Financial Services
Commission (Jersey) Law 1998[1]
A LAW to establish a
Financial Services Commission and for connected purposes
Commencement [see
endnotes]
1 Interpretation
(1) In
this Law unless the context otherwise requires –
“Commission” means
the Jersey Financial Services Commission established by Article 2;
“Commissioner”
means the Chairman or other person appointed to be a member of the Commission
by Article 3;
“Comptroller and
Auditor General” has the same meaning as in the Comptroller and
Auditor General (Jersey) Law 2014;
“Director
General”, means the Director General of the Commission appointed under
Article 10;
“enactment”
includes any enactment of the United Kingdom or EU instrument (within the
meaning of Article 1 of the European Union
(Jersey) Law 1973) which has effect in Jersey;
“financial services”
includes the carrying on of and the provision of services in relation to the
businesses of banking, insurance, investment, asset management, trusteeship and
company administration, the provision and administration of corporate and other
business structures and any matters ancillary to such businesses or structures;
“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;
“Minister”
means the Minister for External Relations;
“money laundering
reporting officer” means a person appointed as reporting officer under
the Money
Laundering (Jersey) Order 2008;
“penalty”
means a civil financial penalty imposed by the Commission under Article 21A;
“prescribed”
means prescribed by Order made by the Minister;
“principal
person” means –
(a) a director,
controller or manager within the meaning given by Article 1 of the Banking Business (Jersey)
Law 1991;
(b) a chief executive or shareholder controller as
defined in Article 1(1) of the Insurance
Business (Jersey) Law 1996 or any individual acting as a director of
a permit holder (within the meaning given by Article 1(1) of that Law);
(c) a principal person as defined in
Article 1(1) of the Financial Services (Jersey)
Law 1998;
(d) a principal person as defined in Article 1(1)
of the Proceeds of Crime (Supervisory
Bodies) (Jersey) Law 2008;
(e) a
principal person as defined in Regulation 2 of the Alternative
Investment Funds (Jersey) Regulations 2012; or
(f) a
principal person as defined in Article 1(1) of the Collective
Investment Funds (Jersey) Law 1988,
and includes a person who
was a principal person as defined in paragraph (a), (b), (c), (d), (e) or
(f);
“registered person”
means –
(a) a
registered person within the meaning of the Banking Business
(Jersey) Law 1991;
(b) a
permit holder within the meaning of the Insurance
Business (Jersey) Law 1996 other than the holder of a Category A
permit (within the meaning of Article 5(2) of that Law);
(c) a
registered person within the meaning of the Financial
Services (Jersey) Law 1998, other than a person registered under that
Law to conduct general insurance mediation business falling within Class R
or Class S as set out in the Schedule to the Financial
Services (Financial Service Business) (Jersey) Order 2009;
(d) a
service provider within the meaning of Regulation 2 of the Alternative
Investment Funds (Jersey) Regulations 2012;
(e) a
supervised person as defined in Article 1(1) of the Proceeds of
Crime (Supervisory Bodies) (Jersey) Law 2008;
(f) a
certificate holder as defined in Article 1(1) of the Collective
Investment Funds (Jersey) Law 1988;
(g) a
person required to be a registered person, permit holder, service provider,
supervised person or certificate holder under any of the Laws referred to in
paragraph (a), (b), (c), (d), (e) or (f);
“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;
“transferred
function” means a statutory function transferred to the Commission by Article 6.[2]
(2) The
States may by Regulations amend the definition “registered person”
in paragraph (1).[3]
2 Establishment
of the Commission
(1) There
shall be established a body to be known as the Jersey Financial Services
Commission.
(2) The
Commission shall be a body corporate with perpetual succession and a common
seal and may –
(a) sue and be sued in its corporate name;
(b) enter into contracts and acquire, hold and
dispose of any property; and
(c) so far as is possible for a body corporate,
exercise the rights, powers and privileges and incur the liabilities and
obligations of a natural person of full age and capacity.
