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The Banking Act 2009 (Restriction of Partial Property Transfers) Order 2009

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Citation, commencement and interpretationU.K.

This section has no associated Explanatory Memorandum

1.—(1) This Order may be cited as the Banking Act 2009 (Restriction of Partial Property Transfers) Order 2009.

(2) This Order comes into force on 21st February 2009.

(3) In this Order—

“the Act” means the Banking Act 2009;

“the Bank” means the Bank of England;

F1...

“banking institution” means—

(a)

a bank (within the meaning of Part 1 of the Act) M1;

(aa)

[F2an investment firm;]

(b)

an undertaking which was a bank [F3or an investment firm] immediately before the making of a share transfer order under section 13(2) of the Act;

(c)

a bridge bank M2;

(d)

a building society (within the meaning of section 119 of the Building Societies Act 1986 M3); or

(e)

a holding company M4;

[F4“capital requirements directive” means Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 relating to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC;]

“continuity powers” means the powers conferred by section 64(2) of the Act (including that subsection as applied by sections 65(2) and 83(2)(f) of the Act) and section 67(2) of the Act (including that subsection as applied by sections 68(2) and 83(2)(f) of the Act);

“deposit” has the meaning given by article 5 of the Regulated Activities Order M5 (disregarding the exclusions in articles 6 to 9AA of that Order M6);

[F5“eligible claimant” has the meaning given by rules made by the Financial Conduct Authority or the Prudential Regulation Authority under section 213 of the Financial Services and Markets Act 2000;]

“excluded rights” means rights—

(a)

which relate to a retail deposit made with a banking institution;

(b)

which relate to a retail liability owed to a banking institution;

(c)

which relate to a contract which was entered into by or on behalf of a banking institution otherwise than in the course of carrying on of an activity which relates F6... to relevant financial instruments [F7or an activity referred to in Annex I to the [F8capital requirements directive]];

(d)

which relate to a claim for damages, an award of damages or a claim under an indemnity which arose in connection with the carrying on by a banking institution of an activity which relates F6... to relevant financial instruments [F7or an activity referred to in Annex I to the [F8capital requirements directive]]; F9...

(e)

which relate to subordinated debt; [F10or

(f)

which relate to transferable securities (other than transferable securities referred to or described in a set-off arrangement, netting arrangement or title transfer financial collateral arrangement referred to in article 3(1));]

and “excluded liabilities” shall be interpreted accordingly;

“financial instrument” means—

(a)

[F11any instrument listed in Section C of Annex I to [F12the Markets in Financial Instruments Directive], read with Chapter VI of the Commission Regulation 1287/2006/EC M7;]

(b)

[F13any option, future, swap, forward, contract for differences or other derivative contract not falling within paragraph (a); and

(c)

any combination of any of the foregoing;]

[F14“Markets in Financial Instruments Directive” means Directive 2004/39/EC of the European Parliament and of the Council on markets in financial instruments;]

“Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 M8);

“relevant authority” means—

(a)

F15in relation to Case 1 or 2 (as specified in article 2(2) and (3)), the Bank;

(b)

F15in relation to Case 3 (as specified in article 2(4)), the Treasury;

“relevant financial instrument” means—

(a)

F16a financial instrument;

(b)

F16a deposit;

(c)

F16a loan;F17...

(d)

F16an instrument which falls within article 77 of the Regulated Activities Order (disregarding the exclusions in article 77(2)(b) to (d)); [F18or

(e)

any contract for the sale, purchase or delivery of—

(i)

transferable securities;

(ii)

the currency of the United Kingdom or any other country, territory or monetary union;

(iii)

palladium, platinum, gold, silver or any other precious metal; or

(iv)

any other commodity; ]

“retail deposit” means a deposit in relation to which the condition in paragraph (a) or (b) is satisfied—

(a)

F19the depositor is an eligible claimant; or

(b)

F19the deposit is held in an account of a particular class or brand provided by a particular banking institution which either—

(i)

is mainly used by eligible claimants; or

(ii)

has been mainly marketed by the banking institution to eligible claimants;

“retail liability” means a liability which is owed to a banking institution by an eligible claimant;

“title transfer financial collateral arrangements” has the meaning given by regulation 3 of the Financial Collateral Arrangements (No 2) Regulations 2003 M9[F20;]

[F20“transferable securities” has the meaning given by Article 4(18) of the Markets in Financial Instruments Directive ]

(4) References in this Order to netting arrangements include—

(a)arrangements which provide for netting (within the meaning given by regulation 2(1) of the Financial Markets and Insolvency (Settlement Finality) Regulations 1999 M10); and

(b)arrangements which include a close-out netting provision (within the meaning given by regulation 3 of the Financial Collateral Arrangements (No 2) Regulations 2003).

Textual Amendments

F15Para. references “(a)” and “(b)” in art. 1(3) substituted for “(f)” and “(g)” (9.7.2009) by The Banking Act 2009 (Restriction of Partial Property Transfers) (Amendment) Order 2009 (S.I. 2009/1826), arts. 1, 3(g)

F16Para. references “(a)”, “(b)”, “(c)” and “(d)” in art. 1(3) substituted for “(h)”, “(i)”, “(j)” and “(k)” substituted (9.7.2009) by The Banking Act 2009 (Restriction of Partial Property Transfers) (Amendment) Order 2009 (S.I. 2009/1826), arts. 1, 3(h)(i)

F19Para. references “(a)” and “(b)” in art. 1 (3) substituted for for “(l)” and “(m)” (9.7.2009) by The Banking Act 2009 (Restriction of Partial Property Transfers) (Amendment) Order 2009 (S.I. 2009/1826), arts. 1, 3(i)

Marginal Citations

M1See section 2 of the Act.

M2“Bridge bank” is defined in section 12(1) of the Act. By virtue of section 11 of the Interpretation Act 1978 (c.30), expressions used in this Order have, unless the contrary intention appears, the meaning which they bear in the Banking Act 2009.

M4“Holding company” is defined in section 82(1) of the Act. By virtue of section 11 of the Interpretation Act 1978 (c.30), expressions used in this Order have, unless the contrary intention appears, the meaning which they bear in the Banking Act 2009.

M5Article 5 was amended by SI 2002/682.

M6Articles 6 to 9AA were amended by SI 2001/3544; SI 2002/682; SI 2002/1310; and SI 2002/1776.

M7OJ L241 2.9.2006 p.1.

M8SI 2001/544.

M9SI 2003/3226.

M10SI 1999/2979.

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