Related provisions for PERG 7.4.13
21 - 40 of 158 items.
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under Schedule 3 to the Act if it ceases to be an incoming EEA firm as a result of:(1) having its EEA authorisation withdrawn by its Home State regulator; or(2) ceasing to have an EEA right in circumstances in which EEA authorisation is not required; this is relevant to a financial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
Regulation 8 states that where an incoming EEA firm which qualifies for authorisation under Schedule 3:(1) has ceased, or is to cease, to carry on regulated activities in the United Kingdom; and(2) gives notice of that fact to the FSA;the notice is treated under regulation 8 as a request for cancellation of the incoming EEA firm's qualification for authorisation under Schedule 3 to the Act and so as a request under section 34(2) of the Act.
1This chapter applies to every firm and with respect to every regulated activity, except that:(1) for an incoming ECA provider, this chapter does not apply when the firm is acting as such;(2) for an incoming EEA firm which has permission only for cross-border services and which does not carry on regulated activities in the United Kingdom, this chapter does not apply;(3) for an incoming firm not falling under (1) or (2), this chapter does not apply to the extent that the firm is
The Regulated Activities Order, which sets out the activities for which authorisation is required, does not attempt an exhaustive definition of a 'contract of insurance'. Instead, it makes some specific extensions and limitations to the general common law meaning of the concept. For example, it expressly extends the concept to fidelity bonds and similar contracts of guarantee, which are not contracts of insurance at common law, and it excludes certain funeral plan contracts, which
The Act prohibits any person from carrying on, or purporting to carry on, regulated activities in the United Kingdom unless that person is an authorised person or an exempt person. If an overseas investment exchange or overseas clearing house wishes to undertake regulated activities in the United Kingdom, it will need to:(1) obtain a Part IV permission from the FSA; (2) (in the case of an EEA firm or a Treaty firm) qualify for authorisation under Schedule 3 (EEA Passport Rights)
Having the status of an overseas recognised body facilitates the participation of overseas investment exchanges and overseas clearing houses in UKmarkets. In comparison with authorisation, it reduces the involvement which UK authorities need to have in the day-to-day affairs of an overseas recognised body because they are able to rely substantially on the supervisory and regulatory arrangements in the country where the applicant's head office is situated.
Article 55 of the Financial Promotion Order contains a specific exemption for professional firms allowing them to make solicited or unsolicited real time financial promotions. This is provided the financial promotion is made:(1) by a person who carries on a regulated activity without needing authorisation under the Part XX exemption; and(2) to someone who has already (that is, before the financial promotion is made) engaged the person making the financial promotion to provide
Article 55A of the Financial Promotion Order exempts non-real time financial promotions where the financial promotion:1(1) is made by a person who carries on a regulated activity without needing authorisation under the Part XX exemption (referred to in PERG 8.15.6 G and PERG 8.15.7 G as ‘Part XX activities’); and(2) contains a specified statement and is limited in its content to the matters referred to in PERG 8.15.6 G.
A financial promotion made under article 55A must contain a statement in the following terms: “The [firm/company] is not authorised under the Financial Services and Markets Act 2000 but we are able in certain circumstances to offer a limited range of investment services to clients because we are members of [relevant designated professional body]. We can provide these investment services if they are an incidental part of the professional services we have been engaged to provide".
Various named persons are exempted by Order made by the Treasury under section 38 of the Act from the need to obtain authorisation (the Exemption Order). Some of the exemptions are subject to restrictions as to the circumstances in which they apply. For example, a person is only exempt when acting in a particular capacity or for particular purposes.
