Related provisions for PERG 6.4.3

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REC 4.8.1GRP
A decision to: (1) revoke a recognition order under section 297 of the Act (Revoking recognition); or(2) make a direction under section 296 (FSA's powers to give directions); or(3) refuse to make a recognition order under section 290 (Recognition orders);is a serious one and section 298 of the Act (Directions and revocation: procedure) sets out a procedure (see REC 4.8.9 G) which the FSA will follow unless, in the case of a revocation of a recognition order, the recognised body
REC 4.8.2GRP
The FSA's internal arrangements provide for any of these decisions to be taken at an appropriately senior level.
REC 4.8.3GRP
In considering whether it would be appropriate to exercise the powers under section 296 or section 297 of the Act, the FSA will have regard to all relevant information and factors including:(1) its guidance to recognised bodies;(2) the results of its routine supervision of the body concerned;(3) the extent to which the failure or likely failure to satisfy the recognition requirements or other obligations in or under the Act may affect the regulatory objectives.
REC 4.8.4GRP
In considering whether or not to make a recognition order, the FSA will have regard to all relevant information and factors, including its guidance to recognised bodies and applicants and the information provided by applicants. Details of the application processes and other guidance for applicants are set out in REC 5 and (for overseas applications) REC 6.
REC 4.8.5GRP
The procedures laid down in section 298 of the Act are summarised, with the FSA's guidance about the actions it proposes to take in following these procedures, in the table at REC 4.8.9 G.
REC 4.8.6GRP
Before exercising its powers under section 296 or section 297 of the Act, the FSA will usually discuss its intention, and the basis for this, with the key individuals or other appropriate representatives of the recognised body. It will usually discuss its intention not to make a recognition order with appropriate representatives of the applicant.
REC 4.8.9GRP

Key steps in the section 298 procedure

The FSA will:

Guidance

(1)

give written notice to the recognised body (or applicant);

The notice will state why the FSA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made .

(2)

take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the recognised body or of the applicant, as the case may be;

The FSA will also notify persons individually (as far as it considers it reasonably practicable to do so) if it considers that the action it proposes to take would affect them adversely in a way which would be different from its effect on other persons of the same class.

(3)

publish the notice so as to bring it to the attention of other persons likely to be affected;

(4)

receive representations from the recognised body or applicant concerned, any member of the recognised body or applicant, and any other person who is likely to be affected by the action the FSA proposes to take;

The FSA will not usually consider oral representations without first receiving written representations from the person concerned. It will normally only hear oral representations from the recognised body (or applicant) itself or of a person whom it has notified individually, on request.

(5)

write promptly to any person who requests the opportunity to make oral representations if it decides not to hear that person's representations;

The FSA will indicate why it will not hear oral representations and the FSA will allow the person concerned further time to respond.

(6)

have regard to representations made;

(7)

(when it has reached its decision) notify the recognised body (or applicant) concerned in writing.

(8)

(if it has decided to give a direction, or revoke or refuse to make a recognition order) take such steps as it considers reasonably practicable to bring its decision to the attention of members of the recognised body or applicant and to other persons likely to be affected.

The FSA will usually give notice of its decision to the same persons and in the same manner as it gave notice of its intention to act.

