Related provisions for PERG 6.1.1

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SUP 14.6.1GRP
Section 34 of the Act states that an incoming EEA firm no longer qualifies for authorisation under Schedule 3 to the Act if it ceases to be an incoming EEA firm as a result of:(1) having its EEA authorisation withdrawn by its Home State regulator; or(2) ceasing to have an EEA right in circumstances in which EEA authorisation is not required; this is relevant to a financial institution that is a subsidiary of a credit institution (of the kind mentioned in Article 19of the Banking
SUP 14.6.2GRP
In addition, under section 34(2) an incoming EEA firm may ask the FSA to give a direction cancelling its authorisation under Schedule 3 to the Act.
SUP 14.6.9GRP
Section 35 of the Act states that an incoming Treaty firm no longer qualifies for authorisation under Schedule 4 to the Act if its Home State authorisation is withdrawn.
SUP 14.6.10GRP
In addition, under section 35(2) an incoming Treaty firm may ask the FSA to give a direction cancelling its authorisation under Schedule 4 to the Act.
SUP 14.6.11GRP
Section 36 of the Act states that a UCITS qualifier may ask the FSA to give a direction cancelling its authorisation under paragraph 1(1) of Schedule 5 to the Act. UCITS qualifiers should also refer to COLLG 3.1.11 Gand CIS 17.4.8 G (Revocation of recognition: Schemes recognised under section 264 of the Act).1
LR 4.2.1GRP
Section 80 (1) of the Act (general duty of disclosure in listing particulars) requires listing particulars submitted to the FSA to contain all such information as investors and their professional advisers would reasonably require, and reasonably expect to find there, for the purpose of making an informed assessment of:(1) the assets and liabilities, financial position, profits and losses, and prospects of the issuer of the securities; and(2) the rights attaching to the securi
LR 4.2.2RRP
(1) The listing particulars must contain a summary that complies with the requirements in section 87A(5) and (6) of the Act and PR 2.1.4 EU to PR 2.1.7 R (as if those requirements applied to the listing particulars).(2) Paragraph (1) does not apply:(a) in relation to specialist securities referred to in LR 4.1.1R (2); or(b) if, in accordance with PR 2.1.3 R, no summary would be required in relation to the securities.
LR 4.2.9GRP
Under section 82 of the Act (exemptions from disclosure) the FSA may authorise the omission from listing particulars of information on specified grounds.
LR 4.2.10RRP
A request to the FSA to authorise the omission of specific information in a particular case must:(1) be in writing from the issuer;(2) identify the specific information concerned and the specific reasons for the omission; and(3) state why in the issuer's opinion one or more of the grounds in section 82 of the Act applies.
LR 4.2.11RRP
For the purposes of section 82(1)(g) of the Act, specialist securities are specified.
SUP 2.3.1GRP
The FSA uses various methods of information gathering on its own initiative which require the cooperation of firms:(1) Visits may be made by representatives or appointees of the FSA. These visits may be made on a regular basis, on a sample basis, for special purposes such as theme visits (looking at a particular issue across a range of firms), or when the FSA has a particular reason for visiting a firm. Appointees of the FSA may include persons who are not FSA staff, but who have
SUP 2.3.3GRP
In complying with Principle 11, the FSA considers that a firm should, in relation to the discharge by the FSA of its functions under the Act:(1) make itself readily available for meetings with representatives or appointees of the FSA as reasonably requested;(2) give representatives or appointees of the FSA reasonable access to any records, files, tapes or computer systems, which are within the firm's possession or control, and provide any facilities which the representatives
SUP 2.3.5RRP
(1) A firm must permit representatives of the FSA, or persons appointed for the purpose by the FSA, to have access, with or without notice, during reasonable business hours to any of its business premises in relation to the discharge of the FSA's functions under the Act.(2) A firm must take reasonable steps to ensure that its agents, suppliers under material outsourcing arrangements and appointed representatives permit such access to their business premises. (See also, in respect
SUP 2.3.7RRP
A firm must take reasonable steps to ensure that each of its suppliers under material outsourcing arrangements deals in an open and cooperative way with the FSA in the discharge of its functions under the Act in relation to the firm.
COND 1.3.1GRP
The guidance in COND 2 explains each threshold condition in Part I of Schedule 6 (threshold conditions) to the Act and how the FSA will interpret it in practice. An overview of the threshold conditions is given in COND 1 Annex 1 G. This guidance is not, however, exhaustive and is written in very general terms. A firm will need to have regard to the obligation placed upon the FSA under section 41 (the threshold conditions) of the Act; that is, the FSA must ensure that the firm
COND 1.3.4GRP
(1) For ease of reference, the threshold conditions in or under Schedule 6 to the Act have been quoted in full in COND 2. (2) As these provisions impose obligations, they are printed in bold type. The use of bold type is not intended to indicate that these quotations are rules made by the FSA.(3) Where words have been substituted for the text of these provisions the substitutions are enclosed in square brackets ([ ]). However, none of the changes made by the FSA in these quotations
