Material Change to a Regulated Firm or its Business

There is an obligation under Section 83A of the Financial Services Act 2019 (“the Act”) for firms to obtain the GFSC’s consent to any material change that they propose to make to their business plan, financial resources or corporate governance arrangements, which may affect their continuing satisfaction of the threshold conditions.

Section 83A complements the more general requirement, under Principle 12 of the Financial Services (Core Principles) Regulations 2022 (the 12th Core Principle), for firms to deal with the GFSC in an open, co-operative and timely way and to disclose to the GFSC any matter of which it would reasonably expect notice. 

Section 83A is also key to allowing the GFSC to fulfil its duty under Section 65(1) of the FSA 2019 of ensuring that firms satisfy, and continue to satisfy, the threshold conditions in relation to all of the regulated activities for which they have, or will have, permission.

Application

It is for firms to assess and determine whether a proposed change meets the criteria in Section 83A. For guidance around the obligation under Section 83A, firms may refer to the GFSC’s Guidance Note ‘GFSC Consent to Material Changes to a Regulated Firm or its Business’.

Where a firm comes to the view that the criteria has been met, it must submit an application form with all supporting documents via email to [email protected] with the following information in the subject field: Name of Regulated Firm – Application for consent to a Material Change to a Regulated Firm or its Business. The firm’s regular supervisory contact should be copied in the application. Paper copies are not required, unless indicated by us.

Assessment

The GFSC will assess each consent application on a case-by-case basis and will have regard in its assessment to all matters that it considers relevant, whether they arise in Gibraltar or elsewhere. The significance of the relevant facts and circumstances will be considered in relation to the regulated activities for which the firm has, or will have, permission, and in relation to the GFSC’s ability to supervise the firm adequately, in the context of its statutory objectives. It should be noted that a series of changes may trigger Section 83A when taken together, even though any one of them in isolation might not.

Consent applications will be dealt with in one of three ways. Following its initial assessment, the GFSC will consider that:

  • the proposed change falls within scope of Section 83A. In these cases, the GFSC will need to make a further assessment in order to decide whether to grant its consent for the firm to proceed. Further information may be required from the firm for the purposes of this assessment; or 
  • in order to be able to implement the proposed change, the firm must successfully apply for a variation of its permission under Section 68 of the FSA 2019. Where this is the case, the GFSC will need to make a further assessment and further information may be required from the firm; or 
  • the proposed change falls outside scope of Section 83A and Section 68 of the FSA 2019. Where this is the case, the firm will be notified by the GFSC accordingly.

Fees

Firms will be required to pay the ‘non-complex application’ fee for a ‘Section 83A consent application’ as per the Financial Services (Fees) Regulations 2020 for each Section 83A consent application that is submitted.

Where the GFSC considers the application to be complex, or moderately complex, or that a variation of permission is required, firms will be required to pay the balance of the relevant fee. Where this is the case, the balance must be paid before the application is regarded as complete.