PERG 4.11.1GRP
Section 19 of the Act (The general prohibition) provides that the requirement to be authorised under the Act only applies in relation to regulated activities which are carried on 'in the United Kingdom'. In many cases, it will be quite straightforward to identify where an activity is carried on. But when there is a cross-border element, for example because a borrower is outside the United Kingdom or because some other element of the activity happens outside the United Kingdom,
PERG 4.11.6GRP
The exclusions in article 72(5A) to (5F) of the Regulated Activities Order (Overseas persons) provide that an overseas person does not carry on the regulated activities of:(1) arranging (bringing about) or making arrangements with view to a regulated mortgage contract;(2) entering into a regulated mortgage contract; or(3) administering a regulated mortgage contract;if the borrower (and each of them, if more than one) is an individual and is normally resident overseas. In the case
PERG 4.11.8GRP
The FSA's view of the effect of the Act and Regulated Activities Order in various territorial scenarios is set out in the remainder of this section. In those scenarios:(1) the term "service provider" is used to describe a person carrying on any of the regulated mortgage activities;(2) the term "borrower" refers to a borrower who is an individual and not a trustee; the position of a borrower acting as a trustee is not considered; and(3) it is assumed that the activity is not an
PERG 4.11.13GRP
When a person is arranging (bringing about) regulated mortgage contracts or making arrangements with a view to regulated mortgage contracts from overseas, the question of whether he will be carrying on regulated activities in the United Kingdom will depend on the relevant circumstances. In the FSA's view, factors to consider include:(1) the territorial limitation in the definition of regulated mortgage contract so that regulation only applies if the land is in the United Kingdom;(2)
PERG 4.11.14GRP
In the FSA's view:(1) if the borrower is normally resident in the United Kingdom, the clear territorial limitation in the definition of regulated mortgage contract carries most weight in determining where regulation should apply; it is likely that the arranger will be carrying on regulated activities in the United Kingdom;(2) if the borrower is normally resident overseas, the arrangements are excluded by the overseas persons exclusion.In the case of arranging (bringing about)
PERG 4.11.15GRP
In the FSA's view, advising on regulated mortgage contracts is carried on where the borrower receives the advice. Accordingly:(1) if the borrower is located in the United Kingdom, a person advising that borrower on regulated mortgage contracts is carrying on a regulated activity in the United Kingdom; but(2) if the service provider and borrower are both located overseas, the regulated activity is not carried on in the United Kingdom.
PERG 4.11.17GRP
In the FSA's view, in circumstances other than those excluded by article 72(5D) of the Regulated Activities Order, an overseas lender is likely to carry on the regulated activity of entering into regulated mortgage contracts in the United Kingdom. This is because of:(1) the territorial limitation in the definition of regulated mortgage contract so that regulation applies only if the land is in the United Kingdom;(2) the general principle and practice that contracts relating to
PERG 4.11.19GRP
In the FSA's view, in circumstances other than those excluded by article 72(5E) of the Regulated Activities Order, an overseas administrator is likely to carry on the regulated activity of administering a regulated mortgage contract in the United Kingdom. This is because:(1) the territorial limitation in the definition of regulated mortgage contract means that regulation applies only if the land is in the United Kingdom;(2) when administrators notify borrowers resident in the
PERG 4.11.20GRP
In most cases, there will be no preliminary agreement to enter into a regulated mortgage contract in advance of entering into the contract itself. Moreover, the exclusions relevant to a regulated activity are taken into account to determine whether a person is agreeing to carry on that regulated activity. So, for example, agreeing to arrange regulated mortgage contracts in cases where borrower and service provider are overseas, would not be regulated activities because the activities
PERG 4.11.22GRP
The FSA will be responsible for implementing the Distance Marketing Directive for those firms and activities it regulates. The FSA and the Treasury agree that the Distance Marketing Directive is intended to operate on a country of origin basis, except where a firm is marketing into the UK from an establishment in an EEA State which has not implemented the Directive.
FEES 2.1.1RRP
120This120 chapter applies to every person who is required to pay a fee or share of a levy to the FSA, FOS Ltd or FSCS, as the case may be, by a provision of the Handbook.
FEES 2.1.4GRP
The purpose of this chapter is to set out the general provisions applicable to those who are required to pay fees or levies to FSA, case fees to FOS Ltd or a share of the FSCS levy.
FEES 2.1.5GRP
Paragraph 17 of Schedule 1 and section 99 to the Act enable the FSA to charge fees to cover its costs and expenses in carrying out its functions. The corresponding provisions for the FSCS levy and FOS levies and case fees are set out in FEES 6.1, and FEES 5.2 respectively.
FEES 2.1.6GRP
The FSA fees payable will vary from one financial year to another, and will reflect the FSA's funding requirement for that period and the other key components, as described in FEES 2.1.7G. Periodic fees, which will normally be payable on an annual basis, will provide the majority of the funding required to enable the FSA to undertake its statutory functions.
FEES 2.1.7GRP
The key components of the FSA fee mechanism (excluding the FSCSlevy and FOS levy and case fees, which are dealt with in FEES 5 and FEES 6) are:(1) a funding requirement derived from:(a) the FSA's financial management and reporting framework;(b) the FSA's budget; and(c) adjustments for audited variances between budgeted and actual expenditure in the previous accounting year, and reserves movements (in accordance with the FSA's reserves policy);(2) mechanisms for applying penalties
FEES 2.1.9GRP
By basing fee-blocks on categories of business, the FSA aims to minimise cross-sector subsidies. The membership of the fee-blocks is identified in the FEES provisions relating to the type of fees concerned.
REC 3.3.1GRP
Under section 294 of the Act (Modification or waiver of rules), the FSA may, on the application or with the consent of a recognised body (including an overseas recognised body), direct that any notification rule is not to apply to the body or is to apply with such modifications as may be specified in the waiver.
REC 3.3.3GRP
Under section 294(4) of the Act, before the FSA may give a waiver of notification rules, it must be satisfied that:(1) compliance by the recognised body with those notification rules, or with those rules as unmodified, would be unduly burdensome or would not achieve the purpose for which those rules were made; and(2) the waiver would not result in undue risk to persons whose interests those rules are designed to protect.
REC 3.3.4GRP
Where a recognised body wishes to make an application to the FSA for a waiver of a notification rule, it should in the first instance inform its usual supervisory contact at the FSA.
REC 3.3.5GRP
There is no application form, but applicants should make their application formally and in writing and in accordance with any direction the FSA may make under section 294(2) of the Act. Each application should set out at least:(1) full particulars of the waiver which is requested; (2) the reason why the recognised body believes that the criteria set out in section 294(4) (and described in REC 3.3.3 G) would be met, if this waiver were granted; and (3) where the recognised body
REC 3.3.6GRP
The FSA may request further information from the applicant, before deciding whether to give a waiver under section 294 of the Act.
REC 3.3.7GRP
Any waiver given by the FSA under section 294 of the Act will be made in writing, stating: (1) the name of the recognised body in respect of which the waiver is made;(2) the notification rules which are to be waived or modified in respect of that body;(3) where relevant, the manner in which any rule is to be modified;(4) any condition or time limit to which the waiver is subject; and(5) the date from which the waiver is to take effect.
REC 3.3.8GRP
Where the FSA considers that it will not give the waiver which has been applied for, the FSA will give reasons to the applicant for its decision. The FSA will endeavour, where practicable, to inform an applicant in advance where it seems that an application is likely to fail unless it is amended or expanded, so that the applicant will have the opportunity to make any necessary amendments or additions before the application is considered.
REC 3.3.9GRP
Where the FSA wishes to give a waiver under section 294 of the Act with the consent of a recognised body (rather than on the application of a recognised body), the FSA will correspond or discuss this with that body in order to agree an appropriate waiver.
REC 3.3.10GRP
The FSA will periodically review any waiver it has given. The FSA has the right to revoke a waiver under section 294(6) of the Act. This right is likely to be exercised in the event of a material change in the circumstances of the recognised body or in any fact on the basis of which the waiver was given.
PR 3.1.3RRP
(1) The applicant must submit to the FSA by the date specified in paragraph (2):(a) the completed form A in final form;(b) the relevant fee; and(c) the other information referred to in PR 3.1.1 R in draft form.(2) The date referred to in paragraph (1) is:(a) at least 10 working days before the intended approval date of the prospectus; or(b) at least 20 working days before the intended approval date of the prospectus if the applicant does not have transferable securitiesadmission
PR 3.1.6GRP
If an applicant wishes the FSA to provide a certificate of approval to another competent authority at the time the prospectus is approved, it should include a request for the supply of the certificate with its application for approval of the prospectus (PR 5.3.2 R sets out the requirements for such a request).
PR 3.1.7UKRP

