IPRU-INV 2.1 APPLICATION

1. (1)

   An authorised professional firm of a kind falling within (2) must comply with such of IPRU-INV 3, 5, 9 or 13 which in accordance with IPRU-INV 2.1.4R, most appropriately correlates to the type and scale of the business which it conducts.

2. (2)

   The type of authorised professional firm to which (1) applies is one:

   1. (a)

      which is also an exempt CAD firm;

   2. (b)

      which acts as a market maker;

   3. (c)

      which acts as a stabilising manager;

   4. (da)

      which acts as a small authorised UK AIFM or a residual CIS operator;

   5. (db)

      which acts as a depositary;

   6. (e)

      which acts as a broker fund adviser or otherwise participates in a broker fund arrangement;

   7. (f)

      whose main business, having regard to (3), is not the practice of its profession or professions;

   8. (g)

      whose permission includes a requirement that it acts in conformity with the financial resources rules applicable to another type of firm; or

   9. (h)

      whose permission includes establishing, operating or winding up a personal pension scheme.

3. (3)

   For the purposes of (2)(f), a firm's professional business practice is not the "main business" of the firm unless the proportion of income it derives from professional fees is, during its annual accounting period, at least 50% of the firm's total income (a temporary variation of not more than 5% may be disregarded for this purpose).

4. (4)

   An authorised professional firm which, in accordance with (1), is required to comply with IPRU-INV 3, 5, 9 or 13 must immediately give notification of that fact to the FCA in accordance with SUP 15.7 (Forms and method of notification).

An authorised professional firm will be a MiFID investment firm if its business activities include the provision of investment services and/or activities for a third party. An authorised professional firm will not however be a MiFID investment firm if it falls within one of the exclusions contained in Article 2 of MiFID. Article 2(1)(c) provides an exclusion for an authorised professional firm which provides investment services and/or activities in an incidental manner in the course of a professional activity and that activity is regulated by the firm's designated professional body.

The FCA considers the scope of this exclusion cannot be precisely defined. Ultimately questions of interpretation are for the Court to determine. The FCA considers that to satisfy the exclusion the services cannot be the major part of the practice of the firm. The FCA also considers the following factors to be among those that are relevant:

1. (1)

   the scale of regulated activity in proportion to other professional services provided;

2. (2)

   whether and to what extent activities that are regulated activities are held out as separate services;

3. (3)

   the impression given as to how the firm provides regulated activities, for example through its advertising or other promotions of its service.

The activities that a full-scope UK AIFM and a UCITS management company are allowed to perform are restricted by

article 6 of AIFMD and article 6 of the UCITS Directive to the management of AIFs and/or UCITS and the additional investment activities permitted by article 6(4) of AIFMD and article 6(3) of the UCITS Directive (as applicable). As such, an authorised professional firm cannot be a collective portfolio management firm or a collective portfolio management investment firm.