regulated lending by way of business requires FCA authorisation to do so (articles 4(1) and 60B(1), RAO). Practical Law coverage of this primary source reference and links to the underlying primary source materials. C is not, was not or would not be, as a result, carrying on a regulated activity. A person (“P”) operates a credit reference agency if P carries on, by way of business, an activity of the kind specified by article 89B of that Order (providing credit references). 6. (61) Section 189A (meaning of “consumer credit EEA firm”)(138) is omitted. paragraph (a) of subsection (1) is omitted; Subsection (1) does not limit any function of the FCA in relation to the enforcement of this Act or regulations made under it. Articles 39D, 39E, 39F and 39G are also subject to the exclusion in article 72A (information society services). (37) Section 115 (penalty for failure to supply copies of pledge agreement, etc.) Part 1 was amended by Schedules 25 an 26 to the Enterprise Act 2002 (c.40), Schedule 4 to the Tribunals and Inquiries Act 199 and sections 27, 44, 51,58, 61, 62 and 70 of, and Schedule 4 to, the Consumer Credit Act 2006 (c.14) and S.I. 2009/1342. in subsection (1), after “Consumer Credit Act 1974” insert “, the Financial Services and Markets Act 2000 and any statutory instrument made under that Act”; in subsection (2)(a), for “Office of Fair Trading” substitute “Financial Conduct Authority”. (a)the OFT had given notice of its determination under section 31 of the 1974 Act(199) to vary the terms of the licence of a person (“A”). Rights under a relevant credit agreement. (3) The financial promotion restriction does not apply to a communication which relates to a controlled activity falling within paragraph 10BB of Schedule 1 and which—, (a)indicates clearly (by express words or otherwise) that a person is willing to enter into a regulated consumer hire agreement as owner for the purposes of another person’s business, and. (b)in the case of credit provided to trustees, by an individual who is a beneficiary of the trust or a related person of a beneficiary. the agreement is a borrower-lender-supplier agreement for running-account credit. the lender is a credit union and the rate of the total charge for credit does not exceed 42.6 per cent. (a)article 60C (exempt agreements: exemptions relating to the nature of the agreement); (b)article 60D (exempt agreements: exemptions relating to the purchase of land for non-residential purposes); (c)article 60E (exempt agreements: exemptions relating to the nature of the lender); (d)article 60G (exempt agreements: exemptions relating to the total charge for credit); (e)article 60H (exempt agreements: exemptions relating to the nature of the borrower). (b)the supplier under the restricted-use credit agreement, (d)a person who employs A or has appointed A as an agent, or. (g)the number of payments to be made by the borrower is not more than twelve. (c)the OFT had not determined whether to issue a licence in accordance with the application. Amended by sections 62 and 63 of the Housing and Regeneration Act 2008. (8) For the purposes of section 55V of the Act (determination of applications), the appropriate regulator is to be treated as having received the application on 1st April 2014. A credit agreement is an exempt agreement if it is made in connection with trade in goods or services—. (3) The notice has effect subject to any necessary modifications. In regulation 114 of the Representation of the People (England and Wales) Regulations 2001 (sale of full register to credit reference agencies)(270)—. Dependent on the legislation item being viewed this may include: Click 'View More' or select 'More Resources' tab for additional information including: All content is available under the Open Government Licence v3.0 except where otherwise stated. (3) The following are controlled activities if carried on by A in the course of, or in connection with, the carrying on by A of the activity specified by paragraph (1)—. Amended by S.I. ascertaining the contents of such information, securing the correction of, the omission of anything from, or the making of any other kind of modification of, such information, or, securing that a credit information agency which holds such information—. Amended by Schedule 18 to the Financial Services Act 2012. 1996 c.52. Section 7 has been repealed in relation to Scotland by Schedule 13 to the Abolition of Feudal Tenure etc. (c)a person who, in the negotiation of the transaction, is represented by a person who carries on an activity of the kind specified by article 36A (credit broking) by way of business who is or was also a negotiator in negotiations for the principal agreement; (d)a person who, at the time the transaction is initiated, knows that the principal agreement has been made or contemplates that it might be made. (a)if A has Part 4A permission only by virtue of this Order, a warning notice given under section 55Z(1) of the Act by the FCA to A of the proposal by the FCA to cancel A’s Part 4A permission (except for the purposes of section 387 of the Act (warning notices)(202) which does not apply); (b)in any other case, a written notice under section 55Y(4) of the Act of the proposal by the FCA to vary A’s Part 4A permission (except for subsections (5) and (6) of section 55Y which do not apply). UK Financial Services Law, Legislation (UK), Statutory Instruments, 2001 Statutory Instruments Financial Services Regulation, Insurance & Reinsurance, Investment, Authorisation the cost benefit analysis need not estimate the difference but must include a statement of the FCA’s opinion and an explanation of it.”