FINMAR 1
Gathering financial stability information
FINMAR 1.1
Application, purpose and scope
- 06/08/2010
Application
FINMAR 1.1.1
See Notes
Purpose
FINMAR 1.1.2
See Notes
- (1) Section 165B(6) (Statement of policy) of the Act requires the FSA to prepare and publish a statement of policy on the financial stability information power. The purpose of FINMAR 1.1 is to set out the FSA's statement of policy on the exercise of the financial stability information power and the overseas financial stability information power contained in sections 165A and 169A of the Act.
- (2) The Treasury has approved this statement of policy in accordance with section 165B(7) of the Act.
FINMAR 1.1.3
See Notes
Scope of the powers
FINMAR 1.1.4
See Notes
FINMAR 1.1.5
See Notes
Section 165A of the Act applies to: | |
(a) | a person who has a legal or beneficial interest in any of the assets of a relevant investment fund; |
(b) | a person who is responsible for the management of a relevant investment fund; |
(c) | a person (a "service provider") who provides any service to an authorised person; |
(d) | a person prescribed by an order made by the Treasury or any person of a description prescribed by such an order (and see also section 165C); |
(e) | a person who is connected with a person to whom this section applies as a result of any of the above paragraphs. |
FINMAR 1.1.6
See Notes
The FSA may impose a financial stability information requirement on a person within the categories set out in FINMAR 1.1.5 UK only to the extent that it considers that the information or document is or might be relevant to the stability of one or more aspects of the UK financial system. The persons within these categories may include:
- (1) a vehicle for collective investment, whether or not it is regulated, (including vehicles often referred to as "hedge funds" and "structured investment vehicles" or off-balance sheet vehicles used for investment) and its managers;
- (2) a provider of a service to an authorised person, such as a software supplier or the provider of a liquidity facility, where the risk to the stability of one or more aspects of the UK financial system relates to the provision of the service;
- (3) a large scale proprietary trader or investor who trades large volumes of financial instruments that are traded on UK regulated markets or UK MTFs, for example overseas corporate entities; and
- (4) a person who manages investments for a single family (whether or not the investments are held within a trust), for example a family office.
FINMAR 1.2
Financial stability information powers
- 06/08/2010
Introduction
FINMAR 1.2.1
See Notes
FINMAR 1.2.3
See Notes
FINMAR 1.2.4
See Notes
Financial stability information power
FINMAR 1.2.5
See Notes
The FSA may use the financial stability information power to require a person to provide:
- (1) specified information or documents; or
- (2) information or documents of a specified description;
that the FSA considers are or may be relevant to the stability of the UK financial system.
[Note: Section 165A of the Act]
Overseas financial stability information power
FINMAR 1.2.6
See Notes
The FSA may exercise the overseas financial stability information power at the request of an overseas regulator to require a person to provide:
- (1) specified information or documents; or
- (2) information or documents of a specified description;
that the FSA considers are or may be relevant to the stability of a relevant financial system operating in the country or territory of the overseas regulator.
[Note: Section 169A of the Act]
FINMAR 1.2.7
See Notes
FINMAR 1.2.8
See Notes
In deciding whether to exercise the overseas financial stability information power, the FSA may take into account in particular:
- (1) whether corresponding assistance would be given to a UK regulatory authority in the country or territory of the overseas regulator; and
- (2) whether it is otherwise appropriate in the public interest to give the assistance sought.
FINMAR 1.2.9
See Notes
FINMAR 1.2.10
See Notes
FINMAR 1.3
Providing notice before imposing a financial stability information requirement
- 06/08/2010
Giving notice
FINMAR 1.3.1
See Notes
The FSA will give a person a notice in writing if it proposes to impose a financial stability information requirement unless the FSA is satisfied that information or documents are required without delay. The notice will include:
- (1) the reasons why the FSA proposes to impose the financial stability information requirement; and
- (2) the time period in which the person may make representations to the FSA in respect of the proposal.
Right to make representations
FINMAR 1.3.2
See Notes
The notice referred to in FINMAR 1.3.1 G will specify a reasonable period in which to make representations. In determining the period for representations the FSA will take into account:
- (1) the nature, type and number of documents likely to be required;
- (2) the reasons for imposing the requirement;
- (3) whether the person is likely to wish to seek legal advice;
- (4) whether the person is an authorised person;
- (5) any cost implications for the person.
FINMAR 1.3.3
See Notes
The FSA will generally invite the recipient of a notice to make representations in writing to the address provided in the notice. The FSA will consider a request by a person to make oral representations and will take into account:
- (1) whether oral representations would be likely to:
- (a) improve the FSA's understanding of the representations;
- (b) be more convenient or less costly than written representations; and
- (c) assist the FSA in making a decision more quickly; and
- (2) as in other cases, and in accordance with the Disability Discrimination Act 1995, any reason relating to the disability of the person which would mean that they could not otherwise have a fair hearing.
