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  5. Point in time
    2007-03-21

DEC 2.1 Warning notice and decision notice procedure: Introduction

DEC 2.1.1 G

The Act and certain other enactments requires the FSA, when proposing to exercise its powers in certain circumstances, to use the warning notice and decision notice procedure. 1

DEC 2.1.2 G

The circumstances to which the warning notice and decision notice procedure in DEC apply are set out in DEC 2 Annex 1 G. Three flowcharts are provided in DEC 2 Annex 2 G to DEC 2 Annex 4 G. These illustrate:

  1. (1)

    the procedure for giving warning notices and decision notices in the case of applications for Part IV permission, applications for approval under section 59 of the Act (Approval for particular arrangements), applications for variation of permission, and for certain other applications (see DEC 2 Annex 2 G);

  2. (2)

    the procedure for giving warning notices and decision notices in non-application cases (see DEC 2 Annex 3 G); and

  3. (3)

    the procedure for giving warning notices and decision notices in the case of notifications of a change in control (see DEC 2 Annex 4 G).

DEC 2.1.3 G

DEC 1.2.3 G includes a summary of the purpose of warning notices and decision notices.

DEC 2.2 Warning notice procedure

DEC 2.2.1 G

Under the circumstances listed in DEC 2 Annex 1 G, if FSA staff consider that action is appropriate, they will recommend to the relevant decision maker that a warning notice be given. A specimen warning notice for enforcement cases is at DEC 2 Annex 5 G.

DEC 2.2.2 G

After considering the staff recommendation, the decision maker may:

  1. (1)

    decide not to take further action (with or without a private warning (see ENF 11.3(Private warnings)); or

  2. (2)

    decide to give a warning notice to the person concerned.

DEC 2.2.3 G

In the case of a proposed refusal of an application for approval under section 59 of the Act, the FSA must send a warning notice to all interested parties. Under section 62(5) of the Act (Applications for approval: procedure and right to refer to Tribunal), the interested parties in relation to an application for approval, are:

  1. (1)

    the applicant;

  2. (2)

    the person in respect of whom the application is made ('A');

  3. (3)

    the person by whom A's services are to be retained, if not the applicant.

DEC 2.2.4 G

Under regulation 22 of the OEIC Regulations, in the case of a warning notice concerning a proposed change in respect of an ICVC, the notice must be given to the depositary as well as the ICVC. The only exception is if the proposal is to replace the depositary or any director.

DEC 2.2.5 G

If the FSA decides to give a warning notice to a person, in accordance with section 387 of the Act (Warning notices), the warning notice must:

  1. (1)

    state the action which the FSA proposes to take;

  2. (2)

    be in writing;

  3. (3)

    give the FSA's reasons for the proposed action;

  4. (4)

    state whether section 394 of the Act (Access to FSA material) applies (see DEC 2.4); and

  5. (5)

    if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it.

DEC 2.2.6 G

If the FSA decides to take no further action and the FSA had previously informed the person concerned that it intended to recommend action, the FSA will communicate this decision promptly to the person concerned.

DEC 2.2.7 G

The warning notice will contain a statement that the person concerned is entitled to make representations to the FSA. The notice must specify a reasonable period, of at least 28 days from receiving (see DEC 5.3) the warning notice, within which the person to whom it is given may make representations.

DEC 2.2.8 G

The procedures for making representations are set out in DEC 4.4.

DEC 2.2.9 G

The warning notice will contain (where appropriate) a statement that the mediation scheme is available. The applicability of the FSA's mediation scheme is described in DEC App 1.

DEC 2.3 Decision notice procedure

DEC 2.3.1 G

The decision maker will consider any representations made in accordance with DEC 4.4 in relation to a warning notice which has already been given. A decision will be stated in a decision notice or (where appropriate) a notice of discontinuance or other written notice. The decision notice sets out the terms of the decision. A specimen decision notice for enforcement cases is at DEC 2 Annex 6 G.

