PERG 2.9 Regulated activities: exclusions applicable in certain circumstances

The various exclusions outlined below deal with a range of different circumstances.

1. (1)

   Each set of circumstances described in PERG 2.9.3 G to PERG 2.9.17 G has some application to several regulated activities relating to securities, relevant investments orhome finance transactions.4 They have no effect in relation to the separate regulated activities of accepting deposits, issuing electronic money,9 effecting or carrying out contracts of insurance, advising on syndicate participation at Lloyd's, managing the underwriting capacity of a Lloyd's syndicate as a managing agent at Lloyd's or entering as provider into a funeral plan contract. Within each set of circumstances, the Regulated Activities Order, in Chapter XVII of Part II of the Order, makes separate provision for each regulated activity affected. This is necessary because each exclusion has to be tailored to reflect the different nature of the regulated activity involved and the different language required (for example, some activities involve entering directly into transactions while others relate to the provision of services).

   49
2. (2)

   The exclusion described in PERG 2.9.18 G relates to electronic commerce activities provided by an incoming ECA provider. This exclusion applies to all regulated activities except effecting or carrying out contracts of insurance.

The exclusions grouped together in the Regulated Activities Order are described below in this chapter in general terms. The exact terms of each exclusion will need to be considered by any person who is considering whether they need authorisation. Each description is accompanied by an indication of which regulated activities are affected.

This group of exclusions applies, in specified circumstances, to the regulated activities of:

1. (1)

   dealing in investments as principal;

2. (2)

   arranging (bringing about) deals in investments and4 making arrangements with a view to transactions in investments;

   44
3. (2A)

   arranging a home finance transaction;4

4. (3)

   managing investments;

5. (4)

   assisting in the administration and performance of a contract of insurance;

6. (5)

   safeguarding and administering investments;

7. (6)

   sending dematerialised instructions;

8. (7)

   advising on investments or advising on a home finance transaction;4

   4
9. (8)

   entering into a home finance transaction;4 and

   4
10. (9)

    administering a home finance transaction.4

    4

The exclusion is, however, disapplied where a person is carrying on

insurance mediation or reinsurance mediation. This is due to article 4(4A) of the Regulated Activities Order. Guidance on exclusions relevant to insurance mediation activities is in PERG 5 (Insurance mediation activities).

A person carrying on certain regulated activities does not require authorisation in specified circumstances if he is acting in a representative capacity. The representative capacities covered by the exclusions depend on the regulated activity concerned but, in most cases, the focus is on persons who are acting as trustee or personal representative. In broad terms, the exclusions apply to specified transactions, or activities, that are part of the discharge of his general obligations by the trustee or representative when he is acting as such. Many of the exclusions require that the trustee or representative must not hold himself out as providing services consisting of the regulated activity in question. In addition, he must not receive remuneration that is additional to any he receives for acting in the representative capacity (although a person is not to be regarded as receiving additional remuneration merely because his remuneration as trustee or representative is calculated by reference to time spent). The exclusions for entering into a home finance transaction and for administering a home finance transaction,4 however, work on a different basis. They apply where the activity relates to a home finance transaction4 under which the borrower, reversion occupier,8 home purchaser or SRB agreement seller 8as the case may be4 is a beneficiary.

This group of exclusions applies, in specified circumstances, to the regulated activities of:

1. (1)

   dealing in investments as agent;

2. (2)

   arranging (bringing about) deals in investments, and4making arrangements with a view to transactions in investments;

   44
3. (2A)

   arranging a home finance transaction;4

4. (3)

   assisting in the administration and performance of a contract of insurance;

5. (4)

   safeguarding and administering investments; and

6. (5)

   advising on investments or advising on a home finance transaction.4

   4

The exclusion is, however, disapplied where a person is carrying on insurance mediation or reinsurance mediation. This is due to article 4(4A) of the Regulated Activities Order. Guidance on exclusions relevant to insurance mediation activities is in PERG 5 (Insurance mediation activities). The exclusion is also disapplied for persons who, when carrying on the relevant regulated activity, are MiFID investment firms or third country investment firms (see PERG 2.5.4 G to PERG 2.5.5 G (Investment services and activities)).5

The exclusions apply where the regulated activity is carried out in the course of a profession or business which does not otherwise consist of the carrying on of regulated activities in the United Kingdom. However, activities are only excluded to the extent that they may reasonably be regarded as a necessary part of the other services provided in the course of the profession or business. The exclusion does not apply if separate remuneration is received in respect of any regulated activity that is carried on. (See separate guidance for authorised professional firms in PROF.)

