
(c) as to the purposes for which such a body may exist, the investments which it may issue and otherwise as to its constitution;
(d) as to the management and operation of such a body and the management of its property;
(e) as to the powers, duties, rights and liabilities of such a body and of other persons, including—
(i) the directors or sole director of such a body;
(ii) its depositary (if any);
(iii) its shareholders, and persons who hold the beneficial title to shares in it without holding the legal title;
(iv) its auditor; and
(v) any persons who act or purport to act on its behalf;
(f) as to the merger of one or more such bodies and the division of such a body;
(g) for the appointment and removal of an auditor for such a body;
(h) as to the winding up and dissolution of such a body;
(i) for such a body, or any director or depositary of such a body, to be required to comply with directions given by the Authority;
(j) enabling the Authority to apply to a court for an order removing and replacing any director or depositary of such a body;
(k) for the carrying out of investigations by persons appointed by the Authority or the Secretary of State;
(l) corresponding to any provision made in relation to unit trust schemes by Chapter III of this Part.
(3) Regulations under this section may—
(a) impose criminal liability;
(b) confer functions on the Authority;
(c) in the case of provision made by virtue of subsection (2)(l), authorise the making of rules by the Authority;
(d) confer jurisdiction on any court or on the Tribunal;
(e) provide for fees to be charged by the Authority in connection with the carrying out of any of its functions under the regulations (including fees payable on a periodical basis);
(f) modify, exclude or apply (with or without modifications) any primary or subordinate legislation (including any provision of, or made under, this Act);
(g) make consequential amendments, repeals and revocations of any such legislation;
(h) modify or exclude any rule of law.
(4) The provision that may be made by virtue of subsection (3)(f) includes provision extending or adapting any power to make subordinate legislation.
(5) Regulations under this section may, in particular—
(a) revoke the [S.I. 1996/2827.] Open-Ended Investment Companies (Investment Companies with Variable Capital) Regulations 1996; and
(b) provide for things done under or in accordance with those regulations to be treated as if they had been done under or in accordance with regulations under this section.
In section 716(1) of the [1985 c. 6.] Companies Act 1985 (prohibition on formation of companies with more than 20 members unless registered under the Act etc.), after “this Act,” insert “is incorporated by virtue of regulations made under section 262 of the Financial Services and Markets Act 2000”.
(1) A collective investment scheme constituted in another EEA State is a recognised scheme if—
(a) it satisfies such requirements as are prescribed for the purposes of this section; and
(b) not less than two months before inviting persons in the United Kingdom to become participants in the scheme, the operator of the scheme gives notice to the Authority of his intention to do so, specifying the way in which the invitation is to be made.
(2) But this section does not make the scheme a recognised scheme if within two months of receiving the notice under subsection (1) the Authority notifies—
(a) the operator of the scheme, and
(b) the authorities of the State in question who are responsible for the authorisation of collective investment schemes,
that the way in which the invitation is to be made does not comply with the law in force in the United Kingdom.
(3) The notice to be given to the Authority under subsection (1)—
(a) must be accompanied by a certificate from the authorities mentioned in subsection (2)(b) to the effect that the scheme complies with the conditions necessary for it to enjoy the rights conferred by any relevant Community instrument;
(b) must contain the address of a place in the United Kingdom for the service on the operator of notices or other documents required or authorised to be served on him under this Act; and
(c) must contain or be accompanied by such other information and documents as may be prescribed.
(4) A notice given by the Authority under subsection (2) must—
(a) give the reasons for which the Authority considers that the law in force in the United Kingdom will not be complied with; and
(b) specify a reasonable period (which may not be less than 28 days) within which any person to whom it is given may make representations to the Authority.
(5) For the purposes of this section a collective investment scheme is constituted in another EEA State if—
(a) it is constituted under the law of that State by a contract or under a trust and is managed by a body corporate incorporated under that law; or
(b) it takes the form of an open-ended investment company incorporated under that law.
(6) The operator of a recognised scheme may give written notice to the Authority that he desires the scheme to be no longer recognised by virtue of this section.
(7) On the giving of notice under subsection (6), the scheme ceases to be a recognised scheme.
(1) This section applies if any representations are made to the Authority, before the period for making representations has ended, by a person to whom a notice was given by the Authority under section 264(2).
(2) The Authority must, within a reasonable period, decide in the light of those representations whether or not to withdraw its notice.
(3) If the Authority withdraws its notice the scheme is a recognised scheme from the date on which the notice is withdrawn.
