Related provisions for SUP 9.2.4

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PERG 7.6.1GRP
A person considering applying for a certificate should, before sending in any application, contact the Perimeter Enquiries Team of the FSA (email: authorisationenquiries@fsa.gov.uk, Tel 0800 111 6768) to discuss whether a certificate may be appropriate.
PERG 7.6.2GRP
(1) An application should be made by the proprietor of the relevant publication or service using the appropriate form, accessible from our website (see Forms/ Perimeter Guidance manual forms). The form asks for general information about the applicant and gives guidance notes on completion and other details of how the FSA can help.(2) An applicant will be asked to state his own view of the principal purpose of the publication or service. This should include an explanation why the
PERG 7.6.3GRP
After an application is sent in, the FSA may, on occasion, need to obtain additional information from the applicant or elsewhere to enable it to process the application.
PERG 7.6.4GRP
The Act does not specify a time limit for processing the application but the FSA intends to deal with an application as quickly as possible. The more complete and relevant the information provided by an applicant, the more quickly a decision can be expected. But on occasion it may be necessary to allow time in which the FSA can monitor the content of the service. This might happen where, for example, a service is in a form that makes record keeping difficult (such as a large website
PERG 7.6.6GRP
The FSA will consider any application for a certificate on its merits.
PERG 7.6.7GRP
Before it gives a certificate, the FSA must be satisfied that the principal purpose of the publication or service is neither of the purposes referred to in the exclusion (see PERG 7.4.5 G). If there is insufficient evidence, a certificate cannot be given.
PERG 7.6.8GRP
The FSA will form an overall view as to the purpose (or purposes) underlying the publication or service. It will then determine whether the principal purpose is neither of those referred to in article 54 of the Regulated Activities Order. Because the possible range of subject matter covered by different publications or services is very wide it is not possible to apply standard tests. The FSA will form a judgment as to the overall impression created by the publication or service.
PERG 7.6.9GRP
In reaching a view, the FSA will take into account both editorial and promotional material in the publication or service. It will also have regard to the stated purpose of the publication or service and to any other material relevant to its purpose.
PERG 7.6.11GRP
If the FSA decides to grant the application it will issue a certificate. The certificate will normally be granted for an indefinite period. It will state what it is that the FSA considers constitutes the periodical or service in relation to which the FSA is satisfied that the exclusion in article 54 of the Regulated Activities Order applies. In many cases this will be self-evident. But it may sometimes be necessary to include further details in the certificate indicating what
PERG 7.6.12GRP
An application may be refused on the grounds that the FSA is not satisfied that the principal purpose of the publication or service is neither of those mentioned in article 54(1)(a) or (b) of the Regulated Activities Order (see PERG 7.4.5 G). An application may also be refused on the grounds that the FSA considers that the vehicle through which advice is to be given is not a newspaper, journal, magazine or other periodical publication, a regularly updated news or information service
FEES 2.1.1RRP
120This120 chapter applies to every person who is required to pay a fee or share of a levy to the FSA, FOS Ltd or FSCS, as the case may be, by a provision of the Handbook.
FEES 2.1.4GRP
The purpose of this chapter is to set out the general provisions applicable to those who are required to pay fees or levies to FSA, case fees to FOS Ltd or a share of the FSCS levy.
FEES 2.1.5GRP
Paragraph 17 of Schedule 1 and section 99 to the Act enable the FSA to charge fees to cover its costs and expenses in carrying out its functions. The corresponding provisions for the FSCS levy and FOS levies and case fees are set out in FEES 6.1, and FEES 5.2 respectively.
FEES 2.1.6GRP
The FSA fees payable will vary from one financial year to another, and will reflect the FSA's funding requirement for that period and the other key components, as described in FEES 2.1.7G. Periodic fees, which will normally be payable on an annual basis, will provide the majority of the funding required to enable the FSA to undertake its statutory functions.
FEES 2.1.7GRP
The key components of the FSA fee mechanism (excluding the FSCSlevy and FOS levy and case fees, which are dealt with in FEES 5 and FEES 6) are:(1) a funding requirement derived from:(a) the FSA's financial management and reporting framework;(b) the FSA's budget; and(c) adjustments for audited variances between budgeted and actual expenditure in the previous accounting year, and reserves movements (in accordance with the FSA's reserves policy);(2) mechanisms for applying penalties
FEES 2.1.9GRP
By basing fee-blocks on categories of business, the FSA aims to minimise cross-sector subsidies. The membership of the fee-blocks is identified in the FEES provisions relating to the type of fees concerned.
REC 3.14.1GRP
The purpose of REC 3.14 is to ensure that the FSA is informed of planned changes to the services a UK recognised body intends to provide and of the normal hours of operation of those services. Unplanned suspensions of those services, unplanned changes in hours of operation and events causing a UK recognised body to be unable to provide those services should be notified to the FSA under the rules in REC 3.15.
