Financial
Services Commission (Amendment No. 8) (Jersey) Law 2022
Adopted
by the States 19th January 2022
Sanctioned
by Order of Her Majesty in Council 13th April 2022
Registered by the Royal Court 22nd April 2022
Coming into force 29th April 2022
THE STATES, subject to the sanction of Her Most
Excellent Majesty in Council, have adopted the following Law –
1 Financial Services Commission (Jersey) Law 1998 amended
This Law amends the Financial Services Commission
(Jersey) Law 1998.
2 Article 1(1) (interpretation) amended
In Article 1(1) –
(a) the following definitions are inserted in the correct
alphabetical sequence –
“ “key person”, in relation to a registered person, means a
person who –
(a) is or was employed or
otherwise engaged by a registered person as a money laundering reporting
officer; or
(b) is or was designated as
such by the registered person under Article 9 of the Money
Laundering (Jersey) Order 2008;
“money laundering reporting officer” means a person appointed as
reporting officer under the Money
Laundering (Jersey) Order 2008;
“senior management function”, in relation to a registered person,
means a function designated as such by the Commission by notice published on
the Commission’s website where –
(a) the function requires the
individual performing it to be responsible for managing one or more aspects of the
registered person’s affairs; and
(b) those aspects involve, or
might involve, a risk of serious consequences –
(i) for the registered person, or
(ii) for business or other
interests in Jersey,
and in paragraph (a), managing one or more aspects of the
registered person’s affairs includes a reference to taking decisions, or
participating in the taking of decisions, about how one or more aspects of
those affairs should be carried on;”;
(b) for the definition “principal person” there is
substituted –
(c) in the definition “registered person” after paragraph (d)
there is inserted –
3 Article 21A (power to impose civil financial
penalties) substituted
For Article 21A there is substituted –
“21A Power
to impose civil financial penalties
(1) If
the Commission is satisfied that a registered person has, to a significant and
material extent, contravened any enactment or Code of Practice to which this
Article applies, the Commission may –
(a) except where that
registered person is a fund, impose on that registered person a penalty to the
extent permitted by the following provisions of this Law;
(b) if satisfied that the
contravention by the registered person was –
(i) committed with the consent or connivance
of, or was attributable to neglect on the part of a principal person, key person
or any person who performs or performed a senior management function, or
(ii) aided, abetted,
counselled or procured by a principal person, key person or any person who
performs or performed a senior management function,
impose on that principal person, key person or person who performs
or performed a senior management function, a penalty to the extent permitted by
this Law (despite the fact that the registered person is a fund).
(2) This
Article applies to –
(3) The
Minister may by Order amend paragraph (2).”.
4 Article 21B (level of penalty and
criteria for imposition) amended
In Article 21B –
(a) for paragraphs (3)
and (3A) there is substituted –
“(3) In
considering whether to impose a penalty on a registered person, principal
person, key person or any person who performs or performed a senior management
function and the amount of the penalty to be imposed, the Commission must,
where applicable, have regard to the following matters –
(a) the
seriousness of the contravention;
(b) whether
or not the person knew or ought to have known of the contravention;
(c) whether
or not the person voluntarily reported the contravention;
(d) whether
or not the person has taken steps to rectify the contravention and to prevent
its recurrence;
(e) the
potential financial consequences to the person and to third parties (including
customers and creditors of the person) of imposing the penalty;
(f) the
principle of ensuring that a person cannot expect to profit from the
contravention;
(g) the
penalties imposed by the Commission in other cases; and
(h) the
principles mentioned in paragraph (4) other than those set out in this
paragraph.”; and
(b) in paragraph (4)
there is deleted “and paragraph (3A)(a) to (d)”.
5 Article 21C
(notification of imposition of penalty) amended
In Article 21C –
(a) for “registered person or
principal person” wherever it occurs there is substituted “registered person,
principal person, key person or any person who performs or performed a senior
management function”;
(b) in paragraph (1)(b)(i)
after “Code of Practice” there is inserted “or the Money Laundering (Jersey)
Order 2008”;
(c) for sub-paragraph (2)(a)
there is substituted –
“(a) details
of the alleged contravention;”.
6 Article 21D (restrictions
on powers of Commission in respect of notices) amended
In Article 21D –
(a) for
paragraph (2A) there is substituted
“(2A) The
Commission must not issue a notice of intent under Article 21C(1) in
respect of a contravention of the Money Laundering (Jersey)
Order 2008 that occurred before the commencement of the Financial Services
Commission (Amendment No. 8) (Jersey) Law 2022, except that if the
contravention was continuing at the time of the commencement of that Law, a
notice of intent may be issued in respect of such part of the contravention as continued
after the commencement.
(2B) The
Commission must not issue a notice of intent under Article 21C(1) to a key
person or a person who performs or performed a senior management function in
respect of a contravention of a Code of Practice that occurred before the
commencement of the Financial Services Commission (Amendment No. 8)
(Jersey) Law 2022, except that if the contravention was continuing at the time
of the commencement of that Law, a notice of intent may be issued in respect of
such part of the contravention as continued after the commencement.
(2C) The Commission must not issue a notice of intent under
Article 21C(1) to –
(a) a
supervised person within the meaning of Article 1(1) of the Proceeds of Crime (Supervisory
Bodies) (Jersey) Law 2008 who was not a registered person prior to the commencement of the Financial
Services Commission (Amendment No. 8) (Jersey) Law 2022; or
(b) a
certificate holder within the meaning of Article 1(1) of the Collective Investment Funds
(Jersey) Law 1988,
in respect of a
contravention of a Code of Practice that occurred before the commencement of
the Financial Services Commission (Amendment No. 8) (Jersey) Law 2022,
except that if the contravention was continuing at the time of the commencement
of the Financial Services Commission (Amendment No. 8) (Jersey) Law 2022,
a notice of intent may be issued in respect of such part of the contravention
that continued after such commencement.
(2D) The
Commission must not issue a notice of intent under Article 21C(1) to an
individual more than 6 years after the contravention giving rise to the
notice came to the attention of the Commission.”;
(b) in
paragraph (4) for “(2A)” there is substituted “(2D)”.
7 Article 21E (late
payment surcharge and enforcement) amended
For Article 21E(4) –
“(4) A
penalty, including any surcharge imposed on a registered person, principal
person, key person or any person who performs or performed a senior management
function, may be enforced as if it were a debt owed by that person to the
Commission.”.
8 Article 21F (appeal
against imposition of penalty) amended
In Article 21F(1) for “registered person or principal person”
there is substituted “registered person, principal person, key person or any
person who performs or performed a senior management function”.
9 Article 21G (proceeds
of penalties) amended
In Article 21G(2) for “principal person” in both places where
it appears there is substituted “principal person, key person or a person who performs
or performed a senior management function”.
10 Citation and commencement
This Law may be cited as
the Financial Services Commission (Amendment No. 8) (Jersey) Law 2022 and
comes into force 7 days after it is registered.