ENF 14.9 Action involving other UK regulatory authorities
As stated in ENF 11.8 (Action involving other regulatory authorities), some market abuse cases may involve not only potential action by the FSA, but also potential action by other regulatory authorities. In relation to behaviour which may have occurred or be occurring on a prescribed market, the FSA will refer to the relevant RIE and give due weight to its views. In a case where the FSA considers that it would be appropriate to bring action against a person under the market abuse regime, the relevant RIE may also wish to bring action against the person for breaches of its own rules. In each case, the FSA will coordinate action with the RIE concerned to ensure that cases are dealt with effectively and fairly, under operating arrangements [to be agreed] between the FSA and the RIEs. The FSA will have regard to all the circumstances of the case, including whether the other regulatory authorities have adequate powers to address the behaviour in question.
In relation to behaviour which may have happened or be happening in the context of a takeover bid or to which the SARs are relevant, the FSA will refer to the Takeover Panel and give due weight to its views. Where the Takeover Code or SARs has procedures for complaint about any behaviour, the FSA expects parties to exhaust those procedures. The FSA will not, save in exceptional circumstances, take action under any of section 123 (FSA's power to impose penalties), section 129 (Power of court to impose penalties), section 381 (Injunctions - see ENF 6), sections 383 or 384 (Restitution - see ENF 9) in respect of behaviour to which the Takeover Code or SARs are relevant before the conclusion of the procedures available under the Takeover Code or the SARs, as the case may be.
The FSA will not take action against a person over behaviour which (a) conforms with the Takeover Code or rules of an RIE and (b) falls within the terms of any provision of the Code of Market Conduct which states that behaviour so conforming does not amount to market abuse. The FSA will seek the Takeover Panel's or relevant RIE's views on whether behaviour complies with the Takeover Code or RIE rules and will attach considerable weight to its views.
If any of the circumstances in ENF 14.9.6 G apply, and the FSA considers that the use of its disciplinary powers under section 123 or 129, or of its injunctive powers under section 381 or of its powers relating to restitution under section 383 or 384 is appropriate, it will not take action during an offer to which the Takeover Code or SARs apply except in the circumstances set out in ENF 14.9.7 G.
In any case where the FSA considers that the use of its powers under any of sections 123, 129, 381, 383 or 384 of the Act may be appropriate, if that use may affect the timetable or outcome of a takeover bid or a tender offer governed by the SARs, it will consult the Takeover Panel before using any of those powers.
Where the behaviour of a person which amounts to market abuse is behaviour to which the Takeover Code or the SARs are relevant, the use of the Takeover Panel's informal powers will often be sufficient to address the relevant concerns. In cases where this is not so, the FSA will need to consider, against the background of this manual, whether it is appropriate to use any of its own powers under the market abuse regime. The principal circumstances in which the FSA is likely to consider such exercise are:
- (1)
where the Takeover Panel is unable to investigate properly due to lack of cooperation by the relevant person;
- (2)
where the behaviour falls within sections 118(2)(a) , 118(3) or 118(4)1of the Act;
1 - (3)
where a person has deliberately or recklessly failed to comply with a Takeover Panel ruling;
- (4)
where the FSA's approach in previous similar cases (which may have happened otherwise than in the context of a takeover bid) suggests that a financial penalty should be imposed (see ENF 14.6.2 G (4));
- (5)
where the Takeover Panel asks the FSA to consider the use of its powers to impose a financial penalty;
- (6)
where the behaviour extends to securities or a class of securities which may be outside the Takeover Panel's jurisdiction;
- (7)
where the behaviour threatens or has threatened the stability of the financial system; and
- (8)
where for any other reason the Takeover Panel asks the FSA to consider the use of any of its powers referred to in ENF 14.9.2 G.
The exceptional circumstances in which the FSA will consider the use of powers during a takeover bid are listed in ENF 14.9.6 G (1) to ENF 14.9.6 G (3), ENF 14.9.6 G (6), ENF 14.9.6 G (7) and, depending on the circumstances, ENF 14.9.6 G (8).
The guidance given in ENF 14.9.6 G and ENF 14.9.7 G does not apply to a person who has no responsibilities under the Takeover Code.
Where the FSA proposes to publish details of financial penalties it has imposed in relation to behaviour which has happened in the context of a takeover bid, it will consult the Takeover Panel over the timing of publication where the FSA is of the opinion that publication may affect the timetable or outcome of that bid, and will give due weight to the Takeover Panel's views.