Related provisions for PERG 8.3.4
81 - 100 of 451 items.
If a certificate is granted then, until it is revoked, it is conclusive evidence that the exclusion under article 54 of the Regulated Activities Order applies. A person to whom a certificate is given should notify the FSA of any significant changes to the purpose or nature of the content of the relevant publication or service. The FSA will need to keep the content of the publication or service in question under review.
The FSA may revoke a certificate at the request of its holder or on the FSA's own initiative if the FSA considers that it is no longer justified. If the FSA revokes a certificate on its own initiative, it would normally expect to give advance notice to the holder of the certificate together with a statement of the reasons for the proposed revocation, and give the holder of the certificate an opportunity to make representations. Where a certificate is revoked, the holder of the
The fact of a person holding a certificate granted under article 54(3) is information which may be of relevance to other persons (including investors or potential investors). For this reason, the FSA considers it appropriate that details of certificates granted under article 54(3) should be included in a list on the public record which the FSA is required to maintain under section 347 of the Act (The record of authorised persons, etc).
The FSA will try to notify the applicant
of its decision on an application for approval of listing
particulars or supplementary
listing particulars within the same time limits as are specified
in section 87C of the Act (consideration
of application for approval) for an application for approval of a prospectus or supplementary
prospectus.
(1) 1An insurer with permission to effect orcarry outlife policies must submit to the FSA a persistency report in respect of life policies by 30 April each year in accordance with this section.(2) A firm with permission to establish, operate or wind up a stakeholder pension scheme must submit to the FSA:(a) a data report on stakeholder pensions by 30 April each year prepared in accordance with this section; and(b) two extra data reports on stakeholder pensions prepared in accordance
1In this section, and Forms 1R(2) to (4) in SUP 16 Annex 6R:(1) '12 month report' means the part of a persistency report or data report reporting on life policies or stakeholder pensions effected in Y-2, '24 month report' means the part of a persistency report or data report reporting on life policies or stakeholder pensions effected in Y-3, and so on;(2) 'CC' means the number of life policies or stakeholder pensions which: (a) were effected during the period to which the calculation
Schedule to the Recognition Requirements Regulations, Paragraph 6
(1) The [UK RIE] must be able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on ofregulated activities by persons in the course of using the facilities provided by the [UK RIE]. |
(2) The [UK RIE] must be able and willing to cooperate by the sharing of information or otherwise, with the [FSA], with any other authority, body orperson having responsibility in theUnited Kingdom for the supervision or regulation of anyregulated activity or other financial service, or with anoverseas regulator within the meaning of section 195 of theAct.1 |
In determining whether a UK recognised body is able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on of regulated activities, the FSA may have regard to the extent to which the UK recognised body seeks to promote and encourage, through its rules, practices and procedures, conduct in regulated activities which is consistent with the Code of Market Conduct (see MAR 1) and with any other codes of conduct, rules or principles relating
In assessing the ability of a UK recognised body to cooperate with the FSA and other appropriate bodies, the FSA may have regard to the extent to which the constitution and rules of the UK recognised body and its agreements with its members enable it to obtain information from members and to disclose otherwise confidential information to the FSA and other appropriate bodies.
