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[Note: ESMA has also issued guidelines under article 16(3) of the ESMA Regulation covering various topics relating to automated trading and direct electronic access.
7See www.fca.org.uk7]GEN 1.1.1 R (2) reflects section 266 of the Act (Disapplication of rules).
4Unless required to do so under the regulatory system, a firm must ensure that neither it nor anyone acting on its behalf claims, in a public statement or to a client, expressly or by implication, that its affairs, or any aspect of them, have the approval or endorsement of the FCA6 or another competent authority.
7Paragraph (1) does not apply to a firm to the extent that it is incompatible with 8obligations under article 44(8) of the MiFID Org Regulation.
Paragraph (1) does not apply to statements that explain, in a way that is fair, clear and not misleading, that:
the firm is an authorised person;
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the firm has permission to carry on a specific activity;
an authorisation order has been made in relation to an AUT, ACS or ICVC;
a recognised scheme has that status;
the firm'sapproved persons have been approved by the appropriate regulator for the purposes of section 59 of the Act (Approval for particular arrangements);
the firm has been given express written approval by the appropriate regulator in respect of a specific aspect of the firm's affairs.
Paragraph (1) applies with respect to the carrying on of both regulated activities and unregulated activities.
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GEN 1.2.2AR(2)(g) 6 is confined to written approval because of the need for clarity as to the scope of any approval given by the appropriate regulator9.
97A firm that carries on MiFID, equivalent third country or optional exemption business should have regard to the requirement in article 44(8) of the MiFID Org Regulation which is reproduced at COBS 4.5A.16UK8.
The FCA5 recognises that there may be occasions when, because of a particular emergency, a person (generally a firm, but in certain circumstances, for example in relation to price stabilising rules, an unauthorised person) may be unable to comply with a particular rule in the Handbook. The purpose of GEN 1.3.2 R is to provide appropriate relief from the consequences of contravention of such a rule in those circumstances.1
9 9 3If any emergency arises which:
makes it impracticable for a person to comply with a particular rule in the Handbook;
could not have been avoided by the person taking all reasonable steps; and
is outside the control of the person, its associates and agents (and of its and their employees);
the person will not be in contravention of that rule to the extent that, in consequence of the emergency, compliance with that rule is impracticable.
Paragraph (1) applies only for so long as:
The person must notify the FCA5 as soon as practicable of the emergency and of the steps it is taking and proposes to take to deal with the consequences of the emergency.
99A notification under (3) must be given to or addressed and delivered in accordance with SUP 15.7 (Form and method of notification) (whether or not the person is a firm). If the person is not a firm, the notification must be given to or addressed for the attention of:Contact Centre, The Financial Conduct9 Authority, 12 Endeavour Square, London, E20 1JN6 (tel: 0300 500 05974).1
494In the context of GEN 1.3.2 R, an action is not practicable if it involves a person going to unreasonable lengths.1
GEN 1.3.2 R operates on the FCA's5rules. It does not affect the FCA's5 powers to take action against a firm in an emergency, based on contravention of other requirements and standards under the regulatory system. For example, the FCA5 may exercise its own-initiative power in appropriate cases to vary a firm'sPart 4A permission9 based on a failure or potential failure to satisfy the threshold conditions (see SUP 7 (Individual9 requirements) and EG 8 (Variation and cancellation of permission and imposition of requirements on the FCA's5 own initiative)7).
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