Section 87A(1) of the Act provides for the approval of a prospectus by the FSA:

(1)

The [FSA] may not approve a prospectus unless it is satisfied that:

(a)

the United Kingdom is the home State in relation to the issuer of the transferable securities to which it relates,

(b)

the prospectus contains the necessary information, and

(c)

all of the other requirements imposed by or in accordance with this Part or the prospectus directive have been complied with (so far as those requirements apply to a prospectus for the transferable securities in question).

PR 3.1.9RRP
The FSA will follow the executive procedures for statutory notice decisions and statutory notice associated decisions if it:(1) proposes to refuse to approve a prospectus; or(2) decides to refuse to approve a prospectus after having given the applicant a written notice.Note: DEPP 44 sets out the executive procedures for statutory notice decisions and statutory notice associated decisions.4
PR 3.1.10RRP
A prospectus must not be published until it has been approved by the FSA. [ Note: article 13.1 PD ]
PR 3.1.12RRP
(1) A person seeking to have the function of approving a prospectus transferred to the competent authority of another EEA State must make a written request to the FSA at least 10 working days before the date the transfer is sought.(2) The request must:(a) set out the reasons for the proposed transfer;(b) state the name of the competent authority to whom the transfer is sought; and(c) include a copy of the draft prospectus.
PR 3.1.13GRP
The FSA will consider transferring the function of approving a prospectus to the competent authority of another EEA State:(1) if requested to do so by the issuer, offeror or person requesting admission or by another competent authority; or(2) in other cases if the FSA considers it would be more appropriate for another competent authority to perform that function.
PR 3.1.14RRP
A person who wishes the FSA to vet an equivalent document referred to in PR 1.2.2 R (2) or (3) or PR 1.2.3R (3) or (4) must submit to the FSA:(1) a copy of the document;(2) a cross reference list identifying the pages in the document where each item that is equivalent to the disclosure requirements for a prospectus may be found;(3) contact details of individuals who are:(a) sufficiently knowledgeable about the documentation to be able to answer queries from the FSA; and(b) available
REC 3.4.1GRP
The purpose of REC 3.4 is to enable the FSA to monitor changes in the arrangements a UK recognised body makes for the carrying out of its relevant functions or for overseeing the work of key individuals or departments responsible for its relevant functions.
REC 3.4.3GRP
(1) Key individuals include the persons who, under the operational or managerial arrangements of the UK recognised body, are appointed to manage the departments responsible for carrying out its relevant functions, whether or not they are members of its governing body. A person appointed to carry out specific tasks, such as to conduct a particular investigation into a specific set of facts, would not usually be a key individual.(2) A key individual need not be an employee of a
REC 3.4.5RRP
Where the governing body of a UK recognised body delegates any of its functions (which relate to that UK recognised body'srelevant functions) to a standing committee, or appoints a standing committee to manage or oversee the carrying out of any of that UK recognised body'srelevant functions, that UK recognised body must immediately notify the FSA of that event and give the FSA the following information:(1) the names of the members of that standing committee; and(2) the terms of
REC 3.4.6RRP
Where:(1) there is any change in the composition or the terms of reference of any standing committee referred to in REC 3.4.5 R; or(2) any such committee is dissolved; the UK recognised body must immediately notify the FSA of that event and give particulars of any change referred to in (1) to the FSA.
SUP 8.6.1GRP
The FSA is required by section 148(6) of the Act to publish a waiver unless it is satisfied that it is inappropriate or unnecessary to do so. If the FSA publishes a waiver, it will not publish details of why a waiver was required or any of the supporting information given in a waiver application.
SUP 8.6.2GRP
When considering whether it is satisfied under section 148(6), the FSA is required by section 148(7) of the Act:(1) to take into account whether the waiver relates to a rule contravention of which is actionable under section 150 of the Act (Actions for damages); Schedule 5 identifies such rules;(2) to consider whether its publication would prejudice, to an unreasonable degree, the commercial interests of the firm concerned, or any other member of its immediate group; and(3) to
SUP 8.6.3GRP
Waivers can affect the legal rights of third parties, including consumers. In the FSA's view it is important that the fact and effect of such waivers should be transparent. So the fact that a waiver relates to a rule that is actionable under section 150 of the Act (see SUP 8.6.2 G (1)) will tend to argue in favour of publication.
SUP 8.6.5GRP
In considering whether commercial interests would be prejudiced to an unreasonable degree (see SUP 8.6.2 G (2)), the FSA will weigh the prejudice to firms' commercial interests against the interests of consumers, markets and other third parties in disclosure. In doing so the FSA will consider factors such as the extent to which publication of the waiver would involve the premature release of proprietary information to commercial rivals, for example relating to a product innovation,
SUP 8.6.6GRP
The FSA may consider publication unnecessary where, for example, the waiver relates to a minor matter that does not affect any third party and is unlikely to be of relevance or interest to other firms.
SUP 8.6.7GRP
If, after taking into account the matters in SUP 8.3.3 D to SUP 8.6.6 G, a firm believes there are good grounds for the FSA either to withhold publication or to publish the waiver without disclosing the identity of the firm, it should make this clear in its application (see SUP 8.3.3 D (7)). If the FSAproposes to publish a waiver against the wishes of the firm, the FSA will give the firm the opportunity to withdraw its application before the waiver is given.
SUP 8.6.8GRP
A decision to withhold a waiver or identity of a firm from publication may be for a limited period only, usually as long as the duration of the relevant grounds for non-publication. If the FSA proposes to publish information about a waiver that had previously been withheld, it will first give the firm an opportunity to make representations.
