Financial Services Commission (Amendment No. 7) (Jersey) Law 2018

Financial Services Commission (Amendment No. 7) ( Jersey) Law 2018 Arrangement Article 1 Interpretation . 3 2 Article 1 amended . 3 3 Article 3 amended . 4 4 Article 10 amended . 4 5 Article 21A amended . 5 6 Article 21B amended . 5 7 Article 21C amended . 6 8 Article 21D amended . 6 9 Article 21E amended . 7 10 Article 21F amended . 7 11 Article 21G amended . 7 12 Schedule 1 amended . 7 13 Financial Services Commission (Financial Penalties) (Jersey) Order 2015 amended 8 14 Alternative Investment Funds (Jersey) Regulations 2012 amended . 8 15 Banking Business (Jersey) Law 1991 amended . 8 16 Financial Services (Jersey) Law 1998 amended . 9 17 Insurance Business (Jersey) Law 1996 amended . 9 18 Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008 amended . 9 19 Citation and commencement 9 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 Interpretatio n 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 – “3 Level of penalties 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 [1] chapter 13.250 [2] chapter 13.075 [3] chapter 13.425 [4] chapter 13.225 [5] chapter 08.785 [6] chapter 17.245.51 [7] L.28/2018 [8] chapter 13.250.30 [9] chapter 17.245.51 [10] chapter 13.250 [11] chapter 13.075 [12] chapter 13.250 [13] chapter 13.225 [14] chapter 13.250 [15] chapter 13.425 [16] chapter 13.250 [17] chapter 08.785