Several activities carried on in connection with business at Lloyds are regulated activities in respect of which authorisation must be obtained. These include the regulated activities of advising on syndicate participation at Lloyd's or managing the underwriting capacity of Lloyd's syndicate as a managing agent at Lloyd's or arranging (bringing about) deals in investments or making arrangements with a view to transactions in investments for another in relation to such participation
The regulated activities that may be carried on in this way are restricted by an Order made by the Treasury under section 327(6) of the Act (Exemption from the general prohibition) (the Non-Exempt Activities Order). Accordingly, under that section, a person may not by way of business carry on any of the following activities without authorisation:(1) accepting deposits;(2) effecting or carrying out contracts of insurance;(3) dealing in investments as principal;(4) establishing,
(1) 1This chapter applies to an EEA firm that wishes to exercise an entitlement to establish a branch in, or provide cross border services into, the United Kingdom under a Single Market Directive. (The Act refers to such an entitlement as an EEA right and its exercise is referred to in the Handbook as "passporting".) (See SUP App 3 (Guidance on passporting issues) for further guidance on passporting.)(2) This chapter also applies to:(a) a Treaty firm that wishes to exercise rights
This chapter does not apply to:(1) an EEA firm that wishes to carry on in the United Kingdom activities which are outside the scope of its EEA right and the scope of a permission granted under Schedule 4 to the Act; in this case the EEA firm requires a "top-up permission" under Part IV of the Act (see the FSA website "How do I get authorised":http://www.fsa.gov.uk/Pages/Doing/how/index.shtml3); or 3(2) an EEA firm that carries on any insurance activity:(a) by the provision of
(1) This chapter explains how an EEA firm and a Treaty firm can qualify for authorisation under Schedules 3 and 4 to the Act and how a UCITS qualifier is authorised under Schedule 5 to the Act. (2) This chapter also provides guidance on Schedule 3 to the Act for an incoming EEA firm that wishes to establish a branch in the United Kingdom instead of, or in addition to, providing cross border services into the United Kingdom or vice versa.
Any person who carries on a regulated activity in the United Kingdom by way of business must either be an authorised person or exempt from the need for authorisation. Otherwise, the person commits a criminal offence and certain agreements may be unenforceable. PERG 2.2 (Authorisation and regulated activities) has further guidance on these consequences.2
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
It is the scope of the Regulated Activities Order rather than the IMD which will determine whether a person requires authorisation or exemption. However, the scope of the IMD is relevant to the application of certain exclusions under the Regulated Activities Order (see, for example, the commentary on article 67 in PERG 5.11.9 G (Activities carried on in the course of a profession or non-investment business)).
Articles 53,1 53A, 53B and 53C1of the Regulated Activities Order contain a number of elements, all of which must be present before a person will require authorisation. For guidance on whether a person is carrying on these regulated activities, see PERG 8 (Financial promotion and related activities),1PERG 4 (Guidance on regulated activities connected with mortgages), and PERG 14.3 and PERG 14.4 (Guidance on home reversion and home purchase activities)1.11
If a person is carrying on the business of advising on investments or advising on a home finance transaction1in the United Kingdom, he will not require authorisation if:(1) he is able to rely on an exclusion; in addition to the exclusions already mentioned (in articles 54 and 72 of the Regulated Activities Order), other exclusions that may be relevant are in Chapter XVII of Part II of the Regulated Activities Order; or(2) he is an exempt person (see PERG 2.11 (What to do now?1));
Many people may be involved in the production of a periodical publication, news service or broadcast. But if the regulated activity of advising on investments or advising on a home finance transaction1 is being carried on so that authorisation is required, the FSA's view is that the person carrying on the activity (and who will require authorisation) is the person whose business it is to have the editorial control over the content. In the case of a periodical publication, this
Table of periodic fees
1 Fee payer |
2 Fee payable |
3 Due date |
4 Events occurring during the period leading to modified periodic fee |
Any firm (except an ICVC or a UCITS qualifier) |
As specified in FEES 4.3.1 R |
(1) Unless (2) applies, on or before the relevant dates specified in FEES 4.3.6 R (2) If an event specified in column 4 occurs during the course of a financial year, 30 days after the occurrence of that event, or if later the dates specified in FEES 4.3.6 R. |
Firm receives permission; or Firm extends permission |
Any firm which reports transactions3 to the FSA using the FSA's Direct Reporting System or FSA's Transaction Reporting System (see SUP 17) 3 |
(1) For transaction charges, the first working day of each month (2) For licence fees and enrolment charges, by the date set out on the relevant invoice |