SUP 8.6.9GRP
The principal means of publication of waiver information will be the FSA's website (www.fsa.gov.uk).
SUP 2.1.3GRP
Achieving the regulatory objectives involves the FSA informing itself of developments in firms and in markets. The Act requires the FSA to monitor a firm's compliance with requirements imposed by or under the Act (paragraph 6 (1) of Schedule 1). The Act also requires the FSA to take certain steps to cooperate with other regulators (section 354). For these purposes, the FSA needs to have access to a broad range of information about a firm's business.
SUP 2.1.4GRP
The FSA receives the information in SUP 2.1.3 G through a variety of means, including notifications by firms (see SUP 15) and regular reporting by firms (see SUP 16). This chapter is concerned with the methods of information gathering that the FSA may use on its own initiative in the discharge of its functions under the Act. This chapter does not deal with the information gathering powers that the FSA has under the Unfair Terms Regulations. These are dealt with in UNFCOG2.12
SUP 2.1.5GRP
Part XI of the Act (Information Gathering and Investigations) gives the FSA statutory powers, including: (1) to require the provision of information (see section 165 and EG 32);2(2) to require reports from skilled persons (see section 166 and SUP 5);(3) to appoint investigators (see sections 167, 168 and 169 of the Act and EG 32); and2(4) to apply for a warrant to enter premises (see section 176 of the Act and EG 42).2
SUP 2.1.6GRP
The FSA prefers to discharge its functions by working in an open and cooperative relationship with firms. The FSA will look to obtain information in the context of that relationship unless it appears that obtaining information in that way will not achieve the necessary results, in which case it will use its statutory powers. The FSA has exercised its rule-making powers to make Principle 11 which requires that a firm must deal with its regulators in an open and cooperative way,
SUP 2.1.7GRP
The FSA operates in the context of the Act and the general law. The purpose of SUP 2.2 is to explain how certain provisions of the Act and the general law are relevant to the FSA's methods of information gathering described in SUP 2.3 and SUP 2.4.
SUP 2.1.8GRP
The purpose of SUP 2.3 is to amplify Principle 11 in the context of information gathering by the FSA on its own initiative in the discharge of its functions under the Act. SUP 2.3 therefore sets out, in guidance on Principle 11 and in rules, how the FSA expects firms to deal with the FSA in that context, including the steps that a firm should take with a view to ensuring that certain connected persons should also cooperate with the FSA.
SUP 2.1.9GRP
The purpose of SUP 2.4 is to explain a particular method of information gathering used by the FSA, known as "mystery shopping". Information about how a firm sells financial products can be very difficult to obtain, and the purpose of this method is to obtain such information from individuals who approach a firm in the role of potential retail consumers on the FSA's initiative. The FSA may seek information about particular issues or the activities of individual firms by means
LR 8.3.1RRP
Where a sponsor has been appointed under LR 8.2 by a listed company or an applicant, a sponsor must:(1) provide assurance to the FSA when required that the responsibilities of the listed company or applicant under the listing rules have been met; and(2) guide the listed company or applicant in understanding and meeting its responsibilities under the listing rules anddisclosure rules and transparency rules.
LR 8.3.2GRP
A sponsor will be the main point of contact with the FSA for any matter where the sponsor has been appointed by a listed company or applicant. The FSA expects to discuss all issues relating to a transaction and any draft or final document directly with the sponsor. However, in appropriate circumstances, the FSA will communicate directly with the listed company or applicant.
LR 8.3.5RRP
A sponsor must:(1) deal with the FSA in an open and co-operative way;(2) deal with all enquiries raised by the FSA promptly.; and(3) disclose to the FSA in a timely manner any material information relating to the sponsor or to a listed company or applicant of which it has knowledge which addresses non-compliance with the listing rules or disclosure rules and transparency rules.
SUP 5.5.1RRP
When a firm appoints a skilled person to provide a report under section 166 of the Act (Reports by skilled persons), the firm must, in a contract with the skilled person:(1) require and permit the skilled person during and after the course of his appointment:(a) to cooperate with the FSA in the discharge of its functions under the Act in relation to the firm; and(b) to communicate to the FSA information on, or his opinion on, matters of which he has, or had, become aware in
SUP 5.5.2GRP
In complying with the contractual duty in SUP 5.5.1 R (1) the FSA expects that a skilled person appointed under section 166 of the Act (Reports by skilled persons) will cooperate with the FSA by, amongst other things, providing information or documentation about the planning and progress of the report and its findings and conclusions, if requested to do so. A firm should therefore ensure that the contract it makes with the skilled person requires and permits the skilled person
SUP 5.5.3GRP
If the FSA is considering asking for the information specified in SUP 5.5.2 G it will take into consideration the cost of the skilled person complying with the request, and the benefit that the FSA may derive from the information. For example, in most cases, the FSA will not need to request a skilled person to give it source data, documents and working papers. However, the FSA may do so when it reasonably believes that this information will be relevant to any investigation
SUP 5.5.4GRP
In complying with the contractual duty in SUP 5.5.1 R, the FSA expects that, in the case of substantial or complex reports, the skilled person will give a periodic update on progress and issues to allow for a re-focusing of the report if necessary. The channel of communication would normally be directly between the skilled person and the FSA. However, the FSA would also expect firms normally to be informed about the passage of information, and the skilled person would usually
SUP 5.5.5RRP
