COBS 9A.2 Assessing suitability: the obligations
When providing investment advice or portfolio management a firm must:
- (1)
obtain the necessary information regarding the client’s:
- (a)
knowledge and experience in the investment field relevant to the specific type of financial instrument, insurance-based investment product2 or service;
- (b)
financial situation including his ability to bear losses; and
- (c)
investment objectives including his risk tolerance,
so as to comply with (2);
- (a)
- (2)
only2 recommend investment services, financial instruments and insurance-based investment products, as applicable, or take decisions to trade, which are2 suitable for the client and, in particular, in accordance with the client’s risk tolerance and ability to bear losses.
[Note: first paragraph of article 25(2) of MiFID, first paragraph of article 30(1) of the IDD2]
Firms should undertake a suitability assessment not only when making a personal recommendation to buy a financial instrument or an insurance-based investment product2 but for all decisions whether to trade, including making any personal recommendations about whether or not to buy, hold or sell an investment.
[Note: recital 87 to the MiFID Org Regulation]
Where a firm providing a portfolio management service makes a recommendation or request, or provides advice, to a client to the effect that the client should give or alter a mandate to the firm that defines the limits of the firm’s discretion, that recommendation, request or advice should be considered a recommendation for the purposes of COBS 9A.2.1R. A firm should therefore undertake a suitability assessment in relation to any such recommendation, request or advice.
[Note: recital 89 to the MiFID Org Regulation]
2When proposing an insurance-based investment product a firm must ensure it is consistent with the client’s insurance demands and needs.
[Note: recital 44 to, and second paragraph article 20(1) of, the IDD]
2Assessing the extent of the information required: MiFID business
354(2) Investment firms shall determine the extent of the information to be collected from clients in light of all the features of the investment advice or portfolio management services to be provided to those clients. Investment firms shall obtain from clients or potential clients such information as is necessary for the firm to understand the essential facts about the client and to have a reasonable basis for determining, giving due consideration to the nature and extent of the service provided, that the specific transaction to be recommended, or entered into in the course of providing a portfolio management service, satisfies the following criteria:
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(a) it meets the investment objectives of the client in question, including client’s risk tolerance;
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(b) it is such that the client is able financially to bear any related investment risks consistent with his investment objectives;
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(c) it is such that the client has the necessary experience and knowledge in order to understand the risks involved in the transaction or in the management of his portfolio.
[Note: article 54(2) of the MiFID Org Regulation]
Assessing the extent of the information required: insurance-based investment products
- (1)
8For the purposes of providing a personal recommendation on an insurance-based investment product in accordance with COBS 9A.2.1R and COBS 9A.2.16R, a firm must determine the extent of the information to be collected from the client in light of all the features of the advice to be provided to the client.
- (2)
Without prejudice to the fact that, in accordance with COBS 9A.2.3AR, COBS 9A.3.2R and COBS 9A.3.2AR, any insurance-based investment product proposed must be consistent with the client’s demands and needs, a firm must obtain from the client such information as is necessary for the firm to understand the essential facts about the client and to have a reasonable basis for determining that its personal recommendation to the client satisfies all of the following criteria:
- (a)
it meets the client’s investment objectives, including that person’s risk tolerance;
- (b)
it meets the client’s financial situation, including that person’s ability to bear losses;
- (c)
it is such that the client has the necessary knowledge and experience in the investment field relevant to the specific type of insurance-based investment product or service.
- (a)
- (3)
Where information required for the purposes of COBS 9A.2.1R and COBS 9A.2.16R has already been obtained pursuant to COBS 9A.2.3AR, COBS 9A.3.2R and COBS 9A.3.2AR, a firm must not request information it already has anew from the client.
[Note: articles 9(1) and (2) and 17(3) of the IDD Regulation]
Professional clients: MiFID business2
354(3) Where an investment firm provides an investment service to a professional client it shall be entitled to assume that in relation to the products, transactions and services for which it is so classified, the client has the necessary level of experience and knowledge for the purposes of point (c) of paragraph 2.
Where that investment service consists in the provision of investment advice to a professional client covered by Part 2 of Schedule 1 to Regulation (EU) No 600/2014, the investment firm shall be entitled to assume for the purposes of point (b) of paragraph 2 that the client is able financially to bear any related investment risks consistent with the investment objectives of that client.
[Note: article 54(3) of the MiFID Org Regulation]
Obtaining information about knowledge and experience: MiFID business2
355(1) Investment firms shall ensure that the information regarding a client’s or potential client’s knowledge and experience in the investment field includes the following, to the extent appropriate to the nature of the client, the nature and extent of the service to be provided and the type of product or transaction envisaged, including their complexity and the risks involved:
-
(a) the types of service, transaction and financial instrument with which the client is familiar;
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(b) the nature, volume, and frequency of the client’s transactions in financial instruments and the period over which they have been carried out;
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(c) the level of education, and profession or relevant former profession of the client or potential client.