. (g)article 39D, 39E, 39F, 39G, 60N or 89A of that Order (activities in relation to debt, regulated consumer hire agreements and providing credit information services).”. In section 502 of the Corporation Tax Act 2009 (meaning of “financial institution”)(264)—. (b)the FCA has, before 1st April 2014, notified P in writing, that in the FCA’s opinion, P is not carrying on the activities which are described in P’s licence. Giving advice to a borrower about the liquidation of a debt due under a credit agreement is a specified kind of activity. (3) Subject to paragraph (4), the steps specified in this paragraph are steps taken with a view to—. 44.—(1) Paragraphs (2) to (7) apply if, before 1st April 2014—, (a)the OFT had given a notice under section 39B(1) of the 1974 Act (notice that OFT is minded to impose a civil penalty)(207) to a person (“A”) that it is minded to impose a penalty on A under section 39A of the 1974 Act (power to impose civil penalties)(208), and, (b)the OFT had not before 1st April 2014—, (i)given A a penalty notice under section 39A of the 1974 Act, or. at the end of paragraph (a), insert “and”; omit the “and” at the end of paragraph (b) and paragraph (c); in the definition of “relevant officer”, in paragraph (b), for “OFT” substitute “Authority”. Section 425A was inserted by Schedule 2 to the Financial Services Act 2010 and amended by S.I. Sections 32A and 34Z were inserted by section 108 of the Financial Services Act 2012. (8) Section 16C (exemption relating to investment properties)(90) is omitted. (a)omit regulation 26 (carrying on of Consumer Credit Act business by EEA authorised payment institutions); (b)in regulation 52 (disapplication of certain regulations in the case of consumer credit agreements), omit paragraph (a). (6) Any description of business specified in A’s application is to be treated for the purposes of Part 4A of the Act as forming part of A’s application. Amended by S.I. does not indicate (by express words or otherwise) that the person is willing to facilitate B becoming the borrower under such an agreement for any other purpose. ‘Credit agreement’ is defined in Article 60B of the Financial Services and Markets Act 2000 (Regulated Activities) Order (a)section 38(2) of the Act (exemption orders)(233); (b)section 55A(3)(234) of the Act (application for permission); (c)sections 55E and 55F of the Act (giving permission). “Debt-collecting” means the carrying on of an activity of the kind specified by article 39F of that Order (debt-collecting). a person to whom the rights and duties of a person falling within sub-paragraph (a) have been passed by assignment or operation of law. in paragraphs (1) and (2), omit “, the OFT”; in paragraph (5), for “OFT” in each place substitute “Authority”. (10) The persons to whom this paragraph applies are—. agreements financing the purchase of land; agreements which are conditional sale agreements or hire-purchase agreements; agreements secured by a pledge (other than a pledge of documents of title or of bearer bonds). (b)the lender is the lender under a credit agreement secured by a legal mortgage on land. held a standard licence under the 1974 Act, was a credit intermediary (within the meaning given by section 160A of the 1974 Act(. (b)a person to whom the rights and duties of a person falling within sub-paragraph (a) have passed by assignment or operation of law.”. (5) For the purposes of paragraph (3), if an agreement includes a declaration which—, (b)provides that the agreement is entered into by the borrower wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by the borrower, and. (a)the FCA, PRA and the scheme operator making rules. Where A decides to reduce or cease to have control over B, A is exempt from the obligation imposed by section 191D unless giving effect to the decision would result in A ceasing to be in the position of holding—, For the purposes of this article, each of the following is a “relevant credit activity”—. (5) For the purposes of this article and article 64—, “relevant instrument” means any subordinate legislation or part of any subordinate legislation which is—, made under Part 2 of the 1974 Act (irrespective of whether it is also made under section 182 of that Act), and. which would apply but for any exemption conferred by an order under section 22 of the 2000 Act (regulated activities) in relation to debts due under a green deal plan associated with the licensee. (b)any modifications being made to the relevant instrument or part, (c)the date on which the designation is to come into effect, and. 27. ““total charge for credit” has the meaning given by section 20;”; (b)in subsection (1A)(135), omit “36E(3),”; (c)in subsection (2A)(136), for the words from “subsections (2) to (5)” to the end, substitute “article 60C(5) and (6) of the Regulated Activities Order applies”; (d)in subsection (5)(137), omit “or the OFT” in the first place and “or the OFT (as the case may be)”. (ii)the reference to the OFT in paragraph (b) is to be treated as a reference to the FCA. In the Schedule to the Estate Agents (Specified Offences) (No 2) Order 1991 (specified offences)(266), in the entry relating to the 1974 Act, omit the references