Not applicable |
|
Persons who hold a certificate issued by the FSA under article 54 of the Regulated Activities Order (Advice given in newspapers etc.) |
£1,000 |
(1) Unless (2) applies, on or before 30 April (2) If an event in column 4 occurs during the course of a financial year, 30 days after the occurrence of that event |
|
Any manager of an authorised unit trust; |
In relation to each unit trust the amount specified in FEES 4 Annex 4 |
Authorisation order is made in relation to the relevant scheme |
|
In relation to each ICVC the amount specified in FEES 4 Annex 4 |
|||
Persons who, under the constitution or founding arrangements of a recognised scheme, is responsible for the management of the property held for or within the scheme; |
In relation to each recognised scheme the amount specified in FEES 4 Annex 4 |
The relevant scheme becomes a recognised collective investment scheme |
|
Not applicable |
|||
FEES 4 Annex 6, part 1 |
(1) Unless (2) applies, by the due dates set out in FEES 4 Annex 6, part 1 (2) If the event in column 4 occurs during the course of a financial year, 30 days after the occurrence of that event |
Recognition order is made.Modified periodic fee: (1) for a UKrecognised investment exchange, 150,000; (2) for a UKrecognised clearing house, 250,000. |
|
FEES 4 Annex 6, part 2 |
(1), unless (2) applies, 1 July. (2) If the event in column 4 occurs during the course of a financial year , 30 days after the occurrence of that event. |
Recognition order is made.Modified periodic fee: (1) for an overseas investment exchange, 10,000; (2) for a overseas clearing house, 35,000. |
|
Listedissuers (in LR) of shares, depositary receipts and securitised derivatives (in LR), unless the conditions set out below apply.3 The first condition is that the listedissuer, or a related entity, has already paid a periodic fee in respect of the period concerned. The second condition is that the listedissuer is subject to listing rules as a result of a reverse takeover, or that the listedissuer is a newly formed entity, created as a result of a restructuring.3 |
Within 30 days of the date of the invoice |
Listedissuer3 (in LR) becomes subject to listing rules 3 |
|
10,00010 per year for the period from 1 April to 31 March the following year (see Note)2 |
Within 30 days of the date of the invoice |
Approval of sponsor |
|
All non-listed issuers (in DTR) of shares, depositary receipts and securitised derivatives. |
Within 30 days of the date of the invoice |
Non-listed issuer (in DTR) becomes subject to disclosure rules and transparency rules |
Note:Sponsors on the list of approved sponsors as at 1 April each year will be liable for the full year's annual fee unless FEES 4.3.13 R applies.2
Section 39 of the Act (Exemption of appointed representatives) exempts appointed representatives from the need to obtain authorisation. An appointed representative is a person who is party to a contract with an authorised person which permits or requires him to carry on certain regulated activities (see Glossary for full definition). SUP 12 (Appointed representatives) contains rules and guidance relating to appointed representatives.
A person who is not already an appointed representative may wish to become one in relation to the regulated activitiesspecified in the Appointed Representatives Regulations (see table in PERG 5.13.4 G). If so, he must be appointed under a written contract by an authorised person, who has permission to carry on those regulated activities and who accepts responsibility for the appointed representative's actions when acting for him. SUP 12.4 (What must a firm do when it appoints
Where a person is already an appointed representative and he proposes to carry on any insurance mediation activities, he will need to consider the following matters.(1) He must become authorised if his proposed insurance mediation activities include activities that do not fall within the table in PERG 5.13.4 G (for example, dealing as agent in pure protection contracts) and he wishes to carry on these activities. The Act does not permit any person to be exempt for some activities
For the
purposes of this chapter an operational function is regarded as critical or
important if a defect or failure in its performance would materially impair
the continuing compliance of a common platform
firm with the conditions and obligations of its authorisation or its other obligations under
the regulatory system, or its
financial performance, or the soundness or the continuity of its relevant
services and activities.[Note: article 13(1) of the MiFID
implementing Direc
If a common platform firm outsources critical
or important operational functions or any relevant services and activities,
it remains fully responsible for discharging all of its obligations under
the regulatory system and must
comply, in particular, with the following conditions:(1) the outsourcing must
not result in the delegation by senior personnel of
their responsibility;(2) the relationship and obligations
of the firm towards its clients under the regulatory
system must not
A common platform firm must in particular
take the necessary steps to ensure that the following conditions are satisfied:(1) the service provider must have
the ability, capacity, and any authorisation required
by law to perform the outsourced functions,
