COB TP 4 Miscellaneous transitional provisions applying to all firms

1.0

Application

1.1

R

This section applies to firms who are ex-RPB firms.

2.0

Purpose

2.1

G

The FSA is aware that the introduction of COB will impose an additional compliance burden on firms, even where there is an underlying continuity of policy. The FSA wishes to lighten that burden in a manner consistent with its statutory objectives and the principles of good regulation under the Act. Transitional measures are being produced for parts of COB which take three distinct forms. First, firms are in practical terms being given additional time after the commencement day, until 30 November 2002, to complete their preparations for the impact of certain COB rules. Secondly, relief is being given in relation to certain rules that require firms to fulfil obligations to customers at periodic intervals, so as to postpone the impact of the COB provisions in relation to periods that span N2. Thirdly, firms are being given relief for an indefinite period after N2 for certain COB provisions so as to allow firms to continue to use, or rely upon, documentation or compliance work undertaken in accordance with rules of their previous regulator in relation to existing customers at N2.

2.2

G

If a firm's permitted regulated activities are subject to one or more of the transitional provisions in COB, and were carried on before commencement, those regulated activities should be interpreted , where appropriate , as if they were authorised investment business before commencement.

2.3

G

GEN contains some technical transitional provisions that apply throughout the Handbook and which are designed to ensure a smooth transition at commencement. These include transitional provisions relevant to record keeping and notification rules.

2.4

G

For the avoidance of doubt, TTP1 at COB TP 4.1 overrides paragraph 9 (Time starting before commencement ) of the technical timing provisions in GEN.

3.0

Continuity of contracts

3.1

G

The FSA is sometimes asked whether a firm should renegotiate contracts to replace references to its authorisation status under predecessor legislation with reference to its status under the Act. Clearly, whether a firm should renegotiate its contracts is a matter for the firm which needs to be considered in the light of the effect of the contractual provision as a whole. As a general rule , however , the FSA would not expect to see this done for regulatory reasons.

3.2

G

Clearly, the interpretation of contractual provisions is a matter for the courts. However, where a firm continues, as a result of the grandfathering process, to enjoy permission which provides it with authority under the Act to carry on regulated activities substantially similar to the investment business it could carry on under its authorisation under predecessor legislation, the FSA does not view it as necessary to update the contractual provisions.

4.0

Definitions

4.1

R

In these transitional provisions the following words are to have the meaning given to them below:

"corresponding rule" means a rule of the previous regulator of a firm that is substantially similar in purpose and effect to the relevant provision in COB.

"ex-RPB firm" means a firm which immediately before commencement was authorised under the Financial Services Act 1986 to carry on investment business in the United Kingdom by virtue of a certificate from a recognised professional body under section 16 of the 1986 Act.

1.0

Extra time provisions

1.1

ETP1

R

Transitional Relief An ex-RPB firm will not contravene any of the provisions labelled ETP1 in COB Table TR to the extent that, on or after commencement, it is able to demonstrate that it has complied with the corresponding rule of its previous regulator or, where applicable, the relevant former statutory requirement, subject to any modification, wherever appropriate, to take account of the passing of the Act.

commencement to 30 November 2002

commencement

1.2

ETPs 1 to 3 (inclusive)

TTP 1

TSPs 1 to 4 (inclusive)

G

It is for an ex-RPB firm to satisfy itself that it has complied with the corresponding rule of its previous regulator or, where applicable, relevant former statutory requirement. In order to benefit from the relief, a firm must ensure that the rule of its previous regulator which it proposes to comply with is substantially similar to the COB provision to which it relates. For the assistance of firms the FSA has compiled tables of derivations indicating the rules of a firm's previous regulator that correspond to the COB provisions being transitioned. Firms may wish to refer to these tables but in doing so should understand that they are not intended as exhaustive and are produced merely by way of a guide. Firms are advised that should they wish to take advantage of the transitional measures set out in this section, the onus is on them to be able to demonstrate that in any given case they have in fact complied with the corresponding rules of their previous regulators or, as the case may be, former statutory requirement.

