Regulation 4 The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001

in the definition of “competent authority”, for “within the meaning of Article 13(10) of the Solvency 2 Directive” substitute “that has the same meaning as in regulation 2(1) of the Solvency 2 Regulations 2015^f2”;

omit the definitions of—

in the definition of “the EMIR regulation”, at the end insert “(as amended by the Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc. and Transitional Provision) (EU Exit) Regulations 2019^f3, the Central Counterparties (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018^f4 and the Trade Repositories (Amendment and Transitional Provision) (EU Exit) Regulations 2018^f5)”;

in the definition of “EU Benchmarks Regulation 2016 information”, at the end insert “(as amended by the Benchmarks (Amendment) (EU Exit) Regulations 2019)^f6”;

after the definition of “EU Benchmark Regulation 2016 information” insert—

• ““EU entity” has the meaning given in section 20(1) of the European Union (Withdrawal) Act 2018;”;

for the definition of “foreign resolution authority”, in the appropriate place, substitute—

• ““third country resolution authority” means an authority in a country or territory which is not, and does not form part of, the United Kingdom which exercises functions in relation to third country resolution action (within the meaning of section 89H of the Banking Act 2009^f7), including planning for such action, corresponding to one or more functions exercisable by the Bank of England pursuant to Part 1 of the Banking Act 2009^f8 or the Bank Recovery and Resolution (No.2) Order 2014^f9;”;

for the definition of “markets in financial instruments directive information” substitute—

• ““market in financial instruments information” means confidential information received by the FCA or the PRA in the course of discharging their functions under—

  1. (a)

     the markets in financial instruments regulation (as amended by the Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018^f10);

  2. (b)

     EU tertiary legislation (within the meaning of section 20 of the European Union (Withdrawal) Act 2018) made under—

     1. (i)

        the markets in financial instruments directive which forms part of retained EU law; and

     2. (ii)

        the markets in financial instruments regulation (as amended by the Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018);

  3. (c)

     the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017^f11; or

  4. (d)

     the Act, which correspond to functions under the markets in financial instruments directive;”;

omit the definitions of—

for the definition of “overseas regulatory authority”, in the appropriate place, substitute—

• ““third country regulatory authority” means—

  1. (a)

     an authority in a country or territory outside the United Kingdom which exercises any function of a kind mentioned in section 195(4) of the Act;

  2. (b)

     a third country investment exchange, a third country clearing house, a third country central counterparty (within the meaning of section 285(1)(d) of the Act^f12) or a third country CSD (within the meaning of section 285(1)(g) of the Act)^f13; or

  3. (c)

     an authority in a country or territory outside the United Kingdom which exercises any functions of a kind corresponding to a function of the Bank of England;”;

omit the definition of “recovery and resolution directive”;

for the definition of “recovery and resolution directive information” substitute—

• ““recovery and resolution information” means confidential information received by—

  1. (a)

     the Bank of England in the course of discharging its functions under Part 1 of the Banking Act 2009 or the Bank Recovery and Resolution (No.2) Order 2014;

  2. (b)

     the FCA or PRA in the course of discharging their functions under Part 1 of the Banking Act 2009 or the Bank Recovery and Resolution (No.2) Order 2014;

  3. (c)

     a person appointed by the Bank of England under section 62B (resolution administrator) of the Banking Act 2009^f14 to act as resolution administrator in the course of discharging that person’s functions as such;”;

omit the definitions of—

after the definition of “regulator worker” insert—

• ““relevant directives” means, for the purposes of this regulation—

  1. (a)

     the alternative investment fund managers directive;

  2. (b)

     the capital requirements directive;

  3. (c)

     the conglomerates directive;

  4. (d)

     the insurance distribution directive;

  5. (e)

     the mortgages directive;

  6. (f)

     the Solvency 2 directive;

  7. (g)

     the UCITS directive;”;

• ““relevant provisions” means, for the purposes of this regulation—

  1. (a)

     Articles 76 and 81 of the markets in financial instruments directive;

  2. (b)

     section 2 of Chapter 1 of Title 7 of the capital requirements directive;

  3. (c)

     Articles 64, 65, 66, 67, 68, 69 and 70 of the Solvency 2 directive;

