ENF 2.8 The FSA's policy for exercising its power to conduct investigations to assist overseas authorities

The FSA's power to conduct investigations to assist overseas authorities is contained in section 169 of the Act (see ENF 2.3.16 G).

Section 169(1) states that at the request of an overseas regulator, the FSA may use its power under section 165 of the Act (FSA's power to require information) power to require information and documents, or appoint a person to investigate any matter. These are referred to as the FSA's investigative powers.

If the overseas regulator is a competent authority and makes a request under any Community obligation, section 169(3) states that the FSA must, in deciding whether or not to exercise its investigative power, consider whether it is necessary to use it to comply with that obligation.

Section 169(6) states that, if the FSA considers that the use of its investigative power is necessary to comply with a Community obligation, the provisions of section 169(4) and (5) (set out in ENF 2.8.5 G and ENF 2.8.6 G) do not apply.

Under section 169(4), in deciding whether or not to use its investigative power, the FSA may take into account in particular the following factors:

1. (1)

   whether, in the country or territory of the overseas regulator concerned, corresponding assistance would be given to a UK regulatory authority;

2. (2)

   whether the case concerns the breach of a law, or other requirement, which has no close parallel in the United Kingdom or involves the assertion of a jurisdiction not recognised by the United Kingdom;

3. (3)

   the seriousness of the case and its importance to persons in the United Kingdom; and

4. (4)

   whether it is otherwise appropriate in the public interest to give the assistance sought.

Section 169(5) states that the FSA may decide not to use its investigative power unless the overseas regulator agrees to make such contribution towards the cost as the FSA considers appropriate.

When it considers whether to use its investigative power, and whether section 169(4) applies, the FSA will first consider whether it is able to assist without using its formal powers, for example by getting the information voluntarily. Where that is not possible, the FSA will take account of all the factors in ENF 2.8.5 G, but may give particular weight to the seriousness of the case and its importance to persons in the United Kingdom, and to the public interest.