DEC 2.3.2 G

In accordance with section 388 of the Act (Decision notices), the decision notice must:

  1. (1)

    be in writing;

  2. (2)

    give the FSA's reasons for its decision to take the action to which the decision notice relates;

  3. (3)

    state whether section 394 of the Act (Access to FSA material) applies (see DEC 2.4);

  4. (4)

    if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it; and

  5. (5)

    give an indication of:

    1. (a)

      any right given by the Act to have the matter referred to the Tribunal; and

    2. (b)

      the procedure on referring a case to the Tribunal.

DEC 2.3.3 G

In the case of a proposed refusal of an application for approval under section 59 of the Act, the FSA must give a decision notice to all interested parties (see DEC 2.2.3 G).

DEC 2.3.4 G

In the case of a decision notice concerning a notification of a proposed change in respect of an ICVC, the FSA must give a decision notice to the depositary as well as to the ICVC, if the depositary received the warning notice (see DEC 2.2.4 G).

DEC 2.3.5 G

The decision maker may decide to take action different from that proposed in the warning notice. However, under section 388(2) of the Act, that action must be made under the same Part of the Act as the action proposed in the warning notice.

Further decision notice

DEC 2.3.6 G

Under section 388(3) of the Act, following the giving of a decision notice but before the FSA takes action to which the decision notice relates, the FSA may give the person concerned a further decision notice relating to different action concerning the same matter. Under section 388(4) of the Act, the FSA can only do this if the person receiving the further decision notice gives his consent. In these circumstances the following procedure will apply:

  1. (1)

    FSA staff will recommend to the decision maker that a further decision notice be given, either before or after obtaining the person's consent;

  2. (2)

    the decision maker will consider whether the action proposed in the further decision notice is appropriate in the circumstances;

  3. (3)

    if the decision maker decides that the action proposed is inappropriate, he will decide not to give the further decision notice. In this case, the original decision notice will stand and the person's rights in relation to that notice will be unaffected. If the person's consent has already been obtained, the FSA will notify him of the decision not to give the further decision notice;

  4. (4)

    if the decision maker decides that the action proposed is appropriate then, subject to the person's consent being (or having been) obtained, a further decision notice will be given;

  5. (5)

    a person who had the right to refer the matter to the Tribunal under the original decision notice will have that right under the further decision notice. The time period in which the reference to the Tribunal may be made will begin from the date on which the further decision notice is given.

DEC 2.3.7 G

For the purpose of establishing whether the person receiving the further decision notice gives his consent, the FSA will normally require consent in writing. If the person concerned is an individual, the FSA will normally require a letter or signed memorandum from him recording his consent. If the person concerned is a body corporate or partnership, the FSA will normally require a letter or signed memorandum on behalf of the body corporate or partnership stating its consent.

Notice of discontinuance

DEC 2.3.8 G

If the FSA decides not to take action proposed in a warning notice or the action to which a decision notice relates, section 389 of the Act (Notices of discontinuance) requires the FSA to give a notice of discontinuance to the person to whom the warning notice or decision notice was given. (Section 389 of the Act does not apply if the discontinuance of the proceedings results in the granting of an application made by the person to whom the warning notice (or decision notice) was given.)

DEC 2.3.9 G

A notice of discontinuance:

  1. (1)

    must identify what proceedings are being discontinued (section 389(3)); and

  2. (2)

    must state that the FSA may publish information about the matter if the person to whom the notice of discontinuance is given consents (section 391(2)).

DEC 2.3.10 G

Where the FSA is required to give a person a copy of a notice of discontinuance (see DEC 2.4.10 G), the copy must be accompanied by a statement that the FSA may publish information about the matter, so far as relevant to the person to whom the copy is given, if that person consents.

