Related provisions for PERG 8.3.4
181 - 200 of 610 items.
Information is needed to support the FSA's risk based approach to the supervision of all regulated entities. Risk based supervision is intended to ensure that the allocation of supervisory resources and the supervisory process are compatible with the regulatory objectives and the FSA's general duties under the Act. The central element of the process of risk based supervision is a systematic assessment by the FSA (a risk assessment) of the main supervisory risks and concerns for
For each UK recognised body, the FSA will conduct a periodic risk assessment. This assessment will take into account relevant considerations including the special position of recognised bodies under the Act, the nature of the UK recognised body's members, the position of other users of its facilities and the business environment more generally.
The risk assessment will guide the FSA's supervisory focus. It is important, therefore, that there is good dialogue between the FSA and the recognised body. The FSA expects to review its risk assessment with the staff of the UK recognised body to ensure factual accuracy and a shared understanding of the key issues, and may discuss the results of the risk assessment with key individuals of the UK recognised body. If appropriate, the FSA may send a detailed letter to the body's
This chapter is relevant to an applicant for a Part IV permission, as if that applicant were a firm. Where the chapter refers to usualsupervisory contact, the applicant should read this as being the usual contact in the Permissions Department. Further, this chapter is relevant to a person who is subject to rules made by the FSA and where the chapter refers to a firm, this includes that person5.15
The FSA expects to have an open, cooperative and constructive relationship with UK recognised bodies to enable it to have a broad picture of the UK recognised body's activities and its ability to meet the recognition requirements. This broad picture is intended to complement the information which the FSA will obtain under section 293 of the Act (Notification requirements) or under notification rules made under that section (see REC 3). The FSA will usually arrange meetings between
The FSA expects a UK recognised body to take its own steps to assure itself that it will continue to satisfy the recognition requirements, the MiFID implementing requirements (in the case of a UK RIE)1 and other obligations in or under the Act when considering any changes to its business or operations.
However, the FSA also expects that UK recognised bodies will keep it informed of all significant developments and of progress with itsplans and operational initiatives, and will provide it with appropriate assurance that the recognition requirements and the MiFID implementing requirements (in the case of a UK RIE)1 will continue to be satisfied.
Section 81 of the Act (supplementary listing particulars) requires
an issuer to submit supplementary listing particulars to the FSA for approval if at any time after listing particulars have been submitted
to the FSA and before the commencement of dealings
in the securities following
their admission to the official list:(1) there is a significant change affecting
any matter contained in those particulars the inclusion of which was required
by:(a) section 80 of the Act (general
1If
final terms of the offer are not included in the listing
particulars:(1) the final terms must be provided
to investors and filed with the FSA, and made available to the public,
as if the relevant requirements in PR 3.2 and the PD Regulation applied
to them; and(2) the listing
particulars must disclose the criteria and/or the conditions
in accordance with which the above elements will be determined or, in the
case of price, the maximum price.
The FSA will apply the following principles of construction to determine whether a contract is a contract of insurance.(1) In applying the description in PERG 6.3.4 G, more weight attaches to the substance of the contract, than to the form of the contract. The form of the contract is relevant (see PERG 6.6.8 G (3) and (4)) but not decisive of whether a contract is a contract of insurance: Fuji Finance Inc. v. Aetna Life Insurance Co. Ltd [1997] Ch. 173 (C.A.).(2) In particular,
Individual guidance is guidance that is not given to persons or regulated persons generally or to a class of regulated person. It will normally be given to one particular person, which relates to its own particular circumstances or plans. It may be oral or written. Individual guidance will not be published but may at the FSA's discretion be converted to general guidance and published in the Handbook. Written individual guidance will often be labelled as such1
A person may need to ask the FSA for individual guidance on how the rules and general guidance in the Handbook, the Act or other regulatory requirements apply in their particular circumstances. This chapter describes how a person may do this. Section 157 of the Act gives the FSA the power to give guidance consisting of such information and advice as it considers appropriate.
The FSA may revoke a waiver at any time. In deciding whether to revoke a waiver, the FSA will consider whether the conditions in section 148(4) of the Act are no longer satisfied (see SUP 8.3.1 G), and whether the waiver is otherwise no longer appropriate. The FSA may revoke a waiver with immediate effect, if it considers that this is necessary, for example, in order to prevent undue risk to consumers.
If the FSA proposes to revoke a waiver, or revokes a waiver with immediate effect, it will:(1) give the firm written notice either of its proposal, or of its action, giving reasons;(2) state in the notice a reasonable period (usually 28 days) within which the firm can make representations about the proposal or action; if a firm wants to make oral representations, it should inform the FSA as quickly as possible , specify who will make the representations and which matters will
Where a listed company or applicant appoints more than one sponsor , the company must:(1) ensure that one of the sponsors that is appointed takes primaryresponsibility for contact with the FSA in respect of the entire application or transaction; and2(2) inform the FSA, in writing, of the name and contact details of the sponsor taking responsibility under LR 8.5.3R (1)22.
