ENF 14.10 The FSA's endorsement of the Takeover Code and the SARs

The FSA has made rules under section 143 of the Act (Endorsement of codes etc.) endorsing the Takeover Code and the SARs. The effect of the FSA's endorsement in MAR 4.2.1 R is that, under section 143 of the Act:

1. (1)

   at the request of the Takeover Panel, the FSA may take enforcement action against a firm which breaches the Takeover Code or the SARs under Part IV (Variation of permission - see ENF 3), Part XIII (Intervention against incoming firms - see ENF 4), Part XIV (Disciplinary measures - see ENF 11, ENF 12 and ENF 13) and Part XXV (Injunctions and restitution - see ENF 6 and ENF 9);

2. (2)

   at the request of the Takeover Panel, the FSA may take enforcement action against an approved person under section 66(2)(b) of the Act (Disciplinary powers - see ENF 11).

Section 143(5) of the Act states that 'a failure to comply with a requirement imposed, or ruling given, under an endorsed provision is to be treated as a failure to comply with the endorsed provision under which that requirement was imposed or ruling was given'. So the FSA may take enforcement action as described in ENF 14.10.1 G where there has been a failure of this kind.

A breach of the Takeover Code or the SARs, or being knowingly concerned in a breach by another person, may also be relevant to enforcement action taken by the FSA on other grounds, including:

1. (1)

   withdrawal of approval under section 63 of the Act (Withdrawal of approval) on the basis that an approved person is not fit and proper (see ENF 7); and

2. (2)

   making a prohibition order against a person under section 56 of the Act (Prohibition orders - see ENF 8).

The FSA is only able to take enforcement action under section 143 of the Act in respect of a breach of the Takeover Code or the SARs at the request of the Takeover Panel. However, if the behaviour in question, leaving aside any breach of the Takeover Code or the SARs, could also constitute a breach of the rules, or in relation to an approved person, a Statement of Principle, the FSA may use its enforcement powers whether a request has been received from the Takeover Panel or not. In that situation, however, the FSA will consult the Takeover Panel and give due weight to its views.