Related provisions for PERG 7.7.5

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DEPP 6.2.1GRP
The FSA will consider the full circumstances of each case when determining whether or not to take action for a financial penalty or public censure. Set out below is a list of factors that may be relevant for this purpose. The list is not exhaustive: not all of these factors may be applicable in a particular case, and there may be other factors, not listed, that are relevant.(1) The nature, seriousness and impact of the suspected breach, including:(a) whether the breach was deliberate
DEPP 6.2.2GRP
When deciding whether to take action for market abuse or requiring or encouraging, the FSA may consider the following additional factors:(1) The degree of sophistication of the users of the market in question, the size and liquidity of the market, and the susceptibility of the market to market abuse.(2) The impact, having regard to the nature of the behaviour, that any financial penalty or public censure may have on the financial markets or on the interests of consumers:(a) a
DEPP 6.2.3GRP
The FSA's rules on systems and controls against money laundering are set out in SYSC 3.2 and SYSC 6.3. The FSA, when considering whether to take action for a financial penalty or censure in respect of a breach of those rules, will have regard to whether a firm has followed relevant provisions in the Guidance for the UK financial sector issued by the Joint Money Laundering Steering Group.
DEPP 6.2.4GRP
The primary responsibility for ensuring compliance with a firm's regulatory obligations rests with the firm itself. However, the FSA may take disciplinary action against an approved person where there is evidence of personal culpability on the part of that approved person. Personal culpability arises where the behaviour was deliberate or where the approved person's standard of behaviour was below that which would be reasonable in all the circumstances at the time of the conduct
DEPP 6.2.5GRP
In some cases it may not be appropriate to take disciplinary measures against a firm for the actions of an approved person (an example might be where the firm can show that it took all reasonable steps to prevent the breach). In other cases, it may be appropriate for the FSA to take action against both the firm and the approved person. For example, a firm may have breached the rule requiring it to take reasonable care to establish and maintain such systems and controls as are
DEPP 6.2.6GRP
In addition to the general factors outlined in DEPP 6.2.1 G, there are some additional considerations that may be relevant when deciding whether to take action against an approved person pursuant to section 66 of the Act. This list of those considerations is non-exhaustive. Not all considerations below may be relevant in every case, and there may be other considerations, not listed, that are relevant.(1) The approved person's position and responsibilities. The FSA may take into
DEPP 6.2.7GRP
The FSA will not discipline approved persons on the basis of vicarious liability (that is, holding them responsible for the acts of others), provided appropriate delegation and supervision has taken place (see APER 4.6.13 G and APER 4.6.14 G). In particular, disciplinary action will not be taken against an approved person performing a significant influence function simply because a regulatory failure has occurred in an area of business for which he is responsible. The FSA will
DEPP 6.2.9GRP
Where disciplinary action is taken against an approved person the onus will be on the FSA to show that the approved person has been guilty of misconduct.
DEPP 6.2.10GRP
The primary responsibility for ensuring compliance with Part VI of the Act, the Part 6 rules, the prospectus rules or a provision otherwise made in accordance with the Prospectus Directive or a requirement imposed under such provision rests with the persons identified in section 91(1) and section 91(1A) (Penalties for breach of Part 6 rules) of the Act respectively. Normally therefore, any disciplinary action taken by the FSA for contraventions of these obligations will in the
DEPP 6.2.11GRP
However, in the case of a contravention by a person referred to in section 91(1)(a) or section 91(1)(b)(i) or section 91(1A) of the Act ("P"), where the FSA considers that another person who was at the material time a director of P was knowingly concerned in the contravention, the FSA may take disciplinary action against that person. In circumstances where the FSA does not consider it appropriate to seek a disciplinary sanction against P (notwithstanding a breach of relevant requirements
DEPP 6.2.13GRP
In deciding whether to take action, the FSA will consider the full circumstances of each case. Factors that may be relevant for this purpose include, but are not limited to, the factors at DEPP 6.2.1 G.
DEPP 6.2.14GRP
The Principles are set out in PRIN 2.1.1 R. The Principles are a general statement of the fundamental obligations of firms under the regulatory system. The Principles derive their authority from the FSA's rule-making powers set out in section 138(General rule-making power) of the Act. A breach of a Principle will make a firm liable to disciplinary action. Where the FSA considers this is appropriate, it will discipline a firm on the basis of the Principles alone.
DEPP 6.2.15GRP
In determining whether a Principle has been breached, it is necessary to look to the standard of conduct required by the Principle in question at the time. Under each of the Principles, the onus will be on the FSA to show that a firm has been at fault in some way.
DEPP 6.2.16GRP
The Listing Principles are set out in LR 7. The Listing Principles are a general statement of the fundamental obligations of listed companies. The Listing Principles derive their authority from the FSA's rule making powers set out in section 73A(1) (Part 6 Rules) of the Act. A breach of a Listing Principle will make a listed company liable to disciplinary action by the FSA.
DEPP 6.2.17GRP
In determining whether a Listing Principle has been broken, it is necessary to look to the standard of conduct required by the Listing Principle in question. Under each of the Listing Principles, the onus will be on the FSA to show that a listed company has been at fault in some way. This requirement will differ depending upon the Listing Principle.
DEPP 6.2.19GRP
Some types of breach may potentially result not only in action by the FSA, but also action by other domestic or overseas regulatory authorities or enforcement agencies.
DEPP 6.2.20GRP
When deciding how to proceed in such cases, the FSA will examine the circumstances of the case, and consider, in the light of the relevant investigation, disciplinary and enforcement powers, whether it is appropriate for the FSA or another authority to take action to address the breach. The FSA will have regard to all the circumstances of the case including whether the other authority has adequate powers to address the breach in question.
DEPP 6.2.21GRP
In some cases, it may be appropriate for both the FSAand another authority to be involved, and for both to take action in a particular case arising from the same facts. For example, a breach of RIE rules may be so serious as to justify the FSA varying or cancelling the firm's Part IV permission, or withdrawing approval from approved persons, as well as action taken by the RIE. In such cases, the FSA will work with the relevant authority to ensure that cases are dealt with efficiently
DEPP 6.2.22GRP
In relation to behaviour which may have happened or be happening in the context of a takeover bid, the FSA will refer to the Takeover Panel and give due weight to its views. Where the Takeover Code has procedures for complaint about any behaviour, the FSA expects parties to exhaust those procedures. The FSA will not, save in exceptional circumstances, take action under any of section 123 (FSA'spower to impose penalties), section 129 (Power of court to impose penalties), section
DEPP 6.2.23GRP
The FSA will not take action against a person over behaviour which (a) conforms with the Takeover Code or rules of an RIE and (b) falls within the terms of any provision of the Code of Market Conduct which states that behaviour so conforming does not amount to market abuse. The FSA will seek the Takeover Panel's or relevant RIE's views on whether behaviour complies with the Takeover Code or RIE rules and will attach considerable weight to its views.
DEPP 6.2.24GRP
If any of the circumstances in DEPP 6.2.26 G apply, and the FSA considers that the use of its disciplinary powers under section 123 or section 129, or of its injunctive powers under section 381 or of its powers relating to restitution under section 383 or 384 is appropriate, it will not take action during an offer to which the Takeover Code applies except in the circumstances set out in DEPP 6.2.27 G.
DEPP 6.2.25GRP
In any case where the FSA considers that the use of its powers under any of sections 123, 129, 381, 383 or 384 of the Act may be appropriate, if that use may affect the timetable or outcome of a takeover bid or where it is appropriate in the context of any exercise by the Takeover Panel of its powers and authority, the FSA will consult the Takeover Panel before using any of those powers.
DEPP 6.2.26GRP
Where the behaviour of a person which amounts to market abuse is behaviour to which the Takeover Code is relevant, the use of the Takeover Panel's powers will often be sufficient to address the relevant concerns. In cases where this is not so, the FSA will need to consider whether it is appropriate to use any of its own powers under the market abuse regime. The principal circumstances in which the FSA is likely to consider such exercise are:(1) where the behaviour falls within
DEPP 6.2.27GRP
The exceptional circumstances in which the FSA will consider the use of powers during a takeover bid are listed in DEPP 6.2.26G (1), DEPP 6.2.26G (3) and DEPP 6.2.26G (4), and, depending on the circumstances, DEPP 6.2.26G (5).
SUP 15.3.1RRP
A firm must notify the FSA immediately it becomes aware, or has information which reasonably suggests, that any of the following has occurred, may have occurred or may occur in the foreseeable future:(1) the firm failing to satisfy one or more of the threshold conditions; or(2) any matter which could have a significant adverse impact on the firm's reputation; or(3) any matter which could affect the firm's ability to continue to provide adequate services to its customers and which
SUP 15.3.2GRP
The circumstances which may give rise to any of the events in SUP 15.3.1 R are wide-ranging and the probability of any matter resulting in such an outcome, and the severity of the outcome, may be difficult to determine. However, the FSA expects firms to consider properly all potential consequences of events.
SUP 15.3.3GRP
In determining whether an event that may occur in the foreseeable future should be notified to the FSA, a firm should consider both the probability of the event happening and the severity of the outcome should it happen.
SUP 15.3.5GRP
A firm making a notification in accordance with SUP 15.3.1 R should consider the guidance in SUP 15.7.2 G and notify the FSA by telephone if appropriate.
SUP 15.3.7GRP
Principle 11 requires a firm to deal with its regulators in an open and cooperative way and to disclose to the FSAappropriately anything relating to the firm of which the FSA would reasonably expect notice. Principle 11 applies to unregulated activities as well as regulated activities and takes into account the activities of other members of a group
SUP 15.3.8GRP
Compliance with Principle 11 includes, but is not limited to, giving the FSA notice of:(1) any proposed restructuring, reorganisation or business expansion which could have a significant impact on the firm's risk profile or resources, including, but not limited to:(a) setting up a new undertaking within a firm'sgroup, or a new branch (whether in the United Kingdom or overseas); or (b) commencing the provision of cross border services into a new territory; or(c) commencing the
SUP 15.3.9GRP
The period of notice given to the FSA will depend on the event, although the FSA expects a firm to discuss relevant matters with it at an early stage, before making any internal or external commitments.
SUP 15.3.10GRP
A notification under Principle 11 may be given orally or in writing (as set out in SUP 15.7.1 R and SUP 15.7.2 G), although the FSA may request written confirmation of a matter. However, it is the responsibility of a firm to ensure that matters are properly and clearly communicated to the FSA. A firm should provide a written notification if a matter either is complex or may be such as to make it necessary for the FSA to take action. A firm should also have regard to Principle
SUP 15.3.11RRP
(1) A firm must notify the FSA of:(a) a significant breach of a rule (which includes a Principle, or a Statement of Principle ; or(b) a breach of any requirement imposed by the Act or by regulations or an order made under the Act by the Treasury (except if the breach is an offence, in which case (c) applies);6(c) the bringing of a prosecution for, or a conviction of, any offence under the Act;(d) a breach of a directly applicable provision in the MiFID Regulation; or6(e) a breach
SUP 15.3.13GRP
In assessing whether an event that may occur in the foreseeable future should be notified to the FSA, a firm should consider the guidance in SUP 15.3.3 G.
SUP 15.3.15RRP
A firm must notify the FSA immediately if:(1) civil proceedings are brought against the firm and the amount of the claim is significant in relation to the firm's financial resources or its reputation; or(2) any action is brought against the firm under section 71 of the Act (Actions for damages) or section 150 (Actions for damages); or(3) disciplinary measures or sanctions have been imposed on the firm by any statutory or regulatory authority, professional organisation or trade
SUP 15.3.17RRP
A firm must notify the FSA immediately if one of the following events arises and the event is significant:(1) it becomes aware that an employee may have committed a fraud against one of its customers; or(2) it becomes aware that a person, whether or not employed by it, may have committed a fraud against it; or(3) it considers that any person, whether or not employed by it, is acting with intent to commit a fraud against it; or(4) it identifies irregularities in its accounting
SUP 15.3.19GRP
The notifications under SUP 15.3.17 R are required as the FSA needs to be aware of the types of fraudulent and irregular activity which are being attempted or undertaken, and to act, if necessary, to prevent effects on consumers or other firms. A notification under SUP 15.7.3 G should provide all relevant and significant details of the incident or suspected incident of which the firm is aware.
SUP 15.3.20GRP
In addition, the firm may have suffered significant financial losses as a result of the incident, or may suffer reputational loss, and the FSA will wish to consider this and whether the incident suggests weaknesses in the firm'sinternal controls.
SUP 15.3.21RRP
