The Credit Rating Agencies (Amendment) Regulations 2011

in regulation 2(1) (interpretation)—

omit regulation 4 (fees);

for paragraph (1) of regulation 6 (guidance) substitute—

“(1)

The Authority may give guidance consisting of such information and advice as it considers appropriate with respect to any matter relating to the functions of the Authority under the EC Regulation.”;

omit Parts 3 (applications for certification and registration) to 8 (notices);

after regulation 31 (amendments to the Capital Requirements Regulations 2006) insert—

“ PART 10

ESMA: investigatory powers

Records of telephone and data traffic: Article 23c(1)(e) of the EC Regulation

32

(1)

ESMA must obtain authorisation from the High Court before any official of, or person authorised by, ESMA requests any records of telephone or data traffic under Article 23c(1)(e) of the EC Regulation from a person domiciled or established in the United Kingdom.

(2)

The Authority must obtain authorisation from the High Court before requesting on behalf of ESMA any records of telephone or data traffic under Article 23c(1)(e) of the EC Regulation.

(3)

The High Court may grant authorisation under paragraph (1) or (2) if satisfied, on an application made to the High Court in accordance with rules of court by ESMA or the Authority, that—

(a)

ESMA has ordered an investigation under Article 23c(1) of the EC Regulation; and

(b)

requiring the records of telephone or data traffic would be neither arbitrary nor excessive having regard to the subject matter of the investigation.

(4)

The High Court must conduct the assessment referred to in paragraph (3) in accordance with Article 23c(6) of the EC Regulation, and may exercise the powers conferred by that paragraph for the purposes of making its assessment.

(5)

In the application of this regulation to Scotland, references to the High Court are to be read as references to the Court of Session.

Inspections: Article 23d of the EC Regulation

33

(1)

ESMA must obtain authorisation from the High Court before any official of, or person authorised by, ESMA carries out an Article 23d inspection.

(2)

Where ESMA requires the Authority to carry out an Article 23d inspection on its behalf, the Authority must obtain authorisation from the High Court before carrying out that inspection.

(3)

The High Court may grant authorisation for the purposes of paragraph (1) or (2) if satisfied, on an application made to the High Court in accordance with rules of court by ESMA or the Authority, that—

(a)

ESMA has ordered an Article 23d inspection; and

(b)

the Article 23d inspection is neither arbitrary nor excessive having regard to the subject matter of the inspection.

(4)

The High Court must conduct the assessment referred to in paragraph (3) in accordance with Article 23d(9) of the EC Regulation, and may exercise the powers conferred by that paragraph for the purposes of making its assessment.

(5)

The High Court may issue a warrant if satisfied on information on oath given by or on behalf of ESMA or the Authority that there are reasonable grounds for believing that—

(a)

the premises specified in the warrant are the business premises of any legal person referred to in Article 23b(1) of the EC Regulation; and

(b)

the person referred to in sub-paragraph (a) has failed to comply with an Article 23d inspection, or would fail to comply with such an inspection if a warrant were not issued under this paragraph.

(6)

A warrant issued under paragraph (5) shall authorise a constable, together with a named official of ESMA or the Authority and any other official or person authorised by ESMA or the Authority to accompany that official—

(a)

to enter any premises specified in the warrant using such force as is reasonably necessary for the purpose;

(b)

to search for such records, data, procedures and other material as may be examined under Article 23c(1) of the EC Regulation, or such records of telephone or data traffic as ESMA or the Authority has been authorised to request under regulation 32(3), using such force as is reasonably necessary for the purpose;

(c)

to take or obtain certified copies of or extracts from such records, data, procedures and other material; and

(d)

to seal any business premises and books or records in accordance with Article 23d(2) of the EC Regulation.

(7)

In England and Wales, sections 15(5) to (8) and 16 of the Police and Criminal Evidence Act 1984 M3 (execution of search warrants and safeguards) apply to warrants issued under paragraph (5).

(8)

In Northern Ireland, Articles 17(5) to (8) and 18 of the Police and Criminal Evidence (Northern Ireland) Order 1989 M4 apply to warrants issued under paragraph (5).

(9)

In the application of this regulation to Scotland—

(a)

references to the High Court are to be read as references to the Court of Session;

(b)

references to information on oath are to be read as references to evidence on oath.

(10)

In this regulation, an “Article 23d inspection” means an inspection ordered by decision of ESMA under Article 23d of the EC Regulation.

Offences: Article 23d inspections

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Any person who intentionally obstructs the exercise of any rights conferred by a warrant under regulation 33(5) is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months or a fine not exceeding level 5 on the standard scale, or both.”.

Despite its revocation by regulation 4(b) of these Regulations, regulation 4 of the Credit Rating Agencies Regulations 2010 has effect in relation to any registration or supervisory fee charged by the Authority before 1st July 2011.

Despite their revocation by regulation 4(d) of these Regulations, regulations 8 to 13, 24 to 28, and 29(1)(c) and (2) of the Credit Rating Agencies Regulations 2010 have effect in relation to any application for registration received by the Authority on or before 7th September 2010.