Financial Services and Markets Act 2000 - An Overview

The Financial Services and Markets Act 2000 ("the Act") received Royal Assent in the United Kingdom on the 14 June 2000. Since then the UK Treasury and the Financial Services Authority (see below) have been drafting and consulting on the large amount of secondary legislation and rules required before the Act can come into force. The date of coming into force in respect of most regulated business is known as "N2" at midnight on 30 November 2001 the regulation of mortgages, for example, beginning at the end of August 2002.

The Act will establish a single statutory regime for the regulation of many kinds of financial sector business and a single statutory regulator, the Financial Services Authority ("the FSA"), to replace nine existing financial services regulators, including the Self-Regulating Organisations (the SFA, the PIA and IMRO). The FSA acquires formal statutory responsibility for the regulation of insurers, building societies and friendly societies. The FSA already exercises the banking regulatory functions of the Bank of England. It will also take over external regulation of the Lloyd’s insurance market and will regulate firms which were formerly authorised to carry on investment business by professional bodies such as the accountancy bodies and the Law Society.

Under the Act, the FSA must act in a way which is, so far as is reasonably possible, compatible with its four regulatory objectives. When the FSA exercises its rule-making powers, it will have to set out how the proposal fits into this framework. The objectives are:

a. maintaining confidence in the financial system;

b. promoting public understanding of the financial system;

c. securing the appropriate degree of protection for consumers; and

d. the reduction of financial crime by regulated persons and by those who are carrying on regulated activity in contravention of the General Prohibition in Section 21, (as to which, see "Financial Promotion" below).

Under the Act, the FSA is given statutory powers over authorised persons in the main, but also over any person, whether or not authorised, in relation to market abuse, market manipulation, financial promotion and investigations.

This note gives a brief overview of the Act and summarises two key aspects of the changes brought about by the Act which will impact on unauthorised persons. The note is for general information only and specific legal advice should be sought in relation to any particular issues which may arise.

This is a summary of the new market abuse regime and focuses on its impact on companies. We have also prepared a more detailed briefing on the new market abuse regime generally.

Market abuse is behaviour which relates to, or has an impact on, investments traded on a UK market and which does not meet the standard of behaviour reasonably expected of a person in that market because it involves a misuse of information, the creation of a false or misleading impression, or the distortion of the market in the investments.

Market abuse is a civil rather than a criminal offence. This means that there is a lower standard of proof and whether or not a person is guilty of market abuse is determined by the FSA rather than by a court or a jury. Market abuse gives rise to a liability to pay an unlimited penalty to the FSA, or to be censured by the FSA, and can be prohibited by the FSA by way of an injunction or can be the subject of a restitution order.

The FSA has issued a code to provide guidance as to what behaviour amounts to market abuse. This code is the FSA’s Code of Market Conduct and is set out in Chapter 1 of the Market Conduct Source Book in the FSA Handbook. The Code will be crucial in determining whether particular conduct amounts to market abuse or whether the conduct falls within one of the safe harbours created by the Code.

The new market abuse regime supplements the existing criminal offences of insider dealing and the creation of a false market; it does not replace them, and they continue as before. The only change in relation to these offences is that the FSA now has power to prosecute for these offences as well as taking action in relation to market abuse.

Prior to the introduction of the market abuse regime, only a narrow range of very serious misconduct was caught by the two existing criminal offences and there were very few prosecutions. The new market abuse regime gives the FSA a much greater power to pursue those who manipulate or abuse financial markets. It has a much wider remit in terms of the behaviour which it prohibits and it is not just aimed at criminal behaviour but at behaviour which undermines confidence in the market. The tests applied are objective - it is not necessary to show any intention to deceive or manipulate, it is enough to show that the standard falls below those expected.

The draft European Directive on market abuse has very much the same aims as the UK market abuse regime and is similar in its approach – that is to create a wide ranging civil regime covering market manipulation in order to maintain confidence in European financial markets.

In summary, for behaviour to constitute market abuse under the Act it must:

• occur in relation to a "qualifying investment" (which includes the full range of debt and equity securities, futures and options) on a prescribed UK market; and
• satisfy one or more of the following conditions:

• fall below the standard expected by a regular user of the market ("the regular user test"); and
• not fall within a safe harbour created by the FSA’s Code of Market Conduct.

The three categories of behaviour constituting market abuse, as defined in the Act are:

In order for behaviour to constitute market abuse, not only must it fall within one of the three categories set out above but it must also meet the regular user test. This means that it must be behaviour:

A regular user is defined as a reasonable person who regularly deals on the market in investments of the kind in question.

