Related provisions for PRIN 3.1.5

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To access the FCA Handbook Archive choose a date between 1 January 2001 and 31 December 2004 (From field only).

PERG 1.1.1GRP
This manual applies to:(1) a person who is considering carrying on activities in the United Kingdom which may fall within the scope of the Act and is seeking guidance on whether he needs to be an authorised person;(2) a person who seeks to become an authorised person under the Act and who is, or is considering, applying to the FSA for Part IV permission to carry on regulated activities in the United Kingdom;(3) a person who is seeking guidance on whether any communication he may
PERG 1.1.2GRP
The purpose of this manual is to give guidance about the circumstances in which authorisation is required, or exempt person status is available, including guidance on the activities which are regulated under the Act and the exclusions which are available.
SUP 21.1.1GRP
1SUP 21 Annex 1 sets out a form of waiver that the FSA will be minded to give to energy market participants in the exercise of its statutory discretion under section 148 of the Act to grant a waiver of certainrules.
SUP 21.1.2GRP
Energy market participants should bear in mind that section 148 of the Act requires that in order to give a waiver of particular rules, the FSA must be satisfied that:(1) compliance with the rules, or with the rules as unmodified, would be unduly burdensome or would not achieve the purpose for which the rules were made; and(2) the waiver would not result in undue risk to persons whose interests the rules are intended to protect.
SUP 18.3.1GRP
Under section 115 of the Act, the FSA has the power to give a certificate confirming that a firm possesses any required minimum margin, to facilitate an insurance business transfer to the firm under overseas legislation from a firm authorised in another EEA State or from a Swiss general insurance company. This section provides guidance on how the FSA would exercise this power and on related matters.
SUP 18.3.6GRP
If the effect of the transfer may have a material adverse effect on the transferee or the security of policyholders, the FSA will consider whether it is appropriate to exercise its powers under the Act to achieve its regulatory objectives.
SUP 5.2.1GRP
Under section 166 of the Act (Reports by skilled persons), the FSA may, by giving a written notice, require any of the following persons to provide it with a report by a skilled person:(1) a firm; (2) any other member of the firm's group; (3) a partnership of which the firm is a member; (4) a person who has at any relevant time been a person falling within (1), (2) or (3);but only if the person is, or was at the relevant time, carrying on a business.
DISP 3.6.2GRP
If a firm fails to comply with a time limit, the Ombudsman may proceed to the next stage of consideration of the complaint and may, if appropriate, make provision for any material distress or material inconvenience caused by that failure in any award which he decides to make.
REC 6.5.1GRP
If the FSA considers that the requirements of the Act are satisfied, it may make a recognition order, which will state the date on which it takes effect.
REC 6.5.2GRP
Where the FSA considers that it is unlikely to make a recognition order, it will discuss its concerns with the applicant with a view to enabling the applicant to make changes to its rules or guidance, or other parts of the application. If the FSA decides to refuse to make a recognition order, it will follow the procedure set out in section 298 of the Act (Directions and revocation: procedure) (which applies in consequence of section 290(5) of the Act (Recognition orders)) which
SUP 14.5.1GRP
Where an incoming EEA firm has been granted top-up permission by the FSA and wishes to vary that permission, the Act requires it to apply to the FSA for a variation of the top-up permission. 1
SUP 14.5.2GRP
Guidance on the procedures for applying for a variation of a permission granted under Part IV of the Act, including a top-up permission, is given in SUP 6 (Applications to vary and cancel Part IVPermission).1
SUP 8.1.2GRP
A recognised body should see REC 3.3 for information on waivers of rules in REC under section 294 of the Act.
SUP 8.1.3GRP
This chapter is not relevant to the functions of the FSA acting in its capacity as the competent authority for the purposes of Part VI of the Act (Official Listing).3
REC 4.3.1GRP
Information is needed to support the FSA's risk based approach to the supervision of all regulated entities. Risk based supervision is intended to ensure that the allocation of supervisory resources and the supervisory process are compatible with the regulatory objectives and the FSA's general duties under the Act. The central element of the process of risk based supervision is a systematic assessment by the FSA (a risk assessment) of the main supervisory risks and concerns for
REC 4.3.2GRP
For each UK recognised body, the FSA will conduct a periodic risk assessment. This assessment will take into account relevant considerations including the special position of recognised bodies under the Act, the nature of the UK recognised body's members, the position of other users of its facilities and the business environment more generally.
LR 4.3.2RRP
The FSA will approve listing particulars or supplementary listing particulars if it is satisfied that the requirements of the Act and this chapter have been complied with.
LR 4.3.3GRP
