United Kingdom
The Financial Services and Markets Act is the U.K. legislation under which bodies corporate, partnerships, individuals and unincorporated associations are permitted to carry on various regulated financial activities.
Overview: This Act is the U.K. legislation under which bodies corporate, partnerships, individuals and unincorporated associations are permitted by the Financial Conduct Authority (FCA) or the Prudential Regulation Authority (PRA) to carry on various regulated financial activities.
Part 1: Introductory provisions
Interpretation [See note below on changes to U.K. MAR]
“market abuse” means a contravention of Article 14 (prohibition of insider dealing and of unlawful disclosure of inside information) or 15 (prohibition of market manipulation) of the market abuse regulation;
“market abuse regulation” means Regulation (EU) No 596/2014 of the European Parliament and of the Council on market abuse (market abuse regulation) and repealing Directive 4 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC(a);
Part 3: Position limits in commodity derivatives
Procedure for establishing position limits
(2) The FCA must establish position limits under regulation 14 on the basis of all positions held by a person in the contract to which the limit relates and those held on the person’s behalf at an aggregate group level in order to—
(a) prevent market abuse; and
(b) support orderly pricing and settlement conditions, which includes, but is not restricted to—
(i) preventing market distorting positions; and
(ii) ensuring convergence between prices of commodity derivatives in the delivery month and spot price for the underlying commodity without prejudice to price discovery on the market for the underlying commodity; and …
Part 4: Algorithmic trading, provision of direct electronic access and clearing services and business clocks
Algorithmic trading
(3) M [a multilateral trading facility that engages in algorithmic trading] must have in place effective systems and risk controls to ensure that M’s trading systems cannot be used for any purpose that is contrary to—
(a) the market abuse regulation; or
(b) the rules of a trading venue to which it is connected.
Direct electronic access
(4) M must have in place effective systems and controls which ensure— …
(d) risk controls prevent trading by clients which — … (iii) could be contrary to the market abuse regulation; or …
(5) M must monitor the transactions made by clients to which it provides direct electronic access to a regulated market or multilateral trading venue to identify— … (c) conduct which may involve market abuse.
(6) If M’s monitoring under paragraph (5) identifies an infringement of the rules of regulated market or multilateral trading facility, disorderly trading conditions, or conduct which may involve market abuse M must notify the FCA;
Part 6: Administration and enforcement of Part 3, 4, and 5
Chapter 2: Application and modification of the Act for the purposes of the Regulation
Application of Part 25 of the Act (restitution orders)
49: …
(6) Section 381 (injunctions in cases of market abuse) does not have effect.
(8) Section 383 (restitution orders in cases of market abuse) does not have effect.
Part 7: Amendments to legislation and transitional arrangements
Schedule 1: Amendments to the Financial Services and Markets Act 2000
Power to suspend auctioning of financial instruments
122IA. …
13. — (1) Section 129(7) (power of the court to impose administrative sanctions in cases of market abuse) is amended as follows.
(2) In subsection (7), in the definition of “temporary prohibition”—
(a) at the end of paragraph (a) omit “or”;
(b) in paragraph (b) for “.”, substitute “; or”; and
(c) after paragraph (b) insert—
“(c) making a bid, on his or her own account or the account of a third party, directly or indirectly, at an auction conducted by a recognized auction platform.”
Notification of conduct concerns
299A. — … (2) If the FCA receives a notification from a recognized investment exchange that there has been conduct that may indicate behavior which is prohibited under the market abuse regulation on, or related to, a trading venue operated by it the FCA must inform ESMA and the competent authorities of all other EEA States of that notification when it is convinced that such behavior is being, or has been, carried out.
FCA’s power in respect of management body
299AB . — … (3) Subsection (4) applies if the FCA receives notice from—
(a) an institution, in relation to a trading venue it operates; or
(b) the competent authority of another EEA State, acting pursuant to Article 52(2) of the markets in financial instruments directive, that it has required the suspension, or removal, from trading of a financial instrument, including any derivative which relates or is referenced to it, due to suspected market abuse, a take-over bid or the non-disclosure of inside information about the issuer or financial instrument infringing Articles 7 and 17 of the market abuse regulation.