The regular user test is not the same as a test relating to what is normal practice. Although normal market practices will in general not amount to market abuse, there is no safe harbour in this respect - it is open to the FSA to decide that certain normal market practices do nevertheless constitute market abuse.

The Code of Market Conduct sets out certain safe harbours from the market abuse regime. In particular, there are specific safe harbours for UK listed companies in relation to compliance with some of the specific provisions of the UK Listing Rules.

It is important to note that it is irrelevant where the person accused of market abuse is located or where the behaviour takes place.

All that is required is that the behaviour occurs in relation to "qualifying investments" (see above) on a "prescribed market". The prescribed markets are all of the UK recognised investment exchanges:

• the London Stock Exchange (the main market and Alternative Investment Market ("AIM"));
• LIFFE;
• the London Metal Exchange;
• the International Petroleum Exchange;
• OM London Exchange;
• Virt-x;
• COREDEAL;
• Jiway;

OFEX (a trading facility operated by JP Jenkins) is also now a prescribed market even though it is not an RIE.

A further key point is that the behaviour need only be "in relation to" the investment and need not involve the investment directly. For example, action taken in Germany in relation to a company’s shares traded on the Frankfurt DAX will be caught if that company’s shares, to which the DAX traded shares relate, are also traded on the London Stock Exchange.

Under the Act, the sanctions available to the FSA for market abuse against any person (including for this purpose a legal person such as a company or partnership as well as an individual) are:

• A public censure
• An unlimited fine
• Asking the court to make a restitution order under which the court may order any amount paid to the FSA pursuant to the order to be paid out to those who have suffered a loss as a result of the market abuse
• An injunction to prevent market abuse or a freezing order to prevent the disposal of assets.

Behaviour in relation to other securities or investments

When a company is acting in relation to another company’s securities traded on a UK exchange, it will have to consider the same issues in relation to market abuse as any other person would. For example, it will have to consider whether it has any confidential information which might result in the transaction being regarded as a misuse of information or whether a particular dealing or action might lead to a false or misleading impression or a distortion of the market.

Behaviour in relation to own securities or information

In relation to the release of a listed company’s own confidential information to the market, the Code of Market Conduct imposes a more onerous set of requirements on the listed company, and a lower threshold to cross, than for other market participants. The fact that there are safe harbours for listed companies in relation to compliance with specific provisions of the Listing Rules should not give listed companies and their directors a false sense of security that their position is better than other market participants - in fact they have more stringent tests imposed on them.

Specifically, the two circumstances described in the Code in which a listed company or its directors could be guilty of market abuse in relation to information about the company’s own securities, are:

• If a listed company releases official information through an "accepted channel" (e.g. the Regulatory News Service) and that information is false or misleading and the company or its directors have failed to take reasonable care when issuing the information, then the listed company may be guilty of market abuse by creating a false or misleading impression.
• If a listed company discloses its own confidential information to persons other than those described in the Code of Market Conduct (which essentially corresponds with the limited range of people to which such information can be disclosed under the Listing Rules, prior to a Chapter 9 announcement) and other than for a legitimate purpose and subject to a confidentiality restriction, then the listed company could be guilty of encouraging market abuse by way of misuse of relevant information. This second category imposes a three-fold test that companies must adhere to before disclosing confidential information. The disclosure must be to a permitted person, for a legitimate purpose and subject to a confidentiality restriction. It is not, of course, always appropriate or realistic to obtain a formal confidentiality undertaking, for example when a company is dealing with its advisers, but the company should nevertheless be careful to ensure that its advisers know when the information it discloses to them is confidential or subject to an embargo. When dealing with a counterparty on a transaction there should be a formal confidentiality undertaking and the Code of Market Conduct suggests that this should include a statement to the effect that the recipient should not base any behaviour in relation to any relevant investments which would amount to market abuse on the information until the information is made generally available.

It should also be noted that the test of what is "relevant information" for the purposes of determining whether there has been market abuse as a result of the misuse of that information, is different from the definition of price sensitive information in the Listing Rules. Price sensitive information for the purposes of Chapter 9 of the Listing Rules, is information which is not public knowledge and which, if made public, may lead to a substantial movement in the price of its listed securities.

Both types of behaviour described above would almost inevitably also be in breach of Chapter 9 of the Listing Rules in relation to the disclosure of price sensitive information. Looking at it the other way, a failure to comply with Chapter 9 of the Listing Rules, is now also going to put the company and the directors at risk of an allegation of market abuse.