REC 3.14.2RRP
Where a UK RIE proposes to admit to trading (or to cease to admit to trading) by means of its facilities:(1) a specified investment (other than a security or an option in relation to a security); or(2) a type of security or a type of option in relation to a security; it must give the FSA notice of that event, and the information specified for the purposes of this rule in REC 3.14.6 R to the FSA, at the same time as that proposal is first formally communicated to its members or
REC 3.14.2ARRP
1When a UK RIE removes a financial instrument from trading on a regulated market, it must immediately give the FSA notice of that event and relevant information including particulars of that financial instrument and the reasons for the action taken.[Note: Article 41(1), paragraph 2 of MiFID]
REC 3.14.3RRP
Where a UK recognised body proposes to provide (or to cease to provide) clearing services in respect of:(1) a specified investment (other than a security or an option in relation to a security); or (2) a type of security or a type of option in relation to a security;it must, unless REC 3.14.4 R applies, give the FSA notice of that event and the information specified for the purposes of this rule in REC 3.14.6 R, at the same time as that proposal is first formally communicated
REC 3.14.7RRP
Where:(1) a UK RIE proposes to amend the standard terms of any derivative admitted to trading by means of its facilities; or (2) a UK recognised body proposes to amend the standard terms relating to the provision of clearing services for any derivative in respect of which it provides clearing services;it must give the FSA notice of that event, and written particulars of those proposed amendments, at the same time as that proposal is first formally communicated to its members or
REC 3.14.8RRP
Where a UK recognised body proposes to make (or to cease to make) arrangements for the safeguarding and administration of assets belonging to any other person (other than an undertaking in the same group), that recognised body must give the FSA notice of that event, and the information specified for the purposes of this rule in REC 3.14.9 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them).
REC 3.14.10GRP
The FSA does not need to be notified of proposals to offer (or to withdraw offers of) safeguarding and administration services for individual assets of the same type. Specified investments (other than securities) falling within the same article in Part III of the Regulated Activities Order will normally be regarded as being of the same type. Securities falling within the same article in Part III of the Regulated Activities Order which may be given the same generic description
REC 3.14.11RRP
Where a UK recognised body proposes to change its normal hours of operation, it must give the FSA notice of that proposal, and particulars of, and the reasons for, the actions proposed, at the same time as the proposal is first formally communicated to its members or shareholders, or any group or class of them.
REC 3.3.1GRP
Under section 294 of the Act (Modification or waiver of rules), the FSA may, on the application or with the consent of a recognised body (including an overseas recognised body), direct that any notification rule is not to apply to the body or is to apply with such modifications as may be specified in the waiver.
REC 3.3.3GRP
Under section 294(4) of the Act, before the FSA may give a waiver of notification rules, it must be satisfied that:(1) compliance by the recognised body with those notification rules, or with those rules as unmodified, would be unduly burdensome or would not achieve the purpose for which those rules were made; and(2) the waiver would not result in undue risk to persons whose interests those rules are designed to protect.
REC 3.3.4GRP
Where a recognised body wishes to make an application to the FSA for a waiver of a notification rule, it should in the first instance inform its usual supervisory contact at the FSA.
REC 3.3.5GRP
There is no application form, but applicants should make their application formally and in writing and in accordance with any direction the FSA may make under section 294(2) of the Act. Each application should set out at least:(1) full particulars of the waiver which is requested; (2) the reason why the recognised body believes that the criteria set out in section 294(4) (and described in REC 3.3.3 G) would be met, if this waiver were granted; and (3) where the recognised body
REC 3.3.6GRP
The FSA may request further information from the applicant, before deciding whether to give a waiver under section 294 of the Act.
REC 3.3.7GRP
Any waiver given by the FSA under section 294 of the Act will be made in writing, stating: (1) the name of the recognised body in respect of which the waiver is made;(2) the notification rules which are to be waived or modified in respect of that body;(3) where relevant, the manner in which any rule is to be modified;(4) any condition or time limit to which the waiver is subject; and(5) the date from which the waiver is to take effect.
REC 3.3.8GRP
Where the FSA considers that it will not give the waiver which has been applied for, the FSA will give reasons to the applicant for its decision. The FSA will endeavour, where practicable, to inform an applicant in advance where it seems that an application is likely to fail unless it is amended or expanded, so that the applicant will have the opportunity to make any necessary amendments or additions before the application is considered.
REC 3.3.9GRP
Where the FSA wishes to give a waiver under section 294 of the Act with the consent of a recognised body (rather than on the application of a recognised body), the FSA will correspond or discuss this with that body in order to agree an appropriate waiver.
REC 3.3.10GRP
The FSA will periodically review any waiver it has given. The FSA has the right to revoke a waiver under section 294(6) of the Act. This right is likely to be exercised in the event of a material change in the circumstances of the recognised body or in any fact on the basis of which the waiver was given.
REC 4.2D.1GRP
(1) 1Under section 313A of the Act, the FSA may for the purpose of protecting:(a) the interests of investors; or (b) the orderly functioning of the financial markets; require a UK RIE to suspend or remove a financial instrument from trading.(2) If the FSA exercises this power, the UK RIE concerned may refer the matter to the Tribunal.