A firm must ensure that the contract required by SUP 5.5.1 R:(1) is governed by the laws of a part of the United Kingdom; (2) expressly(a) provides that the FSA has a right to enforce the provisions included in the contract under SUP 5.5.1 R and SUP 5.5.5 R (2);(b) provides that, in proceedings brought by the FSA for the enforcement of those provisions, the skilled person is not to have available by way of defence, set-off or counterclaim any matter that is not relevant to
SUP 5.5.6GRP
The Contracts (Rights of Third Parties) Act 1999, or Scots common law, enables the FSA to enforce the rights conferred on it under the contract against the skilled person.
SUP 5.5.7GRP
If the FSA considers it appropriate, it may request the firm to give it a copy of the draft contract before it is made with the skilled person. The FSA will inform the firm of any matters that it considers require further clarification or discussion before the contract is finalised.
SUP 5.5.8GRP
The FSA expects the firm, in complying with Principle 11, to give the FSA information about the cost of the skilled persons report. This may include both an initial estimate of the cost as well as the cost of the completed report. This information is required to help inform the FSA's decision making in the choice of regulatory tools. Information about the number and cost of reports by skilled persons will be published by the FSA.
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 1.3.2GRP
(1) The FSA will consider whether a firm satisfies, and will continue to satisfy, the threshold conditions in the context of the size, nature, scale and complexity of the business which the firm carries on or will carry on if the relevant application is granted.(2) In relation to threshold conditions 4 and 5, the FSA will consider whether a firm is ready, willing and organised to comply, on a continuing basis, with the requirements and standards under the regulatory system which
COND 1.3.3GRP
Although the FSA may consider that a matter is relevant to its assessment of a firm, the fact that a matter is disclosed to the FSA, for example in an application, does not necessarily mean that the firm will fail to satisfy the threshold conditions. The FSA will consider each matter in relation to the regulated activities for which the firm has, or will have, permission, having regard to the regulatory objectives set out in section 2 of the Act (The FSA's general duties). A 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
APER 4.4.3ERP
In the opinion of the FSA, conduct of the type described in APER 4.4.4 E, APER 4.4.7 E, or APER 4.4.9 E does not comply with Statement of Principle 4 (APER 2.1.2 P).
APER 4.4.4ERP
Failing to report promptly in accordance with his firm's internal procedures (or if none exist direct to the FSA), information which it would be reasonable to assume would be of material significance to theFSA, whether in response to questions or otherwise, falls within APER 4.4.3 E.
APER 4.4.5GRP
There is no duty on an approved person to report such information directly to the FSA unless he is one of the approved persons responsible within the firm for reporting matters to the FSA. However, if an approved person takes steps to influence the decision so as not to report to the FSA or acts in a way that is intended to obstruct the reporting of the information to the FSA, then the FSA will, in respect of that information, view him as being one of those within the firm who has
APER 4.4.6ERP
In determining whether or not an approved person's conduct under APER 4.4.4 E complies with Statement of Principle 4, the following are factors which, in the opinion of the FSA, are to be taken into account:(1) the likely significance to the FSA of the information which it was reasonable for the individual to assume;(2) whether the information related to the individual himself or to his firm;(3) whether any decision not to report the matter internally was taken after reasonable enquiry
APER 4.4.8ERP
In determining whether or not an approved person's conduct under APER 4.4.7 E complies with Statement of Principle 4(APER 2.1.2 P), the following are factors which, in the opinion of the FSA, are to be taken into account:(1) the likely significance of the information to the FSA which it was reasonable for the approved person to assume;(2) whether any decision not to inform the FSA was taken after reasonable enquiry and analysis of the situation.
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 7.2.5GRP
If the FSA exercises its powers under section 45 of the Act, it will do so by issuing a supervisory notice. The procedure that will be followed is set out in DEC 3 and a flowchart is provided in DEC 3 Annex 2.
SUP 7.2.6GRP
A firm has a right of referral to the Financial Services and Markets Tribunal (see DEC 5) in respect of the exercise by the FSA of its powers to vary, on its own initiative, the firm'sPart IV permission.
GEN 5.1.1GRP
1This chapter contains:2(1) guidance for firms and appointed representatives on the circumstances in which the FSA permits firms and their appointed representatives to reproduce the FSA logo;2(2) rules on the use by firms of the Key facts logo.2
GEN 5.1.2GRP
The FSA logo is a registered UK service mark, with number 2150560. The Key facts logo is a registered Community trade mark, with the number E3866688. Both are3 the property of the FSA. They are 3also subject to copyright and may be used or reproduced with permission of the FSA only. If the FSA or Key facts logos are 3reproduced or otherwise used by any person without such permission the FSA may seek to enforce its rights over its property through the Courts.333
GEN 5.1.3GRP
GEN 5 Annex 1 G is a general licence, which sets out the circumstances in which the FSA permits firms and their appointed representatives to reproduce the FSA and Key facts logos3. A firm or an appointed representative need not apply for an individual licence if it uses or reproduces the logos 3in accordance with the general licence.33
GEN 5.1.4GRP
The FSA has no policy to allow use of the logos3 by a firm or appointed representative other than as set out in GEN 5 Annex 1 G. If, however, a firm or appointed representative wishes to use or reproduce either of3 the logos3 other than in accordance with the general licence, it may apply to the FSA for an individual licence, giving full reasons why it considers the FSA should grant the licence.3
PERG 8.12.6GRP