(3) The
application of the common seal of the Commission shall be authenticated by the
signature of a person authorized by the Commission to sign on its behalf and
every document bearing the imprint of the seal of the Commission shall be
deemed to be properly sealed unless the contrary is proved.
(4) Save
as this Law provides to the contrary, the Commission shall be independent of
the Minister and of the States and neither the Minister nor the States shall be
liable for any act or omission or debt or other obligation of the Commission.
3 Appointment
of Commissioners
(1) The
Commission shall consist of –
(a) a Chairman;
(b) not less than 5
other Commissioners; and
(c) the
Director General appointed under Article 10 as an ex-officio
Commissioner.[4]
(2) The
Minister shall appoint –
(a) the
Commissioners referred to in paragraph (1)(a) and (b); and
(b) a
Commissioner (other than the Director General) to be Chairman of the
Commission.[5]
(2A) Article 2
of the States
of Jersey (Appointment Procedures) (Jersey) Law 2018 shall apply to
the appointment of the Chairman and other Commissioners.[6]
(3) The
Commissioners shall include –
(a) persons with experience of the type of
financial services supervised by the Commission;
(b) regular users on their own account or on
behalf of others, or representatives of those users, of financial services of
any kind supervised by the Commission; and
(c) individuals representing the public
interest,
and the composition of the
Commission shall be such as to secure a proper balance between the interests of
persons carrying on the business of financial services, the users of such
services and the interests of the public at large.
(4) The
Minister shall appoint one Commissioner referred to in paragraph (1)(b) to
be Deputy Chairman.[7]
(5) The
functions, powers, rights and obligations of the Commission shall not be
affected by any vacancy in its membership.
4 Terms
of appointment of Commissioners and proceedings of the Commission
(1) Every
Commissioner shall, before the Commissioner begins to act in execution of this Law,
take oath before the Royal Court, in the form set out in Part 1 of Schedule 1.
(2) Part 2
of Schedule 1 shall have effect with respect to the Commissioners and the
proceedings of the Commission.
(3) The
States may make Regulations amending any provision of Schedule 1.
(4) Subject
to the provisions of this Law the Commission may regulate its own proceedings.
5 Functions
of the Commission
(1) The
Commission shall be responsible for –
(a) the supervision and development of financial
services provided in or from within Jersey;
(b) providing the States, any Minister or any
other public body with reports, advice, assistance and information in relation
to any matter connected with financial services;
(c) preparing and submitting to the Minister
recommendations for the introduction, amendment or replacement of legislation
appertaining to financial services, companies and other forms of business
structure; and
(d) such functions in relation to financial
services or such incidental or ancillary matters –
(i) as are required
or authorized by or under any enactment, or
(ii) as
the States may, by Regulations, transfer.[8]
(2) Regulations
made under this Article may amend this or any other enactment in order to give
effect to any transfer of functions to the Commission under this Article.
(3) The
Commission shall have such other functions as are conferred on it by any other
Law or enactment.[9]
6 Transferred
functions
The following functions
of the Committee[10] are hereby transferred to the Commission –
(a) supervising –
(i) banking
and other categories of deposit-taking business under the Banking Business
(Jersey) Law 1991,
(ii) insurance
business under the Insurance
Business (Jersey) Law 1996, and
(iii) collective
investment funds and functionaries of such funds under the Collective
Investment Funds (Jersey) Law 1988;
(b) administering –
(i) the
Control of
Borrowing (Jersey) Law 1947,
(ii) the Registration of
Business Names (Jersey) Law 1956,
(iii) the Companies
(Jersey) Law 1991,
(iv) the Limited
Partnerships (Jersey) Law 1994, and
(v) the Limited
Liability Partnerships (Jersey) Law 2017;
(c) investigating
insider dealing under the Company Securities (Insider Dealing) (Jersey)
Law 1988;
(d) applying
for a declaration under Article 3(1)(c) of the Bankruptcy
(Désastre) (Jersey) Law 1990;
(e) receiving
particulars in respect of companies treated as exempt from Income Tax under Article 123A
of the Income
Tax (Jersey) Law 1961 and international business companies taxed under
123B of that Law; and
(f) approving
reinsurance arrangements under the Jersey Mutual Fire Insurance Society
Incorporated (Alteration of Names and Rules) Law 1952.[11]
7 Guiding
principles[12]
In exercising any of its
functions the Commission may take into account any matter which it considers
appropriate, but shall in particular have regard to –
(a) the
reduction of the risk to the public of financial loss due to dishonesty,
incompetence or malpractice by or the financial unsoundness of persons carrying
on the business of financial services in or from within Jersey;
(b) the
protection and enhancement of the reputation and integrity of Jersey in
commercial and financial matters;
(c) the
best economic interests of Jersey; and
(d) the
need to counter financial crime both in Jersey and elsewhere.