REC 4.2D.2GRP
The procedure the FSA will follow if it exercises its power to require a UK RIE to suspend or remove a financial instrument from trading is set out in section 313B of the Act. The FSA's internal arrangements provide for decisions to exercise this power to be taken at an appropriately senior level. If the FSA exercises this power, the UK RIE concerned and the issuer (if any) of the relevant financial instrument may refer the matter to the Tribunal(see EG 2.39)2.2
RCB 3.5.2DRP
If an owner proposes to transfer the asset pool to a new owner it must provide the FSA as a minimum with the following information in writing at least three months before the proposed transfer date:(1) name, address and contact details of the proposed new owner;(2) proposed transfer date and reasons for the transfer;(3) an explanation of how the proposed new owner will comply with the requirements imposed on it by the RCB Regulations and RCB; and(4) confirmation that the existing
RCB 3.5.4DRP
If an issuer proposes to make a material change to the contractual terms of a regulated covered bond, it must inform the FSA of the following information to the FSA at least 3 months before the proposed date of the change:(1) details of the proposed change including proposed date of change and the reasons for it;(2) an assessment of the impact of the change on the ability of the issuer and owner to continue to comply with their requirements under the RCB Regulations and RCB; and
RCB 3.5.5GRP
The FSA will regard as material any change that may affect the ability of the issuer or the owner to continue to comply with the requirements made on them under the RCB Regulations and RCB.
RCB 3.5.6DRP
The issuer or the owner, as the case may be, must notify the FSA immediately, in writing by e-mail or hand-delivered letter, if Regulation 18(2), or 24(1)(c) of the RCB Regulations (obligation to inform FSA if asset pool not capable, or not likely to be capable of covering claims) is triggered.
RCB 3.5.7DRP
The issuer or the owner, as the case may be, must notify the FSA immediately in writing by e-mail, or hand-delivered letter, if requirements relating to the relevant regulated covered bond under the RCB Regulations or RCB are, or are likely to be, materially breached, or of any other matter which the FSA should be made aware of.
PERG 4.11.1GRP
Section 19 of the Act (The general prohibition) provides that the requirement to be authorised under the Act only applies in relation to regulated activities which are carried on 'in the United Kingdom'. In many cases, it will be quite straightforward to identify where an activity is carried on. But when there is a cross-border element, for example because a borrower is outside the United Kingdom or because some other element of the activity happens outside the United Kingdom,
PERG 4.11.6GRP
The exclusions in article 72(5A) to (5F) of the Regulated Activities Order (Overseas persons) provide that an overseas person does not carry on the regulated activities of:(1) arranging (bringing about) or making arrangements with view to a regulated mortgage contract;(2) entering into a regulated mortgage contract; or(3) administering a regulated mortgage contract;if the borrower (and each of them, if more than one) is an individual and is normally resident overseas. In the case
PERG 4.11.8GRP
The FSA's view of the effect of the Act and Regulated Activities Order in various territorial scenarios is set out in the remainder of this section. In those scenarios:(1) the term "service provider" is used to describe a person carrying on any of the regulated mortgage activities;(2) the term "borrower" refers to a borrower who is an individual and not a trustee; the position of a borrower acting as a trustee is not considered; and(3) it is assumed that the activity is not an
PERG 4.11.13GRP
When a person is arranging (bringing about) regulated mortgage contracts or making arrangements with a view to regulated mortgage contracts from overseas, the question of whether he will be carrying on regulated activities in the United Kingdom will depend on the relevant circumstances. In the FSA's view, factors to consider include:(1) the territorial limitation in the definition of regulated mortgage contract so that regulation only applies if the land is in the United Kingdom;(2)
PERG 4.11.14GRP
In the FSA's view:(1) if the borrower is normally resident in the United Kingdom, the clear territorial limitation in the definition of regulated mortgage contract carries most weight in determining where regulation should apply; it is likely that the arranger will be carrying on regulated activities in the United Kingdom;(2) if the borrower is normally resident overseas, the arrangements are excluded by the overseas persons exclusion.In the case of arranging (bringing about)
PERG 4.11.15GRP
In the FSA's view, advising on regulated mortgage contracts is carried on where the borrower receives the advice. Accordingly:(1) if the borrower is located in the United Kingdom, a person advising that borrower on regulated mortgage contracts is carrying on a regulated activity in the United Kingdom; but(2) if the service provider and borrower are both located overseas, the regulated activity is not carried on in the United Kingdom.
PERG 4.11.17GRP
In the FSA's view, in circumstances other than those excluded by article 72(5D) of the Regulated Activities Order, an overseas lender is likely to carry on the regulated activity of entering into regulated mortgage contracts in the United Kingdom. This is because of:(1) the territorial limitation in the definition of regulated mortgage contract so that regulation applies only if the land is in the United Kingdom;(2) the general principle and practice that contracts relating to
PERG 4.11.19GRP
In the FSA's view, in circumstances other than those excluded by article 72(5E) of the Regulated Activities Order, an overseas administrator is likely to carry on the regulated activity of administering a regulated mortgage contract in the United Kingdom. This is because:(1) the territorial limitation in the definition of regulated mortgage contract means that regulation applies only if the land is in the United Kingdom;(2) when administrators notify borrowers resident in the
PERG 4.11.20GRP
In most cases, there will be no preliminary agreement to enter into a regulated mortgage contract in advance of entering into the contract itself. Moreover, the exclusions relevant to a regulated activity are taken into account to determine whether a person is agreeing to carry on that regulated activity. So, for example, agreeing to arrange regulated mortgage contracts in cases where borrower and service provider are overseas, would not be regulated activities because the activities
PERG 4.11.22GRP
The FSA will be responsible for implementing the Distance Marketing Directive for those firms and activities it regulates. The FSA and the Treasury agree that the Distance Marketing Directive is intended to operate on a country of origin basis, except where a firm is marketing into the UK from an establishment in an EEA State which has not implemented the Directive.
