The Markets in Financial Instruments Directive (Consequential Amendments) Regulations 2007
STATUTORY INSTRUMENTS
Made
Laid before Parliament
Coming into force
9th October 2007
9th October 2007
1st November 2007
The Treasury are a government department designated(1) for the purposes of section 2(2) of the European Communities Act 1972(2) in relation to investment firms and to the provision of investment services;
The Treasury make the following Regulations in the exercise of powers conferred on them by section 2(2) of that Act:
These Regulations may be cited as the Markets in Financial Instruments Directive (Consequential Amendments) Regulations 2007 and come into force on 1st November 2007.
(2)
Regulations 2, 4, 5 and 7 have effect for financial years ending on or after 1st November 2007, subject to regulation 8.
(3)
In these Regulations, “financial year” has the same meaning as in section 223 of the Companies Act 1985(3) or in Northern Ireland in Article 231 of the Companies (Northern Ireland) Order 1986(4).
2-
Amendments to the Companies Act 1985
(1)
The Companies Act 1985 is amended as follows.
(2)
In section 247A(5) (cases in which special provisions for small and medium-sized companies do not apply)—
(a)
in subsection (1B)(b), for “an ISD investment firm” substitute “a MiFID investment firm”;
(b)
in subsection (2)(ba), for “an ISD investment firm” substitute “a MiFID investment firm”.
(3)
In section 248 (exemption for small and medium-sized groups), in subsection (2)(ba)(6), for “an ISD investment firm” substitute “a MiFID investment firm”.
(4)
In section 249AA (dormant companies), in subsection (3)(a)(7), for “an ISD investment firm” substitute “a MiFID investment firm”.
(5)
In section 249B (cases where exemptions from audit for certain small companies not available), in subsection (1)(b)(8), for “an ISD investment firm” substitute “a MiFID investment firm”.
(6)
In section 262(9) (minor definitions relating to Part 7), in subsection (1)—
(a)
omit the definition of “ISD investment firm”;
(b)
at the appropriate place insert—
““MiFID investment firm” means an investment firm within the meaning of Article 4.1.1 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments(10), other than—
(a)
a company to which that Directive does not apply by virtue of Article 2 of that Directive,
(b)
a company which is an exempt investment firm within the meaning of regulation 4A(3) of the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007(11), and
(c)
any other company which fulfils all the requirements set out in regulation 4C(3) of those Regulations;”.
(7)
In section 262A(12) (index of defined expressions)—
(a)
omit the entry for “ISD investment firm”;
(b)
at the appropriate place insert—
“MiFID investment firm
section 262(1)”.
3-
Amendments to the Companies Act 2006
(1)
The Companies Act 2006(13) is amended as follows.
(2)
In section 384 (companies excluded from the small companies regime)—
(a)
in subsection (1)(b), for “an ISD investment firm” substitute “a MiFID investment firm”;
(b)
in subsection (2)(d), for “an ISD investment firm” substitute “a MiFID investment firm”.
(3)
In section 467 (companies excluded from being treated as medium-sized), in subsection (2)(d), for “an ISD investment firm” substitute “a MiFID investment firm”.
(4)
In section 474 (minor definitions relating to Part 15), in subsection (1)—
(a)
omit the definition of “ISD investment firm”;
(b)
at the appropriate place insert—
““MiFID investment firm” means an investment firm within the meaning of Article 4.1.1 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, other than—
(a)
a company to which that Directive does not apply by virtue of Article 2 of that Directive,
(b)
a company which is an exempt investment firm within the meaning of regulation 4A(3) of the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007, and
(c)
any other company which fulfils all the requirements set out in regulation 4C(3) of those Regulations;”.
(5)
In section 478 (companies excluded from small companies exemption), in paragraph (b)(i), for “an ISD investment firm” substitute “a MiFID investment firm”.
(6)
In section 481 (companies excluded from dormant companies exemption), in paragraph (a), for “an ISD investment firm” substitute “a MiFID investment firm”.
(7)
In section 539 (minor definitions relating to Part 16)—
(a)
omit the definition of “ISD investment firm”;
(b)
at the appropriate place insert—
““MiFID investment firm” means an investment firm within the meaning of Article 4.1.1 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, other than—
(a)
a company to which that Directive does not apply by virtue of Article 2 of that Directive,
(b)
a company which is an exempt investment firm within the meaning of regulation 4A(3) of the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007, and
(c)
any other company which fulfils all the requirements set out in regulation 4C(3) of those Regulations;”.
