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DEPP 2.1 Statutory notices

When statutory notices are required

DEPP 2.1.1 G RP

1The circumstances in which the warning notice and decision notice procedure apply are set out in DEPP 2 Annex 1.

DEPP 2.1.2 G RP

The circumstances in which the supervisory notice procedure apply are set out in DEPP 2 Annex 2.

DEPP 2.1.3 G RP

DEPP 2 Annex 1 and DEPP 2 Annex 2 identify the provisions of the Act or other enactment giving rise to the need for the relevant notice, and whether the decision maker is the RDC or FSA staff under executive procedures in each case.

Consistent decision making

DEPP 2.1.4 G RP

FSA staff responsible for the taking of a statutory notice decision under executive procedures may refer the matter to the RDC for the RDC to decide whether to give the statutory notice if:

  1. (1)

    the RDC is already considering, or is shortly to consider, a closely related matter; and

  2. (2)

    the relevant FSA staff believe, having regard to all the circumstances, that the RDC should have responsibility for the decision. The relevant considerations might include:

    1. (a)

      the desirability of consistency in FSA decision making;

    2. (b)

      potential savings in the time and cost of reaching a decision;

    3. (c)

      the factors identified in DEPP 3.3.2 G as relevant to an assessment of whether a decision should be regarded as straightforward.

DEPP 2.2 Warning notices and first supervisory notices

DEPP 2.2.1 G RP

If FSA staff consider that action requiring a warning notice or first supervisory notice is appropriate, they will recommend to the relevant decision maker that the notice be given.

DEPP 2.2.2 G RP

For first supervisory notices, the FSA staff will recommend whether the action should take effect immediately, on a specified date, or when the matter is no longer open to review (see DEPP 2.2.5 G).

DEPP 2.2.3 G RP

The decision maker will:

  1. (1)

    consider whether the material on which the recommendation is based is adequate to support it; the decision maker may seek additional information about or clarification of the recommendation, which may necessitate additional work by the relevant FSA staff;

  2. (2)

    satisfy itself that the action recommended is appropriate in all the circumstances;

  3. (3)

    decide whether to give the notice and the terms of any notice given.

DEPP 2.2.4 G RP

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.

DEPP 2.2.5 G RP

A matter is open to review (as defined in section 391(8) (Publication) of the Act) (in relation to a supervisory notice which does not take effect immediately or on a specified date) when:

  1. (1)

    the period during which any person may refer a matter to the Tribunal is still running; or

  2. (2)

    the matter has been referred to the Tribunal but has not been dealt with; or

  3. (3)

    the matter has been referred to the Tribunal and dealt with but the period during which an appeal may be brought against the Tribunal's decision is still running; or

  4. (4)

    such an appeal has been brought but has not been determined.

DEPP 2.3 Decision notices and second supervisory notices

Approach of decision maker

DEPP 2.3.1 G RP

If a decision maker is asked to decide whether to give a decision notice or second supervisory notice, it will:

  1. (1)

    review the material before it;

  2. (2)

    consider any representations made (whether written, oral or both) and any comments by FSA staff or others in respect of those representations;

  3. (3)

    decide whether to give the notice and the terms of any notice given.

Default procedures

DEPP 2.3.2 G RP

If the FSA receives no response or representations within the period specified in a warning notice, the decision maker may regard as undisputed the allegations or matters in that notice and a decision notice will be given accordingly. A person who has received a decision notice and has not previously made any response or representations to the FSA, may nevertheless refer the FSA's decision to the Tribunal.

DEPP 2.3.3 G RP

If the FSA receives no response or representations within the period specified in a first supervisory notice, the FSA will not give a second supervisory notice. The outcome depends on when the relevant action took or takes effect (as stated in the notice). If the action:

  1. (1)

    took effect immediately, or on a specified date which has already passed, it continues to have effect (subject to any decision on a referral to the Tribunal); or

  2. (2)

    was to take effect on a specified date which is still in the future, it takes effect on that date (subject to any decision on a referral to the Tribunal); or

  3. (3)

    was to take effect when the matter was no longer open for review, it takes effect when the period to make representations (or the period for referral to the Tribunal, if longer) expires, unless the matter has been referred to the Tribunal.

DEPP 2.3.4 G RP

In exceptional cases, the decision maker may permit representations from a person who has received a decision notice (or a second supervisory notice) or against whom action, detailed in a first supervisory notice, has taken effect, and shows on reasonable grounds that he did not receive the warning notice (or first supervisory notice), or that he had reasonable grounds for not responding within the specified period. In these circumstances, the decision maker may decide to give a further decision notice (or a written notice or a supervisory notice).