This group of exclusions applies, in specified circumstances, to the regulated activities of:

1. (1)

   dealing in investments as principal;

2. (2)

   dealing in investments as agent;

3. (3)

   arranging (bringing about) deals in investments and making arrangements with a view to transactions in investments;

4. (4)

   managing investments;

5. (5)

   safeguarding and administering investments; and

6. (6)

   advising on investments.

Broadly speaking, the exclusions focus on cases where the main business of a person is to sell goods or supply services but where certain activities may have to be carried on for the purposes of that business which would otherwise be regulated activities. The exclusions are not available where the customer to whom goods are sold or services are supplied is an individual. They are also not available where what is at issue is a transaction entered into, or service provided, in relation to rights under a contract of insurance or units in a collective investment scheme (or rights to, or interests in, either). The exclusions are also disapplied for persons who, when5 carrying on the relevant regulated activity, are MiFID investment firms or third country investment firms5 (see PERG 2.5.4 G to PERG 2.5.5 G5 (Investment services and activities)).3

This group of exclusions applies, in specified circumstances, to the regulated activities of:

1. (1)

   dealing in investments as principal;

2. (2)

   dealing in investments as agent;

3. (3)

   arranging (bringing about) deals in investments and making arrangements with a view to transactions in investments;

4. (4)

   managing investments;

5. (5)

   safeguarding and administering investments;

6. (6)

   sending dematerialised instructions; and

7. (7)

   advising on investments.

These exclusions apply to intra-group dealings and activities and to dealings or activities involving participators in a joint enterprise which take place for the purposes of, or in connection with, the enterprise. The general principle here is that, as long as activities that would otherwise be regulated activities take place wholly within a group of companies, then there is no need for authorisation. The same principle applies to dealings or activities that take place wholly within a joint enterprise entered into for commercial purposes related to the participators' unregulated business. The exclusions in PERG 2.9.9G (2), (3), (4) and (7) are disapplied where they concern a contract of insurance. Guidance on exclusions relevant to insurance mediation activities is in PERG 5 (Insurance mediation activities). The exclusions are also disapplied for persons who, when5 carrying on the relevant regulated activity, are MiFID investment firms or third country investment firms5 (see PERG 2.5.4 G to PERG 2.5.5 G5 (Investment services and activities)).3

This group of exclusions applies, in specified circumstances, to the regulated activities of:

1. (1)

   dealing in investments as principal;

2. (2)

   dealing in investments as agent;

3. (3)

   arranging (bringing about) deals in investments and making arrangements with a view to transactions in investments; and

4. (4)

   advising on investments.

The exclusions apply in relation to transactions to buy or sell shares in a body corporate where, in broad terms:

1. (1)

   the transaction involves the acquisition or disposal of a least 50 per cent of the voting shares in the body corporate and is, or is to be, between certain specified kinds of person; or

2. (2)

   the object of the transaction may otherwise reasonably be regarded as being the acquisition of day-to-day control of the affairs of the body corporate.

These exclusions also apply to transactions that are entered into for the purposes of the above transactions (such as transactions involving the offer of securities in the offeror as consideration or part consideration for the sale of the shares in the body corporate). These exclusions do not have effect in relation to shares in an open-ended investment company. The exclusions in PERG 2.9.11G (2), (3) and (4) are disapplied where they concern a contract of insurance. Guidance on exclusions relevant to

insurance mediation activities is in PERG 5 (Guidance on insurance mediation activities). The exclusions are also disapplied for persons who, when5 carrying on the relevant regulated activity, are MiFID investment firms or third country investment firms5 (see PERG 2.5.4 G to PERG 2.5.5 G5 (Investment services and activities)).3

1The Treasury, in its consultative document Financial Services and Markets Act two year review: Changes to secondary legislation - Proposals for change, February 2004 proposed changes to these exclusions aimed primarily at limiting their scope in relation to the objective test referred to in PERG 2.9.12G (2). In its response to the comments received during the consultation, the Treasury announced, in its document Financial Services and Markets Act two year review: Changes to secondary legislation Government response, November 2004, that it intends to make certain changes to the exclusions in due course.

This group of exclusions applies, in specified circumstance, to the regulated activities of:

1. (1)

   dealing in investments as principal;

2. (2)

   dealing in investments as agent;

3. (3)

   arranging (bringing about) deals in investments and making arrangements with a view to transactions in investments;

4. (4)

   safeguarding and administering investments.