[Note: article 55(1) of the MiFID Org Regulation]
Obtaining information about knowledge and experience: insurance-based investment products
8For the purposes of COBS 9A.2.1R and COBS 9A.2.16R in relation to an insurance-based investment product, the necessary information to be obtained by a firm with regard to the client’s knowledge and experience in the relevant investment field must include, where relevant, the following, to the extent appropriate to the nature of the client, and the nature and type of insurance-based investment product or service offered or demanded, including their complexity and the risks involved:
- (1)
the types of service, transaction, insurance-based investment product or financial instrument with which the client is familiar;
- (2)
the nature, number, value and frequency of the client’s transactions in insurance-based investment products or financial instruments and the period over which they have been carried out;
- (3)
the level of education, and profession or relevant former profession of the client.
[Note: article 17(1) of the IDD Regulation]
Obtaining information about a client’s financial situation: MiFID business2
354(4) The information regarding the financial situation of the client or potential client shall include, where relevant, information on the source and extent of his regular income, his assets, including liquid assets, investments and real property, and his regular financial commitments.
[Note: article 54(4) of the MiFID Org Regulation]
2Obtaining information about a client’s financial situation: insurance-based investment products
- (1)
8In relation to an insurance-based investment product, the information regarding the client’s financial situation, including that person’s ability to bear losses, must include, where relevant, information on the source and extent of the client’s regular income, assets, including liquid assets, investments and real property and the regular financial commitments.
- (2)
The level of information gathered must be appropriate to the specific type of insurance-based investment product or service being considered.
[Note: article 9(3) of the IDD Regulation]
Obtaining information about a client’s investment objectives: MiFID business2
354(5) The information regarding the investment objectives of the client or potential client shall include, where relevant, information on the length of time for which the client wishes to hold the investment, his preferences regarding risk taking, his risk profile, and the purposes of the investment.
[Note: article 54(5) of the MiFID Org Regulation]
Obtaining information about a client’s investment objectives: insurance-based investment products
- (1)
8In relation to an insurance-based investment product, the information regarding the client’s investment objectives, including that person’s risk tolerance, must include, where relevant, information on the length of time for which the client wishes to hold the investment, that person’s preferences regarding risk taking, the risk profile, and the purposes of the investment.
- (2)
The level of information gathered must be appropriate to the specific type of insurance-based investment product or service being considered.
[Note: article 9(4) of the IDD Regulation]
2
2Reliability of information: MiFID business
354(7) Investment firms shall take reasonable steps to ensure that the information collected about their clients or potential clients is reliable. This shall include, but shall not be limited to, the following:
-
(a) ensuring clients are aware of the importance of providing accurate and up-to-date information;
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(b) ensuring all tools, such as risk assessment profiling tools or tools to assess a client’s knowledge and experience, employed in the suitability assessment process are fit-for-purpose and are appropriately designed for use with their clients, with any limitations identified and actively mitigated through the suitability assessment process;
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(c) ensuring questions used in the process are likely to be understood by clients, capture an accurate reflection of the client’s objectives and needs, and the information necessary to undertake the suitability assessment; and
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(d) taking steps, as appropriate, to ensure the consistency of client information, such as by considering whether there are obvious inaccuracies in the information provided by clients.
[Note: article 54(7) of the MiFID Org Regulation]
2Reliability of information: insurance-based investment products
- (1)
8In relation to an insurance-based investment product, a firm must take reasonable steps to ensure that the information collected about the client for the purposes of the assessment of suitability is reliable.
- (2)
The steps in (1) must include, but not be limited to, the following:
- (a)
ensuring that the client is aware of the importance of providing accurate and up-to-date information;
- (b)
ensuring that all tools, such as risk assessment profiling tools or tools to assess a client’s knowledge and experience, employed in the suitability assessment process are fit-for-purpose and are appropriately designed for use with its clients, with any limitations identified and actively mitigated through the suitability assessment process;
- (c)
ensuring that questions used in the process are likely to be understood by the client and to capture an accurate reflection of the client’s objectives and needs and the information necessary to undertake the suitability assessment;
- (d)
taking steps, as appropriate, to ensure the consistency of client information, such as considering whether there are obvious inaccuracies in the information provided by the client.
- (a)
[Note: article 10 of the IDD Regulation]
Maintaining adequate and up-to-date information: MiFID business
354(7) Investment firms having an on-going relationship with the client, such as by providing an on-going advice or portfolio management service, shall have, and be able to demonstrate, appropriate policies and procedures to maintain adequate and up-to-date information about clients to the extent necessary to fulfil the requirements under paragraph 2.