Final notice

DEC 2.3.11 G

Under section 390 of the Act (Final notices), the FSA must give a final notice to the person to whom it has given a decision notice:

  1. (1)

    if the matter was not referred to the Tribunal within the period of 28 days of the date when the decision notice was given, or within any other period that may be prescribed in the Tribunal rules, in which case the FSA will give a final notice at the same time as it takes the action to which the decision notice relates;

  2. (2)

    if the matter was referred to the Tribunal within the period of 28 days of the date when the decision notice was given, or within any other period that may be prescribed in the Tribunal rules, in which case the FSA will give a final notice at the same time as it takes action in accordance with any directions given by the Tribunal or the Court under section 137 of the Act (Appeal on a point of law).

DEC 2.3.12 G

A final notice sets out the terms of the statement, order, penalty or other action, and will give details of the date when the action takes effect.

DEC 2.4 Third party rights and access to FSA material

DEC 2.4.1 G

Sections 393 (Third party rights) and 394 (Access to FSA material) of the Act confer additional procedural rights relating to third parties and to disclosure of FSA material. These rights apply in certain warning notice and decision notice cases referred to in section 392 of the Act (Application of sections 393 and 394). The cases in which these additional rights apply are identified in DEC 2 Annex 1 G by asterisks; these are generally cases in which the warning notice or decision notice is given on the FSA's own initiative rather than in response to an application or notification made to the FSA.

Access to FSA material

DEC 2.4.2 G

If section 394 of the Act (Access to FSA material) applies and the FSA gives a person a warning notice or decision notice, it must under section 394(1) allow that person ('A') access to:

  1. (1)

    the material on which the FSA relied in taking the decision which gave rise to the obligation to give the warning notice (or the decision notice); and

  2. (2)

    any secondary material, which, in the opinion of the FSA, might undermine that decision.

DEC 2.4.3 G

However, the duty under section 394(1) is qualified in the following ways:

  1. (1)

    under section 394(2), the FSA does not have to allow A access to material that is excluded material;

  2. (2)

    under section 394(2)(a) and (b), the FSA does not have to allow A access to material if this:

    1. (a)

      relates to a case involving a person other than A; and

    2. (b)

      was taken into account in A's case only for the purpose of comparison with other cases;

  3. (3)

    under section 394(3), the FSA may refuse A access to particular material to which it would otherwise have to allow him access if, in the FSA's opinion, allowing him access to the material would not be in the public interest or would not be fair, having regard to:

    1. (a)

      the likely significance of the material to the person concerned in relation to the matter about which he has been given a notice; and

    2. (b)

      the potential prejudice to the commercial interests of a person (other than A) which would be caused by the material's disclosure.

DEC 2.4.4 G

If under section 394(2) the FSA does not allow A access to material because it is excluded material consisting of a protected item, it must give A written notice of the existence of the protected item and of the FSA's decision not to allow him access to it (section 394(4)).

DEC 2.4.5 G

If under section 394(3) the FSA refuses to allow A access to particular material, it must give him written notice of the refusal and the reasons for it (section 394(5)).

DEC 2.4.6 G

If the FSA receives a request for access to material, the FSA may within a reasonable period after the request was made:

  1. (1)

    provide facilities for the inspection and photocopying of the material that it considers it is required to disclose; or

  2. (2)

    provide a photocopy of the material.

The FSA will provide the first photocopy of the material free of charge, but will charge for subsequent copies it provides to the same person.

Third party rights

DEC 2.4.7 G

If section 393 (Third party rights) applies and any of the reasons given in the warning notice relate to a matter which:

  1. (1)

    identifies a person ("the third party") other than the person to whom the warning notice is given; and

  2. (2)

    in the FSA's opinion is prejudicial to the third party;

then the FSA must give the third party, in accordance with section 393 of the Act, a copy of the warning notice.

DEC 2.4.8 G

A copy of the warning notice will not be given if the FSA considers that this would be impracticable, or the FSA has already given the third party a separate warning notice about the same matter. Similarly, a copy of the warning notice will not be given if the FSA gives the third party such a notice at the same time as it gives the warning notice which identifies him.

DEC 2.4.9 G

DEC 2.4.7 G and DEC 2.4.8 G apply similarly in relation to a decision notice.