Further decision notice

DEPP 2.3.5 G RP

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 its 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 the person 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.

DEPP 2.3.6 G RP

For the purpose of establishing whether the person receiving the further decision notice gives its consent, the FSA will normally require consent in writing.

DEPP 2.4 Third party rights and access to FSA material

DEPP 2.4.1 G RP

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 DEPP 2 Annex 1 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.

DEPP 2.5 Provision for certain categories of decision

Purpose

DEPP 2.5.1 G RP

Some of the decisions referred to in DEPP 2 Annex 1 and DEPP 2 Annex 2 share similar characteristics. For convenience, DEPP 2.5 sets out some of these and the particular features they have.

Different decision makers

DEPP 2.5.2 G RP

The decision to give a warning notice and a decision notice in a particular matter will often not be taken by the same decision maker. Certain types of action require that the warning notice decision be taken by FSA staff under executive procedures and the decision notice decision be taken by the RDC. Similarly, in enforcement cases the RDC might take the decision to give a warning notice,4 but the decision to give a decision notice could be taken by the settlement decision makers on the basis that the person concerned does not contest the action proposed (see DEPP 5).

4

Decisions relating to applications for authorisation or approval

DEPP 2.5.3 G RP

FSA staff under executive procedures will take the decision to give a warning notice if the FSA proposes to:

  1. (1)

    refuse an application for a Part IV permission or to refuse an application to cancel a Part IV permission;

  2. (2)

    impose a limitation or a requirement which was not applied for, or specify a narrower description of regulated activity than that applied for, on the grant of a Part IV permission;

  3. (3)

    refuse an application to vary a Part IV permission, or to restrict a Part IV permission on the grant of a variation (by imposing a limitation or a requirement which was not applied for or by specifying a narrower description of regulated activity than that applied for);

  4. (4)

    refuse approved person status;

  5. (5)

    refuse an application for a small e-money issuer certificate (see ELM 8 (Small e-money issuers));

  6. (6)

    refuse an application for variation or rescission of a requirement imposed on an incoming EEA firm.

DEPP 2.5.4 G RP

If no representations are made in response to a warning notice proposing the action set out at DEPP 2.5.3 G within the period specified, a decision notice will be given accordingly: see DEPP 2.3.2 G (Default procedures).

DEPP 2.5.5 G RP

If representations are made in response to a warning notice proposing the action set out at DEPP 2.5.3G (1), DEPP 2.5.3G (4) or DEPP 2.5.3G (5), then the RDC will take the decision to give a decision notice.

DEPP 2.5.6 G RP

If representations are made in response to a warning notice proposing the action set out at DEPP 2.5.3 GDEPP 2.5.3G (2), DEPP 2.5.3G (3) or DEPP 2.5.3G (6), then the RDC will take the decision to give a decision notice if the action involves a fundamental change(see DEPP 2.5.8 G) to the nature of a permission. Otherwise, the decision to give the decision notice will be taken by FSA staff under executive procedures.

FSA's own-initiative power

DEPP 2.5.7 G RP

The RDC will take the decision to give a supervisory notice exercising the FSA's own initiative power (by removing a regulated activity, by imposing a limitation or requirement or by specifying a narrower description of regulated activity) if the action involves a fundamental change (see DEPP 2.5.8 G) to the nature of a permission. Otherwise, the decision to give the decision notice will be taken by FSA staff under executive procedures.

DEPP 2.5.7A G RP

3Notwithstanding DEPP 2.5.7 G, FSA staff under executive procedures will be the decision maker whenever a firm agrees not to contest the FSA's exercise of its own initiative power, including where the FSA's action involves a fundamental change to the nature of a permission.

DEPP 2.5.8 G RP

A fundamental change to the nature of a permission means:

  1. (1)

    removing a type of activity or investment from the firm'spermission; or

  2. (2)

    refusing an application to include a type of activity or investment; or

  3. (3)

    restricting a firm from taking on new business, dealing with a particular category of client or handling client money by imposing a limitation or requirement, or refusing an application to vary or cancel such a limitation or requirement; or

  4. (4)

    imposing or varying an assets requirement (as defined in section 48(3) of the Act (Prohibitions and restrictions)), or refusing an application to vary or cancel such a requirement.