FINMAR 1.3.4
See Notes
FINMAR 1.3.5
See Notes
FINMAR 1.4
Imposing a financial stability information requirement without prior notice
- 06/08/2010
FINMAR 1.4.1
See Notes
FINMAR 1.4.2
See Notes
The FSA will determine whether to impose a financial stability information requirement without prior notice based on the facts of each case and after taking into account the information before it concerning:
- (1) the nature of the risk to financial stability and whether the risk appears to be increasing rapidly;
- (2) the extent of the risk to financial stability;
- (3) whether it is fair to impose the requirement without notice; and
- (4) whether the information sought may lead to prompt action by the FSA.
FINMAR 1.4.3
See Notes
FINMAR 1.5
Imposing a requirement
- 06/08/2010
Deciding to impose a requirement
FINMAR 1.5.1
See Notes
In deciding whether to impose a financial stability information requirement the FSA will:
- (1) review the material before it;
- (2) consider any representations received from the proposed recipient of the requirement; and
- (3) take into account:
- (a) the nature and extent of the risks to financial stability;
- (b) whether the information is more readily available from another source, taking into account the likely time and cost implications of seeking information from that source;
- (c) whether the information may assist the FSA in fulfilling its functions, for example if the information relates to the exercise of the FSA's statutory powers.
FINMAR 1.5.2
See Notes
Scope of the requirement
FINMAR 1.5.3
See Notes
Notice of a financial stability information requirement
FINMAR 1.5.4
See Notes
Requiring documents to be verified or authenticated
FINMAR 1.5.5
See Notes
The FSA may, where it is reasonable to do so, require a person subject to a financial stability information requirement to provide:
- (1) verification of any information; or
- (2) authentication of any document;
that the person provides to the FSA in accordance with that requirement.
FINMAR 1.5.6
See Notes
When deciding whether to require verification or authentication the FSA will take into account the circumstances of each case, including:
- (1) the type of information or documents required and whether there is a particular need for the information to be exactly accurate;
- (2) the likely additional cost to the person providing the information or documents;
- (3) the extent to which verification or authentication may improve the quality or reliability of the information or documents; and
- (4) the nature of any previous communications between the person and the FSA.
FINMAR 1.5.7
See Notes
The FSA may, where it is reasonable to do so, require the information or documents to be verified or authenticated in any manner. Examples of verification or authentification include:
- (1) a signed declaration by an officer or employee of a body corporate;
- (2) a declaration by a commissioner for oaths that a copy of a document is a true copy of the original; and
- (3) a declaration by the person's accountant or auditor that the information provided appears to be accurate.
FINMAR 2
Short selling
FINMAR 2.1
Application and purpose
- 06/08/2010
Application
FINMAR 2.1.1
See Notes
This chapter applies to all persons who:
- (1) engage, or are intending to engage, in short selling in relation to relevant financial instruments; or
- (2) have engaged in short selling in relation to relevant financial instruments where the resulting short position is still open.
- 06/08/2010
Purpose
FINMAR 2.1.2
See Notes
The purpose of this chapter is to set out rules and provide guidance in relation to short selling in order to promote the FSA's statutory objectives of:
- (1) maintaining confidence in the UK financial system; and
- (2) contributing to the protection and enhancement of the stability of the UK financial system.
FINMAR 2.2
Disclosure of disclosable short positions
- 06/08/2010
Disclosure during a rights issue period
FINMAR 2.2.1
See Notes
A person who has a disclosable short position must provide disclosure of his position where:
- (1) the position relates, directly or indirectly, to securities which are:
- (a) the subject of a rights issue;
- (b) admitted to trading on a prescribed market in the United Kingdom; and
- (c) issued by:
- (i) a UK company; or
- (ii) a non-UK company for whom the UK prescribed market is the sole or main venue for trading the securities; and
- (2) the disclosable short position:
- (a) is reached or exceeded, or the position falls below a disclosable short position, during a rights issue period; or
- (b) has been reached or exceeded immediately before the beginning of the rights issue period and has not fallen below a disclosable short position at the time the rights issue period commences.
FINMAR 2.2.2
See Notes
- 06/08/2010
Disclosure of a short position in a UK financial sector company
FINMAR 2.2.3
See Notes
- 06/08/2010
FINMAR 2.2.4
See Notes
- 06/08/2010
FINMAR 2.3
Calculation of net short position
- 06/08/2010
Preliminary
FINMAR 2.3.1
See Notes
- 06/08/2010
FINMAR 2.3.2
See Notes
- 06/08/2010
FINMAR 2.3.3
See Notes
- 06/08/2010
FINMAR 2.3.4
See Notes
- 06/08/2010
Long and short positions
FINMAR 2.3.5
See Notes
A 'long position' is the total of:
- (1) the number of shares a person holds in a company; and
- (2) any exposure, calculated on a delta-adjusted basis, to the issued capital of the company the person has through his holding of financial instruments which will result in the person making a profit, whether directly or indirectly, if there is an increase in the price or value of the shares of the company.