commencementto 30 November 2002 (for ETPs and TTPs)Indefinitely (for TSPs)

commencement

1.3

ETPs 1 to 3( inclusive)

TTP 1

TSPs 1 to 4 (inclusive)

G

Firms will have noted from the wording of COB TP 1.1 that they should treat the corresponding rules of their previous regulator as modified to the extent necessary to ensure that the provision can operate effectively notwithstanding the enactment of the Act. Firms will need to adopt a common sense approach in interpreting the corresponding rules of their previous regulator and should modify them accordingly. For example, references in such rules to a firm's previous regulator should be read as if they referred to the FSA. Other modifications may not be as straightforward. In cases of difficulty, firms are encouraged to approach the FSA for its views.

commencement to 30 November 2002 (for ETPs and TTPs)Indefinitely (for TSPs)

commencement

1.4

ETP2

R

Financial Promotion

commencement to 30 November 2002

commencement

(1) An ex-RPB firm will not contravene any of the provisions labelled ETP2 in COB TP 1.3to the extent that, on or after commencement, it communicates a financial promotion which, as to its content, complies with the corresponding rules of its previous regulator and which, for that purpose, had been approved by the firm as complying with them before commencement.

(2) For the purposes of (1), a financial promotion will be treated as approved by an ex-RPB firm for the purposes of section 21 of the Act if, as to its content, it complies with the corresponding rules of the firm's previous regulator and, for that purpose, was approved by thefirm as so complying with them beforecommencement.

1.5

ETP2

G

Firms should take reasonable steps to avoid communicating a non-real time financial promotion which, through the passage of time, has become misleading. In such circumstances the promotion is unlikely to be in compliance with the rules of its previous regulator.

commencementto 30 November 2002

commencement

1.6

ETP3

R

Information about the firm

commencementto 30 November 2002

commencement

(1) Subject to (2), an ex-RPB firm will not contravene any of the provisions labelled ETP3 in COB TP 4.1 in relation to any written material it has produced before commencement to the extent that, on or after commencement, it is able to demonstrate that it has provided information about itself, in any such material, in accordance with the corresponding rule of its previous regulator.

(2) (1) does not apply to a firm's appointed representative as defined under section 44(2) of the Financial Services Act 1986.

1.7

ETP3

G

The purpose of COB TR 1.6R is to ensure that the firm does not incur unnecessary costs by having to withdraw or destroy written material produced before commencement. For the avoidance of doubt, where a firm prints a document on or after commencement from a precedent held in electronic form, ETP3 will apply.

commencementto 30 November 2002

2.0

Technical timing provisions

2.1

TTP1

R

Periodic statements An ex-RPB firm will not contravene any of the provisions labelled TTP1 in COB TP 4.1 to the extent that, on or after commencement, it is able to demonstrate that it has provided its customers with a periodic statement required by COB 8.2.4 for the period in which commencement falls, in accordance with the corresponding rules of itsprevious regulator.

commencement to 30 November 2002

commencement

2.2

TTP1

G

Firms should note that the technical timing provisions set out at COB TR 2.1R operate on a one-off basis. Any future periodic statement relating to a period after the initial period in which commencement falls will have to be made in accordance with the full requirements of the relevant provision in COB.

commencementto 30 November 2002

commencement

3.0

Timeless (saving) provisions

3.1

TSP1

R

Confirmation of compliance and approval Anex-RPB firm will not contravene any of the provisions labelled TSP1 in COB TP 4.1 to the extent that it is able to demonstrate that, on or aftercommencement, it has carried out the confirmation exercise referred to inCOB 3.6.2 G (2), for aninvestment advertisementissued or approved beforecommencement, in accordance with thecorresponding ruleof itsprevious regulator.

Indefinitely

commencement

3.2

TSP2

R

Terms of business and customer agreements

Indefinitely

commencement

(1) Subject to (2) and (3), anex-RPB firmwill not contravene any of the provisions in COB TP 4.1 labelledTSP2to the extent that, on or aftercommencement, it is able to demonstrate that it has continued to use, or rely upon, terms of business(including a client agreement) given to, or made with, a client in accordance with the corresponding rule of its previous regulator.