In broad terms, the exclusions apply to activities which further an employee share scheme, or are carried on in operation of such a scheme. They apply to activities carried on by the company whose securities or debentures (which are given an extended meaning for this exclusion) are the subject of the scheme. They also apply to activities of any company in the same group or of any trustee who holds certain types of securities or debentures under the scheme. They do not apply to the activities of a person who is neither such a company nor such a trustee (for example, a third party administration service provider).6

This group of exclusions applies, in specified circumstances, to the regulated activities of:

1. (1)

   dealing in investments as principal;

2. (2)

   dealing in investments as agent;

3. (3)

   arranging (bringing about) deals in investments and4 making arrangements with a view to transactions in investments;

   4
4. (3A)

   arranging a home finance transaction;4

5. (3B)

   5operating a multilateral trading facility;

6. (4)

   advising on investments;

7. (5)

   entering into a home finance transaction;4

   4
8. (6)

   administering a home finance transaction;4 and

   4
9. (7)

   agreeing to carry on the regulated activities of managing investments, arranging (bringing about) deals in investments, making arrangements with a view to transactions in investments, assisting in the performance and administration of a contract of insurance, safeguarding and administering investments or sending dematerialised instructions.

An overseas person is defined as a person who carries on what would be regulated activities (including any activity that would otherwise be excluded from being a regulated activity by virtue of the exclusions for overseas persons referred to in PERG 2.9.15 G) but who does not do so, or offer to do so, from a permanent place of business maintained by him in the United Kingdom. Where a person does not have a permanent place of business in the United Kingdom, he will not, in any event, need to rely on these exclusions unless what he does is regarded as carried on in the United Kingdom (see PERG 2.4). Nor will a person be able to rely on the exclusions in PERG 2.9.15G (1) to (4) if when carrying on the relevant regulated activity it is a MiFID investment firm and its Home State is the United Kingdom.5

The exclusions are available, for regulated activities other than those that relate to home finance transactions4 in the two broad cases set out below. For some of these regulated activities, the exclusions apply in each case. In others, they apply in only one.

1. (1)

   The first case is where the nature of the regulated activity requires the direct involvement of another person and that person is authorised or exempt (and acting within the scope of his exemption). For example, this might occur where the person with whom an overseas person deals is an authorised person or where the arrangements he makes are for transactions to be entered into by such a person.

2. (2)

   The second case is where a particular regulated activity is carried on as a result of what is termed a 'legitimate approach'. An approach to an overseas person that has not been solicited by him in any way, or has been solicited in a way that does not contravene the restrictions on financial promotion in section 21 of the Act, is a legitimate approach. An approach that is made by him in a way that does not contravene section 21 of the Act is also a legitimate approach. In such circumstances, the overseas person can, without requiring authorisation, enter into deals with (or on behalf of) a person in the United Kingdom, give advice in the United Kingdom or enter into agreements in the United Kingdom to carry on certain regulated activities. The exemptions to the financial promotion restrictions made by the Treasury under section 21 of the Act (Restrictions on financial promotion) will be relevant to the question of whether those restrictions have been contravened (see separate guidance on financial promotion in PERG 8 (Financial promotion and related activities)).

The exclusions for overseas persons who carry on certain regulated activities related to home finance transactions4 work in a different way. They depend on the residency of the borrower or borrowers, the reversion occupier or reversion occupiers,8 the home purchaser or home purchasers or the SRB agreement seller or SRB agreement sellers 8as the case may be. In addition, some of the exclusions also depend on the residency of the reversion provider4 or SRB agreement provider8. Guidance on these exclusions is in PERG 4.11 (Link between activities and the United Kingdom) and PERG 14.6 (Guidance on home reversion,8 home purchase and regulated sale and rent back agreement 8activities).4

1. (1)

   In accordance with article 3(2) of the E-Commerce Directive, all requirements on persons providing electronic commerce activities into the United Kingdom from the EEA are lifted, where these fall within the co-ordinated field and would restrict the freedom of such a firm to provide services. The coordinated field includes any requirement of a general or specific nature concerning the taking up or pursuit of electronic commerce activities. Authorisation requirements fall within the coordinated field. The services affected are generally those provided electronically, for example through the Internet or solicited e-mail.