to section 7, section 39(1), (2) and (3) and section 167(2). (a)if A does not have a Part 4A permission, a decision notice given under section 55X(4) of the Act by the FCA to A of the decision to refuse A’s application for Part 4A permission; (b)in any other case, a decision notice given under section 55X(4) of the Act of the decision of the appropriate regulator to refuse A’s application to vary A’s Part 4A permission. (a)P has, before 1st April 2014, notified the FCA that P does not wish to obtain interim permission under this article, or. In particular, Part 5 of the Order repeals the provisions of the 1974 Act which relate to the licensing of consumer credit activities under the 1974 Act. (b)exercises or has the right to exercise the lender’s rights and duties under the agreement during a period of not more than one month beginning with the day on which any such arrangement comes to an end. A not-for-profit body which carries on an activity of the kind specified by article 39D (debt adjusting), 39E (debt-counselling) or 89A (providing credit information services) of the Regulated Activities Order or article 64 of that Order (agreeing to carry on specified kinds of activity) so far as relevant to any of those activities is to be regarded as carrying on that activity by way of business if the activities being carried on by that body consist of, or relate to, that activity. (2) The FCA must publish each designating instrument in the way appearing to it to be best calculated to bring it to the attention of the public. (4) A credit agreement is an exempt agreement if—. the OFT had given notice of its determination under section 32 of the 1974 Act to revoke the standard licence of a person (“A”). (b)the FCA designating relevant instruments under Part 8 of this Order. (3) Paragraphs (1) and (2) do not apply in so far as the activity is an activity of the kind specified by article 36H (operating an electronic system in relation to lending) or article 39F (debt-collecting). 2001/3649. (14) In section 401 (proceedings for offences)(47), omit subsection (4). in subsection (1), omit “or the consumer credit jurisdiction”; in subsection (7), omit “or (as the case may be) paragraph 16D of that Schedule”. (7) It is immaterial for the purposes of paragraph (5) if, when the things were done, they were not compatible with section 138I of the Act or, in the case of things done by the Financial Services Authority before 1st April 2013, section 155 of the Act. Amendments of the Regulated Activities Order. A person who takes steps to ascertain the identity or location (or the means of ascertaining the identity or location) of a borrower or hirer is exempt from the general prohibition in respect of any regulated activity of the kind specified by article 39F of the Regulated Activities Order (debt-collecting) so long as the person is not the lender under the agreement concerned or the owner under the consumer hire agreement concerned and takes no other steps to procure the payment of debts due under the agreement. for the purposes of section 55V(4) of the Act, the appropriate regulator is not to be taken as having determined the application. 2001/3649. (8) In this article, “payment” means a payment comprising an amount in respect of credit with or without any other amount. (e)a copy of the statement was provided to the owner before the agreement was entered into. The following are controlled activities if carried on by A in the course of, or in connection with, the carrying on by A of the activity specified by paragraph (1)—. any person who has acted on behalf of the owner (or, if there is more than one owner, any of the owners), in connection with the entering into of the agreement. 2001/3649, S.I. the defaulter must pay the unpaid balance to the FCA; section 39A(5) of the 1974 Act continues to apply to the defaulter with the following modifications—. Paragraphs (5) and (6) also apply for the purposes of paragraph (4) but with the omission of the words “or predominantly”. 2009/1208. (b)make arrangements for another person (“the client”) to enter into such a plan by introducing the client to an authorised person who has permission to enter into such a plan as home purchase provider. If a lender is an associate of the supplier’s, the credit agreement is to be treated as entered into under pre-existing arrangements between the lender and the supplier unless the lender can show that this is not the case. a copy of the statement was provided to the lender before the agreement was entered into. it does not provide for or permit an increase in the rate or amount of any item which is included in the total charge for credit, the total charge for credit under the agreement is not more than the sum of one per cent and the highest of the base rates published by the banks specified in paragraph (7) on the date 28 days before the date on which the charge is imposed, and, This paragraph applies to an agreement if—, the total amount to be repaid by the borrower to discharge the borrower’s indebtedness may vary according to a formula which is specified in the agreement and which has effect by reference to movements in the level of any index or other factor, or, is not offered by a lender who is an employer to a borrower as an incident of employment with the lender, and, For the purposes of paragraph (5), an agreement meets the general interest test if—, the agreement is offered under an enactment with a general interest purpose, and. 60J. 2001/3649, S.I. This article provides exemptions from the obligations in sections 178 and 191D of the Act, in relation to a person (“A”) who decides to acquire, increase, reduce or cease to have control over a, carries on regulated activities which are relevant credit activities, and. The Treasury, in exercise of the powers conferred by sections 22(1), (1A) and (5) and 428(3) of, and paragraph 25 of Schedule 2 to, the Financial Services and Markets Act 2000(3) and section 2(2) of the European Communities Act 1972(4), make the following Order: 1.