REC 5.2.3GRP
An application should:(1) be made in accordance with any directions the FSA may make under section 287 (Application by an investment exchange) or section 288 (Application by a clearing house) of the Act;(2) be accompanied by the applicant's regulatory provisions (the material specifically prescribed in section 287 or section 288);(3) be accompanied by the information, evidence and explanatory material (including supporting documentation) necessary to demonstrate to the FSA that
REC 5.2.6GRP
Under section 289 of the Act (Applications: supplementary), the FSA may require the applicant to provide additional information, and may require the applicant to verify any information in any manner. In view of their likely importance for any application, the FSA will normally wish to arrange for its own inspection of an applicant's information technology systems.
REC 5.2.12GRP
Where the FSA considers that it is unlikely to make a recognition order, or to seek the Treasury's approval, it will discuss its concerns with the applicant as early as possible with a view to enabling the applicant to make changes to its rules or guidance, or other parts of the application (see REC 5.2.7 G). If the FSA decides that it will not make a recognition order, it will follow the procedure set out in section 298 of the Act (Directions and revocation: procedure) and described
SUP 7.2.1GRP
The FSA has the power under section 45of the Act (Variation on the Authority's own initiative) to vary a firm's Part IV permission. This includes imposing a statutory requirement or limitation on that Part IV permission. (See AUTH 3.6 and AUTH 3.7 for a further explanation of potential limitations and requirements on a firm's permission.)
SUP 7.2.2GRP
The circumstances in which the FSA may vary a firm'sPart IV permission on its own initiative under section 45 of the Act include where it appears to the FSA that:(1) one or more of the threshold conditions is or is likely to be no longer satisfied; or(2) it is desirable to vary a firm's permission in order to protect the interests of consumers or potential consumers.
SUP 7.2.3GRP
The FSA may also use its powers under section 45 for enforcement purposes. ENF 3 sets out in detail the FSA's powers under section 45 and the circumstances under which the FSA may vary a firm's permission in this way, whether for enforcement purposes or as part of its day to day supervision of firms. This chapter provides additional guidance on when the FSA will use these powers for supervision purposes.
SUP 7.2.4GRP
The FSA may use its powers under section 45 of the Act only in respect of a Part IV permission ; that is, a permission granted to a firm under section 42 of the Act (Giving permission) or having effect as if so given. In respect of an incoming EEA firm, an incoming Treaty firm, or a UCITS qualifier, this power applies only in relation to any top-up permission that it has. There are similar but more limited powers under Part XIII of the Act in relation to the permission of an
SUP 5.6.1GRP
Within the legal constraints that apply, the FSA may pass on to a skilled person any information which it considers relevant to the skilled person's function. A skilled person, being a primary recipient under section 348 of the Act (Restrictions on disclosure of confidential information by Authority etc.), is bound by the confidentiality provisions in Part XXIII of the Act (Public record, disclosure of information and cooperation) as regards confidential information he receives
SUP 5.6.2GRP
The limitations in the following sections of the Act are relevant to this chapter:(1) section 175(5) (Information and documents: supplemental provisions) under which a person may be required under Part XI of the Act (Information Gathering and Investigations) to disclose information or produce a document subject to banking confidentiality (with exceptions); and (2) section 413 (Protected items), under which no person may be required to produce, disclose or allow the inspection
SUP 6.4.14GRP
Under section 397 of the Act (Misleading statements and practices), it is an offence, in purported compliance with a requirement imposed by or under the Act (including the directions in SUP 6.4.5 D), for a person to knowingly or recklessly give the FSA information that is false or misleading. If necessary, a firm should take appropriate professional advice when supplying information required by the FSA. An insurer, for example, may ask an actuary to check assumptions in respect
SUP 6.4.18GRP
A firm which is applying for cancellation of Part IV permission and which is not otherwise authorised by, or under, the Act should, at the same time, comply with SUP 10.13.6 R and notify the FSA of persons ceasing to perform controlled functions. These forms should give the effective date of withdrawal, if known (see SUP 10 (Approved persons)).
SUP 6.4.23GRP
If the FSA has granted an application for cancellation of Part IV permission and withdrawn a firm's status as an authorised person (see SUP 6.5) it will retain certain investigative and enforcement powers in relation to the firm as a former authorised person. These include:(1) information gathering and investigation powers in Part XI of the Act (Investigation gathering and investigations) (see ENF 2 (Information gathering and investigation powers));(2) powers to apply to court
SUP 6.4.24GRP
