Financial Services
Commission (Amendment No. 7) (Jersey)
Law 2018
A LAW to further amend the Financial
Services Commission (Jersey) Law 1998.
Adopted by the
States 26th June 2018
Sanctioned by
Order of Her Majesty in Council 10th October 2018
Registered by the
Royal Court 19th
October 2018
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
1 Interpretation
In this Law “principal Law” means
the Financial Services Commission (Jersey) Law 1998[1].
2 Article 1
amended
In Article 1(1) of the principal Law –
(a) after
the definition “Comptroller and Auditor General” there shall be
inserted the following definition –
“ ‘Director
General’, means the Director General of the Commission appointed under Article 10;”;
(b) after
the definition “prescribed” there shall be inserted the following
definition –
“ ‘principal
person’, with respect to a contravention of a Code of Practice issued by
the Commission under –
(a) Article 19A
of the Banking Business (Jersey) Law 1991[2], means a director, controller or manager
(within the meaning given by Article 1 of that Law);
(b) Article 42
of the Insurance Business (Jersey) Law 1996[3], means a chief executive or shareholder controller (within the meaning given by Article 1(1) of that Law) or any individual acting as a director of
a permit holder (within the meaning given by Article 1(1) of that Law);
(c) Article 19
of the Financial Services (Jersey) Law 1998[4], has the same meaning as in Article 1(1)
of that Law;
(d) Article 22
of the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008[5], has the same meaning as in Article 1(1)
of that Law;
(e) Regulation 22 of the Alternative
Investment Funds (Jersey) Regulations 2012[6], has the same meaning as in Regulation 2
of those Regulations,
and includes a person who was
a principal person within the meaning given by sub-paragraph (a), (b),
(c), (d) or (e);”.
3 Article 3
amended
In Article 3 of the principal Law –
(a) in paragraph (1) –
(i) in
sub-paragraph (a) the word “and” shall be deleted,
(ii) for
sub-paragraph (b) there shall be substituted the following paragraph –
“(b) not less than 5 other
Commissioners; and”,
(iii) after
sub-paragraph (b) there shall be added the following sub-paragraph –
“(c) the Director General
appointed under Article 10 as an ex-officio
Commissioner.”;
(b) in paragraph (2) –
(i) in
sub-paragraph (a), after the word “Commissioners” there shall
be inserted the words “referred to in paragraph (1)(a) and
(b)”,
(ii) in
sub-paragraph (b), after the word “Commissioner” there shall
be inserted the words “(other than the Director General)”;
(c) in paragraph (4),
after the word “Commissioner” there shall be inserted the words
“referred to in paragraph (1)(b)”.
4 Article 10
amended
In Article 10 of the principal Law –
(a) in paragraph (1),
for the words “The Commission may appoint such officers,” there
shall be substituted the words “Subject to paragraph (1A), the
Commission may appoint such officers (including the Director General of the
Commission),”;
(b) after
paragraph (1) there shall be inserted the following paragraph –
“(1A) The Commission shall consult with the Minister
before appointing the Director General under paragraph (1).”.
5 Article 21A
amended
For Article 21A(1) of the principal Law there shall be
substituted the following paragraph –
“(1) If the Commission is
satisfied that a registered person has, to a significant and material extent,
contravened a Code of Practice to which this Article applies, the Commission
may –
(a) impose on that registered person a penalty
to the extent permitted by the following provisions of this Law; and
(b) if satisfied that the contravention by the
registered person was –
(i) committed
with the consent or connivance of, or is attributable to neglect on the part of
a principal person, or
(ii) aided,
abetted, counselled or procured by a principal person,
impose on that principal
person a penalty to the extent permitted by the following provisions of this
Law.”.