A firm must notify the FSA immediately of any of the following events:(1) the calling of a meeting to consider a resolution for winding up the firm; or(2) an application to dissolve the firm or to strike it off the Register of Companies; or(3) the presentation of a petition for the winding up of the firm; or(4) the making of, or any proposals for the making of, a composition or arrangement with any one or more of its creditors; or(5) an application for the appointment of an administrator
SUP 15.3.22DRP
3SUP 15.3.23 D to SUP 15.3.25 D are given in relation to the exercise of the powers of the Society and of the Council generally, with a view to achieving the objective of enabling the FSAto:(1) comply with its general duty under section 314 of the Act (Authority's general duty);(2) determine whether underwriting agents, or approved persons acting for them or on their behalf, are complying with the requirements imposed on them by or under the Act;(3) enforce the provisions of the
SUP 15.3.23DRP
3The Society must immediately inform the FSA in writing if it becomes aware that any matter likely to be of material concern to the FSA may have arisen in relation to:(1) the regulated activities for which the Society has permission; or (2) underwriting agents; or (3) approved persons or individuals acting for or on behalf of underwriting agents.
SUP 15.3.24DRP
3The Society must inform the FSA if it commences investigations or disciplinary proceedings relating to apparent breaches:(1) of the Act or requirements made under the Act, including the threshold conditions or the Principles or other rules, by an underwriting agent; or(2) of the Statements of Principle by an individual or other person who carries out controlled functions for or on behalf of an underwriting agent.
SUP 15.3.25DRP
3The Society must inform the FSA if it commences investigations or disciplinary proceedings which do not fall within the scope of SUP 15.3.24 D but which:(1) involve an underwriting agent, or an approved person who carries out controlled functions for it or on its behalf; or (2) may indicate that an individual acting for or on behalf of an underwriting agent may not be a fit and proper person to perform functions in relation to regulated activities.
DEPP 5.1.1GRP
(1) 1A person subject to enforcement action may agree to a financial penalty or other outcome rather than contest formal action by the FSA.(2) The fact that he does so will not usually obviate the need for a statutory notice recording the FSA's decision to take that action. Where, however, the person subject to enforcement action agrees not to contest the content of a proposed statutory notice, the decision to give that statutory notice will be taken by senior FSA staff.(3) The
DEPP 5.1.2GRP
A person who is or may be subject to enforcement action may wish to discuss the proposed action with FSA staff through settlement discussions.
DEPP 5.1.3GRP
Settlement discussions may take place at any time during the enforcement process if both parties agree. This might be before the giving of a warning notice, before a decision notice, or even after referral of the matter to the Tribunal. But the FSA would not normally agree to detailed settlement discussions until it has a sufficient understanding of the nature and gravity of the suspected misconduct or issue to make a reasonable assessment of the appropriate outcome. Settlement
DEPP 5.1.4GRP
FSAstaff and the person concerned may agree that neither the FSA nor the person concerned would seek to rely against the other on any admissions or statements made in the course of their settlement discussions if the matter is considered subsequently by the RDC or the Tribunal.
DEPP 5.1.5GRP
(1) The settlement decision makers may, but need not, participate in the discussions exploring possible settlement.(2) If the settlement decision makers have not been involved in the discussions, but an agreement has been reached, they may ask to meet the relevant FSA staff or the person concerned in order to assist in the consideration of the proposed settlement.
DEPP 5.1.6GRP
The terms of any proposed settlement:(1) will be put in writing and be agreed by FSA staff and the person concerned;(2) may refer to a draft of the proposed statutory notices setting out the facts of the matter and the FSA's conclusions; (3) may, depending upon the stage in the enforcement process at which agreement is reached, include an agreement by the person concerned to: (a) waive and not exercise any rights under sections 387 (Warning notices) and 394 (Access to Authority
DEPP 5.1.7GRP
The settlement decision makers may:(1) accept the proposed settlement by deciding to give a statutory notice based on the terms of the settlement; or(2) decline the proposed settlement;whether or not the settlement decision makers have met with the relevant FSA staff or the person concerned.
DEPP 5.1.8GRP
(1) Where the settlement decision makers decline to issue a statutory notice despite the proposed settlement, they may invite FSA staff and the person concerned to enter into further discussions to try to achieve an outcome the settlement decision makers would be prepared to endorse.(2) However, if the proposed action by the FSA has been submitted to the RDC for consideration, it will be for the RDC to decide:(a) whether to extend the period for representations in response to
DEPP 5.1.9GRP
The FSA and other parties may agree to mediation as a way of facilitating settlement in appropriate cases.
DEPP 5.1.10GRP
(1) DEPP 2.4 sets out the FSA's approach to giving third parties copies of statutory notices pursuant to section 393 (Third party rights) of the Act.(2) The decision to give a warning notice or a decision notice to a third party is a statutory notice associated decision.(3) In cases therefore where the decision to give a warning notice or decision notice is taken by settlement decision makers, those decision makers will decide whether a copy of the notice should be given to a
GENPRU 2.2.8GRP
The FSA has divided its definition of capital into categories, or tiers, reflecting differences in the extent to which the capital instruments concerned meet the purpose and conform to the characteristics of capital listed in GENPRU 2.2.9 G. The FSA generally prefers a firm to hold higher quality capital that meets the characteristics of permanency and loss absorbency that are features of tier one capital. Capital instruments falling into core tier one capital can be included
GENPRU 2.2.20GRP
GENPRU 2.2.19 R sets out three different methods of calculating capital resources for BIPRU investment firms. The differences between the three methods relate to whether and how material holdings and illiquid assets are deducted when calculating capital resources. The method depends on whether a firm has an investment firm consolidation waiver. If a firm does have such a waiver, it should deduct illiquid assets, own groupmaterial holdings and certain contingent liabilities. If
GENPRU 2.2.67AGRP
4The purpose of GENPRU 2.2.64R (4) is to ensure that a firm retains flexibility over the payment of coupons and can preserve cash in times of financial stress. However, a firm may include, as part of the capital instrument terms, a right to make payments of a coupon mandatory if an item of capital becomes ineligible to form part of its capital resources (e.g. through a change in the relevant rules) and the firm has notified the FSA that the instrument is ineligible.
GENPRU 2.2.68GRP
The FSA considers that dividend pushers diminish the quality of capital by breaching the principle of complete discretion over coupons set out in GENPRU 2.2.64R (4). A dividend pusher operates so that, in a given period of time, payments must be made on senior securities if payments have previously been made on junior securities or securities ranking pari passu. As such, dividend pushers may not be included in the terms of tier one capital, unless the firm has the option to fund
GENPRU 2.2.70RRP
A firm may not include a capital instrument in its tier one capital resources, unless its contractual terms are such that:(1) (if it is redeemable other than in circumstances set out in GENPRU 2.2.64R (3)(a) (redemption on a winding up)) it is redeemable only at the option of the firm; and(2) the firm cannot exercise that redemption right:(a) before the fifth anniversary of its date of issue;(b) unless it has given notice to the FSA in accordance with GENPRU 2.2.74 R; and(c)
GENPRU 2.2.71RRP
A firm may include a term in a tier one instrument allowing the firm to redeem it before the date in GENPRU 2.2.70R (2)(a) if the following conditions are satisfied:(1) the other conditions in GENPRU 2.2.70 R are met;(2) the circumstance that entitles the firm to exercise that right is a change in law or regulation in any relevant jurisdiction or in the interpretation of such law or regulation by any court or authority entitled to do so;(3) it would be reasonable for the firm
GENPRU 2.2.73GRP
The purpose of GENPRU 2.2.71 R to GENPRU 2.2.72 R is this. In general a tier one instrument should not be redeemable by the firm before its fifth anniversary. However there may be circumstances in which it would be reasonable for the firm to redeem it before then. GENPRU 2.2.71 R allows the firm to include a right to redeem the instrument before the fifth anniversary in certain circumstances. A tax call is an example of a term that may be allowed. GENPRU 2.2.71 R says that the
GENPRU 2.2.74RRP
A firm must not redeem any tier one instrument that it has included in its tier one capital resources unless it has notified the FSA of its intention at least one month before it does so.
GENPRU 2.2.96GRP
If a firm has surplus eligible partnership capital or eligible LLP members' capital that it wishes to repay in circumstances other than those set out in GENPRU 2.2.93 R or GENPRU 2.2.94 R it may apply to the FSA for a waiver to allow it to do so. If a firm applies for such a waiver the information that the firm supplies with the application might include:(1) a demonstration that the firm would have sufficient capital resources to meet its capital resources requirement immediately
GENPRU 2.2.135RRP
A firm which satisfies the conditions for the inclusion of capital set out in GENPRU 2.2.124 R, must, in addition, if that transaction is in any respect unusual, notify the FSA at least one Month in advance of the date on which the firm intends to include that capital in its capital resources.
GENPRU 2.2.136GRP
The FSA is likely to consider as unusual a transaction which involves the raising by the firm of tier one capital through a subsidiary undertaking of that firm that is not an SPV. The FSA would expect a firm to request individual guidance in such circumstances.
GENPRU 2.2.164GRP
The FSA is more concerned that the subordination provisions listed in GENPRU 2.2.159 R should be effective than that they should follow a particular form. The FSA does not, therefore, prescribe that the loan agreement or capital instrument should be drawn up in a standard form.
GENPRU 2.2.171RRP
A firm must not amend the terms of the capital or the documents referred to in GENPRU 2.2.159R (8) unless:(1) at least one Month before the amendment is due to take effect, the firm has given the FSA notice in writing of the proposed amendment and the FSA has not objected; and(2) that notice includes confirmation that the legal opinions referred to in GENPRU 2.2.159R (12) and, if applicable, GENPRU 2.2.163 R (General conditions for eligibility as tier two capital instruments:
GENPRU 2.2.174RRP
In relation to a tier two instrument, a firm must notify the FSA:(1) in the case of an insurer, six Months; and(2) in the case of a BIPRU firm, one Month;before the date of the proposed repayment (unless that firm intends to repay an instrument on its final maturity date) providing details of how it will meet its capital resources requirement after such repayment.
GENPRU 2.2.179GRP
(1) The purpose of GENPRU 2.2.177R (2) is to ensure that a firm which issues an item of capital with a coupon retains flexibility over the payments of such coupon and can preserve cash in times of financial stress. However, a firm may include, as part of the capital instrument terms, a right to make payments of a coupon mandatory if an item of capital becomes ineligible to form part of its capital resources (for example, through a change in the relevant rules) and the firm has
GENPRU 2.2.187RRP
A BIPRU firm which adopts the standardised approach to credit risk may include general/collective provisions in its tier two capital resources only if:(1) they are freely available to the firm;(2) their existence is disclosed in internal accounting records; and(3) their amount is determined by the management of the firm, verified by independent auditors and notified to the FSA.
GENPRU 2.2.197GRP
If a firm wishes to include in lower tier two capital resources an instrument with or without a fixed maturity date but where less than five years' notice of redemption or repayment has been given, it should seek individual guidance from the FSA.
GENPRU 2.2.220RRP
For the purpose of GENPRU 2.2.219 R, a relevant rule means a rule in GENPRU, BIPRU or INSPRU or any other capital adequacy or solvency requirements of the FSA or any other regulator, territory or country.
GENPRU 2.2.243RRP
A BIPRU firm which includes subordinated debt in its tier three capital resources must notify the FSA one month in advance of all payments of either interest or principal made when the firm'scapital resources are less than 120% of its capital resources requirement.
LR 8.6.1GRP
The FSA will maintain a list of sponsors on its website.
LR 8.6.2RRP
A person wanting to provide services as a sponsor , and to be included on the list of sponsors, must apply to the FSA for approval as a sponsor by submitting the following to the Sponsor Supervision Team at the FSA address:(1) a completed Sponsor Firm Application Form; (2) completed Sponsor Employee Application Forms; and(3) the application fee set out in 1FEES 31[Note: The Sponsor's Firm Application Form and the Sponsor Employee Application Formcan be found on the UKLA section
LR 8.6.3RRP
A person wanting to provide services as a sponsor and be included on the list of sponsors must also submit:(1) all additional documents, explanations and information as required by the FSA; and(2) verification of any information in such a manner as the FSA may specify.
LR 8.6.4GRP
When considering an application for approval as a sponsor the FSA may:(1) carry out any enquiries and request any further information which it considers appropriate, including consulting other regulators;(2) request that the applicant or its specified representative answer questions and explain any matter the FSA considers relevant to the application;(3) take into account any information which it considers appropriate in relation to the application.22(4) [deleted]22[Note: The
LR 8.6.5RRP
The FSA will approve a person as a sponsor only if it is satisfied that the person is:(1) an authorised person or a member of a designated professional body;(2) competent to perform the services set out in LR 8.2, LR 8.3 and LR 8.4; and(3) has adequatesystems and controls in place to ensure that it cancarry out its role as a sponsor.
LR 8.6.7RRP
A sponsor will be competent to perform the services set out in LR 8.2, LR 8.3 and LR 8.4 if it has a broad range of relevant experience and expertise in providing advice to listed companies and on the listing rules.