DEC 2.4.10 G

The FSA must give a copy of the notice of discontinuance, decision notice or final notice (as appropriate) to a third party who has been given a copy of the warning notice or decision notice (section 393(14), 393(5) and 390(1) of the Act).

DEC 2.4.11 G

If the FSA gives a copy of a warning notice or decision notice to a third party, the copy must be accompanied by an indication of the third party's right under section 393(9) to refer the case to the Tribunal and the procedure on such a referral.

DEC 2.4.12 G

If the FSA gives a copy of a warning notice or decision notice to a third party, the provisions about access to FSA material also apply to the third party (DEC 2.4.2 G to DEC 2.4.6 G). Under section 393(12), the material that the FSA must disclose under section 394 is material that relates to the matter that identifies the third party.

DEC 2 Annex 1 Statutory notice procedure: Warning notice and decision notice procedure

G

List of warning notices and decision notices under the Act (other than Part VI)5and certain other enactments1

Note: Third party rights and access to FSA material apply to the powers listed in this table where indicated by an asterisk * (see DEC 2.4)

Section of the Act

Description

Handbook reference

Decision maker

52(6)(a)6

6

when the FSA is proposing to grant an application for a Part IV permission with a limitation or a requirement which was not applied for, or with a narrower description of regulated activity than that applied for

6

AUTH 3

Executive procedures 6

6

52(6)(b)6

6

when the FSA is proposing to grant an application to vary a firm's Part IV permission but, otherwise than as part of the application, to restrict the Part IV permission (either by imposing a limitation or requirement which was not applied for or by specifying a narrower description of regulated activity than that applied for)

6

SUP 6

Executive procedures 6

6

52(7)6

6

when the FSA is proposing6 to refuse an application for a Part IV permission

6

AUTH 3

Executive procedures 6

6

52(9)(a)6

when the FSA is deciding to grant an application for a Part IV permission with a limitation or a requirement which was not applied for, or with a narrower description of regulated activity than that applied for

AUTH 3

RDC / executive procedures (Note 1)

52(9)(b)6

when the FSA is deciding to grant an application to vary a firm'sPart IV permission but, otherwise than as part of the application, to restrict the Part IV permission (either by imposing a limitation or requirement which was not applied for or by specifying a narrower description of regulated activity than that applied for)

SUP 6

RDC / executive procedures (Note 1)

52(9)(c)6

when the FSA is deciding to refuse an application for a Part IV permission

AUTH 3

RDC / executive procedures (Note 1A)

52(7)6

6

when the FSA is proposing6 to refuse an application to vary a firm's Part IV permission

6

SUP 6

Executive procedures 6

6

52(9)(c)6

when the FSA is deciding to refuse an application to vary a firm's Part IV permission

SUP 6

RDC / executive procedures (Note 1)

52(7)6

6

when the FSA is proposing6 to refuse an application to cancel a firm'sPart IV permission

6

SUP 6

Executive procedures 6

6

52(9)(c)6

when the FSA is deciding to refuse an application to cancel a firm'sPart IV permission

SUP 6

RDC / executive procedures (Note 1A)

54(1)/(2)

when the FSA is proposing/deciding to cancel a firm's Part IV permission otherwise than at its request*

ENF 5

RDC

57(1)/(3)

when the FSA is proposing/deciding to make a prohibition order against an individual*

ENF 8

RDC

58(3)/(4)

when the FSA is proposing/deciding to refuse an application for the variation or revocation of a prohibition order

ENF 8

RDC

62(2)6

6

when the FSA is proposing to refuse an application for approval of a person performing a controlled function under section 59 of the Act (in conjunction with an application for Part IV permission)

6

AUTH 6

Executive procedures 6

6

62(3)6

when the FSA is deciding to refuse an application for approval of a person performing a controlled function under section 59 of the Act (in conjunction with an application for Part IV permission)

AUTH 6

RDC / executive procedures (Note 1A)

