PERG 2.2 Introduction

Under section 23 of the Act (Contravention of the general prohibition), a person commits a criminal offence if he carries on activities in breach of the general prohibition in section 19 of the Act (The general prohibition) .. Although a person who commits the criminal offence is subject to a maximum of two years imprisonment and an unlimited fine, it is a defence for a person to show that he took all reasonable precautions and exercised all due diligence to avoid committing the offence.

Another consequence of a breach of the general prohibition is that certain agreements could be unenforceable (see sections 26 to 29 of the Act). This applies to agreements entered into by persons who are in breach of the general prohibition. It also applies to any agreement entered into by an authorised person if the agreement is made as a result of the activities of a person who is in breach of the general prohibition.

Any person who is concerned that his proposed activities may require authorisation will need to consider the following questions (these questions are a summary of the issues to be considered and have been reproduced, in slightly fuller form in the decision tree in PERG 2 Annex 1 G):

1. (1)

   Will I be carrying on my activities by way of business (see PERG 2.3)?

2. (2)

   Will I be managing the assets of an occupational pension scheme (see PERG 2.3.2G (3))?

3. (3)

   If the answer is 'Yes' to (1) or (2), will my activities relate to6specified investments (see PERG 2.6)?

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4. (3A)

   4Are my activities specified for the purposes of section 22(1)(b) of the Act (and, accordingly, when carried on by way of business, are a regulated activity when carried on in relation to property of any kind) or6 related to a specified benchmark (see PERG 2.5.1A G)?6

5. (4)

   If the answer is ‘Yes’ to (3) or (3a)4, will my activities be, or include, regulated activities (see PERG 2.7)?

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6. (5)

   If so, will I be carrying them on in the United Kingdom (see PERG 2.4)?

7. (6)

   If so, will my activities be excluded (see PERG 2.8 and PERG 2.9)?

8. (7)

   If not, will I be exempt (see PERG 2.10.5 G to PERG 2.10.8 G)?

9. (8)

   If not, am I allowed to carry on regulated activities without authorisation (see PERG 2.10.9 G to PERG 2.10.16 G)?

10. (9)

    If not, do I benefit from the few provisions of the Act that authorise me without a permission under Part 4A of the Act (seePERG 2.10.10 G 3(Members of Lloyds)2)?

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11. (10)

    If not, what is the scope of the Part 4A permission that I need to seek (see PERG 2 Annex 2 G)?

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The rest of this chapter provides a high level guide through the questions set out in PERG 2.2.3 G. It aims to give an overall picture but in doing so it necessarily relies on the reader referring to UK1 statutory provisions and European legislation1 to fill in the detail (which can be extensive).

The process of applying for Part 4A permission is available on the FCA website How do I get authorised:http://www.fca.org.uk/firms/about-authorisation/getting-authorised2. But a list of the activities for which permission may be given is annexed to this chapter (see PERG 2 Annex 2 G). You may find this helpful in providing an overview of the activities that are regulated. The list is included here because, with some exceptions, the investments and activities for which permission may be given are the same as the investments and activities specified in the Regulated Activities Order. This creates a few additional categories for which permission must be sought.