[Note: article 54(7) of the MiFID Org Regulation]
Discouraging the provision of information: MiFID business
355(2) An investment firm shall not discourage a client or potential client from providing information required for the purposes of [COBS 9A.2.1R and COBS 10A.2.1R].
[Note: article 55(2) of the MiFID Org Regulation]
Discouraging the provision of information: insurance-based investment products
8In relation to insurance-based investment products, a firm must not discourage a client from providing information required for the purposes of COBS 9A.2.1R and COBS 9A.2.16R.
[Note: article 17(2) of the IDD Regulation]
Reliance on information: MiFID business
355(3) An investment firm shall be entitled to rely on the information provided by its clients or potential clients unless it is aware or ought to be aware that the information is manifestly out of date, inaccurate or incomplete.
[Note: article 55(3) of the MiFID Org Regulation]
Reliance on information: insurance-based investment products
8For the purposes of assessing suitability in relation to an insurance-based investment product, a firm may rely on the information provided by its clients unless it is aware or ought to be aware that the information is manifestly out of date, inaccurate or incomplete.
[Note: article 17(4) of the IDD Regulation]
Insufficient information: MiFID business
354(8) Where, when providing the investment service of investment advice or portfolio management, an investment firm does not obtain the information required under [COBS 9A.2.1R], the firm shall not recommend investment services or financial instruments to the client or potential client.
[Note: article 54(8) of the MiFID Org Regulation]
Insufficient information: insurance-based investment products
8Where a firm does not obtain the information required under COBS 9A.2.1R and COBS 9A.2.16R, the firm must not provide a personal recommendation on insurance-based investment products to the client.
[Note: article 9(5) of the IDD Regulation]
Insufficient information: MiFID business and insurance-based investment products
Although a firm may not be permitted to make a personal recommendation or take a decision to trade because it does not have the necessary information, its client may still ask the firm to provide another service such as, for example, to arrange a deal or to deal as agent for the client. If this happens, the firm should ensure that it receives written confirmation of the instructions. The firm should also bear in mind the client’s best interests rule and any obligation it may have under the rules relating to appropriateness when providing the different service (see COBS 10A (Appropriateness (for non-advised services in relation to MiFID and insurance-based investment product2s provisions))).
Identifying the subject of a suitability assessment: MiFID business
3 54(6) Where a client is a legal person or a group of two or more natural persons or where one or more natural persons are represented by another natural person, the investment firm shall establish and implement policy as to who should be subject to the suitability assessment and how this assessment will be done in practice, including from whom information about knowledge and experience, financial situation and investment objectives should be collected. The investment firm shall record this policy.
Where a natural person is represented by another natural person or where a legal person having requested treatment as professional client in accordance with Part 3 of Schedule 1 to Regulation (EU) No 600/2014 is to be considered for the suitability assessment, the financial situation and investment objectives shall be those of the legal person or, in relation to the natural person, the underlying client rather than of the representative. The knowledge and experience shall be that of the representative of the natural person or the person authorised to carry out transactions on behalf of the underlying client.
[Note: article 54(6) of the MiFID Org Regulation]
Identifying the subject of a suitability assessment: insurance-based investment products
- (1)
8With regard to group insurance a firm must establish and implement a policy as to who will be subject to the suitability assessment where an insurance-based investment product is concluded on behalf of a group of members and each individual member cannot take an individual decision to join.
- (2)
The policy established under (1) must also contain rules on how that assessment will be done in practice, including from whom information about knowledge and experience, financial situation and investment objectives will be collected.
- (3)
A firm must record the policy established under (1).
[Note: article 13 of the IDD Regulation]
Bundled packages: MiFID business and insurance-based investment products
Where a firm provides investment advice2 recommending a package of services or products bundled pursuant to COBS 6.1ZA.16R (for MiFID business) or COBS 6.1ZA.16AR to COBS 6.1ZA.16ER (for insurance-based investment products)2, the firm must ensure that the overall bundled package is suitable for the client.
[Note: second paragraph of article 25(2) of MiFID and second paragraph of article 30(1) of the IDD2]
1When considering the suitability of a particular financial instrument or insurance-based investment product2 which is linked directly or indirectly to any form of loan, mortgage or home reversion plan, a firm should take account of the suitability of the overall transaction. The firm should have regard to any applicable suitability rules in MCOB.
Switching: MiFID business
354(11) When providing investment advice or portfolio management services that involve switching investments, either by selling an instrument and buying another or by exercising a right to make a change in regard to an existing instrument, investment firms shall collect the necessary information on the client’s existing investments and the recommended new investments and shall undertake an analysis of the costs and benefits of the switch, such that they are reasonably able to demonstrate that the benefits of switching are greater than the costs.