There is no definition in the Financial Promotion Order of what ‘proper systems and procedures’ are, and the matter will ultimately be for the courts to determine. This is unsurprising as systems and procedures may take many different forms depending upon the precise circumstances in which financial promotions are made. But it is clear that persons seeking conclusive proof that the exemption applies must consciously make arrangements to prevent their dealing with certain recipients
PERG 8.12.8GRP
In any case, some but not all of the conditions referred to in PERG 8.12.5G (1) to PERG 8.12.5G (2) and PERG 8.12.7G (1) to PERG 8.12.7G (2) (or the additional condition that the communication is included in a website, newspaper or periodical publication which is principally accessed in or intended for a non-UK market or in a radio or television broadcast or teletext service transmitted principally for reception overseas) may be met. In these cases, those conditions being satisfied
PERG 8.12.11GRP
This exemption applies to any financial promotion that is made with a view to or for the purposes of introducing the recipient to certain kinds of person. These are authorised persons who carry on the controlled activity to which the financial promotion relates, or exempt persons where the financial promotion relates to a controlled activity that is also a regulated activity in relation to which he is an exempt person. This is subject to the requirement that:11(1) the person making
PERG 8.12.19GRP
The conditions in article 18(2) include a requirement that the person making the financial promotion does not select, modify or otherwise exercise control over its content before it is transmitted or received. Article 18(3) provides that a person is not selecting, modifying or exercising control merely as a result of having power to remove material which is illegal, defamatory or in breach of copyright or at the request of a regulatory body or where the law requires him to do
PERG 8.12.20GRP
The conditions in article 18 also require that the person acting as the mere conduit must communicate in the course of an activity1 carried on by him the principal purpose of which is transmitting or receiving material provided to him by others. In the FSA's view, what matters is that the person is carrying on an activity1 which has the required principal purpose. Such an activity1 might represent but a part of a person’s overall business1 activities (however small), so long as
PERG 8.12.22GRP
Article 19(4) sets out conditions which, if all are satisfied, offer conclusive proof that a financial promotion is directed only at investment professionals. These conditions relate to indications accompanying the financial promotion and the existence of proper systems and procedures. The guidance about proper systems and procedures in PERG 8.12.6 G applies equally to article 19. Article 19(6) specifically states that a financial promotion may be treated as made only to or directed
PERG 8.12.25GRP
With this objective in mind, the exemption in article 20 applies to any non-real time financial promotion the contents of which are devised by a person acting as a journalist where the financial promotion is in:1(1) a newspaper, journal, magazine or other periodical publication;(2) a regularly updated news or information service (such as a website or teletext service); or(3) a television or radio broadcast or transmission.In addition, the publication, service or broadcast must
PERG 8.12.26GRP
Provided the conditions in PERG 8.12.25 G are met, the exemption in article 20 applies to any non-real time financial promotion. However, there is an additional condition where the subject matter of the financial promotion is shares or options, futures or contracts for differences relating to shares and the financial promotion identifies directly a person who issues or provides such an investment. In such cases, the exemption is subject to a disclosure requirement which is itself
PERG 8.12.29GRP
The effect of PERG 8.12.27G (1) is that a journalist will not breach section 21 by not disclosing a financial interest, providing that the publication, service or broadcast concerned operates proper systems and procedures. As with the exemption in article 12 of the Financial Promotion Order (see PERG 8.12.6 G), what proper systems and procedures are will be a matter ultimately for the courts to determine and may vary according to the medium used. It will depend upon all the circumstances
PERG 8.12.30GRP
Persons such as experts or analysts may be approached to contribute at very short notice and may be overseas. In such cases, the systems and procedures referred to in PERG 8.12.29 G may not be practical. It is the FSA's opinion that, where occasional contributors are concerned, proper systems and procedures may include arrangements for ensuring that the need for disclosure (or the avoidance of financial interests) is drawn to the contributor’s attention before the communication
PERG 8.12.31GRP
It appears to the FSA, however, that there will be situations when it may not be practical for the persons who are responsible for a publication, service or broadcast to apply proper systems and procedures to every person who may, whilst acting in the capacity of a journalist, communicate a financial promotion. For example where persons are asked to stand in at the last moment. In such cases, it is the FSA's opinion that the benefit of the exclusion will not be lost as respects
PERG 8.12.34GRP
The exemption applies where the financial promotion:(1) comprises words which are spoken by the director or employee and not broadcast, transmitted or displayed in writing; or(2) is displayed in writing only because it is part of an interactive dialogue to which the director or employee is a party and in the course of which he is expected to respond immediately to questions put by a recipient of the communication.This is provided that the financial promotion is not part of an
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
FIT 1.2.1GRP
Under section 61(1) of the Act (Determination of applications), the FSA may grant an application for approval made under section 60 (Applications for approval) only if it is satisfied that the candidate is fit and proper to perform the controlled function to which the application relates.
FIT 1.2.4GRP
The Act does not prescribe the matters which the FSA should take into account when determining fitness and propriety. However, section 61(2) states that the FSA may have regard (among other things) to whether the candidate or approved person is competent to carry out a controlled function.
SUP 17.3.1EURP