62(2)6

6

when the FSA is proposing to refuse an application for approval of a person performing a controlled function (otherwise than in conjunction with an application for Part IV permission)

6

SUP 10

Executive procedures 6

6

62(3)6

when the FSA is deciding to refuse an application for approval of a person performing a controlled function (otherwise than in conjunction with an application for Part IV permission)

SUP 10

RDC / executive procedures (Note 1A)

63(3)/(4)

when the FSA is proposing/deciding to withdraw approval from an approved person *

ENF 8

RDC

67(1)/(4)

when the FSA is proposing/deciding to take action against an approved person by exercising the disciplinary powers conferred by section 66*

ENF 11/12/13

RDC

76(4)/(5)5

when the FSA is proposing/deciding to refuse an application for listing of securities

LR 2 and 3

RDC

578(10)/(11)(a)

when the FSA has suspended the listing of securities and is proposing/deciding to refuse an application by an issuer for cancellation of the suspension

LR 5

RDC/ Executive procedures

587M(2)/(3)

when the FSA is proposing/deciding to publish a statement censuring an issuer of transferable securities, a person offering transferable securities to the public or a person requesting the admission of transferable securities to trading on a regulated market.

ENF 21

RDC

588(4)

when the FSA is proposing/deciding to (1) refuse a person's application for approval as a sponsor; or (2) on its own initiative, cancel a person's approval as a sponsor

LR 8

RDC

588(4)

when the FSA is proposing/deciding to cancel a person's approval as a sponsor at the sponsor's request

ENF 21

Executive procedures

589(2)/(3)

when the FSA is proposing/deciding to publish a statement censuring a sponsor

ENF 21

RDC

592(1)/(4)

when the FSA is proposing/deciding to take action against any person described under section 91 for breach of LR

ENF 21

RDC

126(1)/127(1)

when the FSA is proposing/deciding to impose a sanction for market abuse *

ENF 14

RDC

183(3)/186(1)

when the FSA is proposing/deciding to object to a change in control following receipt of a notice of control

SUP 11

RDC / Executive procedures (Note 13)6

6

185(3)/(4)

when the FSA is proposing/deciding to approve a change in control following receipt of a notice of control but subject to conditions

SUP 11

RDC/Executive procedures (Note 13)6

6

187(1)/(3) and 188(1)

when the FSA is proposing/deciding to object to a person who has failed to submit a notice of control or a notice on acquiring, or increasing, control , or to object to an existing controller

SUP 11

RDC/Executive procedures (Note 13)6

6

200(4)/(5)

when the FSA is proposing/deciding to refuse an application for variation or rescission of a requirement imposed on an incoming firm

ENF 4

RDC / executive procedures (Note 1)

207(1)/208(1)

when the FSA is proposing/deciding to publish a statement in respect of an authorised person (under section 205) or impose a financial penalty on an authorised person (under section 206)*

ENF 11/12

RDC

245(1)/(2)

when the FSA is proposing/deciding to refuse an application for an authorisation order declaring a unit trust scheme to be an AUT

COLL 2 and CIS 16

RDC / executive procedures (Note 2)3

252(1)/(4)

when the FSA is proposing/deciding to refuse approval of a proposal to replace the trustee or manager of an AUT

COLL 2 and CIS 16

Executive procedures 3

255(1)/(2)

when the FSA is proposing/deciding to make an order under section 254 revoking the authorisation order of an AUT *

ENF 16

RDC

260(1)/(2)

when the FSA, on an application to revoke or vary a direction under section 257, proposes/decides to refuse to revoke or vary the direction or proposes/decides to vary the direction otherwise than in accordance with the application

ENF 16

RDC

264(2)/265(4) (Note 3)

when the FSA is notifying/deciding not to withdraw a notice, to the operator and relevant EEA State authorities, that the way in which a collective investment scheme constituted in another EEA State intends to invite persons in the United Kingdom to participate in the scheme does not comply with UK law