LR 8.6.13GRP
The nature and extent of the systems and controls which a sponsor will need to maintain will depend upon a variety of factors including:(1) the nature, scale and complexity of its business;(2) the diversity of its operations;(3) the volume and size of the transactions it undertakes;and(4) the volume and size of the transactions it anticipates undertaking in the following year.
LR 8.7.1GRP
The FSA expects to have an open, co-operative and constructive relationship with a sponsor to enable it to have a broad picture of the sponsor's activities and its ability to satisfy the criteria for approval as a sponsor as set out in LR 8.6.5 R.
LR 8.7.2GRP
The FSA uses a variety of tools to monitor whether a sponsor:(1) continues to satisfy the criteria for approval as a sponsor as set out in LR 8.6.5 R; and(2) remains in compliance with all applicable listing rules.
LR 8.7.3GRP
FSA staff, after notifying the sponsor, may make supervisory visits to a sponsor on a periodic and an ad hoc basis.
LR 8.7.4GRP
The FSA will give reasonable notice to a sponsor of requests for meetings or requests for access to a sponsor's documents and records.
LR 8.7.5GRP
The FSA, on behalf of other regulators, may request information from a sponsor or pass information on to other regulators to enable such regulators to discharge their functions.
LR 8.7.7RRP
A sponsor must provide to the FSA on an annual basis:(1) written confirmation that it continues to satisfy the criteria for approval as a sponsor as set out in LR 8.6.5 R;(2) an up to date list of employees that are suitably experienced on whom the sponsor can rely to demonstrate that it satisfies the criteria set out in LR 8.6.5 R;(3) for each employee whose name is on the list maintained by the sponsor under LR 8.6.15 R, details of the transactions on which the employee has
LR 8.7.8RRP
A sponsor must notify the FSA in writing as soon as possible if:(1) the sponsor ceases to satisfy the criteria for approval as a sponsor set out in LR 8.6.5 R; or(2) the sponsor, or any of its employees whose names are on the list maintained by the sponsor under LR 8.6.15 R, are:(a) convicted of any offence involving fraud, theft or other dishonesty; or(b) the subject of a bankruptcy proceeding, a receiving order or an administration order; or(3) any of its employees whose names
LR 8.7.10GRP
Written notifications should be sent to the Sponsor Supervision Team at the FSA's address.
LR 8.7.20GRP
EG3 sets out the FSA's policy on when and how it will use its disciplinary powers, including 3 in relation to a sponsor.3
LR 8.7.21GRP
A sponsor that intends to request the FSA to cancel its approval as a sponsor will need tocomply with LR 8.7.22 R.
LR 8.7.22RRP
A request by a sponsor for its approval as a sponsor to be cancelled must be in writing and must include:(1) the sponsor's name;(2) a clear explanation of the background and reasons for the request;(3) the date on which the sponsor requests the cancellation to take effect, after having taken into account LR 8.7.24G (2);(4) a signed confirmation that the sponsor will not participate in any services described in LR 8.2 as of the date the request is submitted to the FSA; and(5) the
DEPP 2.5.2GRP
The decision to give a warning notice and a decision notice in a particular matter will often not be taken by the same decision maker. Certain types of action require that the warning notice decision be taken by FSA staff under executive procedures and the decision notice decision be taken by the RDC. Similarly, in enforcement cases the RDC might take the decision to give a warning notice, but the decision to give a decision notice could be taken by the settlement decision makers
DEPP 2.5.3GRP
FSA staff under executive procedures will take the decision to give a warning notice if the FSA proposes to:(1) refuse an application for a Part IV permission or to refuse an application to cancel a Part IV permission;(2) impose a limitation or a requirement which was not applied for, or specify a narrower description of regulated activity than that applied for, on the grant of a Part IV permission;(3) refuse an application to vary a Part IV permission, or to restrict a Part IV
DEPP 2.5.6GRP
If representations are made in response to a warning notice proposing the action set out at DEPP 2.5.3 GDEPP 2.5.3G (2), DEPP 2.5.3G (3) or DEPP 2.5.3G (6), then the RDC will take the decision to give a decision notice if the action involves a fundamental change(see DEPP 2.5.8 G) to the nature of a permission. Otherwise, the decision to give the decision notice will be taken by FSA staff under executive procedures.
DEPP 2.5.7GRP
The RDC will take the decision to give a supervisory notice exercising the FSA's own initiative power (by removing a regulated activity, by imposing a limitation or requirement or by specifying a narrower description of regulated activity) if the action involves a fundamental change (see DEPP 2.5.8 G) to the nature of a permission. Otherwise, the decision to give the decision notice will be taken by FSA staff under executive procedures.
DEPP 2.5.9GRP
FSA staff under executive procedures will take the following statutory notice decisions:(1) the refusal of an application for listing of securities;(2) the suspension of listing on the FSA's own initiative or at the request of the issuer;(3) the suspension of trading in a financial instrument;(4) the discontinuance of listing of securities at the issuer's request;(5) the exercise of any of the powers in sections 87K or 87L of the Act in respect of a breach of any applicable provision;(6)
DEPP 2.5.10GRP
The RDC will take statutory notice decisions relating to the discontinuance of listing of securities on the FSA's own initiative.
DEPP 2.5.11GRP
If securities have matured or otherwise ceased to exist the FSA will remove any reference to them from the official list. This is a purely administrative process, and not a discontinuance of listing in the sense used in Part 6 of the Act.
DEPP 2.5.12GRP
FSA staff will usually inform or discuss with the person concerned any action they contemplate before they recommend to the RDC that the FSA takes formal action. The FSA may also be invited to exercise certain powers by the persons who would be affected by the exercise of those powers. In these circumstances if the person concerned has agreed to or accepted the action proposed then the decisions referred to in DEPP 2.5.13 G will be taken by FSA staff under executive procedures
DEPP 2.5.13GRP
The decisions referred to in DEPP 2.5.12 G are:(1) the decision to give a supervisory notice pursuant to section 259(3), (8) or 9(b) (directions on authorised unit trust schemes); section 268(3), 7(a) or 9(a) (directions in respect of recognised overseas schemes); or section 282(3), (6) or (7)(b) (directions in respect of relevant recognised schemes) of the Act;(2) the decision to give a warning notice or decision notice pursuant to section 280(1) or (2)(a) (revocation of recognised
DEPP 2.5.15GRP
A decision to give a warning notice or decision notice refusing an application for an authorisation order declaring a unit trust scheme to be an AUT will be taken by the RDC only if the application is by an authorised fund manager who is not the operator of an existing AUT or ICVC. Otherwise, the decision to give the warning notice or decision notice will be taken by FSA staff under executive procedures.
DEPP 2.5.16GRP
A notice under section 264(2) of the Act (notification of non-compliance with UK law) relating to a collective investment scheme constituted in another EEA State is not a warning notice, but the FSA will operate a procedure for a section 264(2) notice which will be similar to the procedure for a warning notice.
DEPP 2.5.17GRP
The FSA expects to adopt a procedure in respect of notices under enactments other than the Act which is similar to that for statutory notices under the Act, but which recognises any differences in the legislative framework and requirements. DEPP 2 Annex 1 and DEPP 2 Annex 2 therefore identify notices to be given pursuant to other enactments and the relevant FSA decision maker.
DEPP 2.5.18GRP
Some of the distinguishing features of notices given under enactments other than the Act are as follows: (1) Building Societies Act 1986, section 36A: There is no right to refer a decision to issue a prohibition order under section 36A to the Tribunal. Accordingly, a decision notice under section 36A(5A) is not required to give an indication of whether any such right exists. A decision notice under section 36A(5A) may only relate to the issue of a prohibition order under section
DEPP 3.2.5GRP
(1) If a member of the RDC has a potential conflict of interest in any matter in which he is asked to participate he will disclose the conflict to the RDC Office, and disclose it:(a) in the case of the Chairman of the RDC, to the Chairman or Deputy Chairman of the FSA; or(b) in the case of a Deputy Chairman of the RDC, to the Chairman of the RDC, or if he is unavailable to the Chairman or Deputy Chairman of the FSA; or(c) in the case of any other member, to the Chairman or a Deputy
DEPP 3.2.10GRP
If the RDC considers it relevant to its consideration, it may ask FSA staff to explain or provide any or all of the following:(1) additional information about the matter (which FSA staff may seek by further investigation); or(2) further explanation of any aspect of the FSA staff recommendation or accompanying papers; or(3) information about FSA priorities and policies (including as to the FSA's view on the law or on the correct legal interpretation of provisions of the Act).
DEPP 3.2.11GRP
The RDC has no power under the Act to require persons to attend before it or provide information. It is not a tribunal and will make a decision based on all the relevant information available to it, which may include views of FSA staff about the relative quality of witness and other evidence.
DEPP 3.2.12GRP
If FSA staff consider that action is appropriate in a matter for which the RDC is the decision maker, they will make a recommendation to the RDC that a warning notice or a supervisory notice should be given.
DEPP 3.2.14GRP
If the RDC decides that the FSA should give a warning noticeor a first supervisory notice:(1) the RDC will settle the wording of the warning notice or first supervisory notice, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions;(3) the RDC staff will make appropriate arrangements for the notice to be given; and(4) the RDC staff will make appropriate arrangements for the disclosure
DEPP 3.2.15GRP
(1) A warning notice or a first supervisory notice will (as required by the Act) specify the time allowed for making representations. This will not be less than 28 days.(2) The FSA will also, when giving a warning notice or a first supervisory notice, specify a time within which the recipient is required to indicate whether he wishes to make oral representations.
DEPP 3.2.16GRP
(1) The recipient of a warning notice or a first supervisory notice may request an extension of the time allowed for making representations. Such a request must normally be made within 14days of the notice being given.(2) If a request is made, the Chairman or a Deputy Chairman of the RDC will decide whether to allow an extension, and, if so, how much additional time is to be allowed for making representations. In reaching his decision he may take account of any relevant comments
DEPP 3.2.17GRP
(1) If the recipient of a warning notice or a first supervisory notice indicates that he wishes to make oral representations, the RDC staff, in conjunction with the Chairman or a Deputy Chairman of the RDC, will fix a date or dates for a meeting at which the relevant RDC members will receive those representations.(2) In making those arrangements the RDC staff will draw the Chairman's or Deputy Chairman's attention to any particular issues about the timing of the meeting which
DEPP 3.2.18GRP
The chairman of the relevant meeting will ensure that the meeting is conducted so as to enable:(1) the recipient of the warning notice or first supervisory notice to make representations;(2) the relevant FSA staff to respond to those representations;(3) the RDC members to raise with those present any points or questions about the matter (whether in response to particular representations or more generally about the matter); and(4) the recipient of the notice to respond to points
DEPP 3.2.21GRP
The RDC will not, after the FSA has given a warning notice or a first supervisory notice, meet with or discuss the matter whilst it is still ongoing with the FSA staff responsible for the case without other relevant parties being present or otherwise having the opportunity to respond.
DEPP 3.2.22GRP
If no representations are made in response to the warning notice or first supervisory notice, the FSA will regard as undisputed the allegations or matters set out in the notice and the default procedure will apply: see DEPP 2.3.2 G to DEPP 2.3.4 G.
DEPP 3.2.24GRP
If the RDC decides that the FSA should give a decision notice or a second supervisory notice:(1) the RDC will settle the wording of the notice which will include a brief summary of the key representations made and how they have been dealt with, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions, including whether the FSA is required to give a copy of the notice to a third party;
DEPP 3.2.25GRP
If the RDC decides that the FSA should not give a decision notice or a second supervisory notice the RDC staff will notify the relevant parties (including the relevant FSA staff) in writing of that decision.
DEPP 3.2.26GRP
FSA staff responsible for recommending action to the RDC will continue to assess the appropriateness of the proposed action in the light of new information or representations they receive and any material change in the facts or circumstances relating to a particular matter. It may be therefore that they decide to give a notice of discontinuance to a person to whom a warning notice or decision notice has been given. The decision to give a notice of discontinuance does not require
FEES 3.2.1RRP
A person in column (1) of the table in FEES 3.2.7 R as the relevant fee payer for a particular activity must pay to the FSA a fee for each application or request for vetting or admission approval made, or notification or notice of exercise of a Treaty right given, as is applicable to it, as set out or calculated in accordance with the provisions referred to in column (2) of that table:(1) in full and without deduction; and(2) on or before the date given in column (3) of that
FEES 3.2.4GRP
The FSA expects that a person seeking to become a recognised body or a designated professional body or to be added to the list of designated investment exchanges will generally pay their respective fees by electronic credit transfer.
FEES 3.2.5GRP
(1) (2) With the exception of persons seeking to become a designated professional body, all applications, notifications, requests for vetting or admission approval will be treated as incomplete until the relevant fee is fully paid and the FSA will not consider an application, notification, request for vetting or admission approval until the relevant fee is fully paid. Persons seeking to become a designated professional body have 30 days after the designation order is made to
FEES 3.2.7RRP

