ENF 16.5 Procedures and other relevant powers and provisions

ENF 16 Annex 1 G lists the procedures the FSA must follow when using the powers discussed in this chapter.

More information on the procedures the FSA will follow when issuing statutory notices and when deciding to use its powers to apply to court is contained in DEC

Section 238 of the Act (Restrictions on promotion) prohibits a firm from communicating an invitation or inducement to participate in a collective investment scheme unless an exemption applies (the exemptions include the collective investment schemes listed in ENF 16.1.1 G (1) to ENF 16.1.1 G (3)). In addition, section 240 (Restriction on approval of promotion) prohibits a firm from approving the content of a communication relating to a collective investment scheme if the firm itself would be prohibited from making the communication by section 238. The FSA has a range of powers for taking remedial, protective and disciplinary action against a firm over breaches of these prohibitions. These include the powers discussed in ENF 3 (Variation of Part IV permission on the FSA's own-initiative), ENF 5 (Cancellation of Part IV permission on the FSA's own initiative), ENF 6 (Injunctions), ENF 9 (Restitution and redress), ENF 10 (Insolvency proceedings and orders against debt avoidance), ENF 11 (Discipline of authorised firms and approved persons: The FSA's general approach), ENF 12 (Discipline of authorised firms and approved persons: Public censures and public statements) and ENF 13 (Discipline of authorised firms and approved persons: Financial penalties).

Unauthorised persons are generally prohibited by sections 19 (The general prohibition) and 21 (Restrictions on financial promotion) of the Act from being involved in either the management or promotion of collective investment schemes. The FSA's civil and regulatory powers for dealing with breaches of these prohibitions include those discussed in ENF 6, ENF 9 and ENF 10. An unauthorised person who breaches the prohibitions in sections 19 or 21 will also be guilty of a criminal offence under the Act. The FSA's power to prosecute criminal offences is discussed in ENF 15 (Prosecution of criminal offences).

The FSA's investigation powers in connection with AUTs, ICVCs, recognised schemes and other collective investment schemes are discussed in ENF 2 (Information gathering and investigation powers).