Decisions relating to listing of securities

DEPP 2.5.9 G RP

FSA staff under executive procedures will take the following statutory notice decisions:

  1. (1)

    the refusal of an application for listing of securities;

  2. (2)

    the suspension of listing on the FSA's own initiative or at the request of the issuer;

  3. (3)

    [deleted]2

    2
  4. (4)

    the discontinuance of listing of securities at the issuer's request;

  5. (5)

    the exercise of any of the powers in sections 87K or 87L of the Act in respect of a breach of any applicable provision; and2

  6. (6)

    [deleted]2

    2
  7. (7)

    the refusal of an application by an issuer for cancellation of a suspension of listing made under section 77 of the Act.

DEPP 2.5.10 G RP

The RDC will take statutory notice decisions relating to the discontinuance of listing of securities on the FSA's own initiative.

DEPP 2.5.11 G RP

If securities have matured or otherwise ceased to exist the FSA will remove any reference to them from the official list. This is a purely administrative process, and not a discontinuance of listing in the sense used in Part 6 of the Act.

Modified procedures in collective investment scheme and certain other cases

DEPP 2.5.12 G RP

FSA staff will usually inform or discuss with the person concerned any action they contemplate before they recommend to the RDC that the FSA takes formal action. The FSA may also be invited to exercise certain powers by the persons who would be affected by the exercise of those powers. In these circumstances if the person concerned has agreed to or accepted the action proposed then the decisions referred to in DEPP 2.5.13 G will be taken by FSA staff under executive procedures rather than by the RDC.

DEPP 2.5.13 G RP

The decisions referred to in DEPP 2.5.12 G are:

  1. (1)

    the decision to give a supervisory notice pursuant to section 259(3), (8) or 9(b) (directions on authorised unit trust schemes); section 268(3), 7(a) or 9(a) (directions in respect of recognised overseas schemes); or section 282(3), (6) or (7)(b) (directions in respect of relevant recognised schemes) of the Act;

  2. (2)

    the decision to give a warning notice or decision notice pursuant to section 280(1) or (2)(a) (revocation of recognised investment scheme) of the Act;

  3. (3)

    the decision to give a supervisory notice in accordance with regulation 27(3), (8) or 9(b) of the OEIC Regulations;

  4. (4)

    the decision to give a warning notice or decision notice pursuant to regulation 24 or regulation 28 of the OEIC Regulations;

  5. (5)

    the decision to give a direction under section 42B(1) of the Building Societies Act 1986 that a building society transfers all its engagements to one or more other building societies or that it transfers its business to an existing company (under section 94 or section 97 respectively of the Building Societies Act 1986); and

  6. (6)

    the decision to give a decision notice under section 93(6) of the Building Societies Act 1986 (permission for successor society on amalgamation) where the terms of the permission have been agreed with the successor building society.

DEPP 2.5.14 G RP

In determining whether there is agreement to or acceptance of the action proposed, an indication by the following persons will be regarded as conclusive:

  1. (1)

    in relation to an authorised unit trust, the manager and trustee;

  2. (2)

    in relation to an ICVC, the directors and the depositary;

  3. (3)

    in relation to a recognised scheme, the operator and, if any, the trusteeor depositary.

DEPP 2.5.15 G RP

A decision to give a warning notice or decision notice refusing an application for an authorisation order declaring a unit trust scheme to be an AUT or ICVC2 will be taken by the RDC only if the application is by an authorised fund manager who is not the operator of an existing AUT or ICVC. Otherwise, the decision to give the warning notice or decision notice will be taken by FSA staff under executive procedures.2

2
DEPP 2.5.16 G RP

A notice under paragraph 15A(4) of Schedule 3 to5 the Act relating to the application by an EEA firm for approval to manage a UCITS scheme5 is not a warning notice, but the FSA will operate a procedure for this5 notice which will be similar to the procedure for a warning notice.

5 5 5 5

Notices under the Building Societies Act 1986 and other enactments

DEPP 2.5.17 G RP

The FSA expects to adopt a procedure in respect of notices under enactments other than the Act which is similar to that for statutory notices under the Act, but which recognises any differences in the legislative framework and requirements. DEPP 2 Annex 1 and DEPP 2 Annex 2 therefore identify notices to be given pursuant to other enactments and the relevant FSA decision maker.

DEPP 2.5.18 G RP

Some of the distinguishing features of notices given under enactments other than the Act are as follows:

  1. (1)

    Building Societies Act 1986, section 36A: 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.

  2. (2)

    Building Societies Act 1986, section 93(6): 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.

  3. (3)

    Friendly Societies Act 1992, section 58A1: The warning notice and decision notice must set out the terms of the direction which the FSA proposes or has decided to give and any specification of when the friendly 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).