8 General
powers of the Commission[13]
(1) The Commission has the
power to do anything –
(a) that
is calculated to facilitate; or
(b) that
is incidental or conducive to,
the performance of any of its functions.
(2) That power includes the
power, as part of the Commission’s routine examination of a supervised
entity –
(a) to
require the entity to supply information in a format and at times specified by
the Commission;
(b) to
require the entity to provide answers to questions; and
(c) to
require the entity to allow officers or agents of the Commission to enter the
entity’s premises.
(3) Without prejudice to
the generality of paragraph (1) the Commission may, in connection with the
carrying out of its functions –
(a) seek
and exchange information relating to the supervision and development of
financial services in Jersey and the supervision and development of similar services carried on
outside Jersey;
(b) consult
and seek the advice of such persons or bodies whether inside or outside Jersey as it considers
appropriate;
(c) publish,
in such manner as it considers appropriate, such information relating to its
functions as it thinks fit; and
(d) provide
advice, assistance or services to any person with a view to securing the
efficient and effective provision of financial services in or from within Jersey.
(4) In paragraph (2)
“supervised entity” means –
(a) a
person granted –
(i) a permit under
Article 7 of the Collective Investment Funds
(Jersey) Law 1988 to hold himself or herself out as being a functionary of a
collective investment fund, or
(ii) a
certificate under Article 8B of that Law in relation to an unclassified
fund;
(b) a person
registered under Article 9 of the Banking Business (Jersey)
Law 1991 to carry on a deposit-taking business;
(c) a
person authorized by a permit granted under Article 7 of the Insurance Business (Jersey)
Law 1996 to carry on insurance business;
(d) a
person registered under Article 9 of the Financial Services (Jersey)
Law 1998 to carry on financial
service business;
(e) a
person granted a certificate under Regulation 9 of the Alternative Investment Funds
(Jersey) Regulations 2012.[14]
(5) The Commission may
require registered persons who provide services to regulated NPOs in the course
of trust company business, to provide information in respect of those regulated
NPOs to the Commission.[15]
(6) In paragraph (5) –
“registered person” and “trust company
business” have the same meanings as in the Financial Services (Jersey)
Law 1998;
“regulated NPO” has the same meaning as in the Non-Profit Organizations
(Jersey) Law 2008.[16]
9 Limitation
of liability[17]
(1) No
person or body to whom this Article applies shall be liable in damages for
anything done or omitted in the discharge or purported discharge of any
function under, or authorized by or under, this Law or any other enactment
unless it is shown that the act or omission was in bad faith.
(1A) Paragraph (1)
does not apply so as to prevent an award of damages made in respect of an act
on the ground that the act was unlawful as a result of Article 7(1) of the
Human Rights
(Jersey) Law 2000.[18]
(2) This
Article applies to –
(a) the
Commission, any Commissioner or any person who is, or is acting as, an officer,
servant or agent of the Commission or who is performing any duty or exercising
any power on behalf of the Commission; and
(b) the
States or any Minister in respect of any delegation of functions to the
Commission.