(4) If the Authority decides not to withdraw its notice, it must give a decision notice to each person to whom the notice under section 264(2) was given.
(5) The operator of the scheme to whom the decision notice is given may refer the matter to the Tribunal.
(1) Apart from—
(a) financial promotion rules, and
(b) rules under section 283(1),
rules made by the Authority under this Act do not apply to the operator, trustee or depositary of a scheme in relation to the carrying on by him of regulated activities for which he has permission in that capacity.
(2) “Scheme” means a scheme which is a recognised scheme by virtue of section 264.
(1) Subsection (2) applies if it appears to the Authority that the operator of a scheme has communicated an invitation or inducement in relation to the scheme in a manner contrary to financial promotion rules.
(2) The Authority may direct that—
(a) the exemption from subsection (1) of section 238 provided by subsection (4)(c) of that section is not to apply in relation to the scheme; and
(b) subsection (5) of that section does not apply with respect to things done in relation to the scheme.
(3) A direction under subsection (2) has effect—
(a) for a specified period;
(b) until the occurrence of a specified event; or
(c) until specified conditions are complied with.
(4) The Authority may, either on its own initiative or on the application of the operator of the scheme concerned, vary a direction given under subsection (2) if it appears to the Authority that the direction should take effect or continue in force in a different form.
(5) The Authority may, either on its own initiative or on the application of the operator of the recognised scheme concerned, revoke a direction given under subsection (2) if it appears to the Authority—
(a) that the conditions specified in the direction have been complied with; or
(b) that it is no longer necessary for the direction to take effect or continue in force.
(6) If an event is specified, the direction ceases to have effect (unless revoked earlier) on the occurrence of that event.
(7) For the purposes of this section and sections 268 and 269—
(a) the scheme’s home State is the EEA State in which the scheme is constituted (within the meaning given by section 264);
(b) the competent authorities in the scheme’s home State are the authorities in that State who are responsible for the authorisation of collective investment schemes.
(8) “Scheme” means a scheme which is a recognised scheme by virtue of section 264.
(9) “Specified”, in relation to a direction, means specified in it.
(1) A direction under section 267 takes effect—
(a) immediately, if the notice given under subsection (3)(a) states that that is the case;
(b) on such date as may be specified in the notice; or
(c) if no date is specified in the notice, when the matter to which it relates is no longer open to review.
(2) A direction may be expressed to take effect immediately (or on a specified date) only if the Authority, having regard to its reasons for exercising its power under section 267, considers that it is necessary for the direction to take effect immediately (or on that date).
(3) If the Authority proposes to give a direction under section 267, or gives such a direction with immediate effect, it must—
(a) give the operator of the scheme concerned written notice; and
(b) inform the competent authorities in the scheme’s home State of its proposal or (as the case may be) of the direction.
(4) The notice must—
(a) give details of the direction;
(b) inform the operator of when the direction takes effect;
(c) state the Authority’s reasons for giving the direction and for its determination as to when the direction takes effect;
(d) inform the operator that he may make representations to the Authority within such period as may be specified in it (whether or not he has referred the matter to the Tribunal); and
(e) inform him of his right to refer the matter to the Tribunal.
(5) The Authority may extend the period allowed under the notice for making representations.
(6) Subsection (7) applies if, having considered any representations made by the operator, the Authority decides—
(a) to give the direction in the way proposed, or
(b) if it has been given, not to revoke the direction.
(7) The Authority must—
(a) give the operator of the scheme concerned written notice; and
(b) inform the competent authorities in the scheme’s home State of the direction.
(8) Subsection (9) applies if, having considered any representations made by a person to whom the notice was given, the Authority decides—
(a) not to give the direction in the way proposed,
(b) to give the direction in a way other than that proposed, or
(c) to revoke a direction which has effect.
(9) The Authority must—
(a) give the operator of the scheme concerned written notice; and
(b) inform the competent authorities in the scheme’s home State of its decision.
(10) A notice given under subsection (7)(a) must inform the operator of his right to refer the matter to the Tribunal.
(11) A notice under subsection (9)(a) given as a result of subsection (8)(b) must comply with subsection (4).
(12) If a notice informs a person of his right to refer a matter to the Tribunal, it must give an indication of the procedure on such a reference.
(13) This section applies to the variation of a direction on the Authority’s own initiative as it applies to the giving of a direction.
(14) For the purposes of subsection (1)(c), whether a matter is open to review is to be determined in accordance with section 391(8).