    1

DEPP 2 Annex 1 Warning notices and decision notices under the Act and certain other enactments

G

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

Section of the Act

Description

Handbook reference

Decision maker

52(6)(a)

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

SUP 6

Executive procedures

52(6)(b)

when the FSA is proposing to grant an application to vary a firm'sPart IV permission but, other 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)

Executive procedures

52(7)

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

Executive procedures

52(7)

when the FSA is proposing to refuse an application to vary a firm'sPart IV permission

SUP 6

Executive procedures

52(7)

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

SUP 6

Executive procedures

52(9)(a)

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

RDC or executive procedures

See DEPP 2.5.6 G

52(9)(b)

when the FSA is deciding to grant an application to vary a firm's Part IV permission but, other 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 or executive procedures

See DEPP 2.5.6 G

52(9)(c)

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

RDC or executive procedures

See DEPP 2.5.5 G

52(9)(c)

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

SUP 6

RDC or executive procedures

See DEPP 2.5.6 G

52(9)(c)

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

SUP 6

RDC or executive procedures

See DEPP 2.5.5 G

54(1)/(2)

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

RDC

57(1)/(3)

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

RDC

58(3)/(4)

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

RDC

62(2)

when the FSA is proposing to refuse an application for approval of a person performing a controlled function

SUP 10

Executive procedures

62(3)

when the FSA is deciding to refuse an application for approval of a person performing a controlled function

SUP 10

RDC or executive procedures

See DEPP 2.5.5 G

63(3)/(4)

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

RDC

863B(1)/(3)

when the FSA is proposing or deciding to impose a penalty on a person under section 63A*

RDC

67(1)/(4)

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

RDC

76(4)/(5)

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

LR 2 and LR 3

Executive procedures

78(10)/(11)(a)

when the FSA has suspended, on its own initiative,3 the listing of securities3and is proposing or deciding to refuse an application by an issuer for cancellation of the suspension

3

LR 5

Executive procedures

378A(4)/(5)

When the FSA is proposing or deciding to refuse an application by the issuer of the securities for the discontinuance or suspension of the listing of the securities

LR 5

Executive procedures

378A(7)/(8)(a)

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

LR 5

Executive procedures

87M(2)/(3)

when the FSA is proposing or 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

RDC 3 4 7

788(4)/(6)

when the FSA is proposing or 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 sponsor10

10

LR 8

RDC

89(2)/(3)

when the FSA is proposing or deciding to publish a statement censuring a sponsor*4

RDC 9

989K(2)/(3)

when the FSA is proposing or deciding to publish a statement that an issuer of securities admitted to trading on a regulated market is failing or has failed to comply with an applicable transparency obligation

RDC

92(1)/(4)

when the FSA is proposing or deciding to take action against any person under section 91 for breach of Part 6 rules*4

RDC

126(1)/ 127(1)

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

RDC

8131H(1)/ (4)

when the FSA is proposing or deciding to take action against a person under section 131G*

RDC

189(4)/(7)6

6

when the FSA is proposing or deciding to object to a change in control following receipt of a section 178 notice6

6

SUP 11

Executive procedures

189(4)/(7)6

6

when the FSA is proposing or deciding to approve a change in control with conditions, following receipt of a section 178 notice6

6

SUP 11

Executive procedures

187(1)/(3) and 188(1)191A(4)/(6)6

when the FSA is proposing or deciding to object to a person who has acquired or increased control without giving a section 178 notice6

6

SUP 11

Executive procedures 6

6191A(4)/(6)

when the FSA is proposing or deciding to object to a person'scontrol on the basis of the matters in section 186

SUP 11

Executive procedures

6191A(4)/(6)

when the FSA is proposing or deciding to object to a person'scontrol on the grounds that he is in breach of a condition imposed under section 187

SUP 11

Executive procedures

200(4)/(5)

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

RDC or executive procedures

See DEPP 2.5.6 G

207(1)/ 208(1)

when the FSA is proposing or deciding to publish a statement (under section 205) or impose a financial penalty (under section 206) or suspend a permission or impose a restriction in relation to the carrying on of a regulated activity (under section 206A). This applies in respect of an authorised person, or an unauthorised person to whom section 404C applies.*12

12 8 8 8

RDC

245(1)/(2)

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

COLL 2

RDC or executive procedures

See DEPP 2.5.15 G

252(1)/(4)

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

COLL 2

Executive procedures

11252A(4)(b)/(6)(a)

when the FSA is proposing or deciding to refuse approval of a proposal by the manager of a feeder UCITS to make an alteration to the trust deed to enable the feeder UCITS to convert into a UCITS scheme which is not a feeder UCITS

COLL 11

Executive procedures

255(1)/(2)

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

None, but see Chapter 14 of the Regulatory Guide EG.