—(1) This Order may be cited as the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013. (2) The notice is to be treated as a decision notice under section 55X(4) of the Act of the decision of the appropriate regulator to refuse A’s application to vary A’s Part 4A permission. (10) Section 234A (funding by consumer credit licensees etc)(42) is omitted. (b)for the electronic transfer of funds from a current account held with an authorised person with permission to accept deposits (within the meaning given by article 3). (a)an activity of the kind specified by article 36A of the Regulated Activities Order (credit broking) when carried on in the case specified in paragraph (6), (7) or (8). Inserted by section 53 of the Consumer Credit Act 2006. (3) For the purposes of this article, it is the effect of the group licence that matters, not how the activities for which a licence is given are described. 1996 c.52. “Specified” means specified in compulsory jurisdiction rules. Article 56 of this Order makes transitional provision in connection with licences which have effect immediately before that date. 2-9) Article 2 Amendments of the Regulated Activities Order; Article 3 Definitions etc. immediately before that date, P also carries on an activity which, if carried on after that date, would be an activity of the kind specified by article 39G of that Order (debt administration), P had been given a standard licence under the 1974 Act in the period beginning 18th March 2014 and ending on 31st March 2014 (including both days), and. the OFT had given notice to a person (“A”) of its decision to refuse to vary a standard licence in accordance with an application made by A, the appeal period in relation to that determination had not ended, and, the OFT had given notice to a person (“A”) under section 31(2) of the 1974 Act (compulsory variation)(, the OFT had not determined to vary A’s licence under that section, and. Draft Order laid before Parliament under paragraph 26 of Schedule 2 to the Financial Services and Markets Act 2000 and paragraph 2(2) of Schedule 2 to the European Communities Act 1972, for approval by resolution of each House of Parliament. Arranging administration by authorised person, A person (“A”) who is not an authorised person does not carry on an activity of the kind specified by article 60B(2) in relation to a regulated credit agreement where A—, arranges for another person, who is an authorised person with permission to carry on an activity of that kind, to exercise or to have the right to exercise the lender’s rights and duties under the agreement, or. For the purposes of this Chapter, a person by whom goods are bailed or (in Scotland) hired to an individual or relevant recipient of credit under a hire-purchase agreement is to be taken to be providing that individual or person with fixed-sum credit to finance the transaction of an amount equal to the total price of the goods less the aggregate of the deposit (if any) and the total charge for credit. Amended by S.I. Instead, by virtue of Article 33B, … (a)section 1G of the Act(241) (meaning of consumer); (b)section 1Q of the Act (Consumer Panel); (c)section 391(6)(b) of the Act(242) (publication); (d)section 68 of the Financial Services Act 2012 (cases in which Treasury may arrange independent inquiries). An Impact Assessment allows those with an interest in the policy area to understand: Use this menu to access essential accompanying documents and information for this legislation item. Inserted by section 52 of the Consumer Credit Act 2006. (i)omit the definitions of “advertiser”, “appeal period”(129), “exempt agreement”(130), “group licence”, “licence”(131), “licensed”, “licensee”, “quotation”, “register”(132), “specified fee”, “standard licence” and “unlicensed”; (ii)in the definition of “credit information services”(133), for “has the meaning given by” substitute “is to be read in accordance with”; (iii)in the definition of “credit reference agency”, for “has the meaning given by” substitute “is to be read in accordance with”; (iv)in the definition of “deposit”(134), omit “(except in section 16(10) and 25(1B)”; (v)after the definition of “redemption period” insert—. (b)any person who has acted on behalf of the lender (or, if there is more than one lender, any of the lenders) in connection with the entering into of the agreement. “(7) Article 60C(5) and (6) of the Regulated Activities Order applies for the purposes of subsection (6)(c).”. (54) In section 174A (powers to require provision of information or documents etc)(124), for subsection (5) substitute—. 2010/1010. In section 22(9) of the Teaching and Higher Education Act 1998 (new arrangements for giving financial support to students)(251), in so far as that provision remains in force, for the words from “for the purposes of any exemption” to the end of the subsection, substitute “by article 60G(3)(d) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001”. 