Table of application, notification and vetting fees

(1) Fee payer

(2) Fee payable

Due date

(a) Any applicant for Part IV permission (including an incoming firm applying for top-up permission)

(1) Unless (2) applies, in1 respect of a particular application, the highest of the tariffs set out in FEES 3 Annex 1 part 11 which apply to that application.

(2) In respect of a particular application which is:

(i) a straightforward or moderately complex case for the purposes of FEES 3 Annex 1 part 1, and

(ii) only involves a simple change of legal status as set out in FEES 3 Annex 1 part 6,

the fee payable is 50% of the tariff that would otherwise be payable in FEES 3 Annex 1 part 11

1

On or before the application is made

(b) Any Treaty firm that wishes to exercise a Treaty right to qualify for authorisation under Schedule 4 to the Act (Treaty rights) in respect of regulated activities for which it does not have an EEA right, except for a firm providing cross border services only4

(1) Where no certificate has been issued under paragraph 3(4) of Schedule 4 to the Act the fee payable is, in respect of a particular exercise, set out in FEES 3 Annex 1, part 4

(2) Where a certificate in (i) has been issued no fee is payable

On or before the notice of exercise is given

(c) Any applicant for a certificate under article 54 of the Regulated Activities Order

2,000

On or before the application is made

(d) Applicants for an authorisation order for, or recognition of, a collective investment scheme

FEES 3 Annex 2, part 1

On or before the application is made

(f) Any person seeking an order under section 326(1) of the Act to become a designated professional body.

10,000

30 days after the order is granted

(g) Any applicant for recognition as a UK recognised body under section 287 or section 288 of the Act

FEES 3 Annex 3, part 1

On or before the date the application is made

(h) Any applicant for recognition as an overseas recognised body under section 287 or section 288 and section 292 of the Act

FEES 3 Annex 3, part 2

On or before the date the application is made

(i) An applicant for listing (under the listing rules)

FEES 3 Annex 4, part 1

On or before the date the application is made

(j) Applicant for approval as sponsor (under the listing rules)

FEES 3 Annex 4, part 2

On or before the date the application is made

(k) Issuers of tranches from debt issuance programmes and securitised derivative tranches

FEES 3 Annex 4, part 1

An upfront fee is required per tranche for draw downs in the following 12 months

(l) Under the listing rules, an issuer involved in specific events or transactions during the year where documentation is subject to a transaction vetting

FEES 3 Annex 5, part 1, unless the transaction would come within the definition of significant transaction under category (q) in this table, in which case the fee payable under that category.2

On or before the date that relevant documentation is first submitted to the FSA

(m) Under the prospectus rules, an issuer or person requesting approval or vetting of the documents arising in relation to specific events or transactions that it might be involved in during the year

FEES 3 Annex 5, part 2, unless the transaction would come within the definition of significant transaction under category (q) in this table, in which case the fee payable under that category.2

On or before the date that relevant documentation is first submitted to the FSA

(n) Applicants to be added to the list of designated investment exchanges

50,000

On or before the date the application is made

2(o) In connection with rules (or future rules) implementing the Capital Requirements Regulations 2006 (including any amendments):

(i) a firm applying to the FSA for a waiver or concession (or guidance on the availability of either): or

(ii) a firm'sEEA parent applying to its Home State regulator for the use of the Internal Ratings Based approach and the Home State regulator requesting the FSA's assistance in accordance with the Capital Requirements Regulations 2006 .

112

If the firm is applying to the FSA:2

(1) unless2 (2) applies, FEES 3 Annex 6;2

(2) (a) unless2 (b) applies a1firm submitting a second application for a waiver or concession or1guidance described in column (1) within 12 months of the first application (where the fee was paid in accordance with (1)) must pay 50% of the fee applicable to it under FEES 3 Annex 6, but only in respect of that second application

(b) No fee is payable by a firm in relation to a successful application for a waiver or a concession based on a minded to grant decision in respect of the same matter following a complete application for guidance in accordance with prescribed submission requirements.1

(c) No fee is payable by a firm applying to its Home State regulator where the Home State regulator has requested the assistance of the FSAand the firm falls within Group 4 of Part 1 of FEES 3 Annex 6.2

212

Where the firm has made an application directly to the FSA, on or before the date the application is made, otherwise within 30 days after the FSA notifies the firm that its EEA parent's Home State regulator has requested the FSA's assistance.2

2

(p) A firm applying for a variation of its Part IV permission

(1) Unless (2) applies, if the proposed new1 business of the firm would1 fall within one or more activity groups specified in Part 1 of FEES 4 Annex 1 not applicable before the application1, the fee is 50% of the highest of the tariffs set out in which apply to that application.

(2) If the only change is that the1 A.12 activity group tariff applied to the firm's business before the variation and the A.13 activity group will apply after variation, no fee is payable(3) In all other cases, other than applications by credit unions, the fee payable is 250, unless the variation involves only the reduction (and no other increases) in the scope of a Part IV permission in which case no fee is payable.1

11

On or before the date the application is made

2(q) A significanttransaction, being one where:

(i) the issuer has a market capitalisation in excess of 1.5 billion and it is a new applicant for a primary listing under the listing rules, or involved in a reverse or hostile takeover or a significant restructuring; or

(ii) the issuer has a market capitalisation in excess of 5 billion and is involved in a class 1 transaction or a transaction requiring vetting of an equity prospectus or equivalent document

; or (iii) the issuer is proposing a Depositary Receipt issue intended to raise more than 5billion.

50,000

On or before the date that the relevant documentation is first submitted to the FSA.3

33

2(r) Providers of reporting or trade matching systems applying for recognition under MiFID as an Approved Reporting Mechanism.

20,000

On or before the date the application is made.