PR 3.1.3RRP
(1) The applicant must submit to the FSA by the date specified in paragraph (2):(a) the completed form A in final form;(b) the relevant fee; and(c) the other information referred to in PR 3.1.1 R in draft form.(2) The date referred to in paragraph (1) is:(a) at least 10 working days before the intended approval date of the prospectus; or(b) at least 20 working days before the intended approval date of the prospectus if the applicant does not have transferable securitiesadmission
PR 3.1.6GRP
If an applicant wishes the FSA to provide a certificate of approval to another competent authority at the time the prospectus is approved, it should include a request for the supply of the certificate with its application for approval of the prospectus (PR 5.3.2 R sets out the requirements for such a request).
PR 3.1.7UKRP

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

(1)

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

(a)

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

(b)

the prospectus contains the necessary information, and

(c)

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

PR 3.1.9RRP
The FSA will follow the executive procedures for statutory notice decisions and statutory notice associated decisions if it:(1) proposes to refuse to approve a prospectus; or(2) decides to refuse to approve a prospectus after having given the applicant a written notice.Note: DEPP 44 sets out the executive procedures for statutory notice decisions and statutory notice associated decisions.4
PR 3.1.10RRP
A prospectus must not be published until it has been approved by the FSA. [ Note: article 13.1 PD ]
PR 3.1.12RRP
(1) A person seeking to have the function of approving a prospectus transferred to the competent authority of another EEA State must make a written request to the FSA at least 10 working days before the date the transfer is sought.(2) The request must:(a) set out the reasons for the proposed transfer;(b) state the name of the competent authority to whom the transfer is sought; and(c) include a copy of the draft prospectus.
PR 3.1.13GRP
The FSA will consider transferring the function of approving a prospectus to the competent authority of another EEA State:(1) if requested to do so by the issuer, offeror or person requesting admission or by another competent authority; or(2) in other cases if the FSA considers it would be more appropriate for another competent authority to perform that function.
PR 3.1.14RRP
A person who wishes the FSA to vet an equivalent document referred to in PR 1.2.2 R (2) or (3) or PR 1.2.3R (3) or (4) must submit to the FSA:(1) a copy of the document;(2) a cross reference list identifying the pages in the document where each item that is equivalent to the disclosure requirements for a prospectus may be found;(3) contact details of individuals who are:(a) sufficiently knowledgeable about the documentation to be able to answer queries from the FSA; and(b) available
GEN 5.1.1GRP
1This chapter contains:2(1) guidance for firms and appointed representatives or tied agents5on the circumstances in which the FSA permits firms and their appointed representatives or tied agents5to reproduce the FSA logo;2(2) rules on the use by firms of the Key facts logo.2
GEN 5.1.2GRP
The FSA logo is a registered UK service mark, with number 2150560. The Key facts logo is a registered Community trade mark, with the number E3866688. Both are3 the property of the FSA. They are 3also subject to copyright and may be used or reproduced with permission of the FSA only. If the FSA or Key facts logos are 3reproduced or otherwise used by any person without such permission the FSA may seek to enforce its rights over its property through the Courts.333
GEN 5.1.3GRP
GEN 5 Annex 1 G is a general licence, which sets out the circumstances in which the FSA permits firms and their appointed representatives or tied agents5to reproduce the FSA and Key facts logos3. A firm, appointed representative or tied agent5need not apply for an individual licence if it uses or reproduces the logos 3in accordance with the general licence.353
GEN 5.1.4GRP
The FSA has no policy to allow use of the logos3 by a firm, appointed representative or tied agent5other than as set out in GEN 5 Annex 1 G. If, however, a firm, appointed representative or tied agent5 wishes to use or reproduce either of3 the logos3 other than in accordance with the general licence, it may apply to the FSA for an individual licence, giving full reasons why it considers the FSA should grant the licence.355
GEN 5.1.8RRP
6A firm must not use the FSA logo (and must take all reasonable steps to ensure that its representatives do not use the FSA logo) in any communication with a client other than in accordance with the general licence in GEN 5 Annex 1 G or any individual licence granted by the FSA to the firm or its representatives.