(1) The purpose of REC 3.13 is to enable the FSA to monitor any significant instances where UK recognised bodies outsource their functions to other persons (as they are permitted to dounder Regulation 6 of the Recognition Requirements Regulations. See REC 2.2).(2) The FSA does not need to be notified of every instance of outsourcing by a UK recognised body, but only where an activity or activities which form a significant part of a relevant function or which make a significant
Where a UK recognised body makes an offer or agrees to delegate any of its relevant functions to another person, it must immediately give the FSA notice of that event, and:(1) inform the FSA of the reasons for that delegation or proposed delegation;(2) inform the FSA of the reasons why it is satisfied that it will continue to meet the recognition requirements following that delegation;(3) where it makes such an offer by issuing a written invitation to tender to another body or
In the FSA's opinion, however, such information is likely to take on the nature of advice if the circumstances in which it is provided give it the force of a recommendation. Examples of situations where information provided by a person (P) might take the form of advice are given below.(1) P may provide information on a selected, rather than balanced and neutral, basis that would tend to influence the decision of a person. This may arise where P offers to provide information about
The potential for variation in the form, content and manner of pre-purchase questioning is considerable, but there are two broad types. The first type involves providing questions and answers which are confined to factual matters (for example, the amount of the cover). In the FSA's view, this does not itself amount to advising on contracts of insurance, if it involves the provision of information rather than advice. There are various possible scenarios, including the following:(1)
In the case of PERG 5.8.18G (2) and similar scenarios, the FSA considers that it is necessary to look at the process and outcome of pre-purchase questioning as a whole. It may be that the element of advice incorporated in the questioning can properly be viewed as generic advice if it were considered in isolation. But although the actual advice may be generic, the process has ended in identifying one or more particular contracts of insurance. The combination of the generic advice
This is explained in greater detail, together with the provisions on the granting of certificates by the FSA on the application of the proprietor of a periodical publication or news or information service or broadcast, in PERG 7 (Periodical publications, news services and broadcasts: applications for certification).
Application of different sections of SUP 16
(1) This chapter contains requirements to report to the FSA on a regular basis. These requirements include reports relating to a firm's financial condition, and to its compliance with other rules and requirements which apply to the firm. Where the relevant requirements are set out in another section of the Handbook, this chapter contains cross references. An example of this is financial reporting for insurers and friendly societies.(2) Where such requirements already apply to
In
determining whether or not the conduct of an approved
person performing a significant
influence function under APER 4.6.5 E, APER 4.6.6 E and APER 4.6.8 E complies with Statement
of Principle 6 (see APER
2.1.2 P), the following are factors which, in
the opinion of the FSA, are to be taken into account:(1) the
competence, knowledge or seniority of the delegate; and (2) the
past performance and record of the delegate.
An approved person performing a significant influence function will not
always manage the business on a day-to-day basis himself. The extent to which
he does so will depend on a number of factors, including the nature, scale
and complexity of the business and his position within it. The larger and
more complex the business, the greater the need for clear and effective delegation
and reporting lines. The FSA will look to the approved person performing a significant
influence function
(1) An approved person performing a significant influence function may delegate
the investigation, resolution or management of an issue or authority for dealing
with a part of the business to individuals who report to him or to others.(2) The approved person performing a significant influence function should have
reasonable grounds for believing that the delegate has the competence, knowledge,
skill and time to deal with the issue. For instance, if the compliance department
only
This chapter applies principally to any person who needs to know whether he carries on insurance mediation activities and is thereby subject to FSA regulation. As such it will be of relevance among others to:(1) insurance brokers;(2) insurance advisers;(3) insurance undertakings; and(4) other persons involved in the sale and administration of contracts of insurance, even where these activities are secondary to their main business.
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 and 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.
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)).
In the FSA's view, for a person to be carrying on the business of advising on investments or advising on a home finance transaction1 he will usually need to be doing so with a degree of regularity and for commercial purposes – that is to say, he will normally be expecting to gain some kind of a direct or indirect financial benefit. But, in the FSA's view it is not necessarily the case that advice provided free of charge will not amount to a business. Advice is often given 'free'
In other circumstances, advice issued remotely may still be given in the United Kingdom. For example, the FSA considers that advice is given in the United Kingdom if:(1) it is contained in a non-UK periodical that is posted in hard copy to persons in the United Kingdom;(2) it is contained in a non-UK periodical (or given in or by way of a service) which is made available electronically to such persons.