In assessing the willingness of a UK recognised body to cooperate with the FSA and other appropriate bodies, the FSA may have regard to:(1) the extent to which the UK recognised body is willing to provide information about it and its activities to assist the FSA in the exercise of its functions;(2) the extent to which the UK recognised body is open with the FSA or other appropriate bodies in regulatory matters;(3) how diligently the UK recognised body investigates or pursues enquiries
A request by an issuer for the listing of its securities to be suspended or cancelled must be in writing and must include:(1) the issuer's name;(2) details of the securities to which it relates and the RIEs on which they are traded;(3) a clear explanation of the background and reasons for the request;(4) the date on which the issuer requests the suspension or cancellation to take effect;(5) for a suspension, the time the issuer wants the suspension to take effect;(6) if relevant,
Cancellations will only be specified to take effect when the market opens on a specified day. An issuer should therefore ensure that all accompanying information has been provided to the FSA well before the date on which the issuer wishes the cancellation to take effect and at the very latest by 3 p.m. on the business day before it is to take effect. If the information is received after 3:00 p.m. on the day before the issuer wishes the cancellation to take effect, it will normally
(1) If an issuer requests the FSA to suspend or cancel the listing of its securities, it may withdraw its request at any time before the suspension or cancellation takes effect. The withdrawal request should initially be made by telephone and then confirmed in writing as soon as possible, with an explanation of the reasons for the withdrawal.(2) Even if an issuer withdraws its request, the FSA may still suspend or cancel the listing of the securities if it considers it is necessary
The FSA recognises that there may be occasions when, because of a particular emergency, a person (generally a firm, but in certain circumstances, for example in relation to price stabilising rules or small e-money issuerrules, an unauthorised person) may be unable to comply with a particular rule in the Handbook. The purpose of GEN 1.3.2 R is to provide appropriate relief from the consequences of contravention of such a rule in those circumstances.1
(1) If any emergency arises which:(a) makes it impracticable for a person to comply with a particular rule in the Handbook; (b) could not have been avoided by the person taking all reasonable steps; and(c) is outside the control of the person, its associates and agents (and of its and their employees);the person will not be in contravention of that rule to the extent that, in consequence of the emergency, compliance with that rule is impracticable. (2) Paragraph (1) applies only
GEN 1.3.2 R operates on the FSA's rules. It does not affect the FSA's powers to take action against a firm in an emergency, based on contravention of other requirements and standards under the regulatory system. For example, the FSA may exercise its own-initiative power in appropriate cases to vary a firm's Part IV permission based on a failure or potential failure to satisfy the threshold conditions (see SUP 7 (Applying the FSA's requirements to individual firms) and ENF 4
(1) Overseas investment exchanges and overseas clearing houses which are considering whether to seek authorisation or recognition should first consider whether they will be carrying on regulated activities in the United Kingdom. Overseas investment exchangesand overseas clearing houses which do not carry on regulated activities in the United Kingdom need take no action.(2) Prospective applicants should discuss authorisation and recognition with the FSA before deciding whether
There is no standard application form for application for recognition as an overseas recognised body. An application should be made in accordance with any direction the FSA may make under section 287 (Application by an investment exchange) or section 288 (Application by a clearing house) of the Act and should include:(1) the information, evidence and explanatory material necessary to demonstrate to the FSA that the recognition requirements (set out in REC 6.3) will be met;(2)
The FSA may require further information from the applicant and may need to have discussions with the appropriate authorities in the applicant's home territory. To allow sufficient time for applications to be processed and for the necessary contacts to be made with the appropriate home territory authorities, applications should be made not later than six months before the applicant wishes the recognition order to take effect. No guarantee can be given that a decision will be reached
Article 25(1) applies only where the arrangements bring about or would bring about the particular transaction in question. This is because of the exclusion in article 26. In the FSA's view, a person brings about or would bring about a transaction only if his involvement in the chain of events leading to the transaction is of enough importance that without that involvement it would not take place. The second limb (article 25(2)) is potentially much wider as it does not require
The ordinary business of a publisher or broadcaster can involve him in publishing or broadcasting financial promotions (for example, advertisements) on behalf of authorised or exempt persons. Journalists who write about investments or financial services may promote the services of an authorised or exempt person. In the FSA's opinion, such persons would not normally be regarded as making arrangements under article 25(2). This is the case even if any arrangements they may have made