REC 3.15.1GRP
(1) The purpose of REC 3.15.2 R to REC 3.15.5 G is to enable the FSA to obtain information where a UK recognised body decides to suspend the provision of its services in relation to particular investments. Planned changes to the provision of services should be notified to the FSA under REC 3.14.(2) REC 3.15.6 R to REC 3.15.7 R provide for notification to the FSA where a UK recognised body is unable to operate or provide its facilities for reasons outside its control or where it
REC 3.15.2RRP
Where, for any reason, an RIE: (1) suspends trading in any derivative (other than an option in relation to a security), in any type of security or in any type of option in relation to a security; or(2) temporarily calls a trading halt in respect of any type of security or in any type of option in relation to a security;it must immediately give the FSA notice of that event, particulars of that derivative, type of security or type of option in relation to a security, as the case
REC 3.15.2ARRP
1When a UK RIE suspends trading on a regulated market in any financial instrument, it must immediately give the FSA notice of that event and relevant information including particulars of that financial instrument and the reasons for the action taken. [Note: Article 41(1), paragraph 2 of MiFID]
REC 3.15.3RRP
Where a UK recognised body suspends providing clearing services generally in respect of any derivative (other than an option in relation to a security), type of security or type of option in relation to a security, it must immediately give the FSA notice of that event, particulars of that derivative, type of security or type of option in relation to a security, as the case may be, and the reasons for the action taken.
REC 3.15.4RRP
Where a UK recognised body suspends any arrangements it makes for the safeguarding and administration of any type of asset belonging to any other person (other than an undertaking in the same group), that UK recognised body must immediately give the FSA notice of that event, particulars of that type of asset and the reasons for the action taken.
REC 3.15.6RRP
Where, because of the occurrence of any event or circumstances, a UK recognised body is unable to operate any of its facilities within its normal hours of operation, it must immediately give the FSA notice of that inability and inform the FSA:(1) which facility it is unable to operate; (2) what event or circumstance has caused it to become unable to operate that facility within those hours; and(3) what action, if any, it is taking or proposes to take to enable it to recommence
REC 3.15.7RRP
Where, because of the occurrence of any event or circumstances, a UK recognised body extends its hours of operation, it must immediately give the FSA notice of that event, and inform the FSA:(1) what event or circumstance has caused it to do so; (2) the new hours of operation; and(3) the date on which it expects to revert to its normal hours of operation.
SUP 7.2.1GRP
The FSA has the power under section 45of the Act (Variation on the Authority's own initiative) to vary a firm's Part IV permission. This includes imposing a statutory requirement or limitation on that Part IV permission.1
SUP 7.2.2GRP
The circumstances in which the FSA may vary a firm'sPart IV permission on its own initiative under section 45 of the Act include where it appears to the FSA that:(1) one or more of the threshold conditions is or is likely to be no longer satisfied; or(2) it is desirable to vary a firm's permission in order to protect the interests of consumers or potential consumers.
SUP 7.2.3GRP
The FSA may also use its powers under section 45 for enforcement purposes. EG 82 sets out in detail the FSA's powers under section 45 and the circumstances under which the FSA may vary a firm's permission in this way, whether for enforcement purposes or as part of its day to day supervision of firms. This chapter provides additional guidance on when the FSA will use these powers for supervision purposes.2
SUP 7.2.4GRP
The FSA may use its powers under section 45 of the Act only in respect of a Part IV permission ; that is, a permission granted to a firm under section 42 of the Act (Giving permission) or having effect as if so given. In respect of an incoming EEA firm, an incoming Treaty firm, or a UCITS qualifier, this power applies only in relation to any top-up permission that it has. There are similar but more limited powers under Part XIII of the Act in relation to the permission of an
SUP 7.2.5GRP
If the FSA exercises its powers under section 45 of the Act, it will do so by issuing a supervisory notice. The procedure that will be followed is set out in DEPP 22. 2
SUP 7.2.6GRP
A firm has a right of referral to the Financial Services and Markets Tribunal in respect of the exercise by the FSA of its powers to vary, on its own initiative, the firm'sPart IV permission.2
SUP 3.10.4RRP
An auditor of a firm must submit a report addressed to the FSA, signed in his capacity as auditor, which: (1) 5states the matters set out in SUP 3.10.5 R; or(2) if the firm claims not to hold client money or custody assets, states whether anything has come to the auditor's attention that causes him to believe that the firm held client money or custody assets during the period covered by the report.
SUP 3.10.7RRP
An auditor must deliver a report under SUP 3.10.4 R to the FSA within a reasonable time from the 3end of each period covered, unless it is the auditor of a firm falling within category (10) of SUP 3.1.2 R.13
SUP 3.10.8RRP
If an auditor is unable to report to the FSA within a reasonable time,3 the auditor must notify the FSA and advise the FSA of the reasons why it has been unable to meet the requirements of SUP 3.10.7 R.3
SUP 3.10.8ARRP
1The auditor of a firm falling within category (10) of SUP 3.1.2 R must deliver a report under SUP 3.10.4 R:(1) to the firm so as to be received within four months of the end of each period covered; and(2) to the FSA upon request within six years of the end of the period covered.
SUP 3.10.8BGRP
1The rights and duties of auditors are set out in SUP 3.8 (Rights and duties of all auditors) and SUP 3.10 (Duties of auditors: notification and report on client assets). SUP 3.8.10 G also refers to the auditor's statutory duty to report certain matters to the FSA imposed by regulations made by the Treasury under sections 342(5) and 343(5) of the Act (information given by auditor or actuary to the FSA). An auditor should bear these rights and duties in mind when carrying out client
SUP 3.10.8CGRP
1It is the responsibility of an insurance intermediary's senior management to determine, on a continuing basis, whether the firm is an exempt insurance intermediary for the purposes of this requirement and to appoint an auditor if management determines the firm is no longer exempt. SUP 3.7 (amplified by SUP 15) sets out what a firm should consider when deciding whether it should notify the FSA of matters raised by its auditor.