However, the FSA will not be able to use the following powers against former authorised persons:(1) powers to take disciplinary action against firms by publishing statements of misconduct under section 205 of the Act (Public censure) or imposing financial penalties under section 206(1) of the Act (Financial penalties); and(2) the power to require firms to make restitution under section 384 of the Act (Power of the FSA to require restitution).
SUP 6.4.27GRP
(1) Under section 52(1)of the Act (Determination of applications), the FSA has six months to consider a completed application.(2) If the FSA receives an application which is incomplete, that is, where information or a document required as part of the application is not provided, section 52(2) of the Act requires the FSA to determine the incomplete application within 12 months of the initial receipt of the application.(3) Within these time limits, however, the length of the process
PERG 9.8.1GRP
The test in section 236(3)(a) of the Act is whether the reasonable investor would expect that, were he to invest, he would be in a position to realise his investment within a period appearing to him to be reasonable. In the FSA's view, this is an objective test with the appropriate objective judgment to be applied being that of the hypothetical reasonable investor with qualities such as those mentioned in PERG 9.7.2 G (The investment condition: the 'reasonable investor').
PERG 9.8.2GRP
In the FSA's view, the 'realisation' of an investment means converting an asset into cash or money. The FSA does not consider that 'in specie' redemptions (in the sense of exchanging shares or securities of BC with other shares or securities) will generally count as realisation. Section 236(3)(a) refers to the realisation of an investment, the investment being represented by the 'value' of shares or securities held in BC. In the FSA's view, there is no realisation of value where
PERG 9.8.5GRP
The use of an expectation test ensures that the definition of an open-ended investment company is not limited to a situation where a holder of shares in, or securities of, a body corporate has an entitlement or an option to realise his investment. It is enough if, on the facts of any particular case, the reasonable investor would expect that he would be able to realise the investment. The following are examples of circumstances in which the FSA considers that a reasonable investor
PERG 9.8.7GRP
In the FSA's view, the fact that a person may invest in the period shortly before a redemption date would not cause a body corporate, that would not otherwise be regarded as such, to be open-ended. This is because the investment condition must be applied in relation to BC as a whole (see PERG 9.6.3 G (The investment condition (section 236(3) of the Act): general).
PERG 9.8.8GRP
Similarly, if BC issues shares or securities on different terms as to the period within which they are to be redeemed or repurchased (see PERG 9.6.4 G (The investment condition (section 236(3) of the Act): general), BC must be considered as a whole. Whether or not the expectation test is satisfied in relation to a particular body corporate is bound to involve taking account of the terms on which its shares or securities, or classes of shares or securities, are issued. But this
PERG 8.12.12GRP
This exemption covers twodistinct situations. Article 16(1) applies to all exempt persons where they make financial promotions for the purpose of their exempt activities. These persons would include appointed representatives, recognised investment exchanges, recognised clearing houses and those who are able to take advantage of the Exemption Order. So, it allows exempt persons both to promote that they have expertise in certain controlled activities and to make financial promotions
PERG 8.12.13GRP
Article 16 (2) applies to unsolicited real time financial promotions made by an appointed representative in carrying on the business:(1) for which his principal has accepted responsibility for the purposes of section 39 of the Act (Exemption of appointed representatives); and(2) in relation to which the appointed representative is exempt under section 39.In addition, the financial promotion may only be made in the circumstances in which it could be made by the appointed representative'sprincipal
PERG 8.12.18GRP
The purpose of these 1exemptions1 is to ensure that, subject to certain conditions, the restriction in section 21 of the Act does not apply to those who merely transport the financial promotions of other persons. Obvious examples here are postal and Internet service providers, courier companies and telecommunications companies. PERG 8.6.5 G explains that such persons may not be regarded as communicating a financial promotion simply because they have distributed it. Article 18
PERG 8.12.21GRP
Financial promotions made only to or directed only at certain types of person who are sophisticated enough to understand the risks involved are exempt. These are:(1) authorised persons;(2) exempt persons (where the financial promotion relates to a controlled activity which is a regulated activity for which the person is exempt);(3) governments and local authorities; and(4) persons whose ordinary business involves carrying on a controlled activity of the kind to which the financial
PERG 8.12.23GRP
The broad scope of the restriction in section 21 of the Act will inevitably mean that it will, from time to time, apply to journalists and others who make their living from commenting on news including financial affairs (such as broadcasters). This is liable to happen when such persons offer share tips or recommend the use of a particular firm for investment purposes. Such tips or recommendations are likely to amount to inducements to engage in investment activity.