SUP 8.3.1GRP
Under section 148(4) of the Act, the FSA may not give a waiver unless it is satisfied that:(1) compliance by the firm with the rules, or with the rules as unmodified, would be unduly burdensome, or would not achieve the purpose for which the rules were made; and(2) the waiver would not result in undue risk to persons whose interests the rules are intended to protect.
SUP 8.3.1AGRP
Even if the conditions in section 148(4) of the Act are satisfied, the FSA will consider other relevant factors before giving a waiver, such as whether the waiver would be compatible with European law, including relevant EC Directives.2
SUP 8.3.2GRP
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 (see SUP 8.6).
SUP 8.3.3AGRP
(1) The FSA's preferred method of submission for waiver applications is by e-mail or by online submission at www.fsa.gov.uk.4(2) The form is available on the FSA's website (see FSA/docs/sup/w_form.doc).3
SUP 8.3.5GRP
The FSA will acknowledge an application promptly and if necessary will seek further information from the firm. The time taken to determine an application will depend on the issues it raises. However, the FSA will aim to give waiver decisions within 20 business days of receiving an application which includes sufficient information. If the FSA expects to take longer, it will tell the firm and give an estimated decision date. A firm should make it clear in the application if it needs
SUP 8.3.5AGRP
The FSA will treat a firm's application for a waiver as withdrawn if it does not hear from the firm within 20 business days of sending a communication which requests or requires a response from the firm. The FSA will not do this if the firm has made it clear to the FSA in some other way that it intends to pursue the application. 3
SUP 8.3.6GRP
In some cases, the FSA may give a modification of a rule rather than direct that the rule is not to apply. The FSA may also impose conditions on a waiver, for example additional reporting requirements. A waiver may be given for a specified period of time only, after which time it will cease to apply. A firm wishing to extend the duration of a waiver should follow the procedure in SUP 8.3.3 D. A waiver will not apply retrospectively.
SUP 8.3.7GRP
If the FSA decides not to give a waiver, it will give reasons for the decision.
SUP 8.3.8GRP
A firm may withdraw its application at any time up to the giving of the waiver. In doing so, a firm should give the FSA its reasons for withdrawing the application.
SUP 8.3.9GRP
If the FSA believes that a particular waiver given to a firm may have relevance to other firms, it may publish general details about the possible availability of the waiver. For example, IPRU(INV) 3-80(10)G explains that a firm that wishes to use its own internal model to calculate its position risk requirement (PRR) will need to apply for a waiver of the relevant rules.
SUP 8.3.10GRP
Under section 148(2) of the Act the FSA may give a waiver with the consent of a firm. This power may be used by the FSA in exceptional circumstances where the FSA considers that a waiver should apply to a number of firms (for example, where a rule unmodified may not meet the particular circumstances of a particular category of firm). In such cases the FSA will inform the firms concerned that the waiver is available, either by contacting firms individually or by publishing details
SUP 8.3.13GRP
For an application for a waiver of the presumption of contravention of a binding rule, which is actionable under section 150 of the Act, the FSA would normally wish to be satisfied that the evidential rule is itself unduly burdensome or does not achieve the purpose of the rule.2
DEPP 7.2.1GRP
Under section 169(1)(b) of the Act, the FSA may appoint an investigator to investigate any matter at the request of an overseas regulator. The powers of the investigator appointed by the FSA (referred to here as the 'FSA's investigator') include the power to require persons to attend at a specified time and place and answer questions (the compulsory interview power).
DEPP 7.2.2GRP
Where the FSA appoints an investigator in response to a request from an overseas regulator it may, under section 169(7) of the Act, direct him to permit a representative of that regulator to attend and take part in any interviews conducted for the purposes of the investigation. The FSA may only give a direction under section 169(7) if it is satisfied that any information obtained by an overseas regulator as a result of the interview will be subject to the safeguards equivalent
DEPP 7.2.4GRP
The FSA's policy on how it will use its investigative powers, including its power to appoint investigators, in support of overseas regulators, is set out in the FSA's Enforcement Guide (EG).
DEPP 7.2.5GRP
The FSA may need to consider whether to use its direction power at two stages of an investigation:(1) at the same time that it considers the request from the overseas regulator to appoint investigators;(2) after it has appointed investigators, either at the request of the overseas regulator or on the recommendation of the investigators.
DEPP 7.2.6GRP
Before making a direction under section 169(7) the FSA will discuss and determine with the overseas regulator how this statement of policy will apply to the conduct of the interview, taking into account all the circumstances of the case. Amongst other matters, the FSA will at this stage determine the extent to which the representative of the overseas regulator will be able to participate in the interview. The overseas regulator will be notified of this determination on the issuing
DEPP 7.2.7GRP
The direction will contain the identity of the representative of the overseas regulator that is permitted to attend any interview and the role that he will play in the interview. If the FSA envisages that there will be more than one interview in the course of the investigation, the direction may also specify which interview(s) the overseas representative is allowed to attend.
DEPP 7.2.8GRP
In circumstances where an interview is to be conducted as part of the investigation, the FSA's investigator will have conduct of the interview. In general, the FSA's investigators will be employees of the FSA, but in appropriate cases the FSA may appoint persons who are not its employees. In those cases, the FSA may choose to require that an FSA employee is present at the interview and may choose to appoint that person as an investigator.
DEPP 7.2.9GRP
The FSA's investigator will act on behalf of the FSA and under its control. He may be instructed to permit the representative of the overseas regulator to assist in the preparation of the interview. Where the FSA considers it appropriate, it may permit the representative to attend and ask questions of the interviewee in the course of the interview. The interview will be conducted according to the terms of the direction and the notification referred to in DEPP 7.2.6 G.
DEPP 7.2.10GRP
If the direction does permit the representative of an overseas regulator to attend the interview and ask the interviewee questions, the FSA's investigator will retain control of the interview throughout. Control of the interview means the following will apply:(1) The FSA's investigator instigates and concludes the interview, introduces everyone present and explains the procedure of the interview. He warns the interviewee of the possible consequences of refusing to answer questions
DEPP 7.2.11GRP
The FSA will in general provide written notice of the appointment of an investigator to the person under investigation pursuant to the request of an overseas regulator. Whether or not the interviewee is the person under investigation, the FSA's investigator will inform the interviewee of the provisions under which he has been appointed, the identity of the requesting authority and general nature of the matter under investigation. The interviewee will also normally be informed
DEPP 7.2.13GRP
The FSA's investigator will determine the venue and timing of the interview. The interviewee will be notified of the venue and timing of the interview in advance and in writing.
DEPP 7.2.14GRP
When the FSA's investigator has exercised the compulsory interview power, at the outset of the interview the interviewee will be given an appropriate warning. The warning, amongst other things, must state that the interviewee is obliged to answer all questions put to them during the interview, including any put by the representative of the overseas regulator. It will also state that in criminal proceedings or proceedings for market abuse the FSA will not use as evidence against
DEPP 7.2.15GRP
The FSA's investigator may decide which documents or other information may be put to the interviewee, and whether it is appropriate to give the interviewee sight of the documents before the interview takes place. Where the overseas regulator wishes to ask questions about documents during the interview and the FSA's investigator wishes to inspect those documents before the interview, he will be given the opportunity to do so. If the FSA's investigator wishes to inspect them and
DEPP 7.2.16GRP
When the FSA's investigator has exercised the compulsory interview power, the FSA's investigator will require the person attending the interview to answer questions. Where appropriate, questions may also be posed by the representative of the overseas regulator. The interviewee will also be required to answer these questions. The FSA's investigator may intervene at any stage during questioning by the representative of the overseas regulator.
DEPP 7.2.17GRP
Interviews will, in general, be conducted in English. Where the interviewee's first language is not English, at the request of the interviewee arrangements will be made for the questions to be translated into the interviewee's first language and for his answers to be translated back into English. If a translator is employed at the request of the representative of the overseas regulator then the translation costs will normally be met by the overseas regulator. Where interviews
DEPP 7.2.18GRP
All compulsory interviews will be tape-recorded. The method of recording will be decided on and arranged by the FSA's investigator. Costs will be addressed similarly to that set out in the preceding paragraph. The FSA will not provide the overseas regulator with transcripts of the tapes of interviews unless specifically agreed to, but copies of the tapes will normally be provided where requested. The interviewee will be provided with a copy of tapes of the interview but will only
DEPP 7.2.19GRP
The interviewee may be accompanied at the interview by a legal adviser or a non-legally qualified observer of his choice. The costs of any representation will not be met by the FSA. The presence at the interview of a representative of the overseas regulator may mean that the interviewee wishes to be represented or accompanied by a person either from or familiar with that regulator's jurisdiction. As far as practical the arrangements for the interview should accommodate this wish.
DEPP 7.2.20GRP
In relation to the publication of investigations by overseas regulators, the FSA will pursue a policy similar to the policy that relates to its own investigations.
REC 2.5.1UKRP

Schedule to the Recognition Requirements Regulations, paragraph 3

2(1)

The [UK RIE] must ensure that the systems and controls used in the performance of its [relevant functions] are adequate, and appropriate for the scale and nature of its business.

(2)

Sub-paragraph (1) applies in particular to systems and controls concerning -

(a)

the transmission of information;

(b)

the assessment, mitigation and management of risks to the performance of the [UK RIE'srelevant functions];

(c)

the effecting and monitoring of transactions on the [UK RIE];

(ca)

the technical operation of the [UK RIE], including contingency arrangements for disruption to its facilities;

(d)

the operation of the arrangements mentioned in paragraph 4(2)(d); and

(e)

(where relevant) the safeguarding and administration of assets belonging to users of the [UK RIE's] facilities.