  4. (d)

     Articles 102 and 104.1 of the UCITS directive;

  5. (e)

     Article 13 of the insurance distribution directive;

  6. (f)

     Articles 47.2, 47.3, 51, 52 and 53.2 of the alternative investment fund managers directive;

  7. (g)

     Articles 5(2) and 36 of the mortgages directive;

  8. (h)

     Article 83 of the EMIR regulation;

  9. (i)

     Articles 84 and 98 of the recovery and resolution directive; and

  10. (j)

      Article 18 of the SFT regulation;”;

• ““retained EU law restrictions” means the restrictions imposed on the disclosure of confidential information by the relevant provisions as they had effect immediately before exit day and as modified as follows—

  1. (a)

     requirements imposed on a Member State or an EU entity are to be read as if they are requirements imposed on the United Kingdom or, where relevant, a primary recipient;

  2. (b)

     a restriction on the disclosure of confidential information to a person in a third country applies to any disclosure of confidential information to any person in a country or territory outside the United Kingdom;

  3. (c)

     a requirement to seek the consent of an EU entity only applies where an equivalent requirement applies in relation to an equivalent entity in a third country; and

  4. (d)

     for the purposes of sub-paragraph (b) a reference to a person in a third country, which is a third country regulatory authority, is to be read as including an ESA and the ESRB;”;

in the definition of “SFTR information”, at the end insert “(as amended by the Transparency of Securities Financing Transactions and of Reuse (Amendment) (EU Exit) Regulations 2019)^f15”;

after the definition of “SFTR information” insert—

• ““short selling information” means confidential information received by the FCA in the course of discharging its functions as a competent authority under the short selling regulation (as amended by the Short Selling (Amendment) (EU Exit) Regulations 2018)^f16;

• “specified confidential EU law information” means confidential information received by the FCA or the PRA—

  1. (a)

     before exit day in the course of discharging its functions as the competent authority under the relevant directives; or

  2. (b)

     after exit day in the course of exercising its functions in or under the Act or retained EU law which functions are equivalent to the functions as the competent authority set out in the relevant directives;”;

for the definition of “UCITS directive information”^f17 substitute—

• ““UCITS information” means confidential information received by the FCA in the course of discharging its functions as the United Kingdom authority under the Undertakings for Collective Investment in Transferable Securities Regulations 2011^f18.”.

in sub-paragraph (a)^f23 for “single market information” substitute “specified confidential EU law information”;

in sub-paragraph (b)^f24, in the opening words—

omit sub-paragraph (c)^f25;

in sub-paragraph (d)^f26—

omit sub-paragraph (f)^f27.

in paragraph (1)^f28 omit “(3)” and “(3E), (3EA), (3F),”;

in paragraph (1A)^f29 omit the words “in accordance with” to the end of the paragraph;

in paragraph (2ZA)^f30—

in paragraph (2B)^f31—

for paragraph (2C)^f33 substitute—

“(2C)

The condition in this paragraph is that—

(a)

the disclosure is of recovery and resolution information;

(b)

the disclosure is to a third country resolution authority;

(c)

the third country resolution authority is subject to restrictions on the disclosure of confidential information at least equivalent, in the opinion of the Bank of England, to the restrictions on the Bank of England in relation to its functions under Part 1 of the Banking Act 2009 or the Bank Recovery and Resolution (No.2) Order 2014; and

(c)

the information—

(i)

is necessary for the performance by the third country resolution authority of its functions in relation to a third country resolution action (within the meaning of section 89H of the Banking Act 2009) including planning for such action, corresponding to one or more of the functions exercisable by the Bank of England pursuant to Part 1 of the Banking Act 2009 or the Bank Recovery and Resolution (No.2) Order 2014; and

(ii)

is not used for any other purpose.”;

omit paragraph (3)^f34;

for paragraph (3A)(a) substitute—

“(a)

was obtained from a third country regulatory authority under a cooperation agreement; and”;

in paragraph (3B)—

in paragraph (3C)^f36—

in paragraph (3D)^f37—

omit paragraphs (3E)^f38, (3EA)^f39 and (3F)^f40;

for paragraph (4)^f41 substitute—

“(4)