(2) If the basis on which anex-RPB firmconducts or proposes to conduct itsdesignated investment businessfor a client changes after thecommencement day, it must provide theclientwith amendedterms of businessin accordance with COB 4.2.13 R .

(3) Anex-RPB firm must take reasonable steps to ensure that aprivate customerto whom it has providedterms of business(including aclient agreement) beforecommencementis notified in writing of the matters set out in COB 4.2.15E (21) and (22) as soon as practicable aftercommencement.

3.3

TSP2

G

(1) Firms should note that COB 4.2 also benefits from an ETP1 extra-time provision as set out in COB TR 3.1R. The purpose of this is to allow firms additional time, after commencement , to amend their terms of business for new clients taken on after N2.

Indefinitely

commencement

(2) Where an ex-RPB firm has started, but not concluded, negotiating terms of business with a client before commencement , it may rely on COB TR 3.2(1) R even if the terms of business are not agreed until after commencement.

(3) COB TR 3.2(2)R does not require the firm to provide a client with amended terms of business where the change in the terms was contemplated in the original terms of business.

3.4

TSP3

R

Know your customer and suitability

Indefinitely

commencement

(1) Subject to (2), anex-RPB firmwill not contravene any of the provisions labelled TSP3 in COB TP 1.3to the extent that it is able to demonstrate that, on or aftercommencement, it has continued to use, or rely upon, a record of a private customer's personal and financial circumstances made in accordance with thecorresponding rules of itsprevious regulator, and in doing so has had regard to the guidance set out inCOB 5.2.6 G.

(2) The relief in (1) will only apply so long as there is no relevant change in thecustomer's personal and financial circumstances.

3.5

TSP4

R

Suitability and customers' understanding of risk Anex-RPB firm will not contravene any of the provisions labelled TSP4 in COB TP 1.3to the extent that, on or aftercommencement , it uses, or relies upon, a suitability letter or, as the case may be, a risk warning or disclosure, given to a customerin accordance with the corresponding rule of itsprevious regulator, in relation to a transaction orseries of transactions executedor arrangedprior to commencement.

Indefinitely

commencement

3.6

TSP4

G

Firms should note that the requirements in COB 5.2 and COB 5.3 relating to the production of suitability letters and risk warning also benefit from an ETP1 provision.

Indefinitely

commencement

CHAPTER 3 FINANCIAL PROMOTION (whole chapter)

ETP1

ETP2

3.6 Confirmation of compliance and approval

3.6.1R

Confirmation of compliance

ETP1

TSP1

3.6.2R

Withdrawing confirmation

ETP1

TSP1

3.6.5R

Communicating a financial promotion where another firm has confirmed compliance

ETP1

TSP1

CHAPTER 4 ACCEPTING CUSTOMERS

4.2 Terms of business and customer agreements

ETP1

TSP2

CHAPTER 5 ADVISING AND SELLING

5.2 Know your customer

ETP1

TSP3

5.3 Suitability

ETP1

TSP4

5.4 Customers' understanding of risk

5.4.3R

Requirement for risk warnings

ETP1

TSP4

5.5 Information about the firm

ETP3

CHAPTER 8 REPORTING TO CUSTOMERS

8.1 Confirmation of transactions

8.1.3R

Requirement to confirm a transaction

ETP1

8.1.6R

Exceptions to the requirements to dispatch a confirmation

ETP1

8.1.7R

ETP1

8.1.8R

ETP1

8.1.11R

When a confirmation may omit certain information

ETP1

8.1.12R

When a transaction is treated as arranged

ETP1

8.1.14R

Record keeping requirements

ETP1

8.2 Periodic statements

8.2.4R

Requirement for a periodic statement

ETP1

TTP1

8.2.9R

Record keeping requirements

ETP1

TTP1

CHAPTER 9 CLIENT ASSETS

9.1 Custody (whole chapter)

ETP1

9.1.35 (3)-(5)R

TSP4

9.1.40R

TSP4

9.1.49R

Client agreement

TSP2

9.1.51R

TSP2

9.1.54R

Risk disclosures

TSP4

9.1.57R

TSP4

9.1.58R

TSP4

9.1.69R

Custodian agreement

TSP2

9.1.74R

Stock lending

TSP2

1

COB 6.5.40 R (3)(k) and (l)