6 Article 21B
amended
In Article 21B of the principal Law –
(a) in paragraph (3) –
(i) for
the words “whether to impose a penalty and the amount of the penalty to
be imposed” there shall be substituted the words “whether to impose
a penalty on a registered person and the amount of the penalty to be imposed on
the registered person”,
(ii) in
sub-paragraph (g) after the word “Commission” there shall be
inserted the words “on registered persons”;
(b) after
paragraph (3) there shall be inserted the following paragraph –
“(3A) In considering whether to impose a penalty on a
principal person and the amount of penalty to be imposed on a principal person the
Commission must have particular regard to the following matters –
(a) the
seriousness of the contravention of the Code of Practice;
(b) the
potential financial consequences to the principal person and to third parties
(including creditors of the principal person) of imposing the penalty;
(c) the
principle of ensuring that principal persons cannot expect to profit from
contraventions of the Codes of Practice;
(d) the
penalties imposed by the Commission on principal persons in other cases;
(e) the
principles mentioned in paragraph (4) (other than
those set out in this paragraph).”;
(c) in paragraph (4)(a),
after the words “paragraph (3)(a) to (g)” there shall be
inserted the following words “and paragraph (3A)(a) to (d)”.
7 Article 21C
amended
In Article 21C of the principal Law –
(a) in paragraph (1) –
(i) after
the words “registered person” in the first place where they occur
and in paragraphs (a) and (c) there shall be inserted the words “or
principal person, as the case may be,”,
(ii) after
the words “registered person” in the second place where they occur
there shall be inserted the words “or principal person, as the case may
be”;
(b) in paragraph (2),
for the words “paragraph (2)(b)” there shall be substituted
the words “paragraph (1)(b)”;
(c) in paragraph (3),
after the words “registered person” wherever they occur in that
paragraph there shall be inserted the words “or principal person, as the
case may be,”;
(d) in paragraph (4)(d),
(e) and (f), after the words “registered person” there shall be
inserted the words “or principal person, as the case may be,”;
(e) in paragraph (5)(b)
after the words “registered persons” there shall be inserted the
words “or principal persons”.
8 Article 21D
amended
In Article 21D of the principal Law –
(a) for
paragraphs (1) and (2) there shall be substituted the following paragraphs –
“(1) The Commission shall not
issue a notice of intent under Article 21C(1) in respect of a
contravention of a Code of Practice that occurred before the commencement of Article 21A,
except that if the contravention was continuing at the time of the commencement
of Article 21A, a notice of intent may be issued in respect of such part
of the contravention that continued after such commencement;
(2) The Commission shall not issue a notice of
intent under Article 21C(1) to a principal person in respect of the contravention
of a Code of Practice that occurred before the commencement of the Financial
Services Commission (Amendment No. 7) (Jersey) Law 2018[7], except that if the
contravention was continuing at the time of the commencement of the Financial
Services Commission (Amendment No. 7) (Jersey) Law 2018, a notice of
intent may be issued in respect of such part of the contravention that
continued after such commencement.
(2A) The Commission shall not issue a notice of intent under Article 21C(1)
more than 3 years after the contravention giving rise to the notice came
to the attention of the Commission, except that the Commission may apply to the
Royal Court for an extension of time for issuing a notice of intent more than 3 years
after the contravention and the Royal Court may grant such extension if it
considers the Commission has a reasonable excuse for not issuing the notice
within that time limit.”;
(b) in
paragraph (4) for the words “ paragraph (1)(b)” there shall be
substituted the words “paragraph (2A)”.
9 Article 21E
amended
For Article 21E(4) of the principal Law there shall be substituted
the following paragraph –
“(4) A penalty, including any
surcharge imposed on a registered person or a principal person, as the case may
be, may be enforced as if it were a debt owed by the registered person or
principal person, as the case may be, to the Commission.”.
10 Article 21F
amended
In Article 21F(1) of the principal Law, after the words
“registered person” there shall be inserted the following words
“or principal person”.
11 Article 21G
amended
In Article 21G of the principal Law, for paragraph (2)
there shall be substituted the following paragraph –
“(2) The money must be treated as
if it were part of the fees due from registered persons of the same class (with
reference to the various meanings of ‘registered person’ set out in
Article 1 and the various classes of financial service business in respect
of which a person may be registered as mentioned in paragraph (c) of that
definition) as the registered person –
(a) on whom the penalties were imposed; or
(b) in the case of a penalty imposed on a
principal person, of which the person is a principal person,
so as to reduce the level of
fees that would otherwise have been charged to those registered persons.”.