(8)
In Schedule 8 (index of defined expressions)—
(a)
omit the entry for “ISD investment firm”;
(b)
at the appropriate place insert—
““MiFID investment firm
—in Part 15
section 474(1).
—in Part 16
section 539”.
4-
Amendments to the Companies (Northern Ireland) Order 1986
(1)
The Companies (Northern Ireland) Order 1986 is amended as follows.
(2)
In Article 255A(14) (cases in which special provisions for small and medium-sized companies do not apply)—
(a)
in paragraph (1B)(b), for “an ISD investment firm” substitute “a MiFID investment firm”;
(b)
in paragraph (2)(ba), for “an ISD investment firm” substitute “a MiFID investment firm”.
(3)
In Article 256 (exemption for small and medium-sized groups), in paragraph (2)(ba)(15), for “an ISD investment firm” substitute “a MiFID investment firm”.
(4)
In Article 257AA (dormant companies), in paragraph (3)(a)(16), for “an ISD investment firm” substitute “a MiFID investment firm”.
(5)
In Article 257B (cases where exemptions not available), in paragraph (1)(b)(17), for “an ISD investment firm” substitute “a MiFID investment firm”.
(6)
In Article 270(18) (minor definitions relating to Part 8)—
(a)
omit the definition of “ISD investment firm”;
(b)
at the appropriate place insert—
““MiFID investment firm” means an investment firm within the meaning of Article 4.1.1 of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, other than—
(a)
a company to which that Directive does not apply by virtue of Article 2 of that Directive,
(b)
a company which is an exempt investment firm within the meaning of regulation 4A(3) of the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2007, and
(c)
any other company which fulfils all the requirements set out in regulation 4C(3) of those Regulations;”.
(7)
In Article 270A(19) (index of defined expressions)—
(a)
omit the entry for “ISD investment firm”;
(b)
at the appropriate place insert—
“MiFID investment firm
Article 270”.
5-
Amendment to the Limited Liability Partnerships Regulations 2001
In Schedule 1 to the Limited Liability Partnerships Regulations 2001(20) (modifications to provisions of Part 7 of the Companies Act 1985 applied by those Regulations), in the entry relating to subsection (3) of section 249AA (dormant companies), for “an ISD investment firm” substitute “a MiFID investment firm”.
6-
Amendment to the Financial Services and Markets Act 2000 (Gibraltar) Order 2001
In article 2 of the Financial Services and Markets Act 2000 (Gibraltar) Order 2001(21), in paragraph (1A), for “investment services directive” substitute “markets in financial instruments directive”.
7-
Amendment to the Limited Liability Partnerships Regulations (Northern Ireland) 2004
In Schedule 1 to the Limited Liability Partnerships Regulations (Northern Ireland) 2004(22) (modifications to provisions of Part 8 of the 1986 Order applied by those Regulations), in the entry relating to paragraph (3) of Article 257AA (dormant companies), for “an ISD investment firm” substitute “a MiFID investment firm”.
8-
Transitional provision: accounting and audit requirements
(1)
This regulation has effect for a financial year (“the transitional financial year”) beginning before, but ending on or after, 1st November 2007.
(2)
In the enactments amended by regulations 2, 4, 5 and 7 the references to a “MiFID investment firm” do not include a person who satisfies conditions A and B.
(3)
Condition A is satisfied if, at any time that is within the transitional financial year and is before 1st November 2007, the person would have been a MiFID investment firm if Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments had had effect at that time.
(4)
In paragraph (3), “MiFID investment firm” has the same meaning as in section 262 of the Companies Act 1985 (as it has effect on 1st November 2007, disregarding this regulation).
(5)
Condition B is satisfied if the person—
(a)
was not, at any time that is within the transitional financial year and is before 1st November 2007, an ISD investment firm within the meaning of section 262 of the Companies Act 1985 (as it had effect at that time), and
(b)
would not, at any time that is within the transitional financial year and is on or after 1st November 2007, have been such a firm if that section and Council Directive 93/22/EC of 10 May 1993 on investment services in the securities field(23) had had effect at that time as they had effect immediately before 1st November 2007.
9th October 2007
Dave Watts
Frank Roy
Two of the Lords Commissioners of Her Majesty’s
Treasury