PERG 8.12.36GRP
The first part of the exemption (referred to in PERG 8.12.34G (1)) specifically precludes any form of written communication. However, the FSA understands that the Treasury did not intend to prohibit the use of written words in the form of subtitling. These may be an aid to those with hearing difficulties or to interpret a foreign language, or the use of captions which supplement a spoken communication by highlighting aspects of it without introducing anything new. The FSA cannot
PERG 8.4.1GRP
The Act does not contain any definition of the expressions ‘invitation’ or ‘inducement’, leaving them to their natural meaning. The ordinary dictionary entries for ‘invitation’ and ‘inducement’ offer several possible meanings to the expressions. An ‘invitation’ is capable of meanings ranging from merely asking graciously or making a request to encouraging or soliciting. The expression ‘inducement’ is given meanings ranging from merely bringing about to prevailing upon or persuading.
PERG 8.4.2GRP
The Treasury, responding to consultation on the draft Financial Promotion Order, stated its intention that only communications containing a degree of incitement would amount to ‘inducements’ and that communications of purely factual information would not. This is provided the facts are presented in such a way that they do not also amount to an invitation or inducement. This was made clear both in the Treasury’s consultation document on financial promotion and during the passage
PERG 8.4.3GRP
The FSA recognises that the matter cannot be without doubt. However, it is the FSA's view that the context in which the expressions ‘invitation’ or ‘inducement’ are used clearly suggests that the purpose of section 21 is to regulate communications which have a promotional element. This is because they are used as restrictions on the making of financial promotions which are intended to have a similar effect to restrictions on advertising and unsolicited personal communications
PERG 8.4.4GRP
The FSA considers that it is appropriate to apply an objective test to decide whether a communication is an invitation or an inducement. In the FSA's view, the essential elements of an invitation or an inducement under section 21 are that it must both have the purpose or intent of leading a person to engage in investment activity and be promotional in nature. So it must seek, on its face, to persuade or incite the recipient to engage in investment activity. The objective test
PERG 8.4.6GRP
Merely asking a person if they wish to enter into an agreement with no element of persuasion or incitement will not, in the FSA's view, be an invitation under section 21. For example, the FSA does not consider an invitation to have been made where:(1) a trustee or nominee receives an offer document of some kind and asks the beneficial owner whether he wishes it to be accepted or declined;(2) a person such as a professional adviser enquires whether or not his client would be willing
PERG 8.4.7GRP
An inducement may often be followed by an invitation or vice versa (in which case both communications will be subject to the restriction in section 21 of the Act). An inducement may be described as a link in a chain where the chain is intended to lead ultimately to an agreement to engage in investment activity. But this does not mean that all the links in the chain will be an inducement or that every inducement will be one to engage in investment activity. Only those that are
PERG 8.4.11GRP
Links on a website may take different forms. Some will be inducements. Some of these will be inducements under section 21 and others not. Links which are activated merely by clicking on a name or logo will not be inducements. The links may be accompanied by or included within a narrative or, otherwise, referred to elsewhere on the site. Whether or not such narratives or references are inducements will depend upon the extent to which they may seek to persuade or incite persons
PERG 8.14.16GRP
In order to make an unsolicited real time financial promotion, an overseas communicator must rely on either article 32 or article 33. Article 32 provides an exemption for unsolicited real time financial promotions made by an overseas communicator to persons who were previously overseas and were a customer of his then. This is subject to certain conditions, including that, in broad terms, the customer would reasonably expect to be contacted about the subject matter of the financial
PERG 8.14.21GRP
This exemption disapplies the restriction in section 21 of the Act from non-real time financial promotions or solicited real time financial promotions which are made to a person who the communicator believes on reasonable grounds to be a certified high net worth individual and which relate to certain investments. These investments must be either;(1) shares in or debentures of an unlisted company; or(2) warrants,certificates representing certain securities, options, futures or
PERG 8.14.28AGRP
The second exemption in article 50A disapplies the restriction in section 21 of the Act from non-real time financial promotions or solicited real time financial promotions which are made to a person who the communicator believes on reasonable grounds to be a self-certified sophisticated investor and which relate to one or more of the specified investments in PERG 8.14.21G (1) to (3) (Certified high net worth individuals (article 54)).
PR 3.4.1UKRP