The requirements laid down in the first subparagraph do not apply to services provided to professional clients.6
[Note: article 54(116) of the MiFID Org Regulation]
Switching: insurance-based investment products
8When providing a personal recommendation in relation to an insurance-based investment product that involves switching between underlying investment assets a firm must also collect the necessary information on the client’s existing underlying investment assets and the recommended new investment assets and must undertake an analysis of the expected costs and benefits of the switch, such that it is reasonably able to demonstrate that the benefits of switching are expected to be greater than the costs.
[Note: article 9(7) of the IDD Regulation]
Adequate policies and procedures: MiFID business
354(9) Investment firms shall have, and be able to demonstrate, adequate policies and procedures in place to ensure that they understand the nature, features, including costs and risks of investment services and financial instruments selected for their clients and that they assess, while taking into account cost and complexity, whether equivalent investment services or financial instruments can meet their client’s profile.
[Note: article 54(9) of the MiFID Org Regulation]
Unsuitability: MiFID business
354(10) When providing the investment service of investment advice or portfolio management, an investment firm shall not recommend or decide to trade where none of the services or instruments are suitable for the client.
[Note: article 54(10) of the MiFID Org Regulation]
Unsuitability: insurance-based investment products
8When providing a personal recommendation on an insurance-based investment product in accordance with COBS 9A.2.1R and COBS 9A.2.16R, a firm must not make a recommendation where none of the insurance-based investment products are suitable for the client.
[Note: article 9(6) of the IDD Regulation]
Guidance on assessing suitability: MiFID business and insurance-based investment products
- (1)
A transaction may be unsuitable for a client due to the risks of the associated financial instruments, the type of transaction, the characteristics of the order or the frequency of the trading.
- (1A)
An insurance-based investment product may be unsuitable for a client due to the risks of the underlying investment assets, the type or characteristics of the product or the frequency of switching of underlying investment assets.2
- (2)
A series of transactions, each of which are suitable when viewed in isolation may be unsuitable if the recommendation or the decisions to trade are made with a frequency that is not in the best interests of the client.
- (3)
In the case of portfolio management, a transaction might be unsuitable if it would result in an unsuitable portfolio.
[Note: recital 88 to the MiFID Org Regulation, recital 9 to the IDD Regulation2]
Investments subject to restrictions on retail distribution: MiFID business and insurance-based investment products
- (1)
Firms should note that restrictions and specific requirements apply to the retail distribution of certain investments2:
- (a)
non-mass market investments7 are subject to a restriction on financial promotions (see section 238 of the Act and COBS 4.12B7);
- (b)
restricted mass market investments7 are subject to a restriction on direct offer financial promotions (see COBS 4.12A7);
- (c)
mutual society shares are subject to specific requirements in relation to dealing and arranging activities (see COBS 22.2);
- (d)
contingent convertible instruments and CoCo funds are subject to a restriction on sales and on promotions (see COBS 22.3).7
45 - (e)
[deleted]7
54
- (a)
- (2)
A firm should be satisfied that an exemption is available before recommending an investment2 subject to a restriction on distribution to a retail client, noting in particular that a personal recommendation to invest will generally incorporate a financial promotion.
- (3)
In addition to assessing whether the promotion is permitted, a firm giving advice on an investment2 subject to a restriction on distribution should comply with their obligations in COBS 9A and ensure any personal recommendation is suitable for its client.
- (4)
In considering its obligations under COBS 9A, a firm purchasing an investment2 subject to a restriction on distribution on behalf of a retail client as part of a discretionary management agreement should exercise particular care to ensure the transaction is suitable and in the client’s best interests, having regard to the FCA’s view that such investments2 pose particular risks of inappropriate distribution.
- (5)
A restriction on promotion does not affect a transaction where there has been no prior communication with the client in connection with the investment by the firm or a person connected to the firm. Nonetheless, if promotion of an investment2 to a retail client would not have been permitted, then the discretionary manager’s decision to purchase it on behalf of the retail client should be supported by detailed and robust justification of his assessment of suitability.
Automated or semi-automated systems: MiFID business
354(1) Where investment advice or portfolio management services are provided in whole or in part through an automated or semi-automated system, the responsibility to undertake the suitability assessment shall lie with the investment firm providing the service and shall not be reduced by the use of an electronic system in making the personal recommendation or decision to trade.
[Note: second paragraph of article 54(1) of the MiFID Org Regulation]
Automated or semi-automated systems: insurance-based investment products
For the avoidance of doubt, a firm’s responsibility to perform the suitability assessment in accordance with COBS 9A.2.1R and COBS 9A.2.16R is not reduced where a personal recommendation on insurance-based investment products is provided in whole or in part through an automated or semi-automated system.
[Note: article 12 of the IDD Regulation]