10 Appointment
and remuneration of staff
(1) Subject
to paragraph (1A), the Commission may appoint such officers (including the
Director General of the Commission), servants and agents as it considers
necessary for carrying out its functions.[19]
(1A) The
Commission shall consult with the Minister before appointing the Director General
under paragraph (1).[20]
(2) Subject
to paragraph (3), the Commission may –
(a) make appointments on such terms as to
remuneration, expenses, pensions and other conditions of service as it thinks
fit; and
(b) establish and maintain such schemes or make
such other arrangements as it thinks fit for the payment of pensions and other
benefits in respect of its officers and servants.
(3) Subject
to paragraph (5) but without prejudice to the generality of paragraph 1 of
Schedule 2, if, immediately before the coming into force of this Article,
a person is employed in respect of any of the functions of the Finance and
Economics Committee which, by virtue of this Law, are transferred to the
Commission, then, on the commencement of this Article –
(a) he or she shall become an employee of the
Commission; and
(b) his or her contract of employment shall have
effect as if it was originally made between him or her and the Commission;
(c) all the rights, powers, duties and
liabilities which accrued under or in connection with such contract shall be
enforceable by or against the Commission as if it were originally made between
that employee and the Commission; and
(d) any collective agreement made by or on
behalf of the States with a representative body recognized by the States in
respect of that employee at any time before that person becomes an employee of
the Commission shall continue to have effect as if it were originally made by
or on behalf of the Commission.[21]
(4) If
a person was, immediately before becoming an employee of the Commission by
virtue of paragraph (3), a member of any scheme made under the Public Employees
(Retirement) (Jersey) Law 1967, then, on the commencement of this Article –
(a) he or she shall continue to be a member of
the scheme on the same terms; and
(b) notwithstanding any provision to the
contrary in that Law or any other enactment, the Commission shall become his or
her employer for the purposes of that scheme in place of the Committee of the
States which, immediately before the commencement of this Article, employed him
or her.
(5) Where
a person referred to in paragraph (3) has, at any time prior to the
commencement of this Article, given notice in writing to the employer that he
or she refuses to be employed by the Commission, then, on such commencement,
unless he or she has revoked that notice –
(a) he or she shall not become an employee of
the Commission; and
(b) he or she shall be deemed to have given
notice of resignation from employment to the employer on the preceding day,
and, upon the expiry of
the period of notice specified in the contract of employment, his or her
employment shall be terminated.
(6) Notwithstanding
paragraph (3), after the commencement of this Article the Commission shall
not be bound to recognize a representative body in respect of any employee.
(7) In
this Article “representative body” includes a trade union and any
other association of employees formed for the purpose of representing those employees
in their relationship with their employers.
11 Delegation
to Commissioners and officers
(1) Subject
to the provisions of this Article, where any functions or powers are conferred
upon or vested in the Commission by or under this Law or any other enactment,
it shall be lawful for the Commission to delegate such functions or powers
wholly or partly to –
(a) the Chairman;
(b) one or more Commissioners; or
(c) an officer of the Commission.
(2) Nothing
in this Article shall authorize the Commission to delegate –
(a) this power of delegation;
(b) any statutory functions relating to the
procuring of the winding up of any company under the Companies (Jersey) Law 1991 or a declaration that
the property of any person is en désastre under the Bankruptcy (Désastre)
(Jersey) Law 1990; or
(c) the review of any of its decisions.
(3) The
delegation of any functions under this Article –
(a) shall not prevent the exercise of those
functions by the Commission itself; and
(b) may be amended or revoked by the Commission.