For example, disclosure of price sensitive information to analysts during analysts’ meetings has always been thought of in the context of whether or not that disclosure constitutes a breach of the Chapter 9 requirement not to selectively disclose price sensitive information. Now, it could also constitute market abuse by way of disclosure of confidential information to persons not listed in the Code. Selective leaks to the press about a potential transaction could equally be caught by the market abuse regime (as misuse of information) as well as by Chapter 9.

Similarly, when companies are considering whether or not to issue a profits warning or trading statement, they should now be aware that failure to do so would not only be a breach of the Listing Rules, but also constitute market abuse by the creation of a false or misleading impression (given that, for the purposes of market abuse, "behaviour" includes inaction as well as action).

The other side of the coin is that, if a company is able to show that it has complied with its Chapter 9 obligations in relation to the release of information, then it is highly unlikely that the FSA would take action against it in relation to market abuse as regards that release of information. The new UKLA Guidance Manual (described below) contains the UKLA’s updated guidance on the dissemination of price-sensitive information (the "PSI Guide"). The PSI Guide is important for directors of listed companies in the context of the announcement of price sensitive information to the market under Chapter 9 of the Listing Rules. If a listed company acts in accordance with the guidance set out in the PSI Guide, the UKLA will proceed on the basis that the company and its directors have complied with the aspects of the Listing Rule to which the guidance relates. Compliance with the PSI Guide is therefore also important in avoiding any allegation of market abuse.

Given the new market abuse regime and the focus the FSA is likely to be placing on enforcement, listed companies should ensure that they take a prudent approach in relation to price sensitive information. For example, they should take a prudent approach in assessing whether an announcement needs to be made and ensure that the announcement is made promptly.

Listed companies will also find that their financial advisers and brokers and the analysts with whom they deal will be adopting a more cautious approach and may be changing some of their standard practices when dealing with the company because of the new regime.

The restriction on financial promotion is contained in Section 21 of the Act. This provides that a person must not, in the course of business, communicate an invitation or inducement to engage in investment activity unless he is an authorised person or the content of the communication is approved by an authorised person or an exemption to the prohibition applies.

The prohibition is the replacement for the restriction on investment advertisements in Section 57 of the Financial Services Act 1986 ("FSA 1986") and the prohibition on unsolicited calls contained in Section 56 of the FSA 1986.

The effect of the new regime is to consolidate the former different regimes for the marketing of financial services, deposits and insurance, to consolidate the previously different regimes for specific types of communication and to extend the regime to all types of communication whatever form they take.

Compliance with the regime is essential as a breach is a criminal offence and can result in an investment agreement being unenforceable.

The FSA is preparing detailed guidance on the new regime and its views on the width of the various exemptions, but this is not yet available.

The key changes from the current law and regulation in this area are:

• The terms "investment advertisement" and "unsolicited call" are replaced with the wider concept of "communicating" an invitation or inducement to engage in investment activity. This radically extends the UK statutory prohibition and covers any type of communication including e-mails, telephone calls, letters and meetings and, more generally, catches all aspects of a transaction involving investments even where there is no advertisement. It means that the scope of the financial promotion restriction for unauthorised persons is much wider under the new regime. For example, the negotiation between two parties of an investment agreement was never an issue under the old investment advertisement regime but, under the new regime, that negotiation could constitute an invitation or inducement by one party to engage in investment activity (that is to dispose of or acquire shares), and a suitable exemption may need to be found. Exemptions will therefore become very important in avoiding a breach.
• Although the new framework preserves nearly all of the previous exemptions from the investment advertisement regime, the change in the nature of the prohibition from the narrow concepts of investment advertisements and cold calling to the much wider generic concept of "communications" means that these have to be completely reconsidered in relation to any particular communication. Exemptions now have to be found for many activities which were not previously caught by a prohibition.
• New key concepts which need to be considered each time include "real time communications" and "non-real time communications" together with "solicited" and "unsolicited" real time communications (as described below).

Secondary UK legislation, the Financial Promotion Order, creates 58 exemptions to the prohibition, each of which is complex and technical. Care needs to be taken to ensure that investment communications fall within an exemption, otherwise they will be unlawful if not issued or approved by an authorised person. The exemptions allow an unauthorised person to communicate a promotion without the approval of an authorised person.