The Regulated Activities Order contains an exclusion (article 27: Enabling parties to communicate) to bring a degree of certainty to this area. This applies to arrangements which might otherwise fall within article 25(2) merely because they provide the means by which one party to a transaction (or potential transaction) is able to communicate with other parties. In the FSA's view, the crucial element of the exclusion is the inclusion of the word ‘merely’. So that, where a publisher,
For example, in the FSA's view a publisher or broadcaster would be likely to be making arrangements within the meaning of article 25(2) and be unable to make use of the exclusion in article 27 if:(1) he enters into an agreement with a provider of investment services such as a broker or product provider for the purpose of carrying their financial promotion; and(2) as part of the arrangements, the publisher or broadcaster does one or more of the following:(a) brands the investment
Other persons who may benefit from the exclusion in article 27 include persons who provide the means for someone to route an order to another person. A person providing such order routing services would not, in the FSA's view, be merely facilitating communication (of the orders) if he provides added value. This added value could be in the form, for example, of such things as formatted screens, audit trails, checking completeness of orders or matching orders or reconciling tra
Recognition Requirements Regulations, Regulation 6
(1) In considering whether a [UK recognised body] or applicant satisfiesrecognition requirementsapplying to it under these [Recognition Requirements Regulations], the [FSA] may take into account all relevant circumstances including the constitution of thepersonconcerned and its regulatory provisions and practices within the meaning of section 302(1) of theAct. |
(2) Without prejudice to the generality of paragraph (1), a [UK recognised body] or applicant may satisfyrecognition requirements applying to it under these [Recognition Requirements Regulations] by making arrangements for functions to be performed on its behalf by any otherperson. |
(3) Where a [ UK recognised body ] or applicant makes arrangements of the kind mentioned in paragraph (2), the arrangements do not affect the responsibility imposed by the Act on the [UK recognised body] or applicant to satisfy recognition requirements applying to it under these [Recognition Requirements Regulations ], but it is in addition a recognition requirement applying to the [UK recognised body] or applicant that the person who performs (or is to perform) the functions is a fit and proper person who is able and willing to perform them.1 |
The FSA will usually expect :(1) the constitution, regulatory provisions and practices of the UK recognised body or applicant;(2) the nature (including complexity, diversity and risk) and scale of the UK recognised body's or applicant's business; (3) the size and nature of the market which is supported by the UK recognised body's or applicant's facilities; (4) the nature and status of the types of investor who use the UK recognised body's or applicant's facilities or have an interest
It is the UK recognised body's responsibility to demonstrate to the FSA that a person who performs a function on behalf of the UK recognised body is fit and proper and able and willing to perform that function. The recognition requirement referred to in Regulation 6(3) applies to the UK recognised body and not to any person who performs any function on its behalf. In this context, for a person to be "fit and proper" does not necessarily imply that he is an authorised person, or
In determining whether the UK recognised body meets the recognition requirement in Regulation 6(3), the FSA may have regard to whether that body has ensured that the person who performs that function on its behalf:(1) has sufficient resources to be able to perform the function (after allowing for any other activities);(2) has adequate systems and controls to manage that function and to report on its performance to the UK recognised body;(3) is managed by persons of sufficient
In determining whether a UK recognised body continues to satisfy the recognition requirements where it has made arrangements for any function to be performed on its behalf by any person , the FSA may have regard, in addition to any of the matters described in the appropriate section of this chapter, to the arrangements made to exercise control over the performance of the function, including:(1) the contracts (and other relevant documents) between the UK recognised body and the
In the FSA's view, this means that the reasonable investor must be satisfied that what he will get when he realises his investment is his proportionate share in the value of BC's underlying assets, less any dealing costs. In other words, that he is satisfied he will get net asset value. The investment condition focuses on the way the body corporate operates over time, and not by reference to particular issues of shares or securities (see PERG 9.6.3 G (The investment condition
For the 'satisfaction test' to be met, there must be objectively justifiable grounds on which the reasonable investor could form a view. He must be satisfied that the value of BC's property will be the basis of a calculation used for the whole, or substantially the whole, of his investment. The FSA considers that the circumstances, or combination of circumstances, in which a reasonable investor would be in a position to form this view include:(1) where the basis of net asset valuation
