Related provisions for PERG 8.3.4
141 - 160 of 627 items.
If a decision maker is asked to decide whether to give a decision notice or second supervisory notice, it will:(1) review the material before it;(2) consider any representations made (whether written, oral or both) and any comments by FSA staff or others in respect of those representations;(3) decide whether to give the notice and the terms of any notice given.
If the FSA receives no response or representations within the period specified in a warning notice, the decision maker may regard as undisputed the allegations or matters in that notice and a decision notice will be given accordingly. A person who has received a decision notice and has not previously made any response or representations to the FSA, may nevertheless refer the FSA's decision to the Tribunal.
If the FSA receives no response or representations within the period specified in a first supervisory notice, the FSA will not give a second supervisory notice. The outcome depends on when the relevant action took or takes effect (as stated in the notice). If the action:(1) took effect immediately, or on a specified date which has already passed, it continues to have effect (subject to any decision on a referral to the Tribunal); or(2) was to take effect on a specified date which
Under section 388(3) of the Act, following the giving of a decision notice but before the FSA takes action to which the decision notice relates, the FSA may give the person concerned a further decision notice relating to different action concerning the same matter. Under section 388(4) of the Act, the FSA can only do this if the person receiving the further decision notice gives its consent. In these circumstances the following procedure will apply:(1) FSA staff will recommend
Schedule to the Recognition Requirements Regulations, Paragraph 2
2(1) The [UK RIE] must be a fit and properpersonto perform the [ relevant functions ] of a [ UK RIE ]. |
(2) In considering whether this requirement is satisfied, the [FSA] may (without prejudice to the generality of regulation 6(1)) take into account all the circumstances, including the [UK RIE's] connection with any person. |
2(3) The persons who effectively direct the business and operations of the [UK RIE] must be of sufficiently good repute and sufficiently experienced to ensure the sound and prudent management and operation of the financial markets operated by it. |
2(4) The persons who are in a position to exercise significant influence over the management of the [UK RIE], whether directly or indirectly must be suitable. |
In determining whether a UK recognised body is a fit and proper person, the FSA may have regard to any relevant factor including, but not limited to:(1) the commitment shown by the UK recognised body'sgoverning body to satisfying the recognition requirements and to complying with other obligations in or under the Act;(2) its arrangements, policies and resources for fulfilling its obligations under the Act in relation to its activities as a UK recognised body;(3) the extent to
In determining whether a UK recognised body is a fit and proper person, the FSA may have regard to its connections with:(1) any undertaking in the same group;(2) any owner or part-owner of the UK recognised body;(3) any person who has the right to appoint or remove members of the governing body or other key individuals;(4) any person who is able in practice to appoint or remove members of the governing body or other key individuals;(5) any person in accordance with whose instructions
In assessing whether its connection with any person could affect whether a UK recognised body is a fit and proper person, the FSA may have regard to:(1) the reputation and standing of that other person, including his standing with any relevant UK or overseas regulator;(2) breaches of any law or regulation by that other person; (3) the roles of any of the UK recognised body's key individuals who have a position within organisations under the control or influence of that other person,
2In assessing whether the persons who effectively direct the business and operations of the UK RIE are of sufficiently good repute and sufficiently experienced to ensure the sound and prudent management and operation of the financial markets operated by 3it, the FSA may have regard to the repute and experience of the UK RIE'skey individuals.
(1) An issuer that has the listing of any of its securities suspended may request the FSA to have them restored.(2) The request should be made sufficiently in advance of the time and date the issuer wishes the securities to be restored.(3) Requests received for when the market opens should allow sufficient time for the FSA to deal with the request.(4) The request may be an oral request. The FSA may require documentary evidence that the events that lead to the suspension are no
(1) If an issuer has requested the FSA to restore the listing of any securities, it may withdraw its request at any time while the securities are still suspended. The withdrawal request should initially be made by telephone and then confirmed in writing as soon as possible.(2) Even if a request to restore has been withdrawn, the FSA may restore the listing of securities if it believes the circumstances justify it.
(1) If an underlying instrument is restored, the securitised derivative'slisting will normally be restored.(2) For a securitised derivative relating to a basket of underlying instruments that has been suspended, the securitised derivative's listing may be restored by the FSA, irrespective of whether or not the underlying instrument has been restored, if:(a) the issuer of the securitised derivative confirms to the FSA that despite the relevant underlying instrument(s) suspension
A general rule (that is a rule made section 138 of the Act (General rule-making power)) is to be interpreted as:(1) applying to a firm with respect to the carrying on of all regulated activities, except to the extent that a contrary intention appears; and(2) not applying to a firm with respect to the carrying on of unregulated activities, unless and then only to the extent that a contrary intention appears.