- 06/08/2010
FINMAR 2.3.6
See Notes
A 'short position' is the total of:
- (1) the number of shares in a company that a person has sold where the person has borrowed or needs to borrow or purchase shares to settle the transaction and the shares have not yet been returned to the lender, or borrowed and returned to the lender, or purchased, as the case may be; and
- (2) any exposure, calculated on a delta-adjusted basis, to the issued capital of the company the person has through his holding of financial instruments which will result in the person making a profit, whether directly or indirectly, if there is a decrease in the price or value of the shares.
- 06/08/2010
Calculating short positions: particular cases
FINMAR 2.3.7
See Notes
For the purposes of calculating a net short position when a company is in a rights issue period:
- (1) a long position in the nil paid rights cannot be deducted from a short position in relation to the company; and
- (2) any short position in the nil paid rights must be taken into account.
- 06/08/2010
FINMAR 2.3.8
See Notes
- 06/08/2010
FINMAR 2.4
Responsibility for disclosure
- 06/08/2010
Discretionary and non-discretionary managers
FINMAR 2.4.1
See Notes
- 06/08/2010
FINMAR 2.4.2
See Notes
Where a person ("P") has appointed:
- (1) a discretionary investment manager to manage some or all of his investments, P may authorise that discretionary investment manager to make any disclosures required by FINMAR 2.2.1 R or FINMAR 2.2.3 R on P's behalf in relation to the investments managed by that discretionary investment manager;
- (2) more than one discretionary investment manager to manage some or all of his investments, P may authorise another person (such as the operator of an AUT, ICVC or any other fund) to make any disclosures required by FINMAR 2.2.1 R or FINMAR 2.2.3 R on P's behalf.
- 06/08/2010
FINMAR 2.4.3
See Notes
Where a discretionary investment manager or another person has been authorised by a person ("P") to make any disclosures required by FINMAR 2.2.1 R or FINMAR 2.2.3 R on P's behalf, he must:
- (1) provide disclosure or ongoing disclosure as required under FINMAR 2.2.1 R or FINMAR 2.2.3 R of P's position; and
- (2) clearly identify the person on whose behalf he is making the disclosure.
- 06/08/2010
FINMAR 2.4.4
See Notes
- 06/08/2010
FINMAR 2.4.5
See Notes
- 06/08/2010
FINMAR 2.4.6
See Notes
- 06/08/2010
FINMAR 2.4.7
See Notes
Where a non-discretionary investment manager has been authorised by a person to make any disclosures required by FINMAR 2.2.1 R or FINMAR 2.2.3 R on that person's behalf, he must:
- (1) provide disclosure or ongoing disclosure as required under FINMAR 2.2.1 R or FINMAR 2.2.3 R of the person's position; and
- (2) clearly identify the person on whose behalf he is making the disclosure.
- 06/08/2010
Groups
FINMAR 2.4.8
See Notes
- 06/08/2010
FINMAR 2.4.9
See Notes
- 06/08/2010
FINMAR 3
Banking Act 2009
FINMAR 3.1
Application and purpose
- 06/08/2010
Application
FINMAR 3.1.1
See Notes
- 06/08/2010
Purpose
FINMAR 3.1.2
See Notes
- 06/08/2010
FINMAR 3.2
Assessing Condition 2 under section 7(3) of the Banking Act 2009
- 06/08/2010
Introduction
FINMAR 3.2.1
See Notes
- 06/08/2010
FINMAR 3.2.2
See Notes
Section 7 of the Banking Act sets out the two conditions that must be met before a stabilisation power can be exercised in respect of a bank:
- (1) Condition 1 is that the bank is failing, or is likely to fail, to satisfy the threshold conditions.
- (2) Condition 2 is that, having regard to timing and other relevant circumstances, it is not reasonably likely that (ignoring the stabilisation powers) action will be taken by or in respect of the bank that will enable it to satisfy the threshold conditions.