REC 2.5.3GRP
In assessing whether the systems and controls used by a UK recognised body in the performance of its relevant functions are adequate and appropriate for the scale and nature of its business, the FSA may have regard to the UK recognised body's:(1) arrangements for managing, controlling and carrying out its relevant functions, including: (a) the distribution of duties and responsibilities among its key individuals and the departments of the UK recognised body responsible for performing
REC 2.5.4GRP
The following paragraphs set out other matters to which the FSA may have regard in assessing the systems and controls used for the transmission of information, risk management, the effecting and monitoring of transactions, the operation of settlement arrangements (the matters covered in paragraphs 4(2)(d) and 19(2)(b) of the Schedule to the Recognition Requirements Regulations) and the safeguarding and administration of assets .
REC 2.5.5GRP
In assessing a UK recognised body's systems and controls for the transmission of information, the FSA may also have regard to the extent to which these systems and controls ensure that information is transmitted promptly and accurately: (1) within the UK recognised body itself; (2) to members; and (3) (where appropriate) to other market participants or other relevant persons.
REC 2.5.8GRP
In assessing a UK RIE's systems and controls for the effecting and monitoring of transactions, and the systems and controls used by a UK recognised body for the operation of settlement arrangements, the FSA may have regard to the totality of the arrangements and processes through which a transaction is effected, cleared and settled, including:(1) a UK RIE's arrangements under which orders are received and matched, and its arrangements for trade and transaction reporting, and (if
REC 2.5.9GRP
In assessing a UK recognised body's systems and controls for the safeguarding and administration of assets belonging to users of its facilities, the FSA may have regard to the totality of the arrangements and processes by which the UK recognised body: (1) records the assets held and the identity of the owners of (and other persons with relevant rights over) those assets; (2) records any instructions given in relation to those assets;(3) records the carrying out of those instructions;(4)
REC 2.5.11GRP
The FSA recognises that a UK RCH2 has legitimate interests of its own and that its general business policy may properly be influenced by other persons (such as its owners). Such a connection does not necessarily imply the existence of a conflict of interest nor is it necessary to exclude individuals closely connected with other persons (for example, those responsible for the stewardship of the owner's interests) from all decision-making processes in a UK recognised body. However,
REC 2.5.12GRP
REC 2.5.13 G to REC 2.5.16 G set out the factors to which the FSA may have regard in assessing a UK recognised body's systems and controls for managing conflicts of interest.
REC 2.5.13GRP
The FSA may have regard to the arrangements a UK recognised body makes to structure itself and to allocate responsibility for decisions so that it can continue to take proper regulatory decisions notwithstanding any conflicts of interest, including:(1) the size and composition of the governing body and relevant committees; (2) the roles and responsibilities of key individuals, especially where they also have responsibilities in other organisations; (3) the arrangements for transferring
REC 2.5.14GRP
The FSA may also have regard to the systems and controls intended to ensure that confidential information is only used for proper purposes. Where relevant, recognised bodies will have to comply with section 348 (Restrictions on disclosure of confidential information by the FSA etc.) and regulations made under section 349 (Exemptions from section 348) of the Act.
REC 2.5.15GRP
The FSA may also have regard to the contracts of employment, staff rules, letters of appointment for members of the governing body, members of relevant committees and other key individuals and other guidance given to individuals on handling conflicts of interest. Guidance to individuals may need to cover:(1) the need for prompt disclosure of a conflict of interest to enable others, who are not affected by the conflict, to assist in deciding how it should be managed;(2) the circumstances
REC 2.5.16GRP
The FSA may also have regard to the arrangements made:(1) for enforcing rules or other provisions applicable to staff and other persons involved in regulatory decisions; and(2) to keep records of disclosures of conflicts of interest and the steps taken to handle them.
REC 2.5.17GRP
A UK recognised body's arrangements for internal and external audit will be an important part of its systems and controls. In assessing the adequacy of these arrangements, the FSA may have regard to: (1) the size, composition and terms of reference of any audit committee of the UK recognised body'sgoverning body;(2) the frequency and scope of external audit; (3) the provision and scope of internal audit; (4) the staffing and resources of the UK recognised body's internal audit
REC 2.5.18GRP
Information technology is likely to be a major component of the systems and controls used by any UK recognised body. In assessing the adequacy of the information technology used by a UK recognised body to perform or support its relevant functions, the FSA may have regard to:(1) the organisation, management and resources of the information technology department within the UK recognised body;(2) the arrangements for controlling and documenting the design, development, implementation
REC 2.5.20GRP
The FSA may have regard to the arrangements made to keep clear and complete audit trails of all uses of information technology systems and to reconcile (where appropriate) the audit trails with equivalent information held by system users and other interested parties.
DEPP 4.1.1GRP
1All statutory notice decisions under executive procedures will be taken either by a senior staff committee or by an individual FSA staff member.
DEPP 4.1.2GRP
In either case, the decision will be taken by FSA staff who have not been directly involved in establishing the evidence on which the decision is based, except in accordance with section 395(3) of the Act.
DEPP 4.1.3GRP
The FSA's senior executive committee will from time to time determine that particular categories of statutory notice decision to be taken under executive procedures will be taken by a senior staff committee.
DEPP 4.1.4GRP
A senior staff committee will consist of such FSA staff members as the FSA's senior executive committee may from time to time determine. The FSA's senior executive committee may authorise the chairman of a senior staff committee to select its other members. A senior staff committee is accountable for its decisions to the FSA's senior executive committee and, through it, to the FSA Board.
DEPP 4.1.5GRP
A senior staff committee may operate through standing or specific sub-committees to consider particular decisions or classes of decision, for which accountability will lie through the committee. Each meeting of a senior staff committee, or sub-committee, will include:(1) an individual with authority to act as its chairman; and(2) at least two other members.
DEPP 4.1.6GRP
A senior staff committee will operate on the basis of a recommendation from an FSA staff member of at least the level of associate, and with the benefit of legal advice from an FSA staff member of at least the level of associate.
DEPP 4.1.7GRP
Statutory notice decisions to be taken under executive procedures, and not falling within the responsibility of a senior staff committee, will be taken by an individual FSA staff member. The decision will be:(1) made by an executive director of the FSA Board or his delegate (who will be of at least the level of associate);(2) on the recommendation of an FSA staff member of at least the level of associate; and(3) with the benefit of legal advice from an FSA staff member of at least
DEPP 4.1.8GRP
The individual who takes a decision under executive procedures is accountable to the FSA Board directly (if an executive director) or otherwise through line management responsible for the decision concerned.
DEPP 4.1.9GRP
An FSA staff member who considers that a statutory notice decision should be taken above his own level is free to refer that decision to a more senior level. If an FSA staff member consults another staff member about a decision, the decision remains the independent decision of the FSA staff member who consults his colleague, unless it is agreed that the decision should instead be taken by the colleague, and the colleague has the delegated authority to do so.
DEPP 4.1.10GRP
If an individual responsible for a decision under executive procedures (or a more senior FSA staff member with responsibilities in relation to the decision concerned) considers that it warrants collective consideration, the individual may:(1) take the decision himself, following consultation with other FSA staff members, as above; or(2) refer it to a senior staff committee, which will take the decision itself.
DEPP 4.1.11GRP
(1) FSAstaff are required by their contract of employment to comply with a code of conduct which imposes strict rules to cover the handling of conflicts of interest which may arise from personal interests or associations. FSA staff subject to a conflict of interest must declare that interest to the person to whom they are immediately responsible for a decision.(2) If a member of a senior staff committee has a potential conflict of interest in any matter in which he is asked to
DEPP 4.1.12GRP
The secretariat to the senior staff committee will record and document all disclosures of potential conflicts of interest and the steps taken to manage them.
DEPP 4.1.13GRP
The procedure for taking decisions under executive procedures will generally be less formal and structured than that for decisions by the RDC. Broadly, however, FSA staff responsible for taking statutory notice decisions under executive procedures will follow a procedure similar to that described at DEPP 3.2.7 G to DEPP 3.2.27 G for the RDC except that:(1) in a case where the decision will be taken by a senior staff committee: (a) the chairman or deputy chairman of the senior
REC 2.3.1UKRP

Schedule to the Recognition Requirements Regulations, Paragraph 1

2(1) The [UK RIE] must have financial resources sufficient for the proper performance of its [ relevant functions] as a [UK RIE].

(2) In considering whether this requirement is satisfied, the [FSA]must (without prejudice to the generality of regulation 6(1)) take into account all the circumstances, including the [UK RIE's] connection with any person , and any activity carried on by the [UK RIE], whether or not it is anexempt activity.