SUP 3.10.13GRP
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 reports required by SUP 3.10 because of the specific provisions in SUP 3.10.12 R.
SUP 8.6.1GRP
The FSA is required by section 148(6) of the Act to publish a waiver unless it is satisfied that it is inappropriate or unnecessary to do so. If the FSA publishes a waiver, it will not publish details of why a waiver was required or any of the supporting information given in a waiver application.
SUP 8.6.2GRP
When considering whether it is satisfied under section 148(6), the FSA is required by section 148(7) of the Act:(1) to take into account whether the waiver relates to a rule contravention of which is actionable under section 150 of the Act (Actions for damages); Schedule 5 identifies such rules;(2) to consider whether its publication would prejudice, to an unreasonable degree, the commercial interests of the firm concerned, or any other member of its immediate group; and(3) to
SUP 8.6.3GRP
Waivers can affect the legal rights of third parties, including consumers. In the FSA's view it is important that the fact and effect of such waivers should be transparent. So the fact that a waiver relates to a rule that is actionable under section 150 of the Act (see SUP 8.6.2 G (1)) will tend to argue in favour of publication.
SUP 8.6.5GRP
In considering whether commercial interests would be prejudiced to an unreasonable degree (see SUP 8.6.2 G (2)), the FSA will weigh the prejudice to firms' commercial interests against the interests of consumers, markets and other third parties in disclosure. In doing so the FSA will consider factors such as the extent to which publication of the waiver would involve the premature release of proprietary information to commercial rivals, for example relating to a product innovation,
SUP 8.6.6GRP
The FSA may consider publication unnecessary where, for example, the waiver relates to a minor matter that does not affect any third party and is unlikely to be of relevance or interest to other firms.
SUP 8.6.7GRP
If, after taking into account the matters in SUP 8.3.3 D to SUP 8.6.6 G, a firm believes there are good grounds for the FSA either to withhold publication or to publish the waiver without disclosing the identity of the firm, it should make this clear in its application (see SUP 8.3.3 D (7)). If the FSAproposes to publish a waiver against the wishes of the firm, the FSA will give the firm the opportunity to withdraw its application before the waiver is given.
SUP 8.6.8GRP
A decision to withhold a waiver or identity of a firm from publication may be for a limited period only, usually as long as the duration of the relevant grounds for non-publication. If the FSA proposes to publish information about a waiver that had previously been withheld, it will first give the firm an opportunity to make representations.
SUP 8.6.9GRP
The principal means of publication of waiver information will be the FSA's website (www.fsa.gov.uk).
SUP 2.1.3GRP
Achieving the regulatory objectives involves the FSA informing itself of developments in firms and in markets. The Act requires the FSA to monitor a firm's compliance with requirements imposed by or under the Act (paragraph 6 (1) of Schedule 1). The Act also requires the FSA to take certain steps to cooperate with other regulators (section 354). For these purposes, the FSA needs to have access to a broad range of information about a firm's business.
SUP 2.1.4GRP
The FSA receives the information in SUP 2.1.3 G through a variety of means, including notifications by firms (see SUP 15) and regular reporting by firms (see SUP 16). This chapter is concerned with the methods of information gathering that the FSA may use on its own initiative in the discharge of its functions under the Act. This chapter does not deal with the information gathering powers that the FSA has under the Unfair Terms Regulations. These are dealt with in UNFCOG2.12
SUP 2.1.5GRP
Part XI of the Act (Information Gathering and Investigations) gives the FSA statutory powers, including: (1) to require the provision of information (see section 165 and EG 32);2(2) to require reports from skilled persons (see section 166 and SUP 5);(3) to appoint investigators (see sections 167, 168 and 169 of the Act and EG 32); and2(4) to apply for a warrant to enter premises (see section 176 of the Act and EG 42).2
SUP 2.1.6GRP
The FSA prefers to discharge its functions by working in an open and cooperative relationship with firms. The FSA will look to obtain information in the context of that relationship unless it appears that obtaining information in that way will not achieve the necessary results, in which case it will use its statutory powers. The FSA has exercised its rule-making powers to make Principle 11 which requires that a firm must deal with its regulators in an open and cooperative way,
SUP 2.1.7GRP
The FSA operates in the context of the Act and the general law. The purpose of SUP 2.2 is to explain how certain provisions of the Act and the general law are relevant to the FSA's methods of information gathering described in SUP 2.3 and SUP 2.4.
SUP 2.1.8GRP
The purpose of SUP 2.3 is to amplify Principle 11 in the context of information gathering by the FSA on its own initiative in the discharge of its functions under the Act. SUP 2.3 therefore sets out, in guidance on Principle 11 and in rules, how the FSA expects firms to deal with the FSA in that context, including the steps that a firm should take with a view to ensuring that certain connected persons should also cooperate with the FSA.