(1) If, on an application under subsection (4) or (5) of section 267, the Authority proposes—
(a) to vary a direction otherwise than in accordance with the application, or
(b) to refuse the application,
it must give the operator of the scheme concerned a warning notice.
(2) If, on such an application, the Authority decides—
(a) to vary a direction otherwise than in accordance with the application, or
(b) to refuse the application,
it must give the operator of the scheme concerned a decision notice.
(3) If the application is refused, the operator of the scheme may refer the matter to the Tribunal.
(4) If, on such an application, the Authority decides to grant the application it must give the operator of the scheme concerned written notice.
(5) If the Authority decides on its own initiative to revoke a direction given under section 267 it must give the operator of the scheme concerned written notice.
(6) The Authority must inform the competent authorities in the scheme’s home State of any notice given under this section.
(1) A collective investment scheme which is not a recognised scheme by virtue of section 264 but is managed in, and authorised under the law of, a country or territory outside the United Kingdom is a recognised scheme if—
(a) that country or territory is designated for the purposes of this section by an order made by the Treasury;
(b) the scheme is of a class specified by the order;
(c) the operator of the scheme has given written notice to the Authority that he wishes it to be recognised; and
(d) either—
(i) the Authority, by written notice, has given its approval to the scheme’s being recognised; or
(ii) two months, beginning with the date on which notice was given under paragraph (c), have expired without the operator receiving a warning notice from the Authority under section 271.
(2) The Treasury may not make an order designating any country or territory for the purposes of this section unless satisfied—
(a) that the law and practice under which relevant collective investment schemes are authorised and supervised in that country or territory affords to investors in the United Kingdom protection at least equivalent to that provided for them by or under this Part in the case of comparable authorised schemes; and
(b) that adequate arrangements exist, or will exist, for co-operation between the authorities of the country or territory responsible for the authorisation and supervision of relevant collective investment schemes and the Authority.
(3) “Relevant collective investment schemes” means collective investment schemes of the class or classes to be specified by the order.
(4) “Comparable authorised schemes” means whichever of the following the Treasury consider to be the most appropriate, having regard to the class or classes of scheme to be specified by the order—
(a) authorised unit trust schemes;
(b) authorised open-ended investment companies;
(c) both such unit trust schemes and such companies.
(5) If the Treasury are considering whether to make an order designating a country or territory for the purposes of this section—
(a) the Treasury must ask the Authority for a report—
(i) on the law and practice of that country or territory in relation to the authorisation and supervision of relevant collective investment schemes,
(ii) on any existing or proposed arrangements for co-operation between it and the authorities responsible in that country or territory for the authorisation and supervision of relevant collective investment schemes,
having regard to the Treasury’s need to be satisfied as mentioned in subsection (2);
(b) the Authority must provide the Treasury with such a report; and
(c) the Treasury must have regard to it in deciding whether to make the order.
(6) The notice to be given by the operator under subsection (1)(c)—
(a) must contain the address of a place in the United Kingdom for the service on the operator of notices or other documents required or authorised to be served on him under this Act; and
(b) must contain or be accompanied by such information and documents as may be specified by the Authority.
(1) If the Authority proposes to refuse approval of a scheme’s being a recognised scheme by virtue of section 270, it must give the operator of the scheme a warning notice.
(2) To be valid the warning notice must be received by the operator before the end of two months beginning with the date on which notice was given under section 270(1)(c).
(3) If, having given a warning notice, the Authority decides to refuse approval—
(a) it must give the operator of the scheme a decision notice; and
(b) the operator may refer the matter to the Tribunal.
(1) The Authority may, on the application of the operator of a collective investment scheme which—
(a) is managed in a country or territory outside the United Kingdom,
(b) does not satisfy the requirements prescribed for the purposes of section 264,
(c) is not managed in a country or territory designated for the purposes of section 270 or, if it is so managed, is of a class not specified by the designation order, and
(d) appears to the Authority to satisfy the requirements set out in the following provisions of this section,
make an order declaring the scheme to be a recognised scheme.
(2) Adequate protection must be afforded to participants in the scheme.
(3) The arrangements for the scheme’s constitution and management must be adequate.
(4) The powers and duties of the operator and, if the scheme has a trustee or depositary, of the trustee or depositary must be adequate.
(5) In deciding whether the matters mentioned in subsection (3) or (4) are adequate, the Authority must have regard to—
(a) any rule of law, and
(b) any matters which are, or could be, the subject of rules,
applicable in relation to comparable authorised schemes.
Financial Services and Markets Act 2000