R

Single pricing and dilution

COB 6.5.40 (3)(k) do not take effect until 1 February 2003 for an authorised fund in existence on 1 August 2002 unless the authorised fund manager decides to adopt a policy enabling it to make a dilution adjustment.

From 1 August 2002 until 1 February 2003

1 August 2002

2

COB 6.5.18 and COB 6.6

R

Pension projections

A firm will not contravene a ruleCOB 6.5.18 or COB 6.6 provided it complies with the version of that rule in force on 31 October 2002.

From 1 November 2002 to 5 April 2003

1 November 20021

3

COB 6.8.26and COB 6.8.28

R

Fourth Motor Insurance Directive

COB 6.8.26 to COB 6.8.28 apply only to claims received by a motor vehicle liability insurer or a claims representative on or after 19 January 2003.

From 19 January 2003

19 January 2003

4

COB 3.8.4 R (3), 3.9.7R (1), COB 3.13.4 R

R

Statutory status disclosure

A firm is not required to comply with the amendments to the rules in column (2) made by the Statutory Status Disclosure Instrument 2003 until 1 October 2004 in relation to a relevant financial promotion communicated no later than 30 September 2004.

From 1 March 2003 until 30 September 2004

1 March 2003

5

COB 4.2.15E (2), 4.3.15E (22), COB 5.5.3 R, COB 5.5.5 E, COB 5.5.9 R - COB 5.5.12 R

R, E, G

A firm is not required to comply with the amendments to the rules in column (2) made by the Statutory Status Disclosure Instrument 2003 until 1 October 2004; to the extent that a firm continues to rely upon terms of business (including a client agreement) given to or made with a client before 1 October 2004, the firm does not need to comply with the amendments to COB 4.2.15 E made by that Instrument until the firm's terms of business is next updated.

From 1 March 2003

1 March 2003

6

COB 8.1.15 E (2), COB 10.6.8 E (1)

R

The amendments to COB 8.1.15E(2) and COB 10.6.8E(1) and (8) made by the Statutory Status Disclosure Instrument 2003 do not apply to a firm:

(1) in relation to a confirmation of a transaction under COB 8.1 (Confirmation of transactions); and

(2) in relation to the scheme documents referred to in COB 10.6 (Scheme documents for an unregulated collective investment scheme);

until, as appropriate, the firm's system for producing confirmations or the scheme documents are next updated by thefirm.

From 1 March 2003

1 March 2003

7

COB 4.2.5 R

R

ATS terms of business

A service company, or a firm that is undertaking oil market activity or other energy market activity, that operates an ATS as at the day on which COB 4.2.17 E comes into force is not required to provide terms of business to a customer who has commenced using the ATS before that day.

Indefinitely

1 January 20042

8

COB 4.2.5 R and COB 4.2.10 R

R

A firm need not, by reason of COB 4.2.17 E, amend, or give notice of an amendment to, its terms of business to include provision about the additional matters in COB 4.2.17 E in respect of a customer to whom it has provided terms of business before the day on which COB 4.2.17 E comes into force.

Indefinitely

1 January 20042

9

Rules in the Handbook

R

Classification of CISs. If a firm at any time before 1 September 2003 classified a collective investment scheme in accordance with COB 4.1 (Client classification) as in force at that time, it will not contravene any of the rules in the Handbook by treating the scheme in accordance with that classification.

From 1 September 2003

Various 4

10

COB 7.1.14 R

R

UCITS management company COB 7.1.14 R does not take effect in relation to any discretionary management undertaken in accordance with a client agreement entered into before 12 February 2004.

