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2019-26 Financial Services Subsidiary Legislation made under ss.6(1), 24(3)(v), 44(4), 61(1), 63(3), 64(3), 150(1), 164(1),166(2), 620(1), 621(1) and 627. FINANCIAL SERVICES (BUREAUX DE CHANGE) REGULATIONS 2020 LN.2020/008 Commencement 15.1.2020 _______________________ ARRANGEMENT OF REGULATIONS. Regulation PART 1 PRELIMINARY 1. Title and Commencement. 2. Interpretation. 3. Application. PART 2 CONDUCT OF BUSINESS Independence 4. Independence. 5. Material interest. 6. Inducements. Advertising and marketing 7. Issue of advertisements. 8. Identification of advertisement issuer. 9. Fair and clear communications. 10. Customer’s understanding of risk. 11. Information about the bureau. 12. Representatives of the bureau. Customer relations 13. Customer agreements. © Government of Gibraltar (www.gibraltarlaws.gov.gi) 2019-26 Financial Services FINANCIAL SERVICES (BUREAUX DE CHANGE) 2020/008 REGULATIONS 2020 14. When written customer agreement required. 15. Customer’s rights. 16. Suitability. 17. Charges. Administration 18. Complaints. 19. Compliance. 20. Supervision. 21. Cessation of business. PART 3 CORPORATE GOVERNANCE AND RISK MANAGEMENT Accounting records 22. Duty to keep accounting records. 23. Reconciliation of customer money. 24. Records to be kept up to date. 25. Audit trail. 26. Conformity with accounting standards. 27. Retention of records. 28. Inspection of records. PART 4 PRUDENTIAL REQUIREMENTS Financial statements 29. Duty to prepare financial statements. 30. Balance sheet to give true and fair view. 31. Profit and loss account to give true and fair view. 32. Form and content of financial statements. 33. Annual financial statements to be submitted to meeting of partners, etc. 34. Additional requirement in case of sole proprietor. 35. Annual financial statements must be submitted to GFSC. 36. Bureau must obtain auditor’s report, etc. 37. Contents of auditor’s report. 38. Qualified reports. PART 5 REPORTING AND NOTIFICATION © Government of Gibraltar (www.gibraltarlaws.gov.gi) Financial Services 2019-26 FINANCIAL SERVICES (BUREAUX DE CHANGE) REGULATIONS 2020 2020/008 Appointment of auditors 39. Auditor required. 40. Qualification for appointment as auditor. 41. Ineligibility on ground of lack of independence. 42. Engagement letters. Reporting to auditors 43. Duties of auditors. 44. Reporting in respect of annual financial statements. 45. Notification to GFSC. 46. Resignation or removal of auditors. PART 6 REGULATORY POWERS Chapter 1 Investigatory and supervisory powers 47. Directions. Chapter 2 Sanctions 48. Sanctioning powers. 49. Maximum amounts of administrative penalty. PART 7 MISCELLANEOUS 50. The Register: bureaux de change. SCHEDULE FORM AND CONTENT OF FINANCIAL STATEMENTS Part 1 General Rules Part 2 Accounting Principles and Rules Appendix 1 Balance Sheet Format © Government of Gibraltar (www.gibraltarlaws.gov.gi) 2019-26 Financial Services FINANCIAL SERVICES (BUREAUX DE CHANGE) 2020/008 REGULATIONS 2020 In exercise of the powers conferred upon the Minister under sections 6(1), 24(3)(v), 44(4), 61(1), 63(3), 64(3), 150(1), 164(1),166(2), 620(1), 621(1) and 627 of the Financial Services Act 2019, the Minister has made the following Regulations. PART 1 PRELIMINARY Title and Commencement. 1.(1) These Regulations may be cited as the Financial Services (Bureaux de Change) Regulations 2020. (2) These Regulations come into operation on the day of publication. Interpretation. 2.(1) In these Regulations, unless the context otherwise requires— “the Act” means the Financial Services Act 2019; “authorised credit institution” means a credit institution with a Part 7 permission or a credit institution that has received authorisation under Article 8 of the Capital Requirements Directive from its home state regulator and that has exercised its EEA right under Part 2 of Schedule 10 to the Act. “auditor”, in relation to a bureau, means the person appointed by the bureau to be its auditor for the purpose of these Regulations and who is in office at that time; “bureau de change business” means a regulated activity that falls within Paragraph 135 of Schedule 2 to the Act; “bureau de change” or “bureau” means a person with a Part 7 permission to carry out bureau de change business; “Capital Requirements Directive” has the meaning given in paragraph 3, Part 2 of Schedule 1 to the Act; “customer” means any person for whom a bureau carries on or intends to carry on the activity of a bureau de change business, and includes a potential customer; “financial year”, in relation to a bureau, means– © Government of Gibraltar (www.gibraltarlaws.gov.gi) Financial Services 2019-26 FINANCIAL SERVICES (BUREAUX DE CHANGE) REGULATIONS 2020 2020/008 (a) the period beginning with the day on which the bureau commences to carry on bureau de change business and ending with the date as at which it prepares its first annual balance sheet; and (b) each subsequent period beginning with the day following the day as at which an annual balance sheet of the bureau is prepared for the purposes of these