RDC 9

9256(4)/(5)

when the FSA is proposing or deciding to refuse a request for the revocation of the authorisation order of an AUT

RDC

260(1)/(2)

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

RDC

264(2)/ 265(4)

[deleted]11

11 		11

269(1)/(2)

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

RDC

271(1)/(3)

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

COLL 9

Executive procedures

276(1)/(2)

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

COLL 9

Executive procedures

280(1)/(2)

when the FSA is proposing or 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 *

RDC

1301G(3)(b)/(5)6

6

when the FSA is proposing or deciding12 to object to a proposed acquisition 6of a UKRIE following receipt of a section 301A 6notice .

6 6

REC 4.2C

Executive procedures 1 2

2301I(3)/(4)6

6

when the FSA is proposing or deciding to object to a person who has acquired or increased control in a UK RIE without giving a section 301 notice6

6

REC 4.2C

Executive procedures

2301I(3)/(4)6

6

when the FSA is proposing or deciding to object to a person's control in a UK RIE on the basis of the approval requirement in section 301F(4)6

6

REC 4.2C

Executive procedures

1313B(9)

[deleted]9

9 		9 9

2313B(10)/(11)

[deleted]9

9 		9 9

9313BB(5)/ 313BC(5)

when, upon the application of an institution, the FSA is proposing or deciding not to revoke a requirement imposed on an institution under section 313A or is proposing or deciding that a requirement imposed on a class of institutions under section 313A will continue to apply to the applicant

REC 4.2D

Executive procedures

9313BD(5)/ 313BE(4)

when, upon the application of an issuer, the FSA is proposing or deciding not to revoke a requirement imposed on an institution or a class of institutions under section 313A or to revoke a requirement imposed on a class of institutions under section 313A in relation to the class apart from one or more specified members of it, or one or more specified members of the class only

REC 4.2D

Executive procedures

321(8)/(9)

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

RDC

331(1)/(3)

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

RDC

331(7)/(8)

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

RDC

345(2)/(3)

when the FSA is proposing or 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 *

RDC

385(1)/ 386(1)

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

RDC

1412B(2)/(3)

when the FSA is proposing/deciding to refuse to approve a relevant system as defined in section 412A(9) of the Act

Executive procedures

1412B(4)/(5)

when the FSA is proposing/deciding to suspend or withdraw its approval in relation to a relevant system as defined in section 412A(9) of the Act*

Executive procedures

1412B(8)/(9)

when the FSA is proposing/deciding to refuse an application to cancel the suspension of approval in relation to a relevant system as defined in section 412A(9) of the Act*

Executive procedures 11

11Paragraph 15A(4) of Schedule 3

when the FSA is notifying an EEA firm wishing to manage a UCITS scheme and its Home State regulator that the EEA firm does not comply with the fund application rules, or is not authorised by its Home State regulator to manage the type of collective investment scheme for which authorisation is required, or has not provided the documentation required under article 20(1) of the UCITS Directive

SUP 13A

See DEPP 2.5.16 G

Executive procedures

Paragraph 15A(5) of Schedule 3

[deleted]11

11 		11

11Paragraph 15B(3)(a) of Schedule 3

when the FSA is deciding not to withdraw a notice issued to an EEA firm wishing to manage a UCITS scheme and to its Home State regulator that the EEA firm does not comply with the fund application rules, or is not authorised by its Home State regulator to manage the type of collective investment scheme for which authorisation is required, or has not provided the documentation required under article 20(1) of the UCITS Directive

SUP 13A

Executive procedures

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

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

SUP 13

RDC

Section of the Building Societies Act 1986

Description

Handbook reference

Decision maker

36A(5)/(5A)

when the FSA is proposing or 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)

See DEPP 2.5.18G (1)

RDC

46A(1)(a)/(3)(a)

when the FSA is proposing or 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*4

RDC

46A(1)(b)/(3)(b)

when the FSA is proposing or 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*

RDC or executive procedures

See DEPP 2.5.12 G

93(6)

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

See DEPP 2.5.18G (2)