COLL 9 and CIS 16

Executive procedures 3

269(1)/(2)

when the FSA , on an application under subsection (4) or (5) of section 267 by an operator of a section 264 recognised scheme to revoke or vary a direction that the promotion of the scheme be suspended, proposes/decides to refuse the application or to vary the direction otherwise than in accordance with the application

ENF 16

RDC

271(1)/(3)

when the FSA is proposing/deciding to refuse approval of a collective investment scheme as a recognised scheme under section 270

COLL 9 and CIS 16

Executive procedures 3

276(1)/(2)

when the FSA is proposing/deciding to refuse an application for an order declaring a collective investment scheme to be a recognised scheme under section 272

COLL 9 and CIS 16

Executive procedures 3

280(1)/(2)

when the FSA is proposing/deciding to direct that a section 270 recognised scheme is to cease to be recognised or to revoke a section 272 order in respect of a recognised scheme *

ENF 16

RDC

321(8)/(9)

when the FSA is proposing/deciding to refuse an application for variation or revocation of a direction or a requirement imposed on a former underwriting member of Lloyd's*

None

RDC

331(1)/(3)

when the FSA is proposing/deciding to make an order disapplying the exemption from the general prohibition under section 327*

ENF 18

RDC

331(7)/(8)

when the FSA is proposing/deciding to refuse an application for the variation or revocation of an order made under section 329*

ENF 18

RDC

345(2)/(3)

when the FSA is proposing/deciding to disqualify an auditor or actuary from being the auditor of, or acting as an actuary for, any authorised person or class of authorised person or from being the auditor of any AUT or ICVC *

ENF 17

RDC

385(1)/386 (1)

when the FSA is proposing/deciding to exercise the power under section 384(5) to require a person to pay restitution*

ENF 9

RDC

Paragraph 15A(5)7 of Schedule 3 (Note 3)

7

when the FSA is notifying/ deciding not to withdraw a notice issued to an EEA UCITS management company wishing to deal in units in a collective investment scheme in the United Kingdom and relevant EEA State authorities, that the way in which the EEA UCITS management company intends to market a relevant scheme in the United Kingdom does not comply with UK law.

SUP 13A 7

Executive procedures 2

Paragraph 19(8)/(12) of Schedule 3

when the FSA is proposing/deciding to refuse to give a consent notice to a UK firm wishing to establish a branch under an EEA right

SUP 13SUP 13

RDC 1

1 Section of the Building Societies Act 1986 (Note 5)

Description

Handbook reference

Decision maker

136A(5)/(5A) (Note 6)

when the FSA is proposing/deciding to issue a prohibition order under section 36A prohibiting the continuance or carrying on of an activity and requiring the disposal of assets acquired or otherwise in a building society's possession by virtue of the activity, where the society has failed to carry into effect a restructuring plan which it has been directed to carry out by the FSA under section 36(8)

None

RDC

146A(1)(a)/(3) (a) (Note 7)

when the FSA is proposing/deciding to give a direction under section 36(3), (5), (6), (7) or (10) requiring a building society to submit for its approval a restructuring plan or to submit to the society's members the requisite transfer resolutions for a transfer of the society's business to a company or (if such a direction is given) imposing limitations on the issue of shares, acceptance of deposits or making of loans or requiring the society to take certain steps or refrain from certain action or requiring the removal of a director or other officer (Note 8)*

None

RDC

146A(1)(b)/(3) (b) (Note 7)

when the FSA is proposing/deciding to give a direction under section 42B(1) (other than a direction varying a previous direction with the agreement of the building society concerned) that a building society transfers all its engagements to one or more other building societies under section 94 or that it transfers its business to an existing company under section 97*

None

RDC / executive procedures (Note 9)

193(6) (Note 10)

when the FSA , on an amalgamation between building societies each of which has a Part IV permission to accept deposits , notifies the successor society of the terms of its Part IV permission

None

RDC / executive procedures (Note 11)

