COCON 1.1 1Application
Under section 64A of the Act, the FCA may make rules about the conduct of approved persons and persons who are employees of relevant authorised persons.
To whom does it apply?
- (1)
COCON applies to:
- (a)
an SMF manager;
- (b)
an employee (“P”) of a relevant authorised person who:
- (i)
performs the function of an SMF manager;
- (ii)
is not an approved person to perform the function in question; and
- (iii)
is required to be an approved person at the time P performs that function; and
- (i)
- (c)
an employee of a relevant authorised person who would be an SMF manager but for SUP 10C.3.13R (The 12-week rule);
- (d)
a certification employee employed by a relevant authorised person, even if the certification employee has not been notified that COCON applies to them or notified of the rules that apply to them;
2 - (e)
an employee of a relevant authorised person who would be a certification employee but for SYSC 5.2.27R(1) (Scope: emergency appointments) or SYSC 5.2.28AR (Scope: temporary UK role)6; and12
- (f)
- (g)
an FCA-approved person or PRA-approved person approved to perform a controlled function in a Solvency II firm (including a large non-directive insurer) or a small non-directive insurer4.2
- (a)
- (2)
For Swiss general insurers, references in this sourcebook to parts of the PRA Rulebook for ‘Solvency II firms’ are to be read as references to the corresponding parts of the PRA Rulebook applying to large non directive insurers.7
- (3)
COCON does not apply to approved persons approved to perform a controlled function in SUP 10A.1.15R to SUP 10A.1.16BR (appointed representatives).2
Rules 1 to 5 in COCON 2.1 apply to all conduct rules staff.
Rules SC1 to SC4 in COCON 2.2 apply to all senior conduct rules staff members.
- (1)
The guidance in COCON 2.3 applies to relevant authorised persons.
- (2)
The persons in COCON 1.1.2R(1)(a) and (b) are referred to as senior conduct rules staff members. An approved person performing a significant influence function (including a PRA controlled function) in a Solvency II firm or in a small non-directive insurer4 is also a senior conduct rules staff member.2
- (3)
SYSC 5.2.26R provides that a function performed by a non-executive director of a firm acting as such is not an FCA-specified significant-harm function for that firm.
To what conduct does it apply?
For a person (P) who is an approved person, COCON applies to the conduct of P in relation to the performance by P of functions relating to the carrying on of activities (whether or not regulated activities) by the firm on whose application approval was given to P.
[Note: sections 64A(4) and (5)(a) of the Act (Rules of conduct)]
For a person (P) subject to COCON who is not an approved person, COCON applies to the conduct of P in relation to the performance by P of functions relating to the carrying on of activities (whether or not regulated activities) by P’s employer.
[Note: sections 64A(4) and (5)(b) of the Act (Rules of conduct)]
- (1)
Both COCON 1.1.6R and COCON 1.1.7R may apply to the same individual performing several roles.
- (2)
For example, say that an individual (A) is an approved person for firm X and is employed by firm Y in a role that does not involve a controlled function. Say that firm X is a Solvency II firm or a small non-directive insurer4 and that firm 2Y is a relevant authorised person.
- (3)
COCON 1.1.6R applies to A’s role with firm X and COCON 1.1.7R applies to A’s role with firm Y.
Where does it apply?
- (1)
COCON applies to the conduct of 6conduct rules staff set out in (2) 6wherever it is performed.
- (2)
- (a)
- (b)
a certification employee performing FCA-specified significant-harm function (7) (material risk takers) in the table in SYSC 5.2.30R for a UK relevant authorised person.
- (1)
This rule applies to members of a firm’s conduct rules staff apart from conduct rules staff in COCON 1.1.9R. 6
522 - (2)
Subject to (3), COCON only applies to the conduct of persons to whom this rule applies (as set out in (1)) if that conduct:6
- (a)
6is performed from an establishment maintained in the United Kingdom by:
- (i)
(for a relevant authorised person) that person’s employer; or
- (ii)
(for a Solvency II firm or a small non-directive insurer8) the firm in relation to whom that person carries out controlled functions; or
- (i)
- (b)
6involves dealing with a client of the firm in the United Kingdom from an establishment overseas.
- (a)
- (3)
6Paragraph (2)(b) only applies to a UK relevant authorised person.
The FCA interprets the phrase ‘dealing with’ in COCON 1.1.10R as including having contact with customers and extending beyond ‘dealing’ as used in the phrase ‘dealing in investments’. ‘Dealing in’ is used in Schedule 2 to the Act to describe, in general terms, the regulated activities which are specified in Part II of the Regulated Activities Order.
6The FCA interprets the phrase ‘a client of the firm in the United Kingdom’ in COCON 1.1.10R as referring to:
- (1)
for a client which is a body corporate, its office or branch in the United Kingdom; or
- (2)
for a client who is an individual, a client who is in the United Kingdom at the time of the dealing.
5A person will not be subject to COCON to the extent that it would be contrary to the UK's obligations under a Single Market Directive or the auction regulation.
Purpose
COCON 1 Annex 1 has guidance on the role and responsibilities of non-executive directors of relevant authorised persons.