RDC or executive procedures

see DEPP 2.5.12 G

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

 14

RDC

15 Articles of the Credit Unions (Northern Ireland) Order 1985

Description

Handbook reference

Decision maker

60(1), 61(1) and 63

where the FSA is proposing to consent to the Registrar of Credit Unions for Northern Ireland cancelling or suspending the registration of a Northern Ireland credit union, or petitioning for the winding up of a Northern Ireland credit union

RDC

Section of the Friendly Societies Act 1992

Description

Handbook reference

Decision maker

58A(1)(a)/(3)(a)

when the FSA is proposing or 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*

See DEPP 2.5.18G (3)

RDC

58A(1)(b)/(3)(b)

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

RDC

85(4A)

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

RDC or executive procedures

See DEPP 2.5.12 G

OEIC Regulations reference

Description

Handbook reference

Decision maker

Regulation 16(1)/(2)

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

COLL 2

RDC or executive procedures

See DEPP 2.5.15 G

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

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

COLL 2

Executive procedures 11

11Regulation 22A(5)(b)/(8)(a)

when the FSA is proposing or deciding to refuse approval of a proposal by an ICVC which is a feeder UCITS to make an alteration to its instrument of incorporation to enable it to convert into a UCITS scheme which is not a feeder UCITS

COLL 11

Executive procedures

Regulation 24(1)/(2)

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

RDC

Regulation 28(1)/(2)

when the FSA is proposing or 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

RDC

Paragraph 20 of Schedule 5

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

RDC

Regulated Activities Order

Description

Handbook reference

Decision maker

Article 95(2)/(3)

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

SUP 12.4.10 G

RDC

Article 95(7)/(8)

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

SUP 12.4.10 G

RDC

5 70 Payment Services Regulations

Description

Handbook reference

Decision maker

Regulations 9(7) and 14

when the FSA is proposing to refuse an application for authorisation as an authorised payment institution, or for registration as a small payment institution, or to9 impose a requirement, or to refuse an application to vary an authorisation9

Executive procedures

Regulations 9(8)(a) and 14

when the FSA is deciding to refuse an application for authorisation as an authorised payment institution, or for registration of a small payment institution, or to9 impose a requirement, or to refuse an application to vary an authorisation9

Executive procedures where no representations are made in response to a warning notice, otherwise by the RDC

Regulations 10(2) and 10(3)(a) and 14

when the FSA is proposing or deciding to either cancel an authorised payment institution's authorisation, or to cancel a small payment institution's registration, otherwise than at that institution's own request*

Regulations 11(6), 11(9), 11(10)(b) and 14

When the FSA is exercising its powers to vary a person's authorisation on its own initiative

RDC or Executive procedures

See also DEPP 3.4

(Note 1)

Regulation 24(2)

when the FSA is proposing to refuse to register an EEAbranch

Executive procedures

Regulation 24(3)(a)

when the FSA is deciding to refuse to register an EEAbranch

Executive procedures where no representations are made in response to a warning notice, otherwise by the RDC

Regulations 24(2) and 24(3)(a)

when the FSA is proposing or deciding to cancel the registration of an EEAbranch*

RDC

Regulation 29(9)

when the FSA is proposing to refuse an application for registration as an agent

Executive procedures

Regulation 29(10)(a)

when the FSA is deciding to refuse an application for registration as an agent

Executive procedures where no representations are made in response to a warning notice, otherwise by the RDC

Regulations 30(2) and 30(3)(a)

when the FSA is proposing or deciding to remove an agent from the FSA Register otherwise than at the request of a payment institution*

RDC

Regulations 86(1) and 86(3)

when the FSA is proposing, or deciding, to impose a financial penalty*

RDC

Regulations 86(1) and 86(3)

when the FSA is proposing, or deciding, to publish a statement that a payment service provider has contravened the Payment Services Regulations*

RDC

Regulations 89(1) and 89(3)

when the FSA is proposing or deciding to exercise its powers to require restitution*

RDC

Regulation 121(7)

when the FSA is proposing to decide that it has not received the required information or that the required conditions are not met as concerns deemed authorisation

Executive Procedures

Regulation 121(8)

when the FSA is deciding that it has not received the required information or that the required conditions are not met as concerns deemed authorisation

Executive procedures where no representations are made in response to a warning notice, otherwise by the RDC

Schedule 5 paragraph 1

when the FSA is proposing or deciding to publish a statement that a relevant person has been knowingly concerned with a contravention of the Payment Services Regulations (Note 2)

RDC

Schedule 5 paragraph 1

when the FSA is proposing or deciding to impose a financial penalty against a relevant person (Note 3)

RDC

Notes:

(1) The RDC will take the decision to give a notice exercising the FSA's own initiative power if the action involves:

(a) removing a type of activity from an authorisation or registration; or

(b) refusing an application to include a type of activity in an authorisation or registration; or

(c) restricting a person from taking on new business, dealing with a particular category of customer or refusing an application to vary or cancel such a restriction; or

(d) imposing or varying a capital requirement, or refusing an application to vary or cancel such a requirement.

