SYSC 10A.1 Application
Application
1Subject to the exemptions in SYSC 10A.1.4R, this chapter applies to a firm:
- (1)
that is a:
- (a)
- (b)
- (c)
- (d)
- (e)
- (f)
MiFID optional exemption firm, performing activities covered by the exemption; or
- (g)
- (h)
- (i)
that carries on activities referred to in the general application rule related to:
- (i)
- (ii)
- (iii)
contracts for differences related to an underlying commodity; or
- (iv)
other futures or contracts for differences which are not related to commodities, financial instruments or cash,
which are not MiFID or equivalent third country business and energy market activity or oil market activity, but excluding the following firms:
- (v)
a depositary when acting as such; and
- (vi)
an authorised professional firm with respect to its non-mainstream regulated activities; or
- (j)
that carries on energy market activity or oil market activity; or2
- (k)
- (2)
that carries out any of the following activities, in investments that are financial instruments:
- (a)
- (b)
- (c)
- (d)
- (e)
managing a UCITS to the extent that this comprises the function of investment management referred to in Annex II of the UCITS Directive;
- (f)
managing an AIF to the extent that this comprises the function of portfolio management referred to in Annex I of the AIFMD;
- (g)
establishing, operating or winding up a collective investment scheme to the extent that this comprises scheme management activity,
only with respect to a firm’s activities carried on from an establishment (including a branch) maintained by the firm in the United Kingdom.
[Note: article 16(7) and 16(11) of MiFID]
Where this chapter applies to a third country investment firm, it applies in conjunction with GEN 2.2.22AR, to ensure that such firms are not treated in a more favourable way than an EEA firm.
For a firm in SYSC 10A.1.1R(1) (other than a MiFID investment firm or a third country investment firm) MiFIR, and any EU Regulation adopted under MiFIR or MiFID, apply to the extent relevant to the subject matter of this chapter as if it were a MiFID investment firm providing investment services or performing investment activities in accordance with article 16(7) of MiFID.
This chapter does not apply to the carrying on of:
- (1)
activities between operators and depositaries, of the same fund (when acting in that capacity); or
- (2)
energy market activity and oil market activity which is not MiFID or equivalent third country business but which, if the firm carrying it on were not authorised, would not be a regulated activity because of article 16 of the Regulated Activities Order (Dealing in contractually based investments) or article 22 of the Regulated Activities Order (Deals with or through authorised persons etc.); or
- (3)
any activity referred to in SYSC 10A.1.1R(2), to the extent that it is carried out by a firm that is not a MiFID investment firm, MiFID optional exemption firm or third country investment firm, in financial instruments that are not:
- (a)
admitted to trading on a trading venue; or
- (b)
traded on a trading venue; or
- (c)
instruments for which a request has been made for admission to trading on a trading venue; or
- (d)
instruments covered by paragraph (a), (b) or (c), but the price or value of which depends on, or has an effect on, the price or value of a financial instrument referred to in those paragraphs; or
- (a)
- (3A)
2the activities referred to in SYSC 10A.1.1R(2)(d) to (g), to the extent that they are carried out by a MiFID investment firm or third country investment firm in financial instruments that are not:
- (a)
admitted to trading on a trading venue; or
- (b)
traded on a trading venue; or
- (c)
instruments for which a request has been made for admission to trading on a trading venue; or
- (d)
instruments covered by paragraph (a), (b) or (c), but the price or value of which depends on, or has an effect on, the price or value of a financial instrument referred to in those paragraphs; or
- (a)
- (4)
activities which comprise:
- (a)
underwriting of financial instruments on a firm commitment basis; or
- (b)
placing of financial instruments with or without a firm commitment basis,
within the meaning of section A(6) or A(7) of Annex 1 of MiFID.
- (a)
- (5)
Firms should refer to article 76 of the MiFID Org Regulation, which contains additional requirements on recording of telephone conversations or electronic communications, in addition to this chapter.
Obligations for telephone and electronic communications
A firm must take all reasonable steps to record telephone conversations, and keep a copy of electronic communications, that relate to the activities in financial instruments referred to in SYSC 10A.1.1R(2) (and that are not excluded by SYSC 10A.1.4R), and that are made with, sent from, or received on, equipment:
[Note: article 16(7) of MiFID, third subparagraph]
The telephone conversations and electronic communications referred to in SYSC 10A.1.6R include those that are intended to result in the performance of the activities in financial instruments referred to in SYSC 10A.1.1R(2), even if those conversations or communications do not in fact result in the performance of such activities.
[Note: article 16(7) of MiFID, second subparagraph]
A MiFID optional exemption firm that provides services solely or mainly to retail clients is not required to comply with the requirements of SYSC 10A.1.6R, SYSC 10A.1.7R and SYSC 10A.1.11R in relation to telephone conversations, subject to compliance with the following requirements:
- (1)
a telephone conversation that would be subject to SYSC 10A.1.6R must be recorded instead using a written minute or note; and
- (2)
the minute or note must include all relevant, and at least the following, information:
- (a)
date and time of the conversation;
- (b)
identity of the individual participants in the conversation;
- (c)
initiator of the conversation; and
- (d)
relevant information about the client order, including the price, volume, type of order and when it will be transmitted or executed.
- (a)
A MiFID optional exemption firm that chooses to take advantage of the provisions in SYSC 10A.1.9R should set out its decision in its recording policy. Further, any minute or note made in accordance with SYSC 10A.1.9R should contain all relevant substantive details of the conversation, as well as the information set out in SYSC 10A.1.9R(4)(a)-(d). MiFID optional exemption firms should note that the effect of SYSC 10A.1.3R is to require their compliance, as relevant, with article 76 of the MiFID Org Regulation, including that records must be:
- (1)
stored in a durable medium which allows them to be replayed or copied; and
- (2)
retained in a format that does not allow the original record to be altered or deleted.
Notification
A firm must notify new and existing clients that telephone communications or conversations between the firm and its clients that result or may result in activities in financial instruments referred to in SYSC 10A.1.1R(2) (and that are not excluded by SYSC 10A.1.4R) will be recorded. The notification must be made before the provision of any investment services to new and existing clients.
[Note: article 16(7) of MiFID, fourth subparagraph]
A notification referred to in SYSC 10A.1.11R is only required to be made by the firm once, at the following times:
- (1)
to a new client prior to the provision of any investment services; and
- (2)
to an existing client prior to the provision of any investment services following:
[Note: article 16(7) of MiFID, fifth subparagraph]
Obligation for other communications
Client instructions given otherwise than by telephone must be made in a durable medium such as by mail, faxes, emails or documentation of client instructions issued at meetings. In particular, the content of relevant face-to-face conversations with a client may be recorded by using written minutes or notes.
[Note: article 16(7) of MiFID, seventh subparagraph]