12 Guidance
and directions
(1) The
Minister may, after consulting the Commission and where the Minister considers
that it is necessary in the public interest to do so, give to the Commission
guidance or give in writing general directions in respect of the policies to be
followed by the Commission in relation to the supervision and development of
financial services in Jersey and the manner in which any function of the
Commission is to be carried out.[22]
(2) It
shall be the duty of the Commission in carrying out any of its functions to
have regard to any guidance and to act in accordance with any directions given
to it by the Minister under this Article.
13 Publication
of information and advice
(1) The
Commission may publish information or give advice or arrange so to do in such
form and manner as it considers appropriate with respect to –
(a) the operation of this Law or any other
enactment, including in particular the rights of those provided with financial
services, the duties of those who provide such services and the steps to be
taken for enforcing those rights or complying with those duties;
(b) any matters relating to the functions of the
Commission under this Law or any other enactment; or
(c) any other matters relating to financial
services about which it appears to it to be desirable to publish information or
give advice concerning –
(i) the reduction of
the risk to the public of financial loss due to dishonesty, incompetence or
malpractice by or the financial unsoundness of persons carrying on financial
services in or from within Jersey,
(ii) the
protection and enhancement of the reputation and integrity of Jersey in
commercial and financial matters, or
(iii) the
best economic interests of Jersey.[23]
(2) The
Commission may offer for sale copies of information published under this Article
and may, if it thinks fit, make a reasonable charge for advice given under this
Article at any person’s request.
(3) Nothing
in this Article shall be construed as authorizing the disclosure of information
in any case where, apart from the provisions of this Article, it could not be
disclosed.
14 Funding
of the Commission
The funds and resources
of the Commission are –
(a) the
fees and charges payable to the Commission in accordance with Article 15;
(b) any
grant paid to the Commission under Article 16;
(c) any
money borrowed by the Commission in accordance with Article 17;
(ca) the
amount of any penalty paid to the Commission that is not paid or to be paid to
the States under Article 21G; and
(d) any
other money or property, and any income derived from such money or property, as
is lawfully vested in the Commission through the exercise of its powers under
this Law.[24]
15 Published
fees[25]
(1) Where
an enactment provides for the payment to the Commission or the registrar of any
fee for or in respect of the performance of any duty or the exercise of any
power, the fee that may be charged shall be the fee for the time being
published and in effect in accordance with paragraph (5), unless a
contrary intention appears in that enactment.
(2) The
fees mentioned in paragraph (1) are to be retained by the Commission and
must, together with any other income of the Commission, be such as are
necessary –
(a) to
raise sufficient income to meet the Commission’s liabilities;
(b) to
cover the Commission’s expenses; and
(c) to
provide a reserve for the Commission of such amount as it considers necessary.
(3) Before
publishing a fee mentioned in paragraph (1), the Commission must first
publish a report that must include –
(a) details
of the duty or power for or in respect of which the fee is to be determined;
(b) details
of the proposed fee;
(ba) details of the
extent (if any) to which any penalties received have reduced the level of fee
that would otherwise have been proposed;
(c) a
request for comments on the level of the proposed fee; and
(d) a
date, that is at least 28 days after the publication of the report, before
which those comments may be made to the Commission.[26]
(4) If,
by that date or any later date agreed by the Commission, a body that the
Commission is satisfied is representative of the interests of those who would
be required to pay the fee, is unable to agree with the Commission –
(a) a fee
for the performance of a duty or the exercise of a power for or in respect of
which no fee has been published and is in effect under paragraph (5); or
(b) an
increase in an existing fee where the percentage increase in the fee is greater
than the percentage increase in the RPI since the fee last took effect in
accordance with paragraph (5),
the Commission must request
the Bailiff to appoint 3 Jurats to consider if the fee proposed by the
Commission is unreasonable having regard to all the circumstances of the case
and, in particular, the requirement of paragraph (2).
(5) Where –
(a) paragraph (4)
does not apply to a proposed fee; or
(b) Jurats
appointed under that paragraph have agreed a fee proposed by the Commission or
have proposed some other fee,
the Commission shall
publish details of the fee proposed by the Commission or, in the case where
some other fee has been proposed by the Jurats, that fee, which shall have
effect from the date specified in the notice.