From 13 February 2004 to 12 February 2007

13 February 20043

COB 5.4.4 E (6)

R

12

COB 3.9.31 R (3)

R

Until 16 July 2004, A firm may regard the reference in COB 3.9.31 R (3) to the FSA's factsheet entitled 'Capital at risk products' as including the FSA's factsheet entitled 'high-income products - Make sure you understand the risks'.

From 20 February 2004 until 16 July 2004

20 February 2004

13 6

COB 6.2.26 R6

R 6

Simplified prospectus requirements for section 264 schemes6

A firm may comply with COB 6.2.22 R (Schemes) instead of COB 6.2.26 (Requirement to offer a simplified prospectus for section 264 schemes), if the EEA State in which the recognised scheme is established has not implemented the obligations of the UCITS Directive in relation to the simplified prospectus, until the earlier of: 6

(1) the date that the relevant obligations of the UCITS Directive have been implemented in that EEA State; and 6

(2) 30 September 2004 or, if later, the date when the relevant provisions of the UCITS Directive have been implemented in the UK. 6

From 1 April 2004 until 30 September 2004, or, if later, the date when the relevant provisions of theUCITS Directivehave been implemented in theUK6

1 April 20046

1411

COB 6.11.911

R11

Annual report to with-profits policyholders11

A firm must produce its first report to with-profits policyholders under COB 6.11.9 in respect of the part of its financial year that follows the date on which PRU 7.4 (With-profits Insurance Capital Component) comes into force.11

From 30 April 200411

30 April 200411

Delayed amendment of COB for non-distance contracts

1

COB

R

The amendments to COB made by the Distance Marketing Directive Instrument 2004 on 9 October 2004 do not apply in relation to business which does not involve the conclusion of a distance contract with a retail customer, provided that the firm complies with the requirements of COB in force immediately before 9 October 2004, taking account of any amendments which come into force after that date.

From 9 October 2004 for 12 months

Already in force

Exception for provision of key features to EEA customers

2

COB 6.2.21R(1)(a) and COB 6.2.24 (1)

R

(1)

There is no requirement for key features to be provided for a new life policy, variation to a life policy or in respect of a scheme if, at the time he signs the application, the customer:

From 9 October 2004, indefinitely

Already in force

(a)

(in the case of a life policy) is habitually resident in an EEA State other than the United Kingdom; or

(b)

(in the case of a scheme) is not present in the United Kingdom;

provided that the conditions in (2) are satisfied.

(2)

The conditions referred to in (1) are that:

(a)

the EEA State in which the private customer is (as applicable) habitually resident or present imposes requirements on the communication of precontract information (beyond the minimum required by Community legislation) when doing the designated investment business concerned from an establishment in the United Kingdom; and

(b)

the firm complies with COB 6.4.25 R, in respect of the packaged product, as if references to "accepting deposits" and "deposits" were references to "designated investment business" and "packaged products" respectively.

Non-investment insurance contracts: compliance with DMD Regulations or ICOB

3

R

When an insurer effects or carries out, or a firm manages the underwriting capacity of a Lloyd's syndicate as a managing agent at Lloyd's in relation to, a non-investment insurance contract which is a distance contract, then either:9

From 9 October 2004 until 14 January 2005

(1)

the Distance Marketing Regulations apply as if the insurer or firm was an unauthorised person; or9

(2)

(if the insurer has elected) the rules in ICOB which implement the DMD apply.

An election under (2) is irrevocable and applies in relation to all such contracts. The insurer must make a record of the election and retain it for 6 years from 14 January 2005.

In this transitional provision:

"ICOB" means the Insurance: Conduct of Business sourcebook; and

"non-investment insurance contract" means a contract of insurance which is a general insurance contract or a pure protection contract but which is not a long-term care insurance contract.

Delayed amendment of the Handbook for distance contracts9

49

Handbook9

R9

(1)9

The amendments to the Handbook made by the Distance Marketing Directive Instrument 2004 and the Distance Marketing (Amendment) Instrument 2004 do not apply to a firm unless it has elected to comply with them.9

From 9 October 2004 until 31 October 20049

Already in force9

(2)9

An election under (1) is irrevocable. The firm must make a record of the election and retain it for 6 years from 31 October 2004.9

1.

