A guide to the terms of Financial Conduct Laws and the FCA’s approach to Crypto Assets

A guide to the terms of Financial Conduct Laws and the FCA’s approach to Crypto Assets

In this guide BCL Partner, John Binns provides an introduction to the terms of Financial Conduct Laws and explains the FCA’s approach to crypto assets.

Various rules concern financial services and markets are enforced by the Financial Conduct Authority (FCA).

Some of these apply to everyone, while others apply only to firms that the FCA regulates.

Market abuse

Market abuse laws, for example, apply to everyone. These include:

Regulated activities and financial promotions

The FCA was created by the Financial Services and Markets Act 2000 (FSMA), which prohibits:

  • certain regulated activities, except by those who are authorised or exempt (the ‘general prohibition’, which creates the FCA’s ‘regulatory perimeter’); and
  • ‘financial promotions’, except by (or approved by) firms that are authorised.

The detail of the activities and promotions that are covered are set out:

  • in FSMA itself (for instance, its provisions on Collective Investment Schemes (CISs), and
  • in secondary legislation (the Regulated Activities Order (RAO) and the Financial Promotion Order (FPO).

Authorised firms

FSMA also provides the framework for the FCA’s regulation of authorised firms.

This includes requirements to register, and to comply with its various rules, including those set out in the FCA’s Handbook, and its Senior Managers and Certification Regime (SM&CR).

Non-compliant firms can be fined or face other enforcement actions.

Anti-money laundering (AML) etc…

Separately, a broader sector of firms (and people who work for them) is subject to counter-terrorist financing (CTF) and anti-money laundering (AML) obligations, including to make Suspicious Activity Reports (SARs).

Some of these undertake regulated activities within the FCA’s perimeter under FSMA, and so must be FCA-authorised in any event.

Others are outside that perimeter, but must register with, and are supervised by, the FCA for AML/CTF purposes.

Firms in this sector also have reporting obligations under financial sanctions regulations.

General offences

In addition to all of this, there are general offences (not specific to financial services or markets) that may also be relevant.

These include the laws on money laundering, fraud, unfair trading, bribery, and sanctions.

Where the FCA investigates conduct that may engage such offences as well as market abuse or FSMA offences, it may ultimately prosecute under both the general and specific provisions.

Crypto Assets and the FCA

The FCA’s approach to crypto assets is a good example of the issues raised by the UK’s complex system of financial conduct laws.

Are crypto assets regulated?

Issuing crypto assets is not itself a regulated activity under FSMA and the RAO. Whether it falls inside or outside the FCA’s regulatory perimeter will depend on the nature of the asset involved, on which it has issued guidance.

Sales of derivatives that reference certain kinds of crypto asset have been banned since October 2020.

HM Treasury announced in January 2022 that it will amend the FPO so that the promotion of certain ‘qualifying’ crypto assets will only be lawful if done by (or approved by) an authorised firm.

This is likely to put considerable pressure on the interface between crypto firms and authorised firms, and the responsibilities of the latter in approving promotions of crypto assets.

Other risks for crypto-asset firms

Meanwhile, since January 2020, certain crypto asset firms (exchange providers and custodian wallet providers), even if not covered by either the RAO or the FPO, must nevertheless:

• register with the FCA for the purposes of, and comply with, AML/CTF regulations; and
• comply with reporting obligations under AML/CTF (SARs) and financial sanctions laws.

Crypto asset firms must also comply with the general law. For example, they must not:

• deal with terrorist or criminal property, if they know or suspect it to be so;
• defraud customers or others, either by active deception, or by failing to disclose information to them;
• engage in aggressive or otherwise unfair trading practices; or
• deal with any subjects of financial sanctions.

The FCA’s approach to crypto asset firms

The FCA has been issuing alerts to consumers about crypto asset firms, to clarify that are not authorised, and stressing the need for those subject to AML/CTF laws to register with them.

In due course, we can expect it to investigate crypto asset firms it suspects have:

• breached the general prohibition, by issuing crypto assets that fall within its perimeter;
• engaged in financial promotions of ‘qualifying’ crypto assets (and any authorised firms it suspects have wrongly approved those promotions); and/or
• failed to submit SARs or otherwise comply with AML/CTF laws.

Where the conduct of those firms potentially extends to general offences, such as fraud, we can expect it to investigate those too, and to prosecute where appropriate.

The upshot of this is that many firms with no previous experience of the FCA will need to become familiar with their rules and methods in reasonably short order.

Conversely, the FCA may have to develop some new expertise in a complex new industry that it is only now beginning to regulate.

John Binns is a partner specialising in all aspects of business crime, with a particular interest in confiscation, civil recovery and money laundering under the Proceeds of Crime Act 2002 (“POCA”). His business crime experience includes representing suspects, defendants and witnesses in cases invoking allegations of bribery and corruption, fraud (including carbon credits, carousel/MTIC, land-banking, Ponzi and pyramid scheme frauds), insider trading, market abuse, price-fixing, sanctions-busting, and tax evasion. He has coordinated and undertaken corporate investigations and defended in cases brought by BEIS, the FCA, HMRC, NCA, OFT, SFO and others.

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