REC 2.3.3GRP
In determining whether a UK recognised body has financial resources sufficient for the proper performance of its relevant functions, the FSA may have regard to:(1) the operational and other risks to which the UK recognised body is exposed;(2) if the UK recognised body acts as a central counterparty or otherwise guarantees the performance of transactions in specified investments, the counterparty and market risks to which it is exposed in that capacity; (3) the amount and composition
REC 2.3.4GRP
The FSA will usually rely on a UK recognised body's published and internal management accounts and financial projections, provided that those accounts and projections are prepared in accordance with UK, US or international accounting standards.
REC 2.3.5GRP
In assessing whether a UK recognised body has sufficient financial resources in relation to counterparty and market risks, the FSA may have regard to:(1) the amount and liquidity of its financial assets and the likely availability of liquid financial resources to the UK recognised body during periods of major market turbulence or other periods of major stress for the financial system; and(2) the nature and scale of the UK recognised body's exposures to counterparty and market
REC 2.3.6GRP
In assessing whether a UK recognised body has sufficient financial resources in relation to operational and other risks, the FSA may have regard to the extent to which, after allowing for the financial resources necessary to cover counterparty and market risks, the UK recognised body's financial resources are sufficient and sufficiently liquid:(1) to enable the UK recognised body to continue carrying on properly the regulated activities that it expects to carry on; and(2) to ensure
REC 2.3.7GRP
The FSA considers that a UK recognised body which (after allowing for the financial resources necessary to cover counterparty and market risks) has at any time:(1) liquid financial assets amounting to at least six months' operating costs; and (2) net capital of at least this amount; will, at that time, have sufficient financial resources to meet the recognition requirement unless there are special circumstances indicating otherwise.
REC 2.3.9GRP
The FSA recognises that UK recognised bodies may wish to satisfy the recognition requirements in different ways. The FSA does not prescribe any particular approach to calculating financial resources or to assessing their adequacy. It is willing to discuss with each UK recognised body the most appropriate way for it to meet the recognition requirement and each UK recognised body will need to be able to show the FSA that its financial resources are at all times sufficient to meet
PERG 8.14.4GRP
The FSA considers the effect of each of the conditions in PERG 8.14.3G (1) to PERG 8.14.3G (3) to be as follows.(1) The first condition requires the financial promotion to be made, so ruling out any financial promotions which are directed at persons. The effect of article 6(b) and (e) of the Financial Promotion Order is that a communication is made to a person when it is addressed to him and that person to whom the financial promotion is addressed is its recipient. This means
PERG 8.14.5GRP
In the FSA's opinion, the indicators referred to in PERG 8.14.4 G suggest that there are two essential elements of a one-off financial promotion. These are that it is tailored to the circumstances of the recipient and that it is individual in nature (in that it is not simply a personalised letter sent out as part of a general mailshot). Apart from this there is no need for the communication to be an isolated instance. For example, the fact that there may be a considerable number
PERG 8.14.6GRP
In the FSA's view, a group of recipients who may be engaging in investment activity jointly could 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
PERG 8.14.7GRP
A financial promotion may fail to satisfy all of the indicators referred to in PERG 8.14.4 G because it is addressed to more than one recipient and they are not persons who will engage in investment activity jointly. In the FSA's view, such a financial promotion is capable of being one-off where the persons are to enter into the same transaction and the promotion is tailored to their individual circumstances. This may typically happen during negotiations for the sale of a company
PERG 8.14.9GRP
In the FSA's view, a person such as an investment manager or adviser is not conducting an organised marketing campaign purely because he regularly provides a particular client with financial promotions as part of his service. Neither is such a person conducting an organised marketing campaign purely because he may have several clients whose personal circumstances and objectives may suggest that a particular investment opportunity may attract them. If he considers the individual
PERG 8.14.10GRP
In the FSA's view, a person will not be making one-off financial promotions simply by sending out a series of letters to a number of customers or potential customers where a few details are changed (such as the name and address) but the bulk of the letter is standard. Such letters would be likely to be part of an organised marketing campaign.
PERG 8.14.12GRP
In the FSA's view, the article 28A exemption should provide scope for persons such as professional advisers to make unsolicited real time financial promotions in various situations. For example, when approaching persons with whom their clients are proposing to do business or those persons’ professional advisers. The exemption will not apply where the financial promotions are part of an organised marketing campaign (see PERG 8.14.4G (3)). So, in cases where a professional adviser
PERG 8.14.13GRP
Whether or not it would be reasonable to believe that any person understands the risks associated with the investment activity covered in a financial promotion or would expect to be contacted about it must be judged on the particular circumstances. In the FSA's opinion, the exemption requires that the recipient has the required understanding of risk at the time the promotion is made to him. However, it would be reasonable to believe that a person understands the risk involved
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 8.14.18GRP
This exemption allows a person in another EEA State who lawfully carries on a controlled activity in that State to promote into the United Kingdom. The terms of the exemption are that the promotion must comply with the rules in COB 3 or MCOB 3 (as relevant). Care should be taken as any failure to satisfy any of the relevant requirements of these rules may mean that this exemption is not satisfied and that the financial promotion may breach section 21 if it has not been approved
PERG 8.14.20GRP
In the FSA's opinion;(1) it will not matter that a person enters into arrangements for investment or other purposes provided that he also enters them into for commercial purposes; and(2) each participant must be carrying on the business in question in their own right.This means that the sponsors or promoters of a company who arrange for private investors to become shareholders will not be setting up a joint enterprise simply because the company may intend to carry on a relevant
PERG 8.14.24GRP
A person seeking to make a financial promotion to another person may wish to make enquiries of that person to establish whether he is certified. Unless another exemption applies or the financial promotion is approved by an authorised person, such enquiries will not be possible if the enquiry communication is an inducement or invitation to engage in investment activity. In the FSA's view, a communication which is merely an enquiry seeking to establish that a person holds a current
PERG 8.14.26GRP
Article 49(4) gives the list of conditions which, if all are met, is proof that the financial promotion is directed at relevant persons. It is not necessary for all or any of the conditions to be met for a financial promotion to be regarded as directed at relevant persons. Ultimately the matter will be one of fact to be determined by taking account of the circumstances in which the financial promotion is made. In the FSA's opinion, it is not necessary for a financial promotion,
PERG 8.14.27GRP
To be a sophisticated investor for the purposes of article 50, the recipient of a financial promotion must have a current certificate from an authorised person stating that he has enough knowledge to be able to understand the risks associated with the description of investment to which the financial promotion relates. Where the financial promotion is an outgoing electronic commerce communication3, the certificate may be signed by a person who is entitled, under the law of an EEA
PERG 8.14.28GRP
The exemption also requires that certain warnings are given to the potential investor. In this respect, article 50(3)(d) provides that the financial promotion must state that there is a significant risk of losing all monies invested or of incurring additional liability. In the FSA's view, these are alternative statements and whichever is the relevant statement should be included. If there is no risk of incurring additional liability the statement may simply say that there is a
PERG 8.14.37GRP
In the FSA's view, a main aim of the exemption (see PERG 8.14.35G (1)) is to remove from the scope of section 21 a financial promotion concerning the sale of a corporate business by a person who, either alone or with others, controls the business to another person who, either alone or with others, proposes to control the business.
PERG 8.14.40GRP
In the FSA's opinion, provided that the purpose of the transaction is for the buyer to acquire the necessary control, it is irrelevant who is the seller. The exemption specifically applies to financial promotions which are communicated on behalf of the parties or potential parties to the transaction. The Treasury, in its consultative document “Financial Services and Markets Act two year review: Changes to secondary legislation Proposals for change, February 2004” proposed changes
PERG 8.14.41GRP
Several exemptions, including article 43 of the Financial Promotion Order (Members and creditors of certain bodies corporate), apply only in relation to relevant investments being shares or debentures in the body corporate or a member of its group, or warrants or certificates representing certain securities relating to such shares or debentures. In the FSA's view, an exchangeable debt security which is partly a debenture and partly an option is a relevant investment for these
PERG 8.14.42GRP
The exemptions for bearer instruments (articles 41 and 42 of the Financial Promotion Order) relate to financial promotions made to or directed at persons entitled to bearer instruments. For clarity, the FSA takes the view that persons who hold bearer instruments through a clearing system such as Euroclear or Clearstream are persons entitled to those instruments for the purposes of articles 41 and 42.
SUP 15.7.2GRP
A firm should have regard to the urgency and significance of a matter and, if appropriate, should also notify its usual supervisory contact at the FSA by telephone or by other prompt means of communication, before submitting a written notification. Oral notifications should be given directly to the firm's usual supervisory contact An oral notification left with another person or left on a voicemail or other automatic messaging service is unlikely to have been given appropria
SUP 15.7.3GRP
The FSA is entitled to rely on any information it receives from a firm and to consider any notification received as being made by a person authorised by the firm to do so. A firm should therefore consider whether it needs to put procedures in place to ensure that only appropriate employees make notifications to the FSA on its behalf.
SUP 15.7.4RRP
Unless stated in the notification rule, or on the relevant form (if specified), a written notification required from a firm under any notification rule must be:2(1) given to or addressed for the attention of the firm's usual supervisory contact at the FSA; and(2) delivered to the FSA by one of the methods in :
SUP 15.7.7GRP
If the firm or its group is subject to lead supervision arrangements by the FSA, the firm or group may give or address a notice under SUP 15.7.4 R(1) to the supervisory contact at the FSA, designated as lead supervisor, if the firm has chosen to make use of the lead supervisor as a central point of contact (see SUP 1.5).
SUP 15.7.8GRP
If a firm is a member of a group which includes more than one firm, any one undertaking in the group may notify the FSA on behalf of all firms in the group to which the notification applies. In this way, that undertaking may satisfy the obligation of all relevant firms in the group to notify the FSA. Nevertheless, the obligation to make the notification remains the responsibility of the individual firm itself. See also SUP 15.7.3 G.
SUP 15.7.9GRP
Firms wishing to communicate with the FSA by electronic mail or fax should obtain the appropriate address or number from the FSA
SUP 15.7.10RRP
If a notification rule requires notification within a specified period:(1) the firm must give the notification so as to be received by the FSAno later than the end of that period; and (2) if the end of that period falls on a day which is not a business day, the notification must be given so as to be received by the FSA no later than the first business day after the end of that period.
SUP 15.7.14GRP
The FSA has made arrangements with the Society of Lloyd's with respect to the monitoring of underwriting agents. Underwriting agents should check whether these arrangements provide for any notifications required under this chapter to be sent to the Society instead of to the FSA. [For further details see the FSA website.]
SUP 15.7.16GRP
The Financial Services and Markets Act 2000 (Service of Notices) Regulations 2001 (SI 2001/1420) contain provisions relating to the service of documents on the FSA. They do not apply to notifications required under notification rules because of the specific rules in this section.
PERG 6.7.2GRP
The disaster recovery provider sets up and maintains a range of IT and related facilities (PABX etc). The disaster recovery contracts so far considered by the FSA give the recipient, subject to certain conditions including an up front payment, priority access to all or a specified part of these facilities if a 'disaster' causes the failure of a similar business system on which the recipient relies. The provider sells access to the same facilities to a number of different recipients,
PERG 6.7.4GRP
However, the disaster recovery contracts considered by the FSA had two key features.(1) Priority access to facilities in the event of a disaster was expressed to be on a 'first come, first served' basis. The contracts provided expressly that if the facilities needed by recipient A were already in use, following an earlier invocation by recipient B, the provider's obligation to recipient A was reduced to no more than an obligation of 'best endeavours' to meet A's requirements.
PERG 6.7.5GRP
Based on these features, the FSA reached the conclusion, with which the other terms of the contracts were consistent (PERG 6.6.8 G (3)), that these disaster recovery contracts were not contracts of insurance.
PERG 6.7.6GRP
An important part of the conclusion in PERG 6.7.5 G was that, although the provider assumed a risk at the outset of the contract, looking at the contract as a whole and interpreting the common law in the context of the FSA's objectives (see PERG 6.5.2 G and PERG 6.5.3 G) there was no relevant assumption of risk.(1) The presence or absence of an assumption of risk is an important part of the statutory rationale for the prudential regulation of insurance.(2) In Medical Defence Union
PERG 6.7.8GRP
Notwithstanding PERG 6.7.7 G, the FSA's view is that an obligation that is of the same nature as a seller's or supplier's usual obligations as regards the quality of the goods or services is unlikely to be an insurance obligation in substance.
PERG 6.7.9GRP
The FSA is unlikely to classify a contract containing a simple manufacturer's or retailer's warranty as a contract of insurance, if the FSA is satisfied that the warranty does no more that crystallise or recognise obligations that are of the same nature as a seller's or supplier's usual obligations as regards the quality of the goods or services.
PERG 6.7.11GRP
It follows from PERG 6.7.10 G that the FSA is unlikely to be satisfied that an obligation in a contract of sale or supply is of the same nature as the seller's or supplier's usual obligations as regards the quality of goods or services, if that obligation has one or more of the following features:(1) it is assumed by a person other than the seller or supplier (a 'third party'); or(2) it is significantly more extensive in content, scope or duration than a seller's usual obligations
PERG 6.7.12GRP
Other things being equal, the FSA is likely to classify a contract of sale containing a warranty that has one or more of the features in PERG 6.7.11 G as a contract of insurance. The features in PERG 6.7.11 G (1) and (2) typically distinguish a 'third party' warranty and an 'extended warranty' from a 'simple' manufacturer's or retailer's warranty.
PERG 6.7.13GRP
If a warranty is provided by a third party, the FSA will usually treat this as conclusive of the fact that there are different transactions and an assumption or transfer of risk. This conclusion would not usually depend on whether the provider is (or is not) a part of the same group of companies as the manufacturer or retailer. But it will be the third party (who assumes the risk) that is potentially effecting a contract of insurance.
PERG 6.7.14GRP
A manufacturer or retailer may undertake a warranty obligation to his customer in a separate contract with the customer, distinct from the contract of sale or supply of goods or services. The FSA will examine the separate contract to see if it is a contract of insurance. But the mere existence of a separate warranty contract is unlikely to be conclusive by itself.
PERG 6.7.15GRP
A manufacturer or retailer may undertake an obligation to ensure that the customer becomes a party to a separate contract of insurance in respect of the goods sold. This would include, for example, a contract for the sale of a freezer, with a simple warranty in relation to the quality of the freezer, but also providing insurance (underwritten by an insurer and in respect of which the customer is the policyholder) covering loss of frozen food if the freezer fails. The FSA is unlikely
PERG 6.7.16GRP
The FSA distinguishes the contract in PERG 6.7.15 G from a contract under which the manufacturer or retailer assumes the obligation to provide the customer with an indemnity against loss or damage if the freezer fails, but takes out insurance to cover the cost of having to provide the indemnity to the customer. The obligation to indemnify is of a different nature from the seller's or supplier's usual obligations as regards the quality of goods or services and is an insurance obligation.
PERG 6.7.17GRP
The following are examples of typical warranty schemes operated by motor dealers. Provided that, in each case, the FSA is satisfied that the obligations assumed by the dealer are not significantly more extensive in content, scope or duration that a dealer's usual obligations as to the quality of motor vehicles of that kind, the FSA would not usually classify the contracts embodying these transactions as contracts of insurance.(1) The dealer gives a verbal undertaking to the purchaser
PERG 6.7.19GRP
Some providers argued that these schemes amount to nothing more than a 'manufacturer's warranty' of their own work, within the scope of PERG 6.7.7 G (Example 3: manufacturers' and retailers' warranties). However, HM Revenue and Customs is expected to make a significant number of random checks of self-assessment forms, irrespective of the quality of the work done by the provider. These random checks are also covered by the schemes. The FSA concluded, therefore, that these schemes
PERG 6.7.21GRP
If, however, a contract of this kind were structured so that the recipient was charged at a commercial rate for any legal services in fact provided, the FSA's approach will be to treat the arrangement as non-insurance. This is principally because, by taking on obligations of this kind, the provider does not assume a relevant risk (see PERG 6.7.6 G). The position might be different if the solicitor carries the additional obligation to pay for alternative legal services to be provided
DEPP 1.2.1GRP
Section 395 of the Act (The FSA's procedures) requires the FSA to publish a statement of its procedure for the giving of statutory notices. The procedure must be designed to secure, among other things, that the decision which gives rise to the obligation to give a statutory notice is taken by a person not directly involved in establishing the evidence on which that decision is based. The types of statutory notices and related notices, and the principal references to them in the
DEPP 1.2.2GRP

Table: Summary of statutory and related notices

Notice

Description

Act reference

Further information

Warning notice

Gives the recipient details about action that the FSA proposes to take and about the right to make representations.

Section 387

DEPP 2.2

Decision notice

Gives the recipient details about action that the FSA has decided to take. The FSA may also give a further decision notice if the recipient of the original decision notice consents.