PERG 9.9.3 G (2)and PERG 9.9.3 G (3) refer to circumstances where the reasonable investor may be satisfied that he can realise his investment at net asset value because of arrangements made to ensure that the shares or securities trade at net asset value on a market. There may, for example, be cases of market dealing where the price of shares or securities will not depend on the market. An example is where BC or a third party undertakes to ensure that the market value reflects
However, where there is a market, the FSA does not consider that the test in section 236(3)(b) would be met if the price the investor receives for his investment is wholly dependent on the market rather than specifically on net asset value. In the FSA's view, typical market pricing mechanisms introduce too many uncertainties to be able to form a basis for calculating the value of an investment (linked to net asset value) of the kind contemplated by the satisfaction test. As a
The fact that the definition must be applied to BC as a whole (see PERG 9.6.3 G (The investment condition (section 236(3) of the Act): general)) is also relevant here. So, for example, in a take-over situation the fact that a bidder may be willing to provide an exit route for an investment at net asset value will be irrelevant within the context of the definition. This is so even if an investor invests in particular shares or securities in the knowledge or expectation or in anticipation
In determining whether a UK recognised body has appropriate procedures for it to make rules, for keeping its rules under review and for amending them, the FSA may have regard to:(1) the arrangements made for taking decisions about making and amending rules in the UK recognised body, including the level at which the decisions are taken and any provision for the delegation of decisions by the governing body;(2) the arrangements made for determining whether or not it is appropriate
(1) In determining whether a UK recognised body's procedures include procedures for consulting users of its facilities in appropriate cases, the FSA may have regard to whether those procedures include provision for consulting users of those facilities before changes are made to any rules relating to its regulatory functions. (2) In the FSA's view, a UK recognised body's procedures may not need to contain provision for consulting users of its facilities before making minor changes
(1) In determining whether a UK recognised body's procedures for consulting members and other users of its facilities are appropriate, the FSA may have regard to the range of persons to be consulted by the UK recognised body under those procedures. (2) In the FSA's view, consultation with a smaller range of persons may be appropriate where limited, technical changes to a UK recognised body's rules are proposed.(3) In the FSA's view, a UK recognised body's procedures may include
In determining whether a UK recognised body's procedures for consulting members and other users of its facilities are appropriate, the FSA may have regard to the extent to which the procedures include:(1) informal discussions at an early stage with users of its facilities or appropriate representative bodies; (2) publication to users of its facilities of a formal consultation paper which includes clearly expressed reasons for the proposed changes and an appropriately detailed
(1) An issuer that has the listing of any of its securities suspended may request the FSA to have them restored.(2) The request should be made sufficiently in advance of the time and date the issuer wishes the securities to be restored.(3) Requests received for when the market opens should allow sufficient time for the FSA to deal with the request.(4) The request may be an oral request. The FSA may require documentary evidence that the events that lead to the suspension are no
(1) If an issuer has requested the FSA to restore the listing of any securities, it may withdraw its request at any time while the securities are still suspended. The withdrawal request should initially be made by telephone and then confirmed in writing as soon as possible.(2) Even if a request to restore has been withdrawn, the FSA may restore the listing of securities if it believes the circumstances justify it.
(1) If an underlying instrument is restored, the securitised derivative'slisting will normally be restored.(2) For a securitised derivative relating to a basket of underlying instruments that has been suspended, the securitised derivative's listing may be restored by the FSA, irrespective of whether or not the underlying instrument has been restored, if:(a) the issuer of the securitised derivative confirms to the FSA that despite the relevant underlying instrument(s) suspension
The following documents (to the extent applicable) must be lodged with the FSA in final form before it will approve a circular:(1) a Sponsors Declaration for the Production of a Circular completed by the sponsor;(2) for a class 1 circular or related party circular, a letter setting out any items of information required by this chapter that are not applicable in that particular case;(3) the sponsor's Confirmation of Independence; and(4) any other document that the FSA has sought
The FSA will only approve a circular between 9a.m. and 5.30p.m. on a business day (unless alternative arrangements are made in advance).Note: LR 9.6.1 R requires a company to forward to the FSA two copies of all circulars issued (whether or not they require approval) for publication on the document viewing facility.