1 Section of the Credit Unions Act 1979

Description

Handbook reference

Decision maker

20

where the FSA is proposing to cancel or suspend the registration of a credit union or to petition for the winding up of a credit union

CRED 15 Annex 1 G

RDC

1 Section of the Friendly Societies Act 1992 (Note 5)

Description

Handbook reference

Decision maker

158A(1)(a)/(3) (a) (Note 12)

when the FSA is proposing/deciding to give a direction under section 54 or section 55 requiring a friendly society to take or refrain from taking steps where certain activities have become disproportionate to those of the friendly society group or, as the case may be, the society, or varying such a direction other than at the request of the society*

None

RDC

158A(1)(b)/(3) (b) (Note 12)

when the FSA is proposing/deciding to give a direction under section 90 providing for a transfer of the engagements of a friendly society *

None

RDC

185(4A) (Note 10)

when the FSA , on an amalgamation between friendly societies each of which has a Part IV permission , notifies the successor society of the terms of its Part IV permission

None

RDC / executive procedures (Note 11)

OEIC Regulations reference

Description

Handbook reference

Decision maker

Regulation 16(1)/(2)

when the FSA is proposing/deciding to refuse an application for an authorisation order in respect of a proposed ICVC

COLL 2 and CIS 16

RDC / executive procedures (Note 2)3

Regulation 22(1)/(2)/(4)/ (5)

when the FSA is proposing/deciding to refuse approval of (or, having given a warning notice , deciding to approve (Note 4)) a proposal to replace the depositary or director of an ICVC , or any other proposal/decision falling within regulation 21

COLL 2 and CIS 16

Executive procedures 3

Regulation 24(1)/(2)

when the FSA is proposing/deciding to revoke an authorisation order relating to an ICVC under regulation 23(1)*

ENF 16

RDC

Regulation 28(1)/(2)

when the FSA is proposing/deciding to refuse an application to revoke or vary a direction in accordance with a request under regulation 25(7) or to vary the direction in accordance with the application

ENF 16

RDC

Paragraph 20 of schedule 5

when the FSA is proposing/deciding to use the disqualification powers under section 249(1)*

ENF 17

RDC

Insurance Intermediaries Order reference4

Description4

Handbook reference4

Decision maker4

Article 95(2)/(3)4

when the FSA is proposing/deciding not to include, or to remove, an appointed representative from the Register*4

SUP 12.4.10G4

RDC 4

Article 95(7)/(8)4

when the FSA is proposing/deciding to refuse an application to revoke a determination not to include, or to remove, an appointed representative from the Register*4

SUP 12.4.10G4

RDC 4

Note 1: The decision will be made by the RDC if it involves a fundamental (see DEC 4.1.5 G) change to the nature of a permission and the applicant makes representations to the FSA6.

Note 1A: The decision will be made by the RDC if the applicant makes representations to the FSA. If there are no representations, the decision will be made under executive procedures.6

Note 2: The decision will be made by the RDC if it relates to an application for an authorisation order by an authorised fund manager who is not the operator of an existing AUT or ICVC.

Note 3: Although the notice under section 265(4) is a decision notice , the notice under section 264(2) is not a warning notice . The FSA will operate a procedure compliant with section 264 for the section 264(2) notice, which will be similar to the procedure for a warning notice .

Note 4: The FSA must give a decision notice under regulation 22(5) of the OEIC Regulations when, having given a warning notice, it decides to approve a proposal. But this decision notice has the effect of a written notice giving the FSA's approval under regulation 21(3)(a) of the OEIC Regulations. Although the FSA will comply with the statutory requirements regarding the giving of decision notices, DEC should otherwise be read as if the decision notice was a written notice granting an application.1

1Note 5: As amended by the Financial Services and Markets Act 2000 (Mutual Societies) Order 2001 (SI 2001/2617).

