GEN 4.5 Statements about authorisation and regulation by the appropriate regulator
Application
1This section applies to a firm:
- (1)
communicating with a customer; or
- (2)
communicating or approving a financial promotion other than:
- (a)
a financial promotion that would benefit from an exemption in the Financial Promotion Order if it were communicated by an unauthorised person;
- (b)
a promotion of an unregulated collective investment scheme that would breach section 238(1) of the Act if made by an authorised person (firms may not communicate or approve such promotions).
- (a)
- (1)
3This section also applies to a registered person communicating a financial promotion relating to one or more qualifying cryptoassets (in reliance on the exemption in article 73ZA of the Financial Promotion Order).
- (2)
For the purpose of (1), references in this section to a firm include reference to a registered person.
3As unauthorised persons, registered persons must also ensure that they do not contravene section 24 of the Act (False claims to be authorised or exempt).
GEN 4.5.1 R (1) does not apply to a firm when communicating with an eligible counterparty.
44However, misleading statements by a firm when communicated with an eligible counterparty may involve a breach of Principle 7 (Communications with clients) or Part 7 (Offences relating to financial services) of the Financial Services Act 2012, as well as giving rise to private law actions for misrepresentation.
The duty
It is likely to be misleading for a firm that is not authorised by the FCA or PRA to state or imply that it is so authorised. It is also likely to be misleading for a firm to state or imply that a client will have recourse to the Financial Ombudsman Service or the FSCS where this is not the case.2
4As well as potentially breaching the requirements in this section, misleading statements by a firm may involve a breach of Principle 7 (Communications with clients) or section Part 7 (Offences relating to financial services) of the Financial Services Act 2012, as well as giving rise to private law actions for misrepresentation.