Section 388

DEPP 2.3

Notice of discontinuance

Identifies proceedings set out in a warning notice or decision notice and which are not being taken or are being discontinued.

Section 389

DEPP 1.2.4 G and DEPP 3.2.26 G

Final notice

Sets out the terms of the action that the FSA is taking.

Section 390

DEPP 1.2.4 G

Supervisory notice

Gives the recipient details about action that the FSA has taken or proposes to take, for example to vary a Part IV permission.

Section 395(13)

DEPP 2.2 and DEPP 2.3

DEPP 1.2.5GRP
Decisions on whether to give a statutory notice will be taken by a 'decision maker'. The FSA's assessment of who is the appropriate decision maker is subject to the requirements of section 395 of the Act and will depend upon the nature of the decision, including its complexity, importance and urgency. References to the 'decision maker' in DEPP are to:(1) the Regulatory Decisions Committee (RDC); or(2) FSA staff under executive procedures; or(3) FSA staff under the settlement decision
DEPP 1.2.6GRP
The decision maker will also take decisions associated with a statutory notice (a 'statutory notice associated decision'). Statutory notice associated decisions include decisions:(1) to set or extend the period for making representations;(2) on whether the FSA is required to give a copy of the statutory notice to any third party and, if so, the period for the third party to make representations; and(3) on whether to refuse access to FSA material, relevant to the relevant statutory
DEPP 1.2.7GRP
In each case, the decision maker will make decisions by applying the relevant statutory tests, having regard to the context and nature of the matter, that is, the relevant facts, law, and FSA priorities and policies (including on matters of legal interpretation).
DEPP 1.2.8GRP
The FSA will make and retain appropriate records of those decisions, including records of meetings and the representations (if any) and materials considered by the decision makers.
DEPP 1.2.9GRP
DEPP 2 to DEPP 5 set out:(1) which decisions require the giving of statutory notices and who takes them (DEPP 2);(2) the nature and procedures of the RDC (DEPP 3);(3) the procedure for decision making by FSA staff under executive procedures (DEPP 4);(4) the procedure for decision making by FSA staff under the settlement decision procedure (DEPP 5).
REC 5.2.1GRP
An applicant for recognised body status needs to demonstrate to the FSA that it is able to meet the recognition requirements and in the case of a UK RIE, the MiFID implementing requirements1before a recognition order can be made. Once it has been recognised, a recognised body has to comply with the recognition requirements and in the case of a UK RIE, the MiFID implementing requirements1at all times. (Guidance on the recognition requirements applicable to UK recognised bodies
REC 5.2.1AGRP
In addition, under section 290A of the Act (Refusal of recognition on ground of excessive regulatory provision), the FSA must refuse to make a recognition order in relation to a body applying for recognition as a UK RIE or UK RCH if it appears to the FSA that an existing or proposed regulatory provision of the applicant in connection with the applicant's business as an investment exchange or the provision by the applicant of clearing services imposes, or will impose, an excessive
REC 5.2.2GRP
(1) There is no standard application form. A prospective applicant should contact the Markets Division at the FSA at an early stage for advice on the preparation, scheduling and practical aspects of its application.(2) It is very important, if an application is to be processed smoothly and in a reasonable time, that it is comprehensively prepared and based on a well-developed and clear proposal.
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 and in the case of an application under section 287 of the Act information required pursuant to sub-sections 287(3)(c), (d) and (e) of the Act (see REC 5.2.3A G) 1(the material specifically prescribed in section 287 or
REC 5.2.5GRP
A prospective applicant who is an authorised person may wish to consult the FSA about the extent to which information which it has already supplied in connection with its status as an authorised person can be used to support an application to become a UK recognised body.
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 5.2.6AGRP
1In the case of an application to become a UK RIE, under subsection 290(1B) of the Act, the application must be determined by the FSA before the end of the period of six months beginning with the date on which it receives the completed application.
REC 5.2.7GRP
At any time after making a formal application, the applicant may make amendments to its rules, guidance or any other part of its application submitted to the FSA. Any amendments or additional information are likely to be forwarded by the FSA to the Director General of Fair Trading and the Treasury under section 303 of the Act (Initial report by Director) (see REC 5.1.5 G).
REC 5.2.8GRP
(1) The FSA will keep the applicant informed of the progress of the application.(2) It may be necessary to ask the applicant to clarify or amplify some aspects of its proposals. The FSA may wish to discuss various aspects of the application and may invite the applicant to attend one or more meetings for that purpose. When requested to do so, the FSA will explain the nature of the information which it has asked an applicant to supply in connection with its application.
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
REC 5.2.14GRP

Information and supporting documentation (see REC 5.2.4 G).

(1)

Details of the applicant's constitution, structure and ownership, including its memorandum and articles of association (or similar or analogous documents ) and any agreements between the applicant, its owners or other persons relating to its constitution or governance (if not contained in the information listed in REC 5.2.3A G)1.

(2)

Details of all business to be conducted by the applicant, whether or not a regulated activity (if not contained in the information listed in REC 5.2.3A G)1.

(3)

Details of the facilities which the applicant plans to operate, including details of the trading platform, settlement arrangements, clearing services and custody services which it plans to supply.

(4)

Copies of the last three annual reports and accounts and, for the current financial year, quarterly management accounts.

(5)

Details of its business plan for the first three years of operation as a UK recognised body (if not contained in the information listed in REC 5.2.3A G)1.

(6)

A full organisation chart and a list of the posts to be held by key individuals (with details of the duties and responsibilities) and the names of the persons proposed for these appointments when these names are available (if not contained in the information listed in REC 5.2.3A G)1.

(7)

Details of its auditors, bankers, solicitors and any persons providing corporate finance advice or similar services (such as reporting accountants) to the applicant.

(8)

Details of any relevant functions to be outsourced or delegated, with copies of relevant agreements.

(9)

Details of information technology systems and of arrangements for their supply, management, maintenance and upgrading, and security.

(10)

Details of all plans to minimise disruption to operation of its facilities in the event of the failure of its information technology systems.

(11)

Details of internal systems for financial control, arrangements for risk management and insurance arrangements to cover operational and other risks.

(12)

Details of its arrangements for managing any counterparty risks, including details of margining systems, guarantee funds and insurance arrangements.

(13)

Details of internal arrangements to safeguard confidential or privileged information and for handling conflicts of interest.

(14)

Details of arrangements for complying with the notification rules and other requirements to supply information to the FSA.

(15)

Details of the arrangements to be made for monitoring and enforcing compliance with its rules and with its clearing, settlement and default arrangements.

(16)

A summary of the legal due diligence carried out in relation to ascertaining the enforceability of its rules (including default rules)and arrangements for margin against any of its members based outside the United Kingdom, and the results and conclusions reached.

(17)

Details of the procedures to be followed for declaring a member in default, and for taking action after that event to close out positions, protect the interests of other members and enforce its default rules.

(18)

Details of membership selection criteria, rules and procedures.

(19)

Details of arrangements for recording transactions effected by, or cleared through, its facilities.

(20)

Details of arrangements for detecting financial crime and market abuse , including arrangements for complying with money laundering law.

(21)

Details of criteria, rules and arrangements for selecting specified investments to be admitted to trading on (or cleared by) an RIE, or to be cleared by an RCH and, where relevant, details of how information regarding specified investments will be disseminated to users of its facilities.

(22)

Details of arrangements for cooperating with the FSA and other appropriate authorities, including draft memoranda of understanding or letters.

(23)

Details of the procedures and arrangements for making and amending rules, including arrangements for consulting on rule changes.

(24)

Details of disciplinary and appeal procedures, and of the arrangements for investigating complaints.

SUP 5.3.1GRP
The appointment of a skilled person to produce a report under section 166 of the Act (Reports by skilled persons) is one of the FSA's regulatory tools. The tool may be used:(1) for diagnostic purposes, to identify, assess and measure risks; (2) for monitoring purposes, to track the development of identified risks, wherever these arise;(3) in the context of preventative action, to limit or reduce identified risks and so prevent them from crystallising or increasing; and (4) for
SUP 5.3.2GRP
The decision to require a report by a skilled person will normally be prompted by a specific requirement for information, analysis of information, assessment of a situation,4 expert advice or recommendations or by a decision to seek assurance in relation to a regulatory return4. It may4 be part of the risk mitigation programme applicable to a firm, or the result of an event or development relating or relevant to a firm, prompted by a need for verification of information provided
SUP 5.3.3GRP
When making the decision to require a report by a skilled person, the FSA will have regard, on a case-by-case basis, to all relevant factors. Those are likely to include:(1) circumstances relating to the firm;(2) alternative tools available, including other statutory powers;(3) legal and procedural considerations;(4) the objectives of the FSA's enquiries;(5) cost considerations; and(6) considerations relating to FSA resources.SUP 5.3.4 G to SUP 5.3.10 G give further guidance
SUP 5.3.4GRP
The FSA will have regard to circumstances relating to the firm, for example:(1) attitude of the firm: whether the firm is being cooperative;(2) history of similar issues: whether similar issues have arisen in the past and, if so, whether timely corrective action was taken;(3) quality of a firm's systems and records: whether the FSA has confidence that the firm has the ability to provide the required information;(4) objectivity: whether the FSA has confidence in the firm's willingness
SUP 5.3.5GRP
The FSA will have regard to alternative tools that may be available, including for example:(1) obtaining what is required without using specific statutory powers (for example, by a visit by FSA staff or a request for information on an informal basis); (2) requiring information from firms and others, including authorising an agent to require information, under section 165 of the Act (Authority's power to require information);(3) appointing investigators to carry out general investigations
SUP 5.3.6GRP
The FSA will have regard to legal and procedural considerations including:(1) statutory powers: whether one of the other available statutory powers is more appropriate for the purpose than the power in section 166 of the Act (Reports by skilled persons);(2) subsequent proceedings: whether it is desirable to obtain an authoritative and independent report for use in any subsequent proceedings; and(3) application of the Handbookrules: whether it is important that the relevant rules
SUP 5.3.7GRP
The FSA will have regard to the objectives of its enquiries, and the relative effectiveness of its available powers to achieve those objectives. For example:(1) historic information or evidence: if the objectives are limited to gathering historic information, or evidence for determining whether enforcement action may be appropriate, the FSA's information gathering and investigation powers under sections 165 (Authority's power to require information), 167 (Appointment of persons
SUP 5.3.8GRP
In accordance with its general policy the FSA will have regard to the question of cost, which is particularly pertinent in relation to skilled persons because:(1) if the FSA uses the section 166 power (Reports by skilled persons) the firm will appoint, and will have to pay for the services of, the skilled person;(2) if the FSA uses its other information gathering and investigation powers, it will either authorise or appoint its own staff to undertake the information gathering
SUP 5.3.9GRP
In having regard to the cost implications of using the section 166 power (Reports by skilled persons) alternative options (such as visits) or other powers, the FSA will take into account relevant factors, including:(1) whether the firm may derive some benefit from the work carried out and recommendations made by the skilled person, for instance a better understanding of its business and its risk profile, or the operation of its information systems, or improvements to its systems
SUP 5.3.10GRP
The FSA will have regard to FSA-related considerations including:(1) FSA expertise: whether the FSA has the necessary expertise; and(2) FSA resources: whether the resources required to produce a report or to make enquiries are available within the FSA, or whether the exercise will be the best use of the FSA's resources at the time.