For all other types of action the decision to give a notice will be taken by FSA staff under executive procedures.

(2) The Payment Services Regulations do not require third party rights and access to FSA material when the FSA exercises this power. However, the FSA generally intends to allow for third party rights and access to material when exercising this power.

(3) The Payment Services Regulations do not require third party rights and access to FSA material when the FSA exercises this power. However, the FSA generally intends to allow for third party rights and access to material when exercising this power.

4 Regulated Covered Bonds Regulations 2008

Description

Handbook reference

Decision maker

Regulation 13(4)/(5)(a)

when the FSA is proposing or deciding to refuse an application under regulation 8

RCB 6

Executive procedures

Regulation 20(5)/(6)(a)

when the FSA is proposing or deciding not to approve a material change

RCB 6

Executive procedures

Regulation 25(5)/(6)(a)

when the FSA is proposing or deciding not to approve a change of ownership

RCB 6

Executive procedures

Regulation 32(1)(a)/ (2)(a)

before the FSA gives a direction under regulation 30 or when it decides to make the direction

RCB 6

Executive procedures

Regulation 32(1)(b)/(2)(b)

before the FSA removes an issuer from the register of issuers under regulation 31 or when it decides to remove the issuer from the register of issuers*

RCB 6

Executive procedures

Regulation 35(1)/(3)

when the FSA is proposing or deciding to impose a penalty on a person under regulation 34*

RCB 6

RDC

9 Cross-Border Payments in Euro Regulations 2010

Description

Handbook reference

Decision maker

Regulations 7(1) and 7(3)

when the FSA is proposing or deciding to impose a financial penalty*

RDC

Regulations 7(1) and 7(3)

when the FSA is proposing or deciding to publish a statement that a payment service provider has contravened the EU Cross-Border Regulation*

RDC

Regulations 10(1) and 10(3)

when the FSA is proposing or deciding to exercise its powers to require restitution*

RDC

Schedule paragraph 1

when the FSA is proposing or deciding to publish a statement that a relevant person has been knowingly concerned with a contravention of the EU Cross-Border Regulation (Note 1)

RDC

Schedule paragraph 1

when the FSA is proposing or deciding to impose a financial penalty against a relevant person (Note 1)

RDC

Note:

(1) The Cross-Border Payments in Euro Regulations do not require third party rights and access to FSA material when the FSA exercises this power. However, the FSA generally intends to allow for third party rights and access to material when exercising this power.

13 Electronic Money Regulations

Description

Handbook reference

Decision maker

Regulations 9(6) and 15

where the FSA is proposing to refuse an application for authorisation as an authorised electronic money institution, or for registration as a small electronic money institution, or impose a requirement, or refuse to vary an authorisation or registration

Executive procedures

Regulations 9(7)(a) and 15

when the FSA is deciding to refuse an application for authorisation as an authorised electronic money institution, or for registration as a small electronic money institution, or impose a requirement or refuse to vary an authorisation or registration

Executive procedures where no representations are made in response to a warning notice, otherwise by the RDC

Regulations 10(4), 10(5)(a)and 15

when the FSA is proposing or deciding to either cancel an authorised electronic money institution's authorisation, or to cancel a small electronic money institution's registration otherwise than at that institution's own request *

RDC

Regulations 11(6), 11(9), 11(10)(b) and 15

when the FSA is exercising its powers to vary an electronic money institution's authorisation or vary a small electronic money institution's registration on its own initiative

RDC or Executive procedures (Note 1)

Regulation 29(2)

when the FSA is proposing to refuse to register an EEA branch of an authorised electronic money institution

Executive procedures

Regulation 29(3)(a)

when the FSA is deciding to refuse to register an EEA branch of an authorised electronic money institution

Executive procedures where no representations are made in response to a warning notice, otherwise by the RDC

Regulation 29(2) and Regulation 29(3)(a)

when the FSA is proposing or deciding to cancel the registration of an EEA branch of an authorised electronic money institution*