SUP 2.1.9GRP
The purpose of SUP 2.4 is to explain a particular method of information gathering used by the FSA, known as "mystery shopping". Information about how a firm sells financial products can be very difficult to obtain, and the purpose of this method is to obtain such information from individuals who approach a firm in the role of potential retail consumers on the FSA's initiative. The FSA may seek information about particular issues or the activities of individual firms by means
DISP 1.10.1RRP
Twice a year a firm must provide the FSA with a complete report concerning complaints received from eligible complainants. The report must be set out in the format in DISP 1 Annex 1.
DISP 1.10.1CRRP
1Firms that are part of a group may submit a joint report to the FSA . The joint report must contain the information required from all firms concerned and clearly indicate the firms on whose behalf the report is submitted. The requirement to provide a report, and the responsibility for the report, remains with each firm in the group.
DISP 1.10.5RRP
Reports are to be submitted to the FSA within 30 business days of the end of the relevant reporting periods through, and in the electronic format specified in, the FSA Complaints Reporting System or the appropriate section of the FSA website.
DISP 1.10.6RRP
If a firm is unable to submit a report in electronic format because of a systems failure of any kind, the firm must notify the FSA , in writing and without delay, of that systems failure.
DISP 1.10.9RRP
For the purpose of inclusion in the public record maintained by the FSA, a firm must:(1) provide the FSA, at the time of its authorisation, with details of a single contact point within the firm for complainants; and(2) notify the FSA of any subsequent change in those details when convenient and, at the latest, in the firm's next report under the complaints reporting rules.
COND 1.3.1GRP
The guidance in COND 2 explains each threshold condition in Part I of Schedule 6 (threshold conditions) to the Act and how the FSA will interpret it in practice. An overview of the threshold conditions is given in COND 1 Annex 1 G. This guidance is not, however, exhaustive and is written in very general terms. A firm will need to have regard to the obligation placed upon the FSA under section 41 (the threshold conditions) of the Act; that is, the FSA must ensure that the firm
COND 1.3.2GRP
(1) The FSA will consider whether a firm satisfies, and will continue to satisfy, the threshold conditions in the context of the size, nature, scale and complexity of the business which the firm carries on or will carry on if the relevant application is granted.(2) In relation to threshold conditions 4 and 5, the FSA will consider whether a firm is ready, willing and organised to comply, on a continuing basis, with the requirements and standards under the regulatory system which
COND 1.3.3GRP
Although the FSA may consider that a matter is relevant to its assessment of a firm, the fact that a matter is disclosed to the FSA, for example in an application, does not necessarily mean that the firm will fail to satisfy the threshold conditions. The FSA will consider each matter in relation to the regulated activities for which the firm has, or will have, permission, having regard to the regulatory objectives set out in section 2 of the Act (The FSA's general duties). A firm
COND 1.3.4GRP
(1) For ease of reference, the threshold conditions in or under Schedule 6 to the Act have been quoted in full in COND 2. (2) As these provisions impose obligations, they are printed in bold type. The use of bold type is not intended to indicate that these quotations are rules made by the FSA.(3) Where words have been substituted for the text of these provisions the substitutions are enclosed in square brackets ([ ]). However, none of the changes made by the FSA in these quotations
APER 4.4.3ERP
In the opinion of the FSA, conduct of the type described in APER 4.4.4 E, APER 4.4.7 E, or APER 4.4.9 E does not comply with Statement of Principle 4 (APER 2.1.2 P).
APER 4.4.4ERP
Failing to report promptly in accordance with his firm's internal procedures (or if none exist direct to the FSA), information which it would be reasonable to assume would be of material significance to theFSA, whether in response to questions or otherwise, falls within APER 4.4.3 E.
APER 4.4.5GRP
There is no duty on an approved person to report such information directly to the FSA unless he is one of the approved persons responsible within the firm for reporting matters to the FSA. However, if an approved person takes steps to influence the decision so as not to report to the FSA or acts in a way that is intended to obstruct the reporting of the information to the FSA, then the FSA will, in respect of that information, view him as being one of those within the firm who has
APER 4.4.6ERP
In determining whether or not an approved person's conduct under APER 4.4.4 E complies with Statement of Principle 4, the following are factors which, in the opinion of the FSA, are to be taken into account:(1) the likely significance to the FSA of the information which it was reasonable for the individual to assume;(2) whether the information related to the individual himself or to his firm;(3) whether any decision not to report the matter internally was taken after reasonable enquiry
APER 4.4.8ERP
In determining whether or not an approved person's conduct under APER 4.4.7 E complies with Statement of Principle 4(APER 2.1.2 P), the following are factors which, in the opinion of the FSA, are to be taken into account:(1) the likely significance of the information to the FSA which it was reasonable for the approved person to assume;(2) whether any decision not to inform the FSA was taken after reasonable enquiry and analysis of the situation.
REC 3.26.1GRP
1Under section 300B(1) of the Act (Duty to notify proposal to make regulatory provision), a UK recognised body that proposes to make any regulatory provision must give written notice of the proposal to the FSA without delay.
REC 3.26.2GRP
1Under section 300B(2) of the Act, the FSA may, by rules under section 293 (Notification requirements):(1) 1specify descriptions of regulatory provision in relation to which, or circumstances in which, the duty in section 300B(1) does not apply, or(2) 1provide that the duty applies only to specified descriptions of regulatory provision or in specified circumstances.