- 06/08/2010
FINMAR 3.2.3
See Notes
- 06/08/2010
Assessing Condition 1
FINMAR 3.2.4
See Notes
- 06/08/2010
Assessing Condition 2
FINMAR 3.2.5
See Notes
- 06/08/2010
Timing
FINMAR 3.2.6
See Notes
In assessing Condition 2, the FSA will consider the timeframe during which any actions taken by or in relation to the bank are likely to be available and to have effect. In the view of the FSA, the purpose of the reference to timing in Condition 2 is to require the FSA to consider whether a return to full compliance is likely to occur within a reasonable period of time. The following is a non-exhaustive list of factors the FSA may consider:
- (1) the extent of any loss, or risk of loss, or other adverse effect on consumers. The more serious the loss or potential loss or other adverse effect, the more likely it is that the FSA will consider that remedial action will be needed urgently;
- (2) the seriousness of any suspected breach of the requirements of the Act or the rules and the steps that need to be taken to correct that breach;
- (3) the risk that the bank's conduct or business presents to the stability of the UK financial system and to confidence in that system;
- (4) the likelihood that remedial action that could be taken by or in relation to the bank will take effect before consumers, market confidence or financial stability suffers significant detriment.
- 06/08/2010
FINMAR 3.2.7
See Notes
- 06/08/2010
Other relevant circumstances
FINMAR 3.2.8
See Notes
In general the FSA will be concerned to determine whether any remedial action that could be taken by or in relation to the bank will be effective. This will include an assessment of both how likely it is that the action will be taken, and if it is, the impact it will have on the bank's compliance with the threshold conditions. Circumstances that the FSA may take into account include but are not limited to:
- (1) where the FSA's concerns relate to adequacy of liquidity:
- (a) the availability of market funding to banks generally and any specific circumstances of the bank that may impact on its ability to access the market on terms which are generally available;
- (b) whether the bank's current funding structure is adequate and viable; whether the primary sources of funding continue to be available, given current market sentiment, and whether they would still be viable if market sentiment was to change;
- (c) the maturity profile of the bank's existing funding and the availability of funding from the market to replace maturing funding as the need arises;
- (d) whether liquidity problems call into question adequacy of capital;
- (e) the bank's credit rating and the likelihood and impact of any potential downgrade;
- (f) the availability and terms of liquidity support from group companies, existing funders and central banks;
- (2) where the FSA's concerns relate to capital:
- (a) the availability of capital from the market for banks in general and any specific circumstances of the bank that may impact on its ability to access the market on terms which are generally available;
- (b) potential sources of capital and the nature of and terms on which capital may be obtained;
- (c) the success of any recent attempts by the bank to raise capital on the open market;
- (d) the willingness of existing significant institutional investors to provide or assist in a strategic solution to the bank;
- (3) where the FSA's concerns relate to the adequacy of non-financial resources or suitability, the FSA will take into account the factors identified in COND 2.4 and COND 2.5, and other Handbook provisions referred to in those chapters. In assessing Condition 2, the circumstances of each case are likely to be different, but the FSA will be concerned to establish the likelihood of achieving a return to full compliance with the threshold conditions, and the timescale in which a return to compliance will be effected;
- (4) the prospects of the bank securing a material and relevant transaction with a third party, for example a sale of the bank itself or of all or part of its business. In relation to any transaction, the FSA will have regard to factors including but not limited to:
- (a) the status of any ongoing negotiations;
- (b) the level of interest expressed and the credibility of potential counterparties;
- (c) practical constraints related to the bank itself, for example, management engagement, availability of relevant information and severability of infrastructure;
- (d) the sources, availability and firmness of financing for any transaction;
- (e) the need for shareholder approval, merger clearances or other consents;
- (f) the suitability of the counterparty and the stability of the relevant parties following completion of any transaction.
- 06/08/2010
FINMAR 3.2.9
See Notes
- 06/08/2010
Transitional Provisions and Schedules
FINMAR Sch 1
Record keeping requirements
- 06/08/2010
FINMAR Sch 1.1
See Notes
There are no record-keeping requirements in FINMAR. |
FINMAR Sch 2
Notification requirements
- 06/08/2010
FINMAR Sch 2.1
See Notes
There are no notification requirements in FINMAR. |
FINMAR Sch 3
Fees and other required payments
- 06/08/2010
FINMAR Sch 3.1
See Notes
There are no requirements for fees in FINMAR. |
FINMAR Sch 4
Powers Exercised
- 06/08/2010
FINMAR Sch 4.1
See Notes
The following powers and related provisions in or under the Act have been exercised by the FSA to make the rules, statements of policy and guidance in FINMAR: | |
Section 131B (Short selling rules) | |
Section 157(1) (Guidance) | |
Section 165B(6) (Safeguards etc in relation to exercise of power under section 165A) |
FINMAR Sch 5
Rights of action for damages
- 06/08/2010
FINMAR Sch 5.1
See Notes
There are no rules in FINMAR. |
- 06/08/2010
FINMAR Sch 6
Rules that can be waived
- 06/08/2010
FINMAR Sch 6.1
See Notes
There are no rules in FINMAR. |