Schedule 2: Amendments to secondar legislation made under the Act
Part 1: Consequential amendments to the Financial Services and Markets Act 2000 (Recognition Requirements for Investment Exchanges and Clearing Houses) Regulations 2001
34. Section 313C (notification in relation to suspension or removal of a financial instrument from trading) is amended as follows.
(3) Subsection (4) applies if the FCA receives notice from— (a) an institution, in relation to a trading venue it operates; or
(b) the competent authority of another EEA State, acting pursuant to Article 52(2) of the markets in financial instruments directive,
that it has required the suspension, or removal, from trading of a financial instrument, including any derivative which relates or is referenced to it, due to suspected market abuse, a take-over bid or the non-disclosure of inside information about the issuer or financial instrument infringing Articles 7 and 17 of the market abuse regulation.
FCA Rules
Management body
2B. — … (3) For the purposes of sub-paragraph (2)(c), the exchange must— … (b) monitor orders sent including cancellations and the transactions undertaken by its members or participants under its systems in order to identify infringements of those rules, disorderly trading conditions or conduct that may indicate behavior that is prohibited under the market abuse regulation or system disruptions in relation to a financial instrument.
Fee structures
3E. — (1) The exchange’s fee structure, for all fees it charges and rebates it grants, must— … (b) not create incentives to place, modify or cancel orders, or execute transactions, in a way which contributes to disorderly trading conditions or market abuse; and …
Synchronization of business clocks
3H. The exchange must synchronize the business clocks it uses to record the date and time of any reportable event in accordance with regulatory technical standards adopted by the European Commission pursuant to Article 50 of the markets in financial instruments directive.” …
(7) In paragraph 4 of the Schedule(a) (safeguards for investors), in sub-paragraph (2) — …
(c) after paragraph (f) omit “and” and insert —
“(fa) it immediately reports to the FCA any significant breaches of its rules or disorderly trading conditions or conduct that may indicate behavior which is prohibited under the market abuse regulation or system disruptions in relation to a financial instrument; and”.
Specific requirements for regulated markets; admission of financial instruments to trading
9ZB. — (1) The rules of the exchange must ensure that all — … (6) In this paragraph — … (a) Articles 17, 18 and 19 of the market abuse regulation;
NOTE:
According to the FCA, changes to EU MAR were made by the Market Abuse Exit Regulations 2019, to make sure that the onshored legislation (UK MAR) operates effectively in the UK.
The EU technical standards for EU MAR were also onshored into UK law on 31 December 2020 by the EU (Withdrawal) Act 2018 and were amended by FCA 2019/45.
Changes to the FCA’s Handbook were made by FCA 2019/23 in relation to the Market Conduct Sourcebook, and by FCA 2019/26 in relation to the Disclosure Guidance and Transparency Rules sourcebook.
Further changes to UK MAR were made by The Recognised Auction Platforms (Amendment and Miscellaneous Provisions) Regulations 2021 to include the UK Emission Trading Scheme, with related changes to technical standards made by FCA/2021/16. Changes to UK MAR were also made by the Financial Services Act 2021 in relation to insider lists and managers’ transaction (see section 30 of the Act).
UK MAR aims to increase market integrity and investor protection, enhancing the attractiveness of securities markets for capital raising. It contains prohibitions of insider dealing, unlawful disclosure of inside information and market manipulation, and provisions to prevent and detect these.
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The EU recently passed the Markets in Crypto-Assets (MiCA) regulation which will go into effect in 2024. The monumental vote will set global standards for the regulation of crypto-assets. Read our paper to learn more about the articles within MiCA pertaining to market abuse.
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With MiCA scheduled to go into effect in 2024, crypto-asset market participants should expect more stringent surveillance requirements once the regulation is implemented. Now is the time to implement technology and processes to monitor for market abuse, money laundering, and fraud – not only to ensure compliance, but also to protect investors, instill confidence, promote integrity, and attract clients.
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