The FSA may modify LR 2.2.4 R to allow partly paid securities to be listed if
it is satisfied that their transferability is not restricted and investors
have been provided with appropriate information to enable dealings in the securities to take place on an open and
proper basis. [Note: articles 46 and 54 CARD]
(1) This rule applies
if under the Act or under the
law of another EEA State:(a) a prospectus must
be approved and published for the securities;
or(b) the applicant is
permitted and elects to draw up a prospectus for
the securities.(2) To be listed:(a) a prospectus must
have been approved by the FSA and published in relation to the securities; or(b) if another EEA
State is the Home Member State for
the securities, the relevant
competent authority must have supplied the FSA with:(i)
Business and internal control risks vary from firm to firm, according to the nature and complexity of the business. The FSA's assessment of these risks is reflected in how its rules apply to different categories of firm as well as in the use of its other regulatory tools. One of the tools the FSA has available is to give a firm individual guidance on the application of the requirements or standards under the regulatory system in the firm's particular circumstances.
The FSA may give individual guidance to a firm on its own initiative if it considers it appropriate to do so. For example:(1) the FSA may consider that general guidance in the Handbook does not appropriately fit a firm's particular circumstances (which may be permanent or temporary) and therefore decide to give additional individual guidance to the firm;(2) some of the FSA's requirements are expressed in general terms; however, there may be times when the FSA will wish to respond
Standing data is used by the FSA:(1) to ensure that a firm is presented with the correct regulatory return when it seeks to report electronically;(2) in order to communicate with a firm;(3) as the basis for some sections of the FSA Register; and (4) in order to carry out thematic analysis across sectors and groups of firms.
(1) Within 30 business days of its accounting reference date, a firm must check the accuracy of its standing data through the relevant section of the FSA website.(2) (3) If any standing data is incorrect, the firm must give the corrected standing data to the FSA, using the appropriate form submitted in accordance with instructions on that form.2
The standing data is made available to the firm when the firm logs into the appropriate section of the FSA website. The firm should check the standing data and send any corrections to the FSA. The FSA's preferred method of receiving corrections to standing data is by the online forms available at the FSA's website.2
Introducers can check whether a person is an authorised person or an appointed representative by visiting the FSA's register at http://www.fsa.gov.uk/register/.If an authorised person has permission to carry on a regulated activity (which can be checked on the FSA's register) it is reasonable, in the FSA's view, to conclude that the authorised person carries on that activity (but not a controlled activity which is not a regulated activity). The FSA would normally expect introducers
In the FSA's view, money payable to an introducer on his own account includes money legitimately due to him for services rendered to the borrower, whether in connection with the introduction or otherwise. It also includes sums payable in connection with transfer of property to an introducer (for example, a housebuilder) by a borrower. For example, article 28B allows a housebuilder to receive the purchase price on a property that he sells to a borrower, whom he previously introduced
In the FSA's view, the provision of details of fees or commission referred to in PERG 8.17.12G (2)(b)(ii) does not require an introducer to provide an actual sum to the borrower, where it is not possible to calculate the full amount due prior to the introduction. This may arise in cases where the fee or commission is a percentage of the eventual loan taken out and the amount of the required loan is not known at the time of the introduction. In these cases, it would be sufficient
In the FSA's view, the information condition in PERG 8.17.12G (2)(b)(iii) requires the introducer to indicate to the borrower any other advantages accruing to him as a result of ongoing arrangements with N relating to the introduction of borrowers. This may include, for example, indirect benefits such as office space, travel expenses, subscription fees. This and other relevant information may, where appropriate, be provided on a standard form basis to the borrower. The FSA would
(1) Overseas investment exchanges and overseas clearing houses which are considering whether to seek authorisation or recognition should first consider whether they will be carrying on regulated activities in the United Kingdom. Overseas investment exchangesand overseas clearing houses which do not carry on regulated activities in the United Kingdom need take no action.(2) Prospective applicants should discuss authorisation and recognition with the FSA before deciding whether
Applicants for authorised person status should refer to the FSA website "How do I get authorised": http://www.fsa.gov.uk/Pages/Doing/how/index.shtml1. Applications for recognition as an overseas recognised body should be addressed to:The Financial Services Authority (Markets Division)25 The North ColonnadeCanary WharfLondon E14 5HS1
There is no standard application form for application for recognition as an overseas recognised body. An application should be made in accordance with any direction the FSA may make under section 287 (Application by an investment exchange) or section 288 (Application by a clearing house) of the Act and should include:(1) the information, evidence and explanatory material necessary to demonstrate to the FSA that the recognition requirements (set out in REC 6.3) will be met;(2)
The FSA may require further information from the applicant and may need to have discussions with the appropriate authorities in the applicant's home territory. To allow sufficient time for applications to be processed and for the necessary contacts to be made with the appropriate home territory authorities, applications should be made not later than six months before the applicant wishes the recognition order to take effect. No guarantee can be given that a decision will be reached
(1) An overseas firm, which is not an incoming firm, must notify the FSA within 30 business days of any person taking up or ceasing to hold the following positions:(a) the firm's worldwide chief executive (that is, the person who, alone or jointly with one or more others, is responsible under the immediate authority of the directors for the whole of its business) if the person is based outside the United Kingdom;(b) the person within the overseas firm with a purely strategic responsibility
(1) The purpose of this section2 is to set out the requirements for firms in the retail mortgage, investment, and pure protection contract markets specified in SUP 16.11.1 R to report individual product sales data to the FSA. This requirement applies whether the regulated activity has been carried out by the firm, or through an intermediary which has dealt directly with the firm.2(2) The purpose of collecting this data is to assist the FSA in the ongoing supervision of firms engaged
(1) A firm may appoint another person to provide the data report on the firm's behalf if the firm has informed the FSA of that appointment in writing.(2) Where (1) applies, the firm must ensure that the data report complies with the requirements of SUP 16.11 and identifies the originator of the transaction.