RDC

Regulation 34(9)

when the FSA is proposing to refuse an application for registration as an agent

Executive procedures

Regulation 34(10)(a)

when the FSA is deciding to refuse an application for registration as an agent

Executive procedures where no representations are made in response to a warning notice, otherwise by the RDC

Regulations 35(2) and 35(3)(a)

when the FSA is proposing or deciding to remove an agent from the FSA Register otherwise than at the request of the electronic money institution *

RDC

Regulations 53(1) and 53(3)

when the FSA is proposing, or deciding, to publish a statement that an electronic money issuer has contravened the Electronic Money Regulations *

RDC

Regulations 53 (1) and 53 (3)

when the FSA is proposing or deciding, to impose a financial penalty *

RDC

Regulations 53(1) and 53(3)

When the FSA is proposing or deciding to suspend the authorisation of an authorised electronic money institution or registration of a small electronic money institution, or to limit or otherwise restrict the carrying on of electronic money issuance or payment services business by an electronic money institution *

RDC

Regulations 56(1) and 56(3)

when the FSA is proposing or deciding to exercise its powers to require restitution *

RDC

Regulation 74(7)

when the FSA is proposing to decide not to include a person on the register

Executive procedures

Regulation 74(8) (a)

when the FSA is deciding not to include a person on the register

Executive procedures where no representations are made in response to a warning notice, otherwise by the RDC

Schedule 3, paragraph 1

when the FSA is proposing or deciding to publish a statement that a relevant person has been knowingly concerned with a contravention of the Electronic Money Regulations (Note 2)

RDC

Schedule 3, paragraph 1

when the FSA is proposing or deciding to impose a financial penalty against a relevant person (Note 2)

RDC

Notes:

(1)

The RDC will take the decision to give the notice exercising the FSA's own-initiative power if the action involves:

(a) removing a type of activity from an authorisation or registration; or

(b) refusing an application to include a type of activity in an authorisation or registration; or

(c) restricting a person from taking on new business, dealing with a particular category of customer or refusing an application to vary or cancel such a restriction; or

(d) imposing or varying a capital requirement, or refusing an application to vary or cancel such a requirement.

(2) The Electronic Money Regulations do not require third party rights and access to FSA material when the FSA exercises this power. However, the FSA generally intends to allow for third party rights and access to material when exercising this power.

DEPP 2 Annex 2 Supervisory notices

Section of the Act

Description

Handbook reference

Decision maker

53(4)/(7)/

(8)(b)

when the FSA is exercising its own-initiative power to vary a firm's Part IV permission

SUP 7 1

RDC or executive procedures

See DEPP 2.5.7 G

78(2)/(5)

when the FSA is proposing to discontinue or discontinues the listing of a security

LR 5

RDC or executive procedures

See DEPP 2.5.9G (4) and DEPP 2.5.10 G

78(2)/(5)

when the FSA is proposing to suspend or suspends the listing of a security

LR 5

Executive procedures 2

278A(2)/(8)(b)

when the FSA discontinues or suspends the listing of a security on the application of the issuer of the security

LR 5

Executive procedures

87O(2)/(5)

when the FSA is proposing or deciding to exercise or deciding to maintain, vary or revoke any of the powers in sections 87K or 87L in respect of an infringement of any applicable provision.

PR 5

Executive procedures

96C

when the FSA is proposing to suspend or suspends trading in a financial instrument

DTR

Executive procedures 2

2191B(1)

when the FSA gives a restriction notice under section 191B

Executive procedures

197(3)/(6)/(7)(b)

when the FSA is exercising its power of intervention in respect of an incoming firm

SUP 14

RDC or executive procedures

See DEPP 2.5.7 G and 2.5.7A G2

259(3)/(8)/ (9) (b)

when the FSA is exercising its power to give or, on its own initiative, to vary a direction to the manager and trustee of an AUT

COLL

RDC

268(3)/ (7)(a) or (9)(a) (as a result of (8)(b)/(13))

when the FSA is proposing or deciding to give or, on its own initiative, to vary a direction to the operator of a recognised scheme

COLL

RDC

282 (3)/(6)/ (7)(b)

when the FSA is exercising its power to give a direction to an operator, trustee or depositary of a recognised scheme

COLL

2301J(1)

when the FSA gives a restriction notice under section 301J

Executive procedures

321(2)/(5)

when the FSA is exercising its power to impose a requirement on a former underwriting member of Lloyd's

RDC

OEIC Regulations reference

Description

Handbook reference

Decision maker

Regulation 27

when the FSA is exercising its power to give or, on its own initiative, to vary a direction to an ICVC and its depositary

COLL

RDC