COB

R

From 1 December 2004 to 31 May 2005, a firm may, subject to TR 7.6, comply with COB as if it were not amended by the Depolarisation Instrument 2004, unless the firm is a product provider in which case it must comply with , as it applies to a product provider, from 1 December 2004.

From 1 December 2004 to 31 May 2005.

1 December 2004

2.

COBrules amended by the Depolarisation Instrument 2004

R

(1)

Subject to COB TP 4.6 and COB TP 4.6, the Depolarisation Instrument 2004 may apply to a firm as follows.

From 1 December 2004 to 31 May 2005.

1 December 2004

(2)

A firm may elect at any time from 1 December 2004 to 31 May 2005, to comply with COB as amended by the Depolarisation Instrument 2004.

(3)

A firm must notify the FSA in writing of an election in (2) and of the date prior to 31 May 2005 from which it will commence compliance with COB as amended by the Depolarisation Instrument 2004.

(4)

A firm may make different elections in (2) for each appointed representative that acts on its behalf but can only make a single election in respect of each single appointed representative.

3

COBrules amended by the Depolarisation Instrument 2004

R

A firm must, in relation to any private customer to whom it has begun to provide services in respect of a packaged product before 14 January 2005 or, if applicable, the date of an election in COB TP 4.6, complete the provision of that service in accordance with COB as it applied before amendment by the Depolarisation Instrument 2004.

From 1 December 2004

1 December 2004

4

COB 4 Annex 2 and COB 5.5.5 E

R

A firm may continue to rely upon compliance with COB 4 Annex 2 and COB 5.5.5 E (including to the extent that a firm issues a financial promotion that complies with COB 4 Annex 2) provided:

From 1 December 2004 until 30 November 2005

1 December 2004

(1)

the information given to a private customer is not contradicted by any information given to the customer by way of an initial disclosure document or a fees and commission statement and;

(2)

any financial promotion complies with COB 3.8.19 R as amended by the Depolarisation Instrument.

5

COB 2.2.6 G

G

The FSA will not regard a firm as being in contravention of COB 2.2.3 R if it gives or receives assistance in conducting the review of past business in pension transfers and opt outs provided the provision or receipt of such a benefit does not conflict with any duty the recipient owes to its customers.

From 1 December 2004 to 31 May 2006

1 December 2004

6

COB as amended by the Depolarisation Instrument 2004

R

Notwithstanding COB TP 4.6 and COB TP 4.6, a firm which does not elect under COB TP 4.6 to comply with COB as amended by the Depolarisation Instrument 2004 must, from 14 January 2005, comply with:

14 January 2005 until 31 May 2005

14 January 2005

(1)

COB 1.2.1 R, COB 1.4.12 R and COB 4.3.19 R to COB 4.3.26 R, as amended by the Depolarisation Instrument 2004;

(2)

COB 4.3.19 R to COB 4.3.25 R as amended by the Depolarisation Instrument 2004 but as if they applied to a firm carrying out the activities in COB 4.3.19R (1)(a) with or on behalf of private customers;

(3)

COB 5.2.12 R to COB 5.2.14 R as amended by the Depolarisation Instrument 2004; and

(4)

COB 5.3.14 R (1) and COB 5.3.18A R to COB 5.3.18C R, as amended by the Depolarisation Instrument 2004;

unless the firm is an insurer, in which case it does not need to comply with the provisions specified in (2), (3) and (4).

7

G

The effect of COB TP 4.6 is that from 14 January 2005, if a firm has not elected to comply with the new COB provisions, the firm is in any event required to comply with the requirements of the IMD as set out in the provisions referred to in COB TP 4.6.

As regards the information requirements of the IMD, firms have the choice (by virtue of COB 4.3.23 G) of providing the minimum information set out in COB 4.3.19 R or using an initial disclosure document.