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  3. Point in time
    2007-07-16

ICOB 3.4 Application: where?

Territorial scope

ICOB 3.4.1R

This chapter applies to a firm onlyin relation to:

  1. (1)

    the communication of a non-investment financial promotion to a person inside the United Kingdom; and

  2. (2)

    the approval of a non-investment financial promotion for communication to a person inside the United Kingdom;

subject to ICOB 3.4.3 R (Exceptions to territorial scope).

ICOB 3.4.2G
  1. (1)

    The application under ICOB 3.4.1 R is relevant both when a firm communicates a non-investment financial promotion itself and when a firmapproves a non-investment financial promotion for communication by others. But see also ICOB 3.4.3 R.

  2. (2)

    The exemptions in ICOB 3.3.6 R (Application: what?; Exemptions) also incorporate some territorial elements. In particular, the exemption for financial promotions originating outside the United Kingdom (section 21(3) of the Act (Restrictions on financial promotion)) (see ICOB 3.3.6 R(2)) and PERG 8.12.2G1 (Financial promotions to overseas recipients (article 12)), the exemptions for overseas communicators (see ICOB 3.3.6 R(3)) and the exemption for incoming electronic commerce communications (see PERG 8.12.38G 1 article 20B)).

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  3. (3)

    In the context of the provision of an electronic commerce activity to an EEA ECA recipient, the scope of ICOB 3 is extended by ECO 2.2.3 R (Financial promotion). This means that ICOB 3 will apply for communications to EEA ECA recipients.

Exceptions to territorial scope

ICOB 3.4.3R

The following parts of this chapter apply without any territorial limitation if a firm approves a non-investment financial promotion:

  1. (1)

    ICOB 3.1 to ICOB 3.6 (Application, Purpose and General); and

  2. (2)

    ICOB 3.8.1 R (1) (Non-investment financial promotions: clear, fair and not misleading: comparisons).

Meaning of "communicated to a person inside or outside the United Kingdom"

ICOB 3.4.4R

For the purposes of this chapter:

  1. (1)

    a non-investment financial promotion is communicated to a person outside the United Kingdom if it is:

    1. (a)

      made to a person who receives it outside the United Kingdom; or

    2. (b)

      directed only at persons outside the United Kingdom; and

  2. (2)

    a non-investment financial promotion is communicated to a person inside the United Kingdom if it is communicated to a person other than as described in (1);

and see ICOB 3.4.5 R and ICOB 3.6.3 R, which amplify this rule.

Meaning of "directed only at persons outside the United Kingdom"

ICOB 3.4.5R
  1. (1)

    If the conditions set out in 4(a), (b), (c) and (d) are met, a non-investment financial promotion directed from a place inside the United Kingdom will be regarded as directed only at persons outside the United Kingdom.

  2. (2)

    If the conditions set out in 4(c) and (d) are met a non-investment financial promotion directed from a place outside the United Kingdom will be regarded as directed only at persons outside the United Kingdom.

  3. (3)

    In any other case where one or more of the conditions in 4(a) to (e) is met, that fact will be taken into account in determining whether a non-investment financial promotion is directed only at persons outside the United Kingdom (but a non-investment financial promotion may still be regarded as directed only at persons outside the United Kingdom even if none of these conditions is met).

  4. (4)

    The conditions are that:

    1. (a)

      the non-investment financial promotion is accompanied by an indication that it is directed only at persons outside the United Kingdom;

    2. (b)

      the non-investment financial promotion is accompanied by an indication that it must not be acted upon by persons in the United Kingdom;

    3. (c)

      the non-investment financial promotion is not referred to in, or directly accessible from, any other non-investment financial promotion which is made to a person or directed at persons in the United Kingdom by the same person;

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    4. (d)

      there are in place proper systems and procedures to prevent recipients in the United Kingdom (other than those to whom the non-investment financial promotion might otherwise lawfully have been made) engaging in the investment activity to which the non-investment financial promotion relates with the person directing the non-investment financial promotion, a close relative of his or a member of the same group; and

    5. (e)

      the non-investment financial promotion is included in:

      1. (i)

        a website, newspaper, journal, magazine or periodical publication which is principally accessed in or intended for a market outside the United Kingdom;

      2. (ii)

        a radio or television broadcast or teletext service transmitted principally for reception outside the United Kingdom.