The requirements set out in this chapter represent an interim approach to transaction reporting, based on the reporting requirements which previous regulators applied to firms. A number of provisions reflect the interim nature of the requirements - notably the guidance in SUP 17.4.4. Also there are still significant differences in the requirements applicable to different categories of firm. To help firms the FSA intends to publish additional guidance from time to time covering developments and issues in transaction reporting (including sources of relevant information).

PERG 8.10.3GRP
In the FSA's view, the matters identified in PERG 8.10.2 G mean that:(1) for a communication to be real time it must be made in course of an interactive dialogue; but that(2) if the interactive dialogue takes place by means of the exchange of letters or e-mails or in a publication, the communication will be deemed to be non-real time. In this case, publications include newspapers, journals, magazines or other periodical publications, websites or similar systems for the electronic
PERG 8.10.4GRP
The words ‘personal visit, telephone conversation or other interactive dialogue’ clearly imply that the first two are types of the third. In the FSA's view, it is difficult to envisage circumstances in which a personal visit or telephone conversation would not be interactive. The very fact of a conversation taking place would mean two or more persons were interacting with each other. A telephone call is not the same thing as a conversation. It may be made to, or even by, an intelligent
PERG 8.10.5GRP
In the FSA's view, the fact that scope for interaction is essential if a financial promotion is to be real time leads to the following conclusions.(1) Most communications made in written or pictorial form will not offer scope for interaction. The most likely exception to this is where persons are expected to respond immediately. This situation may arise, for example, where the equivalent of a telephone conversation is conducted by e-mail. This is the basis of the exemption in
PERG 8.10.7GRP
In the FSA's view, a communication which may exist in enduring form will be a non-real time communication. Examples of this include videos, audio cassettes, bulletin boards, websites and recorded telephone messages. Messages placed on Internet chat-rooms will also be non-real time. Radio or television programmes or teletext services may contain communications that involve an interactive dialogue. For example, a communication made by the broadcaster and addressed to an interviewee
PERG 8.10.11GRP
PERG 8.6.9 G explains that article 6 of the Financial Promotion Order has the broad effect that a communication is made to another person where it is addressed to a particular person or persons. It also states that a ‘recipient’ of a communication is the person or persons to who it is made (that is to whom it is addressed). This takes on importance where certain exemptions which apply to real time financial promotions made to a person are concerned. It appears to the FSA that,
PERG 8.10.12GRP
In the FSA's view, persons who may be engaging in investment activity jointly include:(1) a married couple;(2) two or more persons, who will invest jointly in a product (for example, a cohabiting couple who are not married or members of a family);(3) the directors of a company or partners in a firm;(4) members of a group of companies;(5) the participants in a joint commercial enterprise;(6) the members of an investment club; and(7) the managers or prospective managers of a company
PERG 8.10.14GRP
In the FSA's view, the mere fact of a person accepting an invitation to attend a meeting does not automatically mean that he has initiated any dialogue which may take place during the meeting and which may amount to a financial promotion. This will depend on the facts of each case and such matters as the manner in which the invitations are made, the arrangements for acceptance and how the meeting is conducted. For example, the fact that investments or investment services will
DEPP 6.7.1GRP
Persons subject to enforcement action may be prepared to agree the amount of any financial penalty and other conditions which the FSA seeks to impose by way of such action. Such conditions might include, for example, the amount or mechanism for the payment of compensation to consumers. The FSA recognises the benefits of such agreements, in that they offer the potential for securing earlier redress or protection for consumers and the saving of cost to the person concerned and the
DEPP 6.7.2GRP
In appropriate cases the FSA's approach will be to negotiate with the person concerned to agree in principle the amount of a financial penalty having regard to the factors set out in DEPP 6.5.2 G1.1 (This starting figure will take no account of the existence of the settlement discount scheme described in this section.) Such amount ("A") will then be reduced by a percentage of A according to the stage in the process at which agreement is reached. The resulting figure ("B") will
DEPP 6.7.3GRP