Regulations and ending with the day as at which the next annual balance sheet of the bureau is so prepared; “money” includes any form of money, whether represented by a cheque, or other payable order, or otherwise; “Part 7 permission” means a permission under Part 7 of the Act; “regulatory system” means the arrangements for regulating a bureau under the Act and subsidiary legislation made under the Act and any rules or directions made by the GFSC; “the Register” means the register which is established and maintained by the GFSC in accordance with both Part 4 of the Act and, in relation to the provision of fiduciary services business, regulation 50. (2) In these Regulations any reference to a balance sheet or to a profit and loss account includes any notes to the financial statement in question giving information which is required by any provision of these Regulations and required or allowed by that provision to be given in a note to the bureau’s financial statements. (3) Accordingly, in these Regulations, the expressions listed in the first column below are defined or otherwise explained by the provisions of Schedule 2 to the Act which are listed in the second column– Expression Provision of Schedule 2 to the Act financial instrument Paragraph 46 Application. 3. These Regulations apply to and have effect in relation to every bureau in respect of its bureau de change business. PART 2 CONDUCT OF BUSINESS Independence © Government of Gibraltar (www.gibraltarlaws.gov.gi) 2019-26 Financial Services FINANCIAL SERVICES (BUREAUX DE CHANGE) 2020/008 REGULATIONS 2020 Independence. 4. Where a bureau is acting for a customer– (a) it must not claim it is independent or impartial if it is not; and (b) it must ensure that any claim it makes as to its independence or impartiality adequately includes any limitation that there may be on either. Material interest. 5. Where a bureau has a material interest in a transaction to be entered into with or for a customer, or a relationship which gives rise to a conflict of interest in relation to such a transaction, the bureau must not knowingly deal in relation to that transaction unless it has– (a) fairly disclosed that material interest or relationship, as the case may be, to the customer; or (b) taken reasonable steps to ensure that neither the material interest nor relationship adversely affects the interests of the customer. Inducements. 6. A bureau must take reasonable steps to ensure that neither it nor any of its employees or agents either offers or gives, or solicits or accepts, any inducement that is likely to conflict with any duties owed to customers. Advertising and marketing Issue of advertisements. 7. Where a bureau issues an advertisement concerning bureau de change business, it must have appropriate expertise in relation to that bureau de change business concerned and take all reasonable steps to ensure that– (a) the contents and presentation of the advertisement are demonstrably fair and not misleading; and (b) the advertisement discloses fairly the risks involved. Identification of advertisement issuer. © Government of Gibraltar (www.gibraltarlaws.gov.gi) Financial Services 2019-26 FINANCIAL SERVICES (BUREAUX DE CHANGE) REGULATIONS 2020 2020/008 8. Where a bureau issues an advertisement concerning bureau de change business, it must ensure that the advertisement identifies it as the issuer. Fair and clear communications. 9.(1) A bureau may make a communication with another person which is designed to promote the activities of its bureau de change business only if it can show that it believes on reasonable grounds that the communication is fair and not misleading. (2) A bureau must take reasonable steps to ensure that any agreement, written communication, notification or information that it gives or sends to customers is presented fairly and clearly. Customer’s understanding of risk. 10. A bureau must not– (a) effect a transaction with or for a customer unless it has taken all reasonable steps to enable the customer to understand the risks involved; or (b) mislead a customer as to any advantages or disadvantages of a contemplated transaction. Information about the bureau. 11. A bureau must take reasonable steps to ensure that a customer is given adequate information about its identity and business address and the identity and status within the bureau of employees and other relevant representatives with whom the customer has contact. Representatives of the bureau. 12.(1) A bureau must satisfy itself on reasonable grounds and on a continuing basis that any representative it appoints is fit and proper to act for it in that capacity. (2) The bureau must also satisfy itself on reasonable grounds and on a continuing basis that it has adequate resources to monitor and enforce compliance by its representatives with high standards of business conduct. Customer relations Customer agreements. © Government of Gibraltar (www.gibraltarlaws.gov.gi) 2019-26 Financial Services FINANCIAL SERVICES (BUREAUX DE CHANGE) 2020/008 REGULATIONS 2020 13.
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