(6) Where
an enactment provides that –
(a) a
charge or fee is to be paid to the Commission or registrar; or
(b) a
document is to be filed with or delivered to the Commission or the registrar,
the Commission may charge
a fee, published and in effect in accordance with paragraph (5), for the
late payment of the fee or charge or for the late filing or delivery of the
document.
(7) In
this Article –
“publish”
means publish in a manner that is likely to bring it to the attention of those
affected;
“registrar”
means the registrar of companies appointed pursuant to Article 196 of the Companies
(Jersey) Law 1991;
“RPI” means
the Retail Prices Index published by Statistics Jersey (within the meaning
assigned by Article 2 of the Statistics and
Census (Jersey) Law 2018).[27]
(8) Except
as provided by this Article, nothing in this Article otherwise limits any right
or power the Commission has to charge, recover and receive any fees, charges,
costs, proceeds and other amounts.
16 Grants
to the Commission
(1) In
respect of each financial year the States may make a grant to the Commission
from their annual income towards the expenses of the Commission in carrying out
any of its functions.
(2) The
amount of any grant under paragraph (1) shall be determined by the
Minister after consultation with the Commission, and in determining that amount
the Minister shall have regard to the financial position and projected
financial position of the Commission.
17 Borrowing
by the Commission
(1) For
the purpose of enabling it to carry out its functions, the Commission may
borrow up to 5 times its total annual revenue or such other figure as the
Minister may prescribe by Order.
(2) The
Minister may, on such terms as the Minister may determine, on behalf of the
States –
(a) guarantee the liabilities of the Commission;
or
(b) lend monies to the Commission,
up to the maximum amount
the Commission may borrow under paragraph (1).
18 Investment
of surplus funds
The Commission may invest
any of its funds which are not immediately required in accordance with
guidelines set by the Minister.
19 [28]
20 Exemption
from income tax
The income of the
Commission shall not be liable to income tax under the Income Tax
(Jersey) Law 1961.
21 Accounts,
audit and reports
(1) The
Commission shall –
(a) keep proper accounts and proper records in
relation to the accounts; and
(b) prepare accounts in respect of each
financial year and a report on its operations during the year.
(2) The
Minister shall lay a copy the accounts, audited in accordance with paragraph (3),
and the report prepared by the Commission before the States not later than 7
months after the close of each financial year.[29]
(3) The
accounts of the Commission shall –
(a) be audited by auditors appointed in respect
of each financial year by the Comptroller and Auditor General and qualified for
appointment as auditors of a company by virtue of Article 113 of the Companies (Jersey) Law 1991; and
(b) be prepared in accordance with generally
accepted accounting principles and show a true and fair view of the profit or
loss of the Commission for the period and of the state of the
Commission’s affairs at the end of the period.[30]
(4) In
this Article “financial year” means the period beginning with the
day on which this Law comes into force and ending with the 31st day of December
next following and each subsequent period of 12 months ending with the 31st day
of December in each year.
21A Power to impose
civil financial penalties[31]
(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 –
(a) the
Money Laundering (Jersey) Order 2008; and
(b) the
Codes of Practice issued by the Commission under –
(i) Article 15 of the
Collective Investment Funds
(Jersey) Law 1988;
(ii) Article
19A of the Banking Business (Jersey)
Law 1991,
(iii) Article
42 of the Insurance Business (Jersey)
Law 1996,
(iv) Article
19 of the Financial Services (Jersey)
Law 1998,
(v) Article 22 of the Proceeds of Crime
(Supervisory Bodies) (Jersey) Law 2008,
(vi) Regulation
22 of the Alternative Investment Funds
(Jersey) Regulations 2012.
(3) The Minister may by
Order amend paragraph (2).
