Article 1 Citation, commencement and interpretation

This Order may be cited as the Banking Act 2009 (Restriction of Partial Property Transfers) Order 2009.

This Order comes into force on 21st February 2009.

In this Order—

• “the Act” means the Banking Act 2009;

• F1“Annex 1 activity” has the meaning given in point (26A) of Article 4.1 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26th June 2013 on prudential requirements for credit institutions and investment firms;

• “the Bank” means the Bank of England;

• F2...

• “banking institution” means—

  1. (a)

     a bank (within the meaning of Part 1 of the Act) M1;

  2. (aa)

     F3an investment firm;

  3. (b)

     an undertaking which was a bank F4or an investment firm immediately before the making of a share transfer order under section 13(2) of the Act;

  4. (c)

     a bridge bank M2;

  5. (d)

     a building society (within the meaning of section 119 of the Building Societies Act 1986 M3); F5...

  6. (e)

     F6a banking group company; F7 or

  7. (f)

     a third-country institution (within the meaning of section 89JA of the Act (resolution of UK branches of third-country institutions)).

• F8...

• “continuity powers” means the powers conferred by section 64(2) of the Act F9... and section 67(2) of the Act ...;

• “deposit” has the meaning given by article 5 of the Regulated Activities Order M4 (disregarding the exclusions in articles 6 to 9AA of that Order M5);

• F10“eligible claimant” has the meaning given by rules made by the Financial Conduct Authority or the Prudential Regulation Authority under section 213 of the Financial Services and Markets Act 2000;

• “excluded rights” means rights—

  1. (a)

     which relate to a retail deposit made with a banking institution;

  2. (b)

     which relate to a retail liability owed to a banking institution;

  3. (c)

     which relate to a contract which was entered into by or on behalf of a banking institution otherwise than in the course of carrying on of an activity which relates F11... to relevant financial instruments F12or F13an Annex 1 activity;

  4. (d)

     which relate to a claim for damages, an award of damages or a claim under an indemnity which arose in connection with the carrying on by a banking institution of an activity which relates ... to relevant financial instruments or an Annex 1 activity; F14...

  5. (e)

     which relate to subordinated debt; F15or

  6. (f)

     which relate to transferable securities (other than transferable securities referred to or described in a set-off arrangement, netting arrangement or title transfer financial collateral arrangement referred to in article 3(1));

  and “excluded liabilities” shall be interpreted accordingly;

• “financial instrument” means—

  1. (a)

     F16any instrument listed in F17Part 1 of Schedule 2 to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001, read with F18 Articles 5 to 8, 10 and 11 of the Commission Delegated Regulation (EU) C(2016) 2398 of 25 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council;

  2. (b)

     F19any option, future, swap, forward, contract for differences or other derivative contract not falling within paragraph (a); and

  3. (c)

     any combination of any of the foregoing;

• F20...

• “Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 M6);

• “relevant authority” means—

  1. (a)

     F21in relation to F22Case 1, 2, 4 F23, 5 or 6 (as specified in article 2(2), (3), (4A) F24, (4B) and (4C) ), the Bank;

  2. (b)

     in relation to Case 3 (as specified in article 2(4)), the Treasury;

• “relevant financial instrument” means—

  1. (a)

     F25a financial instrument;

  2. (b)

     a deposit;

  3. (c)

     a loan;F26...

  4. (d)

     an instrument which falls within article 77 of the Regulated Activities Order (disregarding the exclusions in article 77(2)(b) to (d)); F27or

  5. (e)

     any contract for the sale, purchase or delivery of—

     1. (i)

        transferable securities;

     2. (ii)

        the currency of the United Kingdom or any other country, territory or monetary union;

     3. (iii)

        palladium, platinum, gold, silver or any other precious metal; or

     4. (iv)

        any other commodity;

• “retail deposit” means a deposit in relation to which the condition in paragraph (a) or (b) is satisfied—

  1. (a)

     F28the depositor is an eligible claimant; or

  2. (b)

     the deposit is held in an account of a particular class or brand provided by a particular banking institution which either—

     1. (i)

        is mainly used by eligible claimants; or

     2. (ii)

        has been mainly marketed by the banking institution to eligible claimants;

• “retail liability” means a liability which is owed to a banking institution by an eligible claimant;

• “title transfer financial collateral arrangements” has the meaning given by regulation 3 of the Financial Collateral Arrangements (No 2) Regulations 2003 M7 F29;

• “transferable securities” has the meaning given by F30point (24) of Article 2.1 of Regulation (EU) No. 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012.

References in this Order to netting arrangements include—

References in this Order to sections of the Banking Act 2009 include, as the context requires, references to those provisions as applied with or without modifications by that Act, as that Act has effect on the day on which the Bank Recovery and Resolution F32(Amendment) (EU Exit) Regulations 2018 come into force.

In this Order any reference to an EU regulation or EU tertiary legislation within the meaning of the European Union (Withdrawal) Act 2018 is to be read as a reference to the instrument as it F34forms part of F35assimilated law.