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.
COLL 9.1.1RRP
This chapter applies to operators of recognised schemes and to operators of schemes making a notification in respect of them under Chapter V of Part XVII of the Act (Recognised overseas schemes).
COLL 9.1.2GRP
This chapter enables potential operators of recognised schemes to know what information and documents the FSA wish to receive to enable it to consider whether to recognise the scheme under the Act for marketing in the United Kingdom.
SUP 13.1.1GRP
This chapter applies to a UK firm, that is, a person whose head office is in the United Kingdom and which is entitled to carry on an activity in another EEA State subject to the conditions of a Single Market Directive. Such an entitlement is referred to in the Act as an EEA right and its exercise is referred to in the Handbook as passporting.1
SUP 13.1.5GRP
This chapter gives guidance on Schedule 3 to the Act for a UK firm which wishes to exercise its EEA right and establish a branch in, or provide cross border services into, another EEA State. That is, when a UK firm wishes to establish its first branch in, or provide cross border services for the first time into, a particular EEA State.
PERG 4.3.3GRP
A person will only need authorisation or exemption if he is carrying on a regulated activity 'by way of business' (see section 22 of the Act (Regulated activities)). There are, in fact, three different forms of business test applied to the regulated mortgage activities. In the FSA's view, however, the difference in the business tests should have little practical effect.
PERG 4.3.4GRP
There is power in the Act for the Treasury to change the meaning of the business test by including or excluding certain things. The Business Order has been made using this power (partly reflecting differences in the nature of the different activities). The result (which is summarised in PERG 4.3.5 G) is that:(1) the 'by way of business' test in section 22 of the Act applies unchanged in relation to the activity of entering into a regulated mortgage contract;(2) the 'by way of
PERG 4.3.6GRP
The 'carrying on the business' test in the Business Order is a narrower test than that of carrying on regulated activities 'by way of business' in section 22 of the Act as it requires the regulated activities to represent the carrying on of a business in their own right. Whether or not the business test is satisfied in any particular case is ultimately a question of judgement that takes account of a number of factors (none of which is likely to be conclusive). The nature of the
PERG 5.2.3GRP
A person who is concerned to know whether his proposed insurance mediation 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 flow chart in PERG 5.15.2 G (Flow chart: regulated activities related to insurance mediation – do you need authorisation?):(1) will the activities relate to contracts of insurance (see PERG 5.3(Contracts
PERG 5.2.4GRP
It is recognised pursuant to section 22 of the Act that a person will not be carrying on regulated activities in the first instance, including insurance mediation activities, unless he is carrying on these activities by way of business. Similarly, where a person's activities are excluded he cannot, by definition, be carrying on regulated activities. To this extent, the content of the questions above does not follow the scheme of the Act. For ease of navigation, however, the questions
PERG 5.2.10GRP
An unauthorised person who intends to carry on activities connected with contracts of insurance will need to comply with section 21 of the Act (Restrictions on financial promotion). This guidance does not cover financial promotions that relate to contracts of insurance. Persons should refer to the general guidance on financial promotion in PERG 8 (Financial promotion and related activities). (See in particular PERG 8.17A (Financial promotions concerning insurance mediation activities)
LR 8.7.20GRP
ENF 21 (Official listing - investigation powers and discipline) sets out the FSA's policy on when and how it will use its disciplinary powers in relation to a sponsor.
SUP 11.2.1GRP
Part XII of the Act (Control over authorised persons) places an obligation on the controllers and proposed controllers of those UK domestic firms not listed in SUP 11.1.1 R (1) to SUP 11.1.1 R (6) to notify the FSA of changes in control. Furthermore, those persons are required to obtain the FSA's approval before becoming a controller or increasing the level of control held (in certain circumstances). SUP 11.3 is intended to assist those persons in complying with their obligations
SUP 11.2.3GRP
As the approval of the FSA is not required under the Act for a new controller of an overseas firm, the notification rules on such firms are less prescriptive than they are for UK domestic firms. Nevertheless, the FSA still needs to monitor such an overseas firm's continuing satisfaction of the threshold conditions, which normally includes consideration of a firm's connection with any person, including its controllers and parent undertakings (see COND). The FSA therefore needs
SUP 11.2.5GRP
Similarly, the FSA needs to monitor a firm's continuing satisfaction of threshold condition 3 (Close links) (see COND 2.32), which requires that a firm's close links are not likely to prevent the FSA's effective supervision of that firm. Accordingly the FSA needs to be notified of any changes in a firm's close links. This requirement is contained in SUP 11.9.2
PR 1.2.1UKRP