12 Schedule 1
amended
In Part 2 of Schedule 1 to the principal Law, in paragraph 1 –
(a) before
sub-paragraph (1) there shall be inserted the following sub-paragraph –
“(A1) This paragraph applies only to Commissioners referred
to in Article 3(1)(a) and (b).”;
(b) for
sub-paragraph (2A) there shall be substituted the following sub-paragraph –
“(2A) Despite paragraph (2), the total period
for which a person may hold office as a Commissioner shall not exceed 9 years.”.
13 Financial
Services Commission (Financial Penalties) (Jersey) Order 2015 amended
In the Financial Services Commission (Financial Penalties) (Jersey)
Order 2015[8] –
(a) for
Article 3 there shall be substituted the following Article –
The Commission may impose
penalties –
(a) on registered persons only up to the maximum
level set out in the third column in the table in the Schedule;
(b) on principal persons only up to the maximum
level set out in the fourth column in the table in the Schedule,
for the appropriate band of
penalty, determined according to the nature of the contravention.”;
(b) in
the table in the Schedule –
(i) in
the heading of the third column, after the words “Maximum level of
penalty” there shall be added the words “that may be imposed on a
registered person”,
(ii) after
the third column there shall be added a fourth column with the following
heading –
“Maximum level of penalty that may be imposed on a principal
person”,
(iii) in
the fourth column there shall be added the following entries –
(A) for band 1, “£10,000.”,
(B) for band 2,
“£200,000.”,
(C) for band 2A,
“£300,000.”,
(D) for band 3,
“£400,000.”.
14 Alternative
Investment Funds (Jersey) Regulations 2012 amended
In Article 24(2) of the Alternative Investment Funds (Jersey) Regulations 2012[9], for sub-paragraph (b)
there shall be substituted the following sub-paragraph –
“(b) a public statement with
respect to the serving of a final notice on a service provider, or a person who
is or was a principal person of a service provider, under Article 21C(3)
of the Financial Services Commission (Jersey) Law 1998[10] imposing a penalty following
the contravention of a Code of Practice by that service provider;”.
15 Banking Business
(Jersey) Law 1991 amended
In Article 48(2) of the Banking Business (Jersey) Law 1991[11], for sub-paragraph (b)
there shall be substituted the following sub-paragraph –
“(b) a public statement with
respect to the serving of a final notice on a registered person, or a person
who is or was a director, controller or manager of a registered person, under Article 21C(3)
of the Financial Services Commission (Jersey) Law 1998[12] imposing a penalty following
the contravention of a code of practice by that registered person; or”.
16 Financial
Services (Jersey) Law 1998 amended
In Article 25 of the Financial Services (Jersey) Law 1998[13], for paragraph (ba)
there shall be substituted the following paragraph –
“(ba) a public statement with respect to the
serving of a final notice on a registered person, or a person who is or was a
principal person of a registered person, under Article 21C(3) of the
Financial Services Commission (Jersey) Law 1998[14] imposing a penalty following the contravention of a Code of
Practice by that registered person;”.
17 Insurance
Business (Jersey) Law 1996 amended
In Article 43(2) of the Insurance Business (Jersey) Law 1996[15], for sub-paragraph (b) there shall
be substituted the following sub-paragraph –
“(b) a
public statement with respect to the serving of a final notice on a permit
holder, or a person who is or was a chief executive, shareholder controller or
an individual acting as a director of a permit holder, under Article 21C(3)
of the Financial Services Commission (Jersey) Law 1998[16] imposing a penalty following the contravention of a code of
practice by that permit holder; or”.
18 Proceeds of Crime
(Supervisory Bodies) (Jersey) Law 2008 amended
In Article 26(ba) of the Proceeds
of Crime (Supervisory Bodies) (Jersey) Law 2008[17] the words “by that person” shall be deleted.
19 Citation
and commencement
This Law may be cited as the Financial Services Commission
(Amendment No. 7) (Jersey) Law 2018 and shall come into force 7 days
after it is registered.
w.j.c. millow
Assistant Greffier of the States