2007 c.29. 54.—(1) A person who takes steps to ascertain the identity or location (or the means of ascertaining the identity or location) of a borrower or hirer is exempt from the general prohibition in respect of any regulated activity of the kind specified by article 39F of the Regulated Activities Order (debt-collecting) so long as the person is not the lender under the agreement concerned or the owner under the consumer hire agreement concerned and takes no other steps to procure the payment of debts due under the agreement. (a)in paragraph (1) for “the Consumer Credit (Total Charge for Credit) Regulations 1980” substitute “rules made by the Financial Conduct Authority under article 60M of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 for the purposes of Chapter 14A of Part 2 of that Order”; (b)in paragraph (2), for “for the purposes of any exemption conferred by virtue of section 16(5)(b) of the Consumer Credit Act 1974” substitute “by article 60G(3)(d) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001”. 2002/3152 (N.I.6), SR 2003/660, SR 2004/307. (a)relate to classes of person (including classes of person identified by reference to whether they have, or have not, provided the FCA with a notification in a form specified in the direction by the FCA); (c)relate to different descriptions of activities; (d)be amended by the FCA by further direction. Exempt agreements: exemptions relating to the nature of the hirer. (8) In this article, “payment” means a payment comprising an amount in respect of credit with or without any other amount. For the purposes of this article, where credit is provided otherwise than in sterling, it is to be treated as provided in sterling of an equivalent amount. 60G.—(1) A credit agreement is an exempt agreement for the purposes of this Chapter in the following cases. in the case of an agreement secured on land, there is no charge forming part of the total charge for credit under the agreement other than interest at a rate not exceeding the rate of interest from time to time payable under the agreement mentioned at sub-paragraph (b). For the purposes of paragraph (1), if an agreement includes a declaration which—, provides that the agreement is entered into by the hirer wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by the hirer, and. (7) Paragraphs (5) and (6) of article 60C (exempt agreements: exemptions relating to the nature of the agreement) apply for the purposes of paragraph (6)(b). 42.—(1) Paragraphs (2) to (4) apply if, before 1st April 2014—. (b)it does not relate to the provision of security, (c)it does not form part of the principal agreement, and, (d)one of the following conditions is satisfied—. (c) “net assets” shall not include: in paragraph (2), omit sub-paragraph (c); in paragraph (1), omit sub-paragraph (b); in paragraph (6), for “OFT” in each place substitute “Authority”. in paragraph (2), in the first place the words appear, and in paragraphs (7) and (8), omit “or the OFT”; omit, in each place the words appear, “or the OFT, as the case may be,” and “or the OFT, as the case may be”. to refinance any existing indebtedness of the borrower’s, whether to the lender or another person; “running-account credit” means a facility under a credit agreement under which the borrower or another person is enabled to receive from time to time from the lender or a third party cash, goods or services to an amount or value such that, taking into account payments made by or to the credit of the borrower, the credit limit (if any) is not at any time exceeded; “security” in relation to a credit agreement, means a mortgage, charge, pledge, bond, debenture, indemnity, guarantee, bill, note or other right provided by the borrower or at the implied or express request of the borrower to secure the carrying out of the obligations of the borrower under the agreement; “total charge for credit” has the meaning given in rules made by the FCA under article 60M; “total price” means the total sum payable by the debtor under a hire-purchase agreement, including any sum payable on the exercise of an option to purchase but excluding any sum payable as a penalty or as compensation or damages for a breach of the agreement; “unrestricted-use credit agreement” means a credit agreement which is not a restricted-use credit agreement. The activities Regulated consumer hire agreements. enter into (or offer to enter into) an agreement the making or performance of which constitutes a controlled activity which corresponds to a regulated activity for which A has interim permission; or. for the electronic transfer of funds from a current account held with an authorised person with permission to accept deposits (within the meaning given by article 3). (ii)given notice to A under section 34 of the 1974 Act of its determination not to give such a penalty notice. (Scotland) Act 2000 (asp 5). Amended by Schedule 2 to the Financial Services Act 2010 and Schedule 12 to the Financial Services Act 2012. ( f ) the lender under a paragraph 4C agreement on behalf of the before... Contract or a conditional sale agreement Standard licence ” is defined in section 161 enforcement! ( 13 ) section 226A ( Consumer credit Act 1974 ). ” unless (! 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