Each of these aspects of the definition is considered in greater detail in PERG 9.4 (Collective investment scheme (section 235 of the Act)) to PERG 9.9 (The investment condition: the 'satisfaction test' (section 236(3)(b) of the Act)). Although the definition has a number of elements, the FSA considers that it requires an overall view to be taken of the body corporate. This is of particular importance in relation to the investment condition (see PERG 9.6.3 G and PERG 9.6.4 G (The
The FSA understands that the aim of the definition in section 236 of the Act is to include any body corporate which, looked at as a whole, functions as an open-ended investment vehicle. The definition operates against a background that there is a wide range of different circumstances in which any particular body corporate can be established and operated. For example, the definition applies to bodies corporate wherever they are formed. So, in the application of the definition to
For a body corporate formed outside the United Kingdom, there is an additional issue as to how the applicable corporate law and the definition of open-ended investment company in the Act relate to one another. The FSA understands this to operate as follows. The term 'body corporate' is defined in section 417(1) of the Act (Interpretation) as including 'a body corporate constituted under the law of a country or territory outside the United Kingdom'. So, whether or not any particular
Unless otherwise stated in the notification rule, a written notification required from a recognised body under any notification rule must be:(1) given to, or addressed for the attention of, the recognised body's usual supervisory contact at the FSA;(2) delivered to the FSA by one of the methods in REC 3.2.3 R.
Methods of notification
Method of delivery |
|
(1) |
Post to the address in REC 3.2.4 R |
(2) |
Leaving the notification at the address in REC 3.2.4 R and obtaining a time-stamped receipt |
(3) |
Electronic mail to an address for the recognised body's usual supervisory contact at the FSA and obtaining an electronic confirmation of receipt |
(4) |
Hand delivery to the recognised body's usual supervisory contact at the FSA |
(5) |
Fax to a fax number for the recognised body's usual supervisory contact at the FSA, provided that the FSA receives a copy of the notification by one of methods (1) - (4) in this table within five business days after the date of the faxed notification |
If a notification rule requires notification within a specified period:(1) the recognised body must give the notification so as to be received by the FSA no later than the end of that period; and (2) if the end of that period falls on a day which is not a business day, the notification must be given so as to be received by the FSA no later than the first business day after the end of that period.
(1) The removal of the exclusion for groups and joint enterprises in article 69 of the Regulated Activities Order (Groups and joint enterprises) may have implications for a company providing services for:(a) other members of its group; or(b) other participants in a joint enterprise of which it is a participant.(2) Such companies might typically provide risk or treasury management or administration services which may include regulated activities relating to a contract of insurance.
Article 67 excludes from the activities of dealing as agent, arranging (bringing about) deals in investments, making arrangements with a view to transactions in investments, assisting in the administration and performance of a contract of insurance and advising on investments, any activity which:(1) is carried on in the course of carrying on any profession or business which does not otherwise consist of the carrying on of regulated activities in the United Kingdom; and(2) may
Article 67 may also apply to activities relating to assignments of insurance policies, as, in the FSA's view, article 2.3 of the IMD applies essentially to the creation of new contracts of insurance and not the assignment of rights under existing policies. As such, where a solicitor or licensed conveyancer arranges an assignment of a contract of insurance, the exclusion in article 67 remains of potential application. For similar reasons, trustees advising on or arranging assignments
Article 72B (see also PERG 5.3.7 G (Connected contracts of insurance)) may be of relevance to persons who supply non-motor goods or provide services related to travel in the course of carrying on a profession or business which does not otherwise consist of carrying on regulated activities. In the FSA's view, the fact that a person may carry on regulated activities in the course of the carrying on of a profession or business does not, of itself, mean that the profession or business
In the FSA's view, the liability risks referred to in PERG 5.11.13G (5) cover risks in relation to liabilities that the policyholder might have to others (that is, third party claims). Many policies will provide this sort of cover and so fall outside the scope of the exclusion. For example, a policy that covers the cost of unauthorised calls made when a mobile telephone is stolen includes 'liability risks' and would not be a 'connected contract of insurance'. By contrast, travel
Schedule to the Recognition Requirements Regulations, Paragraph 2
(1) The [UK RIE] must be a fit and properpersonto perform the [ relevant functions ] of a [ UK RIE ]. |
(2) In considering whether this requirement is satisfied, the [FSA] may (without prejudice to the generality of regulation 6(1)) take into account all the circumstances, including the [UK RIE's] connection with anyperson.1 |
In determining whether a UK recognised body is a fit and proper person, the FSA may have regard to any relevant factor including, but not limited to:(1) the commitment shown by the UK recognised body'sgoverning body to satisfying the recognition requirements and to complying with other obligations in or under the Act;(2) its arrangements, policies and resources for fulfilling its obligations under the Act in relation to its activities as a UK recognised body;(3) the extent to