services or activities reliably and professionally;(2) the service provider must carry
out the outsourced services
effectively, and to this end the firm must
establish methods for assessing the standard of performance of the service
provider;(3)
Professional firms (broadly firms of solicitors, accountants and actuaries) may carry on insurance mediation activities in the course of their professional activities. Exempt professional firms carrying on insurance mediation activities may continue to be able to use the Part XX exemption to avoid any need for authorisation. PROF 2 (Status of exempt professional firm) contains guidance on the Part XX exemption. They will, however, need to be shown on the FSA Register as carrying
Professional firms with practices that involve acting for claimants in litigation against insurance undertakings are likely to be carrying on the regulated activity of assisting in the administration and performance of a contract of insurance. Exempt professional firms whose practices contain a material element of such activity should consider whether they can continue to take advantage of the Part XX exemption to avoid any need for authorisation, having regard to the relevant
In addition to certain named persons exempted by the Exemption Order from the need to obtain authorisation, the following bodies are exempt in relation to insurance mediation activities that do not relate to life policies:(1) local authorities but not their subsidiaries;(2) registered social landlords in England and Wales within the meaning of Part I of the Housing Act 1996 but not their subsidiaries;(3) registered social landlords in Scotland within the meaning of the Housing
In addition to the requirements as to the business test and the link to the United Kingdom, two other essential elements must be present before a person needs authorisation under the Act. The first is that the investments must come within the scope of the system of regulation under the Act (see PERG 2.6). The second is that the activities, carried on in relation to those specified investments, are regulated under the Act (see PERG 2.7). Both investments and activities are defined
It remains the Government's responsibility to ensure the proper implementation of the Investment Services Directive. In this Directive, persons (called 'investment firms') who are caught by the Directive must be brought within the scope of regulation under the Act. An investment firm is any person whose ordinary business involves the provision to third parties on a professional basis of core investment services (these services are described in the extract from the Directive in
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
The only kind of body corporate of an open-ended kind that may currently be formed under the law of the United Kingdom is one that is authorised by the FSA. A person intending to form an open-ended body corporate that has its head office in Great Britain should refer to the Open-ended Investment Companies Regulations 2001 (SI 2001/1228). Bodies corporate formed under these Regulations are referred to in the Handbook as investment companies with variable capital (or ' ICVCs ').
The purpose of this guidance is to help persons consider whether they need authorisation or a variation of their Part IV permission. Businesses new to regulation who act only as introducers of insurance business are directed in particular to PERG 5.6.2 G(article 25(1): arranging (bringing about) deals in investments) to PERG 5.6.9 G (Exclusion: Article 72C (Provision of information on an incidental basis)) and PERG 5.15.6 G (Flow chart: Introducers) to help consider whether they
Rights conferred on third parties cannot be affected by guidance given by the FSA. This guidance represents the FSA's view, and does not bind the courts, for example, in relation to the enforceability of a contract where there has been a breach of the general prohibition on carrying on a regulated activity in the United Kingdom without authorisation (see sections 26 to 29 of the Act (Enforceability of Agreements)).
There are six regulated mortgage activities requiring authorisation or exemption if they are carried on in the United Kingdom. These are set out in the Regulated Activities Order. They are:(1) arranging (bringing about) regulated mortgage contracts (article 25 A(1) (Arranging regulated mortgage contracts));(2) making arrangements with a view to regulated mortgage contracts (article 25A(2) (Arranging regulated mortgage contracts));(3) advising on regulated mortgage contracts (article
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.
The exclusions grouped together in the Regulated Activities Order are described below in this chapter in general terms. The exact terms of each exclusion will need to be considered by any person who is considering whether they need authorisation. Each description is accompanied by an indication of which regulated activities are affected.
A person carrying on certain regulated activities does not require authorisation in specified circumstances if he is acting in a representative capacity. The representative capacities covered by the exclusions depend on the regulated activity concerned but, in most cases, the focus is on persons who are acting as trustee or personal representative. In broad terms, the exclusions apply to specified transactions, or activities, that are part of the discharge of his general obligations