Section 87G of the Act provides that:

(1)

Subsection (2) applies if, during the relevant period, there arises or is noted a significant new factor, material mistake or inaccuracy relating to the information included in a prospectus approved by the [ FSA].

(2)

The person on whose application the prospectus was approved must, in accordance with prospectus rules, submit a supplementary prospectus containing details of the new factor, mistake or inaccuracy to the [FSA] for its approval.

(3)

The relevant period begins when the prospectus is approved by the [FSA] and ends –

(a)

with the closure of the offer of the transferable securities to which the prospectus relates; or

(b)

when trading in those securities on a regulated market begins.

(4)

"Significant" means significant for the purposes of making an informed assessment of the kind mentioned in section 87A(2).

(5)

Any person responsible for the prospectus who is aware of any new factor, mistake or inaccuracy which may require the submission of a supplementary prospectus in accordance with subsection (2) must give notice of it to –

(a)

the issuer of the transferable securities to which the prospectus relates, and

(b)

the person on whose application the prospectus was approved.

(6)

A supplementary prospectus must provide sufficient information to correct any mistake or inaccuracy which gave rise to the need for it.

(7)

Subsection (1) applies also to information contained in any supplementary prospectus published under this section.

PR 3.4.2RRP
A supplementary prospectus must also if necessary include an amendment or supplement to the summary, and any translations of the summary, to take into account the new information. [ Note: article 16.1 PD ]Note:Section 87Q(4) of the Act sets out the rights of investors to withdraw their acceptances after a supplementary prospectus is published.
PERG 8.3.1GRP
The basic restriction on the communication of financial promotions is in section 21(1) of the Act. Sections 21(2) and (5) disapply the restriction in certain circumstances. Their combined effect is that a person must not, in the course of business, communicate an invitation or inducement to engage in investment activity unless:(1) he is an authorised person; or(2) the content of the communication is approved for the purposes of section 21 by an authorised person; or(3) the communication
PERG 8.3.2GRP
Section 21 of the Act does not itself (other than in its heading and side-note) refer to a ‘financial promotion’ but rather to the communication of ‘an invitation or inducement to engage in investment activity’. References in this guidance to a financial promotion mean an invitation or inducement to engage in investment activity.
PERG 8.3.3GRP
Section 21 of the Act contains a number of key expressions or phrases which will determine whether or not it will apply. These are:(1) 'invitation or inducement' (see PERG 8.4);(2) 'in the course of business' (see PERG 8.5);(3) 'communicate' (see PERG 8.6);(4) 'engage in investment activity' (see PERG 8.7); and(5) 'having an effect in the United Kingdom' (see PERG 8.8).
REC 4.6.1GRP
Under section 296 of the Act (FSA's power to give directions), the FSA has the power to give directions to a recognised body in order to secure its compliance with the recognition requirements or other obligations in or under the Act.
REC 4.6.3GRP
The FSA is likely to exercise its power under section 296 of the Act if it considers that:(1) there has been, or was likely to be, a failure to satisfy the recognition requirements or there has been a failure to comply with any other obligation in or under the Act which has serious consequences; (2) compliance with the direction would ensure that the recognition requirements, or other obligation in or under the Act, were satisfied; and(3) the recognised body is capable of complying