Paragraph (1) does not permit disclosure in breach of any restriction on the disclosure of confidential information in Section 2 of Chapter 1 of Title 7 of the capital requirements directive reading those provisions in that directive as follows—

(a)

the requirements imposed on a Member State or an EU entity are to be read as if they are requirements imposed on the United Kingdom or, where relevant, a primary recipient;

(b)

a restriction on the disclosure of confidential information to a person in a third country applies to any disclosure of confidential information to any person in a country or territory outside the United Kingdom;

(c)

a requirement to seek the consent of an EU entity applies only where an equivalent requirement applies in relation to an equivalent entity in a third country; and

(d)

for the purposes of sub-paragraph (b) a reference to a person in a third country, which is a third country regulatory authority, is to be read as including an ESA and the ESRB.”;

in paragraph (5)^f42 omit “directive”.

in paragraph (1), in the opening words omit “directive”;

in paragraph (3) omit “directive”.

in paragraph (1), in the opening words, omit “directive”;

in paragraph (2), for the definitions of “recovery plan” and “resolution plan”, substitute—

in sub-paragraph (a)^f46 for “single market information” substitute “specified confidential EU law information”;

in sub-paragraph (d)^f47—

in sub-paragraph (e)^f48—

omit sub-paragraphs (f)^f49 and (fa)^f50;

in sub-paragraph (g)^f51 omit “directive”;

““EEA competent authority” has the meaning given in regulation 2 of these Regulations as it had effect immediately before exit day;”;

““single market information” has the meaning given in regulation 2 of these Regulations as it had effect immediately before exit day;”;

““single market restrictions” has the meaning given in regulation 2 of these Regulations as it had effect immediately before exit day;”.

in the entry commencing “A person appointed in judicial or administrative proceedings”^f55, for “an EEA State or a State which is not an EEA State” substitute “the United Kingdom or a country or territory outside the United Kingdom”;

omit the entry commencing “A body responsible, in an EEA State” together with the correspond entry in the second column;

in the entry commencing “A person appointed to carry out a statutory audit”^f56 for “within the meaning of” substitute “in accordance with the law of the United Kingdom in force immediately before exit day that implemented”;

omit the entry commencing “An investment exchange”^f57 together with the corresponding entry in the second column;

omit “ACER”^f58 together with the corresponding entry in the second column;

omit “ESAs”^f59 together with the corresponding entry in the second column;

omit “ESRB”^f60 together with the corresponding entry in the second column.

omit the entry “A dependent territory regulatory authority” together with the corresponding entry in the second column;

for “A non-EEA regulatory authority” substitute “A third country regulatory authority”;

for “A foreign resolution authority”^f62 substitute “A third country resolution authority”;

insert—

“

ACER	Its functions under Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency
A body responsible, in a third country, for administering a deposit guarantee scheme recognised in accordance with the law of that country, or an investor-compensation scheme recognised in accordance with the law of that country.	Its functions as such
A person in a third country appointed to carry out a statutory audit of a company in accordance with the law of that country.	That person’s functions as such
An investment exchange which has its head office in a third country, and which is recognised as an investment exchange under the law of that country.	Its functions as a supervisor of financial markets
ESAs	Their functions under Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) and Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority)
ESRB	Its functions under Regulation (EU) No 1092/2010 of the European Parliament and the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board
An authority responsible for maintaining the stability of the financial system in a third country through macro prudential regulation	Its functions as such.

”

in the entry commencing “A recognised clearing house”^f63 omit “an EEA central counterparty (within the meaning of section 285(1)(c) of the Act)”;

in the entry commencing “A clearing house”^f64—

for the entry commencing “An EEA central counterparty”^f65 substitute—

• “A third country central counterparty (within the meaning of section 285(1)(d) of the Act)”;

in the entry commencing “A recognised CSD”^f66 omit—

omit “An EEA regulatory authority” together with the corresponding entry in the second column;

in the entry commencing “A recognised clearing house”^f69, omit “, an EEA central counterparty (within the meaning of section 285(1)(c) of the Act)”;

in the entry commencing “a recognised CSD”^f70 omit—