21B Level of penalty
and criteria for imposition[32]
(1) The
penalty that the Commission may impose must not exceed the maximum level of
penalties prescribed for the particular type of contravention.
(2) The
Order may prescribe those levels by reference to a fixed amount, a percentage
of the registered person’s income or such other criteria as the Minister
considers appropriate.
(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. [33]
(3A) [34]
(4) The
Commission must publish a statement setting out –
(a) the
principles (including the matters set out in paragraph (3)(a) to (g)) it will
apply in determining the imposition and amount of the penalty, including within
those principles what are the aggravating and mitigating factors, which must be
stated not to be exhaustive; and
(b) the
processes it will follow when exercising the power to impose a penalty.[35]
(5) The
Commission must review the statement from time to time and revise it when it
considers it necessary to do so.
(6) Before
publishing or revising the statement the Commission must consult the Minister,
registered persons and such other persons as the Commission considers
appropriate.
(7) The
Minister may prescribe the principles and processes the Commission must follow
when exercising the power to impose a financial penalty in prescribed
circumstances, and such principles and processes shall override anything in the
Commission’s published statement that is inconsistent with them.
(8) The
Minister must consult the Commission before making any Order under this
Article.
21C Notification
of imposition of penalty[36]
(1) Before
imposing a penalty the Commission must issue and then serve on the registered
person, principal person, key person or any person who performs or performed a
senior management function, as the case may be, a notice (a “notice of
intent”) informing the registered person, principal person, key person or
any person who performs or performed a senior management function, as the case
may be –
(a) that
the Commission proposes to require the registered person, principal person, key
person or any person who performs or performed a senior management function, as
the case may be, to pay a penalty;
(b) of
the Commission’s grounds for believing –
(i) that the
registered person has contravened a Code of Practice or the Money
Laundering (Jersey) Order 2008,
(ii) that
the contravention should give rise to a penalty,
(iii) that
the amount of penalty should be as specified in the notice; and
(c) that
the registered person, principal person, key person or any person who performs
or performed a senior management function, as the case may be, may make
representations to the Commission regarding the imposition of the penalty or
its amount within one month of the date of service.[37]
(2) The
Commission must include within its grounds under paragraph (1)(b) –
(a) details
of the alleged contravention;
(b) how
the proposed penalty has been calculated by reference to any Order made under
Article 21B(1).[38]
(3) The
Commission must consider any representations made within the period specified
under paragraph (1)(c) and if it considers that it is still appropriate to
impose a penalty as proposed in the notice of intent, or as modified in light
of any such representations, it may issue and then serve on the registered
person, principal person, key person or any person who performs or performed a
senior management function, as the case may be, a notice (a “final notice”)
requiring the registered person, principal person, key person or any person who
performs or performed a senior management function, as the case may be, to pay
a penalty.[39]
(4) The
final notice must –
(a) include
the matters mentioned in paragraph (1)(b) but modified as the Commission
considers appropriate in the light of any representations made;
(b) specify
the date by which payment of the penalty must be made, being a date not less
than 2 months after the date of service of the final notice;
(c) specify
how payment must be made;
(d) advise
the registered person, principal person, key person or any person who performs
or performed a senior management function, as the case may be, of the surcharge
that may be imposed under Article 21E(1) in the event of late payment;
(e) advise
the registered person, principal person, key person or any person who performs
or performed a senior management function, as the case may be, of the
Commission’s power to enforce the penalty under Article 21E(4); and
(f) advise
the registered person, principal person, key person or any person who performs
or performed a senior management function, as the case may be, of the right of
appeal against the imposition or amount of the penalty under Article 21F.[40]
(5) When
issuing a notice under this Article the Commission need not
specify –
(a) any
reason that would, in its opinion, involve disclosing confidential information
the disclosure of which would be prejudicial to a third party; or
(b) the
same reasons, or reasons in the same manner, when issuing notices to different
registered persons, principal persons, key persons or any person who performs or
performed a senior management function, about the same matter.[41]
21D Restrictions on
powers of Commission in respect of notices[42]
(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.[43]
(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, 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.[44]
(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. [45]
(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.[46]
(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.[47]
(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.[48]
(3) The
Commission may not issue a public statement about the issue or service of
notice under Article 21C except in the case of a final notice and then
only –
(a) where
the period within which an appeal against the imposition of a penalty may be
lodged has expired without an appeal having been lodged; or
(b) if
such an appeal has been lodged, after it is determined by the court or
withdrawn.