(1) Given the complexity of issues raised by passporting, UK firms are advised to consult legislation and also to obtain legal advice at earliest opportunity. Firms are encouraged to contact their usual supervisory contact at the FSA to discuss their proposals. However, a UK firm which is seeking guidance on procedural or notification issues relating to passporting should contact the Passport Notifications Unit.(2) An applicant for Part IV permission which is submitting a notice
To contact the Passport Notifications Unit, from which a standard form of notice of intention can be obtained:33(1) telephone on 020 7066 1000; fax on 020 7066 97983; or3(2) write to: The Passport Notifications Unit, The Financial Services Authority, 25 The North Colonnade, Canary Wharf, London E14 5HS; or(3) Email: passport.notifications@fsa.gov.uk
(1) Under section 41(2) of the Act (The threshold conditions), in giving or varying a Part IV permission or imposing or varying any requirement, the FSA must ensure that the firm concerned will satisfy, and continue to satisfy, the threshold conditions in relation to all of the regulated activities for which it has or will have permission.(2) If, however, the applicant for permission is an incoming firm seeking top-up permission, or variation of top-up permission, under Part IV
(1) If, among other things, a firm is failing to satisfy any of the threshold conditions, or is likely to fail to do so, section 45 of the Act (Variation etc. on the FSA's own initiative) states that the FSA may exercise its own-initiative power. Use of the FSA'sown-initiative power is explained in SUP 7 (Individual requirements), and EG 8 (Variation and cancellation of permission on the FSA's own initiative and intervention against incoming firms)1.1(2) If, when exercising its
(1) The FSA attaches considerable importance to the timely submission by firms of reports. This is because the information that they contain is essential to the FSA's assessment of whether a firm is complying with the requirements and standards of the regulatory system and to the FSA's understanding of that firm's business.(2) DEPP 6.6.1 G to DEPP 6.6.5 G set out the FSA's policy in relation to financial penalties for late submission of reports and is in addition to the FSA's
In addition to the factors considered in Step 2 for cases against firms (DEPP 6.5A) and cases against individuals (DEPP 6.5B),1 the following considerations are relevant.1(1) In general, the FSA's approach to disciplinary action arising from the late submission of a report will depend upon the length of time after the due date that the report in question is submitted.(2) If the person concerned is an individual, it is open to him to make representations to the FSA as to why he
In applying the guidance in this section, the FSA may treat a report which is materially incomplete or inaccurate as not received until it has been submitted in a form which is materially complete and accurate. For the purposes of the guidance, the FSA may also treat a report as not received where the method by which it is submitted to the FSA does not comply with the prescribed method of submission.
5A firm must:(1) appoint an individual as MLRO, with responsibility for oversight of its compliance with the FSA'srules on systems and controls against money laundering; and(2) ensure that its MLRO has a level of authority and independence within the firm and access to resources and information sufficient to enable him to carry out that responsibility.
(1) Depending on the nature, scale and complexity of its business, it may be appropriate for a firm to have a separate risk assessment function responsible for assessing the risks that the firm faces and advising the governing body and senior managers on them.(2) The organisation and responsibilities of a risk assessment function should be documented. The function should be adequately resourced and staffed by an appropriate number of competent staff who are sufficiently independent
9(1) Depending on the nature, scale and complexity of its business, it may be appropriate for a firm to delegate much of the task of monitoring the appropriateness and effectiveness of its systems and controls to an internal audit function. An internal audit function should have clear responsibilities and reporting lines to an audit committee or appropriate senior manager, be adequately resourced and staffed by competent individuals, be independent of the day-to-day activities
A firm should have in place appropriate arrangements, having regard to the nature, scale and complexity of its business, to ensure that it can continue to function and meet its regulatory obligations in the event of an unforeseen interruption. These arrangements should be regularly updated and tested to ensure their effectiveness.
(1) Neither an incoming EEA firm nor an incoming Treaty firm is authorised by the FSA when acting as such.(2) It is likely to be misleading for a firm that is not authorised by the FSA to state or imply that it is so authorised. It is also likely to be misleading for a firm to state or imply that a client will have recourse to the Financial Ombudsman Service or the FSCS where this is not the case.(3) As well as potentially breaching the requirements in this section, misleading
The Act does not provide a mechanism for appeals to the FSA from decisions by recognised bodies in relation to complaints. However, the FSA is required by section 299 of the Act (Complaints about recognised bodies) to have arrangements to investigate complaints (called relevant complaints in the Act) which it