EG 19.38A Securitisation (Amendment) (EU Exit) Regulations 2019

1Supervisory and enforcement functions in respect of securitisation repositories under the Securitisation Regulation were transferred from ESMA to the FCA through the Securitisation (Amendment) (EU Exit) Regulations on IP completion day. The Securitisation (Amendment) (EU Exit) Regulations amend the Securitisation Regulation to, amongst other reasons, apply the Trade Repositories (EU Exit) Regulations. In places, these regulations in turn apply provisions of the Act.

1The FCA’s approach to enforcement under the Securitisation Regulation in relation to securitisation repositories will mirror our general approach to enforcing the Act, as set out in EG. We will seek to exercise our enforcement powers in a manner that is transparent, proportionate, responsive to the issue and consistent with our publicly stated policies. We will also seek to ensure fair treatment when exercising our enforcement powers. Finally, we will aim to change the behaviour of the person who is the subject of our action, to deter future non-compliance by others, to eliminate any financial gain or benefit from non-compliance and, where appropriate, to remedy harm caused by non-compliance.

1The regulatory powers which the Securitisation (Amendment) (EU Exit) Regulations provide to the FCA include the power:

1. (1)

   to require information and appoint investigators;

2. (2)

   of entry and inspection;

3. (3)

   to publicly censure;

4. (4)

   to impose financial penalties; and

5. (5)

   to apply for an injunction.

1The Securitisation (Amendment) (EU Exit) Regulations and the Trade Repositories (EU Exit) Regulations apply much of Part 11 of the Act. The effect of this is to apply the same procedures under the Act for appointing investigators and requiring information when investigating breaches of the Securitisation Regulation.

1The FCA will notify the subject of the investigation that we have appointed investigators to carry out an investigation under the Securitisation Regulation and the reasons for the appointment, unless notification is likely to prejudice the investigation or otherwise result in it being frustrated. The FCA expects to carry out a scoping visit early on in the enforcement process in most cases. The FCA’s policy in non-criminal investigations under the Securitisation Regulation is to use powers to compel the provision of information in the same way as we would during an investigation under the Act.

1The decision-making procedures for those decisions under the Securitisation Regulation requiring the giving of a warning notice, decision notice or supervisory notice are dealt with in DEPP.

1The Securitisation Regulation requires the FCA to give third party rights as set out in section 393 of the Act, and to give access to certain material as set out in section 394 of the Act as applied by the Securitisation Regulation and the Trade Repositories (EU Exit) Regulations.

1When determining whether to take action to impose a penalty or to issue a public censure under the Securitisation Regulation, the FCA’s policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. The FCA’s policy in relation to determining the level of a financial penalty includes having regard, where relevant, to DEPP 6.5, DEPP 6.5A, DEPP 6.5B and DEPP 6.5D.

1As with cases under the Act, the FCA may settle or mediate appropriate cases involving non-criminal breaches of the Securitisation Regulation to assist us to exercise our functions under the Securitisation Regulation in the most efficient and economical way. See DEPP 5, DEPP 6.7 and EG 5 for further information on the settlement process and the settlement discount scheme.

1The FCA will apply the approach to publicity that is outlined in EG 6, read in light of regulation 76 of the Trade Repositories (EU Exit) Regulations as applied by article 15 of the Securitisation Regulation.

1The Securitisation (Amendment) (EU Exit) Regulations amend the Securitisation Regulation to apply regulation 75 of the Trade Repositories (EU Exit) Regulations, which in turn applies section 169 of the Act. This requires the FCA to publish a statement of policy on the conduct of certain interviews in response to requests from overseas regulators. For the purposes of the Securitisation Regulation, the FCA will follow the procedures described in DEPP 7.