1Note 6: There is no right to refer a decision to issue a prohibition order under section 36A to the Tribunal. Accordingly, a decision notice under section 36A(5A) is not required to give an indication of whether any such right exists. A decision notice under section 36A(5A) may only relate to the issue of a prohibition order under section 36A. Where such a decision notice is given, no final notice is required under section 390 of the Act and the FSA may issue the order at the same time as or after giving the decision notice. For the purposes of section 391 of the Act (Publication), the decision notice is treated as if it were a final notice.

1Note 7: These powers become exercisable by the FSA if a building society fails to comply with any of the following requirements imposed by the Building Societies Act 1986: section 5(1)(a) or (b) (purpose or principal purpose and principal office); section 6(1) (the lending limit); and section 7(1) (the funding limit).

1Note 8: The warning notice and decision notice must set out the terms of the direction which the FSA proposes/has decided to give. A decision notice given under section 46A(3) must give an indication of the society's right, given by section 46A(5), to have the matter referred to the Tribunal. A decision notice under section 46A(3) may only relate to action under the same section of the Building Societies Act 1986 as the action proposed in the warning notice. A final notice under section 390 of the Act must set out the terms of the direction and state the date from which it takes effect. Section 392 of the Act is to be read as if it included references to a warning notice given under section 46A(1) and a decision notice given under section 46A(3).

1Note 9: The decision will be made under executive procedures if the society has agreed to the giving of the direction and its terms.

1Note 10: The FSA notifies the successor of the permission by giving it a decision notice . The decision notice is not preceded by the giving of a warning notice. No final notice is required under section 390 of the Act and for the purposes of section 391 of the Act (Publication), the decision notice is treated as if it were a final notice. The giving of permission is treated for the purposes of section 55 of the Act (Right to refer matters to the Tribunal) as if it were the determination of an application made by the successor under Part IV of the Act . Part IX of the Act (Hearings and appeals) accordingly applies, but with the omission of section 133(9), which would otherwise prevent the FSA from giving the permission on the terms notified in the decision notice until after any reference and appeal.

1Note 11: The decision will be made under executive procedures where the terms of the permission have been agreed with the successor.

Note 12: The warning notice and decision notice must set out the terms of the direction which the FSA proposes/has decided to give and any specification of when the society is to comply with it. A decision notice given under section 58A(3) must give an indication of the society's right, given by section 58A(5), to have the matter referred to the Tribunal. A decision notice under section 58A(3) may only relate to action under the same section of the Friendly Societies Act 1992 as the action proposed in the warning notice. A final notice under section 390 of the Act must set out the terms of the direction and state the date from which it takes effect. Section 392 of the Act is to be read as if it included references to a warning notice given under section 58A(1) and a decision notice given under section 58A(3).

Note 13: The decision will be made under executive procedures unless the RDC is already considering or is shortly to consider a closely related matter and it seems appropriate to those making the decision under executive procedures for the RDC to have responsibility for the decision, having regard to such factors as those listed in DEC 1.2.9 G6

DEC 2 Annex 2 Statutory notice procedure: Warning notice and decision notice procedure

G

The FSA's decision making procedure for applications concerning Part IV permission, applications for approval under section 59 of the Act, and for certain other applications involving warning and decision notices

DEC_2_Annex_2G

DEC 2 Annex 3 Statutory notice procedure: Warning notice and decision notice procedure

G

The FSA's decision making procedure in non-application cases involving warning and decision notices

DEC_2_Annex_3G

DEC 2 Annex 4 Statutory notice procedure: Warning notice and decision notice procedure

G

The FSA's decision making procedure on notification of a change in control involving warning and decision notices

DEC_2_Annex_4G

DEC 2 Annex 5 Specimen Warning Notice

G

This annex consists only of one or more forms or templates. Forms and templates are to be found through the 'Forms' link under Useful Links section at www.fsahandbook.info or on the Handbook CD-ROM.1

DEC 2 Annex 6 Specimen Decision Notice

G

This annex consists only of one or more forms or templates. Forms and templates are to be found through the 'Forms' link under Useful Links section at www.fsahandbook.info or on the Handbook CD-ROM.