PERG 8.29 Advice must relate to the merits (of buying or selling a particular investment)
Advice must relate to the buying or selling of an investment – in other words, the pros or cons of doing so.
An explanation of the implications of, for example, exercising certain rights or the happening of certain events (such as death) need not involve advice on the merits of exercising those rights or on what to do following the event.
Neither does advice on the merits of using a particular stockbroker or investment manager in his capacity as such amount to advice for the purpose of article 53(1)3. This is because it is not advice on the merits of buying or selling an investment.
Advice in the form of rating issuers of debt securities as to the likelihood that they will be able to meet their repayment obligations need not, of itself, involve any advice on the merits of buying, selling or holding on to that issuer’s stock.
Without an explicit or implicit recommendation on the merits of buying or selling an investment, advice will not be covered by article 53(1)3 if it is advice on:
- (1)
the likely meaning of uncertain provisions in an investment agreement; or
- (2)
how to complete an application form; or
- (3)
the value of investments for which there is no ready market; or
- (4)
the effect of contractual terms and their commercial consequences; or
- (5)
how to structure a transaction to comply with regulatory, competition and taxation requirements; or
- (6)
terms which are commonly accepted in the market.
Advice as to what might happen to the price or value of an investment if certain events were to take place, however, may be covered by article 53(1)3 in some circumstances.
1Typical recommendations and whether they will be regulated as advising on investments (except P2P agreements)3 under article 53(1)3 of the Regulated Activities Order. This table belongs to PERG 8.29.1 G to PERG 8.29.6 G.2
Recommendation |
Regulated under article 53(1)3 or not? |
I recommend that you take out the ABC investment. |
Yes. This is advice which steers the client in the direction of a particular investment which the client could buy. |
I recommend that you do not take out the ABC investment. |
Yes. This is advice which steers the client away from a particular investment which the client could have bought. |
I recommend that you take out either the ABC investment or the DEF investment. |
Yes. This is advice which steers the client in the direction of more than one particular investment which the client could buy. |
I recommend that you sell your ABC investment. |
Yes. This is advice which steers the client in the direction of a particular investment which the client could sell. |
I recommend that you do not sell your ABC investment. |
Yes. This is advice which steers the client away from a particular investment which the client could have sold. |
I recommend that you transfer ownership of your ABC investment to your spouse. |
Advising the client to gift an investment to another person will not be advice because it does not involve advice on buying, selling, subscribing for or underwriting an investment. |
I recommend that you increase the regular payments you are making to your GHI fund*. |
Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund. |
I recommend that you decrease the regular payments you are making to your GHI fund*. |
Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund but advises against the client buying as many as he intended. |
I recommend that you keep making the same regular payments to your GHI fund*. |
Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund. |
I recommend that you stop making the regular payments you are making to the GHI fund*. |
Yes. This is advice which steers the client away from buying units in a particular fund which the client could have bought. |
I recommend that you pay a lump sum into your GHI fund*. |
Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund. |
I recommend that you do not pay a lump sum into your GHI fund*. |
Yes. This is advice which steers the client away from buying units in a particular fund which the client could have bought. |
I recommend that you move part of your investment in the JKL investment from fund X into fund Y*. |
Yes. This is advice which steers the client in the direction of selling units in a particular fund and buying units in another specific fund. Where the two funds are sub-funds of the same main fund it is still advice. The terms ‘bought’ and ‘sold’ are given a wide meaning and include any acquisition or disposal for valuable consideration. |
I recommend that you move all of your investment in JKL investment from fund X into fund Y*. |
Yes, for the same reason. |
I recommend that you move your MNO investment from platform X and re-register it on platform Y. |
This is unlikely to be advice because normally it will not involve buying and selling the investment held on the platform. |
A client decides of his own accord to increase, decrease or temporarily suspend his regular payments or the payments are increased automatically into an investment without advice being given. |
No. No advice is being given. |
The firm is providing discretionary management services under a mandate and makes changes to a client's investment without providing advice. |
No. No advice is being given. |
Dividends are re-invested into an investment without advice being given. |
No. No advice is being given. |
* The same answer would apply where the fund is a life policy as rights under a contract of insurance are regulated investments under the Act. The position under a personal pension scheme is similar, as explained in more detail in PERG 12.3. |
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