  1. (1)

    The FSA has identified four stages of an action for these purposes:

    1. (a)

      the period from commencement of an investigation until the FSA has:

      1. (i)

        a sufficient understanding of the nature and gravity of the breach to make a reasonable assessment of the appropriate penalty; and

      2. (ii)

        communicated that assessment to the person concerned and allowed a reasonable opportunity to reach agreement as to the amount of the penalty ("stage 1");

    2. (b)

      the period from the end of stage 1 until the expiry of the period for making written representations or, if sooner, the date on which the written representations are sent in response to the giving of a warning notice ("stage 2");

    3. (c)

      the period from the end of stage 2 until the giving of a decision notice ("stage 3");

    4. (d)

      the period after the end of stage 3, including proceedings before the Tribunal and any subsequent appeals ("stage 4").

  2. (2)

    The communication of the FSA's assessment of the appropriate penalty for the purposes of DEPP 6.7.3G (1)(a) need not be in a prescribed form but will include an indication of the breaches alleged by the FSA. It may include the provision of a draft warning notice.

  3. (3)

    The reductions in penalty will be as follows:

      Stage at which agreement reached

      Percentage reduction

      Stage 1

      30

      Stage 2

      20

      Stage 3

      10

      Stage 4

      0

DEPP 6.7.4GRP
(1) Any settlement agreement between the FSA and the person concerned will therefore need to include a statement as to the appropriate penalty discount in accordance with this procedure.(2) In certain circumstances the person concerned may consider that it would have been possible to reach a settlement at an earlier stage in the action, and argue that it should be entitled to a greater percentage reduction in penalty than is suggested by the table at DEPP 6.7.3G (3). It may be,
DEPP 6.7.5GRP
In cases in which the settlement discount scheme is applied, the fact of settlement and the level of the discount to the financial penalty imposed by the FSA will be set out in the final notice.