Many people may be involved in the production of a periodical publication, news service or broadcast. But if the regulated activity of advising on investments or advising on a home finance transaction1 is being carried on so that authorisation is required, the FSA's view is that the person carrying on the activity (and who will require authorisation) is the person whose business it is to have the editorial control over the content. In the case of a periodical publication, this
A person is exempt if he is an appointed representative of an authorised person. See SUP 12 (Appointed representatives). But where an appointed representative carries on insurance mediation or reinsurance mediation he will not be exempt unless he is included on the register kept by the FSA under article 93 of the Regulated Activities Order (Duty to maintain a record of unauthorised persons carrying on insurance mediation activities) (see PERG 5.13 (Appointed representatives
But under section 316 of the Act (Direction by the FSA) the general prohibition does not apply to a person who is a member of the Society of Lloyds unless the FSA has made a direction that it should apply. The general prohibition is disapplied in relation to any regulated activity carried on by a member relating to contracts of insurance written at Lloyds. Directions can be made by the FSA in relation to individual members or the members of the Society of Lloyds taken together.
Such a person may carry on regulated activities if the conditions outlined below are met, that is the person:(1) is not affected by an order or direction made by the FSA under section 328 or 329 of the Act (Directions and orders in relation to the general prohibition) which has the effect of re-imposing the general prohibition in any particular case;(2) is, or is controlled by, a member of a profession;(3) does not receive any pecuniary reward or other advantage from the regulated
A person carrying on regulated activities under the regime for members of the professions will be subject to rules made by the professional body designated by the Treasury. Such bodies are obliged to make rules governing the carrying on by their members of those regulated activities that they are able to carry on without authorisation under the Act. Where such a person is carrying on insurance mediation or reinsurance mediation, he must also be included on the register kept by
(1) This chapter sets out the requirements that a person must follow in applying for an authorisation order for a scheme under regulation 12 of the OEIC Regulations (Applications for authorisation) or section 242 of the Act (Applications for authorisation of unit trust schemes).(2) COLLG 3 (The FSA's responsibilities under the Act) and COLLG 4 (The FSA's responsibilities under the OEIC Regulations) provide more information on what the Act and the OEIC Regulations require in
An application for an authorisation order in respect of an authorised fund must be:(1) in writing in the manner directed and contain the information required in the application form available from the FSA;(2) addressed for the attention of a member of FSA staff responsible for collective investment scheme authorisation matters; and(3) delivered to the FSA's address by one of the following methods:(a) posting; or(b) leaving it at the FSA's address and obtaining a time-stamped receipt;
1A common
platform firm must:(1) when relying on a third party for
the performance of operational functions which are critical for the performance
of regulated activities, listed activities or ancillary
services (in this chapter "relevant services and activities")
on a continuous and satisfactory basis, ensure that it takes reasonable steps
to avoid undue additional operational risk; (2) not undertake the outsourcing of important operational functions
in such a way as to impair
A common platform firm must in particular
take the necessary steps to ensure that the following conditions are satisfied:(1) the service provider must have
the ability, capacity, and any authorisation required
by law to perform the outsourced functions,
services or activities reliably and professionally;(2) the service provider must carry
out the outsourced services
effectively, and to this end the firm must
establish methods for assessing the standard of performance of the service
provider;(3)
A common platform firm must make available
on request to the FSA and
any other relevant competent authority all
information necessary to enable the FSA and
any other relevant competent authority to
supervise the compliance of the performance of the outsourced activities
with the requirements of the regulatory system.[Note: article
14(5) of the MiFID implementing Directive]
As SUP
15.3.8 G explains,
a firm should notify the FSA when
it intends to rely on a third party for the performance of operational functions
which are critical or important for the performance of relevant services and
activities on a continuous and satisfactory basis.[Note: recital 20 of theMiFID implementing Directive]2
2A firm must have robust governance arrangements, which include a clear organisational structure with well defined, transparent and consistent lines of responsibility, effective processes to identify, manage, monitor and report the risks it is or might be exposed to, and internal control mechanisms, including sound administrative and accounting procedures and effective control and safeguard arrangements for information processing systems.3[Note: article 22(1) of the Banking Consolidation
The matters dealt with in a business continuity policy should include:(1) resource requirements such as people, systems and other assets, and arrangements for obtaining these resources;(2) the recovery priorities for the firm's operations; (3) communication arrangements for internal and external concerned parties (including the FSA, clients and the press);(4) escalation and invocation plans that outline the processes for implementing the business continuity plans, together with
A common platform firm must establish, implement and maintain accounting policies and procedures that enable it, at the request of the FSA, to deliver in a timely manner to the FSA financial reports which reflect a true and fair view of its financial position and which comply with all applicable accounting standards and rules.[Note: article 5(4) of the MiFID implementing Directive]