REC 4.6.4GRP
Under section 298(7) of the Act (Directions and revocation: procedure), the FSA need not follow the consultation procedure set out in the rest of section 298 (see REC 4.8), or may cut short that procedure, if it considers it essential to do so. The FSA is likely to consider it essential to cut short the procedure if, in the absence of immediate action, there would be:(1) a serious risk of substantial losses to investors, particularly private customers; or(2) a serious threat
REC 3.1.1RRP
(1) The notification rules in this chapter, which are made under section 293 of the Act (Notification requirements), apply to all UK recognised bodies.(2) The rules relating to the form and method of notification in REC 3.2 also apply to overseas recognised bodies.
REC 3.1.3GRP
The notification rules in this chapter are in addition to the requirements on UK recognised bodies to give notice or information to the FSA under sub-sections 293(5), (6) and (7) of the Act.
REC 3.1.4GRP
The notification rules in this chapter are made by the FSA in order to ensure that it is provided with notice of events and information which it reasonably requires for the exercise of its functions under the Act.
PR 2.5.2UKRP

Section 87B(1) of the Act sets out when the FSA may authorise the omission of information from a prospectus:

(1)

The [FSA] may authorise the omission from a prospectus of any information, the inclusion of which would otherwise be required, on the ground –

(a)

that its disclosure would be contrary to the public interest;

(b)

that its disclosure would be seriously detrimental to the issuer, provided that the omission would be unlikely to mislead the public with regard to any facts or circumstances which are essential for an informed assessment of the kind mentioned in section 87A(2); or

(c)

that the information is only of minor importance for a specific offer to the public or admission to trading on a regulated market and unlikely to influence an informed assessment of the kind mentioned in section 87A(2).

PR 2.5.3RRP
A request to the FSA to authorise the omission of specific information must:(1) be in writing from the applicant;(2) identify the specific information concerned and the specific reasons for its omission; and(3) state why in the applicant's opinion one or more of the grounds in section 87B(1) of the Act applies.
SUP 6.5.1GRP
Under section 33(2) of the Act (Withdrawal of authorisation by the FSA), if the FSA cancels a firm's Part IV permission, and as a result there is no regulated activity for which the firm has permission, the FSA is required to give a direction withdrawing the firm's status as an authorised person.
PERG 9.1.1GRP
This guidance applies to persons who need to know whether a body corporate is an open-ended investment company as defined in section 236 of the Act (Open-ended investment companies). This would mean that it is a collective investment scheme.
PERG 9.1.3GRP
This guidance is issued under section 157of the Act (Guidance). It is designed to throw light on particular aspects of regulatory requirements, not to be an exhaustive description of a person's obligations. If a person acts in line with the guidance in the circumstances it contemplates, the FSA will proceed on the footing that the person has complied with aspects of the requirement to which the guidance relates. Rights conferred on third parties cannot be affected by guidance
PERG 9.1.5GRP
Open-ended investment companies constituted in other EEA States which are seeking to exercise rights conferred by the UCITS Directive should refer to COLL 9 (Recognised schemes) and CIS 17 (Recognised Schemes) for guidance on the requirements of section 264 of the Act (Schemes constituted in other EEA States).