DEC 2 Annex 1 Statutory notice procedure: Warning notice and decision notice procedure
List of warning notices and decision notices under the Act (other than Part VI)and 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) |
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Section of the Act |
Description |
Handbook reference |
Decision maker |
52(6)(a)/52(9)(a) |
when the FSA is proposing/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 |
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52(6)(b)/(9) (b) |
when the FSA is proposing/deciding 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) |
RDC / executive procedures (Note 1) |
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52(7)/(9)(c) |
when the FSA is proposing/deciding to refuse an application for a Part IV permission |
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52(7)/(9)(c) |
when the FSA is proposing/deciding to refuse an application to vary a firm's Part IV permission |
RDC / executive procedures (Note 1) |
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52(7)/(9)(c) |
when the FSA is proposing/deciding to refuse an application to cancel a firm's Part IV permission |
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54(1)/(2) |
when the FSA is proposing/deciding to cancel a firm's Part IV permission otherwise than at its request* |
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57(1)/(3) |
when the FSA is proposing/deciding to make a prohibition order against an individual* |
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58(3)/(4) |
when the FSA is proposing/deciding to refuse an application for the variation or revocation of a prohibition order |
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62(2)/(3) |
when the FSA is proposing/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) |
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62(2)/(3) |
when the FSA is proposing/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) |
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63(3)/(4) |
when the FSA is proposing/deciding to withdraw approval from an approved person * |
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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 |
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when the FSA is proposing/deciding to impose a sanction for market abuse * |
ENF 14 |
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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 |
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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 |
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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 |
|
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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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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 |
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Paragraph 15(6)(c) of Schedule 3 (Note 3) |
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. |
AUTH 5 |
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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 |
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1Section 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 |
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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 |
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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) |
1Section 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 |
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1Section 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 |
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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 |
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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 |
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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 |
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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 |
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Paragraph 20 of schedule 5 |
when the FSA is proposing/deciding to use the disqualification powers under section 249(1)* |
ENF 17 |
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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 . |
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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. |
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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 . |
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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 |
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1Note 5: As amended by the Financial Services and Markets Act 2000 (Mutual Societies) Order 2001 (SI 2001/2617). |
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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. |
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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). |
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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). |
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1Note 9: The decision will be made under executive procedures if the society has agreed to the giving of the direction and its terms. |
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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. |
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1Note 11: The decision will be made under executive procedures where the terms of the permission have been agreed with the successor. |
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