2. (2)

   The Regulated Activities Order was amended by the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (Electronic Commerce Directive) Order 2002 (SI 2002/2157). This Order creates a general exclusion from regulated activities (except for the regulated activities of effecting or carrying out contracts of insurance). Where activities consist of electronic commerce activities, an incoming ECA provider will not require authorisation for such activities in the United Kingdom. This does not extend to the regulated activity of effecting or carrying out contracts of insurance falling under the Insurance Directives (see PERG 2.8.3 G). However, services provided off-line in the United Kingdom (that is, other than as an electronic commerce activity) by such a firm which amount to regulated activities still require authorisation.

   6
3. (3)

   Incoming ECA providers should note that notification requirements under the Single Market Directives still apply (see 2SUP 13A2).

The exclusions in this group apply to certain regulated activities involving certain contracts of insurance. The exclusions and the regulated activities to which they apply are as follows.

1. (1)

   The first exclusion of this kind relates to certain activities carried on by a provider of non-motor goods or services related to travel in connection with general insurance contracts only. The contracts must be for five years duration or less and have an annual premium of no more than 500. The contract must cover breakdown or loss of or damage to non-motor goods supplied by the provider or loss of or damage to baggage and other risks linked to certain 7travel services booked with the provider. The travel services must be the hire of an aircraft, vehicle or vessel which does not provide sleeping accommodation, or must relate to attendance at an event organised or managed by the provider. Where the travel services relate to an event, the exclusion does not apply if the party seeking insurance is an individual (acting in his private capacity) or a small business. A small business is a sole trader, body corporate, partnership or unincorporated association which had a turnover in the last financial year of less than 1,000,000 (but where it is a member of a group, the combined turnover of the group is used). Turnover means the amounts derived from the provision of goods and services falling within the business's ordinary activities, after deduction of trade discounts, value added tax and any other taxes based on those amounts. 7 There must not be any liability risk cover other than where this is ancillary to the main risk covered in a travel policy.7 The insurance must be complementary to the goods or services being supplied by the provider in the course of his carrying on a business or profession not otherwise consisting of regulated activities, and the policy must be in standard form. This exclusion applies where the regulated activities concerned are:

   1. (a)

      dealing in investments as agent;

   2. (b)

      arranging (bringing about) deals in investments and making arrangements with a view to transactions in investments;

   3. (c)

      assisting in the administration and performance of a contract of insurance; and

   4. (d)

      advising on investments.

2. (2)

   The second exclusion applies where information is provided to a policyholder by a person on an incidental basis in the course of that person's profession or business that does not otherwise consist of regulated activities. This exclusion applies where the regulated activities are:

   1. (a)

      arranging (bringing about) deals in investments and making arrangements with a view to transactions in investments;

   2. (b)

      managing investments;

   3. (c)

      assisting in the administration and performance of a contract of insurance; and

   4. (d)

      safeguarding and administering investments;

3. (3)

   The third exclusion applies to certain general insurance contracts covering large risks where the risk is situated outside the EEA. This exclusion applies where the regulated activities concerned are:

   1. (a)

      dealing in investments as agent;

   2. (b)

      arranging (bringing about) deals in investments and making arrangements with a view to transactions in investments;

   3. (c)

      assisting in the administration and performance of a contract of insurance; and

   4. (d)

      advising on investments.

Guidance on these and other exclusions relevant to

insurance mediation activities is in PERG 5 (Insurance mediation activities).

1This group of exclusions applies, in specified circumstances, to the regulated activities of:

1. (1)

   dealing in investments as agent;

2. (2)

   arranging (bringing about) deals in investments and making arrangements with a view to transactions in investments;

3. (3)

   managing investments;

4. (4)

   safeguarding and administering investments;

5. (5)

   establishing, operating or winding up a collective investment scheme; and

6. (6)

   advising on investments.

1The exclusions apply, in general terms:

1. (1)

   to a body corporate with limited liability:

   1. (a)

      that is formed in accordance with the law of, and having its registered office, central administration or principal place of business in, an EEA State;

   2. (b)

      that operates a business angel-led enterprise capital fund, being a fund that invests only in securities of unlisted companies and whose participants are made up solely of persons of a specified kind; and

   3. (c)

      whose members are limited to persons of a specified kind.

5The exclusions for business angel-led enterprise capital funds are also disapplied for persons who, when carrying on the relevant regulated activity, are MiFID investment firms or third country investment firms (see PERG 2.5.4 G (Investment services and activities)).