The section 21 prohibition applies to promotions regardless of the type or means of communication. However, because of the recognition that cold calling needs to be restricted more than other types of promotion, a distinction has been created in the Financial Promotion Order between "real time" and "non-real time" communications and between "solicited" and "unsolicited" real time communications.

Certain exemptions are only available for certain types of communication and in particular many do not apply to "unsolicited real time" communications. It will often be crucial to determine whether a communication is "real time" and, if so, if it is "unsolicited" in order to decide whether an exemption applies.

The test of what is "real time" is, despite the word used, not whether the communication is instantaneous but whether it is interactive. Real time communications are defined as those which take place in the course of a personal visit, telephone conversation or other interactive dialogue. Non-real time communications are any other form of communication. The Financial Promotion Order states that communications made by letter or e-mail or contained in publications (which means newspapers/magazines, websites, radio and television broadcasts and teletext services) will be regarded as non-real time communications.

A real time communication is solicited if it is initiated by, or made at the express request of, the recipient.

It is certainly advisable, for initial documentation on a transaction, such as a confidentiality undertaking or information memorandum, to include such a statement confirming an express request to receive real time communications in order to allow communications in relation to that transaction to be treated as "solicited".

An important point for companies is that the exemptions for communications by a company to its own members and communications by a listed company which are only an inducement (with no invitation) about its own securities, do not apply to unsolicited real time communications.

The financial promotion regime applies to any communication which is made to or directed at a UK person, irrespective of where the person making the communication is located or whether the relevant investments are in a UK entity.

Under the Financial Promotion Order, there is a specific exemption (Article 12) for a communication which is made to a person who receives the communication outside the UK or which is directed only at persons outside the UK.

Therefore, in order to determine whether, for example, a particular offering from Germany of an investment in a German company is caught by the UK financial promotion restriction, the test would be whether or not that offering was made to or directed at persons in the UK. In order to deal with, for example, an offering made via a website which is accessible by persons in the UK, the Article 12 exemption provides that a communication will not be regarded as directed at persons in the UK if it is communicated from outside the UK and there are in place proper systems and procedures to prevent recipients in the UK engaging in the investment activity to which the communication relates. It is also possible, under the Article 12 exemption, to issue a communication which is directed only at investment professionals and high net worth companies in the UK (relying on the specific exemptions for those persons) provided it is not available to anybody else in the UK.

Under the previous regime, meetings would not normally involve an investment advertisement and were not cold calling and therefore did not fall within the restrictions.

However, meetings do come within the new regime as they may involve communications which are inducements, and are a particular difficulty both in terms of the real time/ non-real time distinction and as regards whether a real time communication is solicited. A meeting could include non-real time communications as well as real time and could also include solicited and unsolicited real time communications, so that it may be difficult to ensure that an exemption applies throughout. It is hoped that the FSA guidance will confirm that formal presentations at meetings will be treated as non-real time and that question and answer sessions will be dealt with by treating only the questioner as receiving a "real time" answer. This would allow company meetings to be dealt with in the normal way, with very few chairman’s speeches requiring advance approval by anauthorised person.

Telephone calls will always be real time communications. Directors of listed companies must always take care therefore, not to initiate a transaction which would involve communicating a financial promotion by way of a telephone call, unless the person called is clearly an investment professional or a high net worth company or another exemption applies, such as the sale of a body corporate. A call by a company initiating a transaction will inevitably be unsolicited. The danger is that if the transaction does not fall within an appropriate exemption which applies to unsolicited real time in his response). Although a relevant exemption still needs to be available, using a letter or email makes it more likely that one will be - and in particular it may allow the one off communications exemption to be used.

Breach of the financial promotion prohibition is an offence punishable by a fine and/or up to two years’ imprisonment.

Where an offence is committed by a body corporate and is shown to have been committed with the consent or connivance of an officer or to be attributable to any neglect on his part, the officer as well as the body corporate may be guilty of an offence as well as the body corporate itself.

In addition, if, in consequence of an unlawful communication under section 21, a person enters as a customer into an agreement to engage in investment activity then that agreement is unenforceable against him and he is entitled to recover money or property paid or transferred and compensation for any loss sustained by him as a result of having parted with it, unless a court decides that it is just and equitable to enforce the agreement.

Until companies become familiar with the regime and its operation, they will want to seek advice from their advisers in relation to anything that might constitute a financial promotion. If there is doubt over whether a document or other communication constitutes financial promotion or whether an exemption applies, the company may need to have the communication issued or approved by an authorised person, such as its financial adviser.

© Herbert Smith 2002

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