ENF 16.4 Recognised schemes

Sections 264 to 283 of the Act relate to recognised schemes. These provisions contain the following enforcement powers:

1. (1)

   the FSA's power under section 267 to suspend promotion of a scheme constituted in another EEA State and recognised under section 264 (Schemes constituted in other EEA States);

2. (2)

   the FSA's power under section 279 to revoke recognition of:

   1. (a)

      a scheme recognised under section 270 (Schemes authorised in designated countries or territories); and

   2. (b)

      a scheme individually recognised under section 272 (Individually recognised overseas schemes);

3. (3)

   the FSA's power under section 281 to give directions in respect of the schemes identified in ENF 16.4.1 G (2).

The FSA has power under section 267 of the Act (Power of Authority to suspend promotion of scheme) to suspend promotion of a scheme that is constituted in another EEA State and recognised under section 264. The power applies if it appears to the FSA that the operator of that scheme has communicated an invitation or inducement in relation to the scheme in a manner contrary to the financial promotion rules. Under section 267(3), the suspension may last for a set period, until a certain event has happened or until certain conditions have been met. Under sections 267(4) and (5) the FSA may, either on its own initiative or on the application of the operator of the scheme concerned, vary or revoke a direction suspending the scheme.

When it decides whether a suspension order under section 267 is appropriate, the FSA will consider all the relevant circumstances. General factors that the FSA may consider include, but are not limited to:

1. (1)

   the seriousness of the breach of financial promotion rules by the operator (the matters listed at ENF 16.2.10 G (1)(a) to ENF 16.2.10 G (1)(f) may be relevant in this context); and

2. (2)

   the conduct of the operator after the breach was discovered including whether the operator has compensated past and existing participants who have suffered loss.

In addition to or instead of suspending the promotion of a scheme recognised under section 264, the FSA may ask the competent authorities of the EEA State in which the scheme is constituted who are responsible for the authorisation of collective investment schemes, to take such action in respect of the scheme and/or its operator as will resolve the FSA's concerns. Also, Schedule 5 to the Act (Persons Concerned in Collective investment Schemes) states that a person who for the time being is an operator, trustee or depositary of a scheme recognised under section 264 of the Act is an authorised person. So, it will also be open to the FSA to take direct enforcement action against those persons.

1. (1)

   Section 279 of the Act (Revocation of recognition) relates to schemes recognised under sections 270 and 272. Section 270 sets out the requirements for the recognition of a collective investment scheme which is not recognised under section 264 but which is managed and authorised in a country or territory designated for the purposes of section 270. Section 272 sets out the requirements for the recognition of a collective investment scheme which is managed in a country or territory outside the United Kingdom and does not meet the requirements for recognition under section 264 or 270.

2. (2)

   Section 279 states that 'The FSA may direct that a scheme is to cease to be recognised by virtue of section 270 or revoke an order under section 272 if it appears to the FSA:-

   1. (a)

      that the operator, trustee or depositary of the scheme has contravened a requirement imposed on him by or under this Act;

   2. (b)

      that the operator, trustee or depositary of the scheme has, in purported compliance with any such requirement, knowingly or recklessly given the FSA information which is false or misleading in a material particular;

   3. (c)

      in the case of an order under section 272, that one or more of the requirements for the making of the order are no longer satisfied; or

   4. (d)

      that none of paragraphs (a) to (c) applies, but it is undesirable in the interests of the participants or potential participants that the scheme should continue to be recognised'.

Under section 281of the Act (Directions), the FSA can suspend the recognition of a scheme recognised under section 270 or section 272 for a set period, until a certain event happens or until certain conditions are met. The grounds upon which the FSA may give a direction under section 281 are broadly similar to those for the use of its power under section 279 (see ENF 16.4.5 G). The section 281 power may, however, also be used if it appears to the FSA that the operator, trustee or depositary of a scheme recognised under section 270 or 272 is likely to breach a requirement imposed on him under the Act.

The FSA will consider all the relevant circumstances of each case when it decides whether it is appropriate to use its powers under sections 279 and 281. The general factors which the FSA may consider include, but are not limited to, those set out in ENF 16.2.10 G (1) to ENF 16.2.10 G (9) (the conduct of the operator of the scheme and of the trustee or depositary will also, of course, be taken into account in relation to each of these factors).

As well as or instead of using these powers, the FSA may ask the relevant regulatory body of the country or territory in which the scheme is authorised to take such action in respect of the scheme and/or its operator, trustee or depositary as will resolve the FSA's concerns.