REC 3.26.3GRP
1Under section 300B(3) of the Act, the FSA may also by rules under section 293: (1) 1make provision as to the form and contents of the notice required, and(2) 1require the UK recognised body to provide such information relating to the proposal as may be specified in the rules or as the FSA may reasonably require.
REC 3.26.5RRP
1A notice under section 300B(1) of the Act of a proposal to make a regulatory provision must be in writing and state expressly that it is a notice for the purpose of that section. To be effective, a notice must: (1) 1contain full particulars of the proposal to make a regulatory provision which is the subject of that notice; and(2) 1either be accompanied by sufficient supporting information to enable the FSA to assess the purpose and effect of the proposed regulatory provision
REC 3.26.6GRP
1In determining whether a UK recognised body has provided sufficient supporting information, the FSA may have regard to the extent to which the information includes:(1) 1clearly expressed reasons for the proposed regulatory provision; and(2) 1an appropriately detailed assessment of the likely costs and benefits of the proposed regulatory provision.
REC 3.26.7RRP
1A UK recognised body must provide such additional information in connection with a notice under section 300B(1) of the Act as the FSA may reasonably require.
REC 3.26.8GRP
1Where a UK recognised body wishes to give notice to the FSA for the purposes of section 300B(1) of the Act, it should in the first instance inform its usual supervisory contact at the FSA.
REC 3.26.9GRP
1The FSA expects that an advanced draft of any consultation document a UK recognised body intends to publish in connection with a proposed regulatory provision could provide some or all of the information described in REC 3.26.5 R
SUP 13.7.3GRP
If a UK firm is passporting under the UCITS Directive, regulation 12(1) states that the UK firm must not make a change in its programme of operations, or the activities to be carried on under its EEA right, unless the relevant requirements in regulation 12(2) have been complied with. These requirements are:5(1) the UK firm has given a notice to the FSA and to the Host State regulator stating the details of the proposed change; or(2) if the change arises as a result of circumstances
SUP 13.7.6AGRP
5UK firms may wish to use the standard form available from the Passport Notifications Unit(see SUP 13.12 (Sources of further information)) to give the notices to the FSA as described in SUP 13.7.3 G (1), SUP 13.7.3A G, SUP 13.7.3B G, 5SUP 13.7.5 G (1) and SUP 13.7.6 G.
SUP 5.5.1RRP
When a firm appoints a skilled person to provide a report under section 166 of the Act (Reports by skilled persons), the firm must, in a contract with the skilled person:(1) require and permit the skilled person during and after the course of his appointment:(a) to cooperate with the FSA in the discharge of its functions under the Act in relation to the firm; and(b) to communicate to the FSA information on, or his opinion on, matters of which he has, or had, become aware in
SUP 5.5.2GRP
In complying with the contractual duty in SUP 5.5.1 R (1) the FSA expects that a skilled person appointed under section 166 of the Act (Reports by skilled persons) will cooperate with the FSA by, amongst other things, providing information or documentation about the planning and progress of the report and its findings and conclusions, if requested to do so. A firm should therefore ensure that the contract it makes with the skilled person requires and permits the skilled person
SUP 5.5.3GRP
If the FSA is considering asking for the information specified in SUP 5.5.2 G it will take into consideration the cost of the skilled person complying with the request, and the benefit that the FSA may derive from the information. For example, in most cases, the FSA will not need to request a skilled person to give it source data, documents and working papers. However, the FSA may do so when it reasonably believes that this information will be relevant to any investigation
SUP 5.5.4GRP
In complying with the contractual duty in SUP 5.5.1 R, the FSA expects that, in the case of substantial or complex reports, the skilled person will give a periodic update on progress and issues to allow for a re-focusing of the report if necessary. The channel of communication would normally be directly between the skilled person and the FSA. However, the FSA would also expect firms normally to be informed about the passage of information, and the skilled person would usually
SUP 5.5.5RRP
A firm must ensure that the contract required by SUP 5.5.1 R:(1) is governed by the laws of a part of the United Kingdom; (2) expressly(a) provides that the FSA has a right to enforce the provisions included in the contract under SUP 5.5.1 R and SUP 5.5.5 R (2);(b) provides that, in proceedings brought by the FSA for the enforcement of those provisions, the skilled person is not to have available by way of defence, set-off or counterclaim any matter that is not relevant to
SUP 5.5.6GRP
The Contracts (Rights of Third Parties) Act 1999, or Scots common law, enables the FSA to enforce the rights conferred on it under the contract against the skilled person.
SUP 5.5.7GRP
If the FSA considers it appropriate, it may request the firm to give it a copy of the draft contract before it is made with the skilled person. The FSA will inform the firm of any matters that it considers require further clarification or discussion before the contract is finalised.
SUP 5.5.8GRP
The FSA expects the firm, in complying with Principle 11, to give the FSA information about the cost of the skilled persons report. This may include both an initial estimate of the cost as well as the cost of the completed report. This information is required to help inform the FSA's decision making in the choice of regulatory tools. Information about the number and cost of reports by skilled persons will be published by the FSA.