Related provisions for PERG 5.1.7
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Rights conferred on third parties cannot be affected by guidance given by the FSA. This guidance represents the FSA's view, and does not bind the courts, for example, in relation to the enforceability of a contract where there has been a breach of the general prohibition on carrying on a regulated activity in the United Kingdom without authorisation (see sections 26 to 29 of the Act (Enforceability of Agreements)).
This guidance is issued under section 157 of Act (Guidance). It is designed to throw light on particular aspects of regulatory requirements, not to be an exhaustive description of a person's obligations. If a person acts in line with the guidance in the circumstances contemplated by it, then the FSA will proceed on the footing that the person has complied with aspects of the requirement to which the guidance relates.
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
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
This guidance is issued under section 157of the Act (Guidance). It is designed to throw light on particular aspects of regulatory requirements, not to be an exhaustive description of a person's obligations. If a person acts in line with the guidance in the circumstances it contemplates, the FSA will proceed on the footing that the person has complied with aspects of the requirement to which the guidance relates. Rights conferred on third parties cannot be affected by guidance
2This chapter also sets out guidance about section 39A of the Act, which is relevant to a UK MiFID investment firm that is considering appointing an FSA registered tied agent. It also sets out the FSA'srules, and guidance on those rules, in relation to the appointment of an EEA tied agent by a UK MiFID investment firm.
Requests for individual guidance may be made in writing or orally. If oral queries raise complex or significant issues, the FSA will normally expect the details of the request to be confirmed in writing. Simple requests for guidance may often be dealt with orally, although it is open to a person to seek a written confirmation from the FSA of oral guidance given by the FSA.
(1) Regulation 15(8)(f) of the OEIC Regulations (Requirements for authorisation) requires independence between the depositary, the ICVC and the ICVC's directors, as does section 243(4) of the Act (Authorisation orders) for the trustee and manager of an AUT. COLL 6.9.3 G to COLL 6.9.5 G give FSA's view of the meaning of independence of these relationships. An ICVC, its directors and depositary or a manager and a trustee of an AUT are referred to as "relevant parties" in this guidance.(2)
(1) Regulation 15(9) of the OEIC Regulations and section 243(8) of the Act require that an authorised fund's name must not be undesirable or misleading. This section contains guidance on some specific matters the FSA will consider in determining whether the name of an authorised fund is undesirable or misleading. It is in addition to the requirements of regulation 19 of the OEIC Regulations (Prohibition on certain names).(2) The FSA will take into account whether the name of the