The Financial Services (Investment & Fiduciary Services) Act 1989 (‘the Act’) provides the legal framework for the supervision and regulation of Fiduciary Services Providers in or from within Gibraltar. Schedule 3 of the Act defines the activities which constitute fiduciary services, namely Company Management and Professional Trusteeship.
The powers to seek and obtain information from relevant persons are contained under Part V (Powers of Intervention) of the Act, namely Sections 32 to 38. These powers are vested in ‘the Authority’, defined under the Act as such persons or body as the Governor may by order, appoint to exercise the powers, discretions and functions conferred on the Authority under the Act. The Authority for these purposes is the Chief Executive Officer of Financial Services.
Section 32 of the Act defines a relevant person as:
(a) a licensee, an authorised Gibraltar investment firm and an authorised European investment firm;
(b) an exempted person;
(c) the operator, trustee or custodian of an authorised or recognised collective investment scheme;
(d) any director or officer of an investment exchange or a clearing house;
(e) any person who is, or who has at any time been, directly or indirectly employed (whether or not under a contract of service) by any of the persons mentioned in paragraphs (a) to (c) above; and
(f) any person who has, or who has at any time had, any direct or indirect proprietary, financial or other interest in or connection with any of the persons mentioned in paragraphs (a) to (c) above.
The power to require information and production of documents is specifically contained under section 33. Under said section the authority may require a relevant person:
- to attend before the Authority, or before a person duly appointed by the Authority in that behalf (an "appointed person") at a specified time and place, and to answer questions and otherwise furnish information appearing to the Authority or to the appointed person to be relevant to any investment business or controlled activity carried on by that person;
- to furnish the Authority or an appointed person on any occasion or at specified times or intervals, with such information, books or papers as the Authority or the appointed person may reasonably require about any specified matter relating to an investment business or to a controlled activity, being, if the Authority or the appointed person so requires, information verified in a specified manner.
The powers of the Authority under section 33 are extended by section 34 in relation to:
- an applicant for a licence or for authorisation under Part III of the 1998 Act; or
- any person who appears to the Authority to be carrying on an investment business or a controlled activity.
Notwithstanding the above it should be noted that Authorised firms are required under Regulation 13, Financial Services (Conduct of Fiduciary Services Business) Regulations 2006 to deal with the Commission in an open and cooperative manner and keep the Commission promptly informed of anything concerning the licensee that might reasonably be expected to be disclosed to it.
Wide powers are also granted under Section 38 of the Act allowing the Authority to appoint one or more persons to investigate and report on:
(a) the affairs of any person, including a person falling within paragraph (a) or paragraph (b) of section 32, suspected of carrying on an investment business or a controlled activity contrary to any of the provisions of this Act, or in a manner which is otherwise prejudicial to the public, to any investor or potential investor, or to the reputation of Gibraltar as a financial centre; or
(b) the affairs of, or of the manager, operator, trustee or custodian of, an authorised or a recognised scheme, in so far as they relate to the activities carried on in or from within Gibraltar or any other collective investment scheme, if it appears to the Authority that it is in the interests of the investors or potential investors or of the reputation of Gibraltar as a financial centre so to do.
(c) the affairs of a recognised institution in relation to items 7 to 12 business suspected of being carried out in or from within Gibraltar in contravention of the provisions of this Act or any regulations or rules made hereunder or upon the request of the relevant supervisory authority and in such case the appointed person shall carry out the investigation in such manner as that supervisory authority may require and shall, if so required by the Authority, report on such investigation directly to that supervisory authority;
(d) for the purposes of paragraph (c) "relevant supervisory authority" shall have the meaning given to it in the Financial Services (Banking) Act".
The appointed person under this section shall have the powers conferred on the Authority under and by section 33.
Save as may be provided by any other Act, any information from which an individual or body can be identified which is acquired by the Authority in the course of carrying out its functions (whether under this or any other Act) shall be regarded as confidential by the Authority and by its members, officers and servants. No such information shall be disclosed, without the consent of every individual who, and every body which, can be identified from that information, except to the extent that its disclosure appears to the Authority to be necessary -
(a) to enable the Authority to carry out any of its statutory functions; or
(b) in the interests of the prevention or detection of crime; or
(c) in connection with the discharge of any international obligation to which Gibraltar is subject; or
(d) to assist, in the interests of the public, any authority which appears to the Authority to exercise in a place outside Gibraltar functions corresponding to those of the Authority; or
(e) to comply with the directions of the Supreme Court.
Provided that the Authority shall not disclose information received by virtue of the provisions of Council Directive 92/30/EEC unless it is satisfied that to do so would not contravene the provisions of Article 12 of Council Directive 77/780/EEC.