(4) The
States may by Regulations amend the time limit set out in paragraph (2D).[49]
(5) In
this Article “public statement” means a statement issued under any
of the enactments mentioned in Article 21A(2).
21E Late payment
surcharge and enforcement[50]
(1) If
any part of a penalty imposed by the Commission remains unpaid after the date
for payment specified in the final notice under Article 21C(3), the amount
unpaid attracts a surcharge of 5% for each complete month that it remains
unpaid.
(2) However –
(a) in
computing the surcharge, the time from when any appeal is lodged under Article 21F
till the appeal is determined by the court or withdrawn, must be disregarded;
(b) the
Commission has a discretion to waive, or reduce the amount of, any surcharge.
(3) The
Minister may by Order, on the recommendation of the Commission, vary the
percentage set out in paragraph (1).
(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.[51]
21F Appeal
against imposition of penalty[52]
(1) A
registered person, principal person, key person or any person who performs or
performed a senior management function may appeal to the Royal Court against
the imposition of a penalty or the amount of penalty imposed only on the ground
that the decision of the Commission was unreasonable having regard to all the
circumstances of the case.[53]
(2) The
appeal must be lodged with the Royal Court no later than a month after the date
of service of the final notice under Article 21C(3).
(3) Once
an appeal has been lodged the Commission must not take any action to enforce
payment of the penalty until the conclusion of the appeal.
(4) On
hearing the appeal the Royal Court may confirm or rescind the imposition of the
penalty, substitute a penalty of a different amount or make such other interim
or final order as it thinks fit.
21G Proceeds of
penalties[54]
(1) Subject
to this Article the Commission may retain any sum of money it receives in
respect of a penalty as part of its income.
(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, key person or a person who
performs or performed a senior management function, of which the person is a principal
person, key person or a person who performs or performed a senior management
function,
so as to reduce the level
of fees that would otherwise have been charged to those registered persons.[55]
(3) However,
if the result of the application of paragraph (2) would be to reduce
substantially the level of fees that the Commission would otherwise have
charged, the Commission may pay the money, or a proportion of it, to the
States.
(4) An
Order may prescribe the circumstances in which money received by the Commission
in respect of a penalty must be paid to the States.
(5) The
Order may be made –
(a) only
to the extent that the Commission has not already applied the money so as to
reduce the level of fees that would otherwise be charged; but
(b) irrespective
of when the money was received or is due to be received by the Commission.
(6) Before
making an Order under this Article the Minister must consult the Commission and
take account of the requirement under Article 15(2)(c) for the Commission
to maintain a reserve and its need to meet contingent liabilities, in
particular those relating to the costs of investigations or litigation.
22 General
provisions as to Regulations and Orders
(1) The
Minister may by Order make provision for the purpose of carrying this Law into
effect and, in particular, but without prejudice to the generality of the foregoing,
for prescribing any matter which may be prescribed under this Law by Order.
(2) Any
Regulations or Order made under this Law may –
(a) make different provision in relation to
different cases or circumstances;
(b) contain such transitional, consequential,
incidental or supplementary provisions as appear to the States or the Minister,
as the case may be, to be necessary or expedient for the purposes of the Regulations
or Order.
(3) [56]
23 Transitional
provisions
On the commencement of this Law the transitional provisions
contained in Schedule 2 shall have effect.
24 Citation
This Law may be cited as
the Financial Services Commission (Jersey) Law 1998.