In determining whether a UK recognised body is a fit and proper person, the FSA may have regard to its connections with:(1) any undertaking in the same group;(2) any owner or part-owner of the UK recognised body;(3) any person who has the right to appoint or remove members of the governing body or other key individuals;(4) any person who is able in practice to appoint or remove members of the governing body or other key individuals;(5) any person in accordance with whose instructions
In assessing whether its connection with any person could affect whether a UK recognised body is a fit and proper person, the FSA may have regard to:(1) the reputation and standing of that other person, including his standing with any relevant UK or overseas regulator;(2) breaches of any law or regulation by that other person; (3) the roles of any of the UK recognised body's key individuals who have a position within organisations under the control or influence of that other person,
Sections 87H and 87I of the Act provide:
Prospectus approved in another EEA State |
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87H |
(1) |
A prospectus approved by the competent authority of an EEA State other than the United Kingdom is not an approved prospectus for the purposes of section 85 unless that authority has provided the competent authority with – |
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(a) |
a certificate of approval; |
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(b) |
a copy of the prospectus as approved; and |
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(c) |
if requested by the [FSA], a translation of the summary of the prospectus. |
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(2) |
A document is not a certificate of approval unless it states that the prospectus – |
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(a) |
has been drawn up in accordance with the prospectus directive; and |
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(b) |
has been approved, in accordance with that directive, by the competent authority providing the certificate. |
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(3) |
A document is not a certificate of approval unless it states whether (and, if so, why) the competent authority providing it authorised, in accordance with the prospectus directive, the omission from the prospectus of information which would otherwise have been required to be included. |
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(4) |
“Prospectus” includes a supplementary prospectus. |
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Provision of information to host Member State |
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87I |
(1) |
The [FSA] must, if requested to do so, supply the competent authority of a specified EEA State with – |
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(a) |
a certificate of approval; |
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(b) |
a copy of the specified prospectus (as approved by the [FSA]); and |
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(c) |
a translation of the summary of the specified prospectus (if the request states that one has been requested by the other competent authority). |
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(2) |
Only the following may make a request under this section – |
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(a) |
the issuer of the transferable securities to which the specified prospectus relates; |
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(b) |
a person who wishes to offer the transferable securities to which the specified prospectus relates to the public in an EEA State other than (or as well as) the United Kingdom; |
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(c) |
a person requesting the admission of the transferable securities to which the specified prospectus relates to a regulated market situated or operating in an EEA State other than (or as well as) the United Kingdom. |
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(3) |
A certificate of approval must state that the prospectus – |
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(a) |
has been drawn up in accordance with this Part and the prospectus directive; and |
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(b) |
has been approved, in accordance with those provisions, by the [FSA]. |
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(4) |
A certificate of approval must state whether (and, if so, why) the [FSA] authorised, in accordance with section 87B, the omission from the prospectus of information which would otherwise have been required to be included. |
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(5) |
The [FSA] must comply with a request under this section – |
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(a) |
if the prospectus has been approved before the request is made, within 3 working days beginning with the date of the request; or |
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(b) |
if the request is submitted with an application for the approval of the prospectus, on the first working day after the date on which it approves the prospectus. |
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(6) |
“Prospectus” includes a supplementary prospectus. |
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(7) |
“Specified” means specified in a request made for the purposes of this section. |
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(1) This rule applies to a request by a person to the FSA to supply information referred to in section 87I of the Act to the competent authority of a relevant Host State.(2) The request must be in writing and must include:(a) the relevant prospectus as approved (if it has already been approved); and(b) a translation of the summary if required by the competent authority of a relevant host State.
If the FSA receives information referred to in section 87H from another competent authority it will as soon as practicable:(1) inform the issuer, offeror or person requesting admission (as the case may be) that it has received the information; and(2) give notice on the FSA's website that it has received the information.