Sections 85 and 86 of the Act provide for when a prospectus approved by the FSA will be required:

85

(1)

It is unlawful for transferable securities to which this subsection applies to be offered to the public in the United Kingdom unless an approved prospectus has been made available to the public before the offer is made.

(2)

It is unlawful to request the admission of transferable securities to which this subsection applies to trading on a regulated market situated or operating in the United Kingdom unless an approved prospectus has been made available to the public before the request is made.

(3)

A person who contravenes subsection (1) or (2) is guilty of an offence and liable –

(a)

on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both;

(b)

on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

(4)

A contravention of subsection (1) or (2) is actionable, at the suit of a person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.

(5)

Subsection (1) applies to all transferable securities other than –

(a)

those listed in Schedule 11A;

(b)

such other transferable securities as may be specified in prospectus rules [see PR 1.2.2 R].

(6)

Subsection (2) applies to all transferable securities other than –

(a)

those listed in Part 1 of Schedule 11A;

(b)

such other transferable securities as may be specified in prospectus rules [see PR 1.2.3 R].

(7)

"Approved prospectus" means, in relation to transferable securities to which this section applies, a prospectus approved by the competent authority of the home State in relation to the issuer of the securities.

86

Exempt offers to the public

(1)

A person does not contravene section 85(1) if –

(a)

the offer is made to or directed at qualified investors only;

(b)

the offer is made to or directed at fewer than 100 persons, other than qualified investors, per EEA State;

(c)

the minimum consideration which may be paid by any person for transferable securities acquired by him pursuant to the offer is at least 50,000 euros (or an equivalent amount);

(d)

the transferable securities being offered are denominated in amounts of at least 50,000 euros (or equivalent amounts); or

(e)

the total consideration for the transferable securities being offered cannot exceed 100,000 euros (or an equivalent amount).

(2)

Where -

(a)

a person who is not a qualified investor ("the client") has engaged a qualified investor falling within Article 2.1(e)(i) of the prospectus directive to act as his agent; and

(b)

the terms on which the qualified investor is engaged enable him to make decisions concerning the acceptance of offers of transferable securities on the client's behalf without reference to the client,

an offer made to or directed at the qualified investor is not to be regarded for the purposes of subsection (1) as also having been made to or directed at the client.

(3)

For the purposes of subsection (1)(b), the making of an offer of transferable securities to –

(a)

trustees of a trust,

(b)

members of a partnership in their capacity as such, or

(c)

two or more persons jointly,

is to be treated as the making of an offer to a single person.

(4)

In determining whether subsection (1)(e) is satisfied in relation to an offer ("offer A"), offer A is to be taken together with any other offer of transferable securities of the same class made by the same person which –

(a)

was open at any time within the period of 12 months ending with the date on which offer A is first made; and

(b)

had previously satisfied subsection (1)(e).

(5)

For the purposes of this section, an amount (in relation to an amount denominated in euros) is an "equivalent amount" if it is an amount of equal value denominated wholly or partly in another currency or unit of account.

(6)

The equivalent is to be calculated at the latest practicable date before (but in any event not more than 3 working days before) the date on which the offer is first made.

(7)

"Qualified investor" means –

(a)

an entity falling within Article 2.1(e)(i), (ii) or (iii) of the prospectus directive;

(b)

an investor registered on the register maintained by the [FSA] under section 87R;

(c)

an investor authorised by an EEA State other than the United Kingdom to be considered as a qualified investor for the purposes of the prospectus directive.
PR 1.2.2RRP
In accordance with section 85(5)(b) of the Act, section 85(1) of the Act does not apply to offers of the following types of transferable securities:(1) shares issued in substitution for shares of the same class already issued, if the issue of the new shares does not involve any increase in the issued capital;(2) transferable securities offered in connection with a takeover by means of an exchange offer, if a document is available containing information which is regarded by the
PR 1.2.3RRP
In accordance with section 85(6)(b) of the Act, section 85(2) of the Act does not apply to the admission to trading of the following types of transferable securities:(1) shares representing, over a period of 12 months, less than 10 per cent of the number of shares of the same class already admitted to trading on the same regulated market;(2) shares issued in substitution for shares of the same class already admitted to trading on the same regulated market, if the issue of the
PERG 8.6.1GRP
The word ‘communicate’ is extended under section 21(13) of the Act and includes causing a communication to be made. This means that a person who causes the communication of a financial promotion by another person is also subject to the restriction in section 21. Article 6(d) of the Financial Promotion Order also states that the word ‘communicate’ has the same meaning when used in exemptions in the Order. Article 6(a) also states that the word ‘communication’ has the same meaning
PERG 8.6.9GRP
Section 21(1) of the Act refers only to the communication of an invitation or inducement. It says nothing about communications being 'made to' or 'directed at' persons or about who the 'recipient' of a communication will be. These facts are determined by the following sequence:(1) section 21(13) of the Act indicates that communications are 'made';(2) article 6 of the Financial Promotion Order (Interpretation: communications) indicates that communications are made by being 'addressed
PERG 2.11.1GRP
Any person who concludes or is advised that he will need to make an application for Part IV permission should look at PERG 2 Annex 2 G to determine the categories of specified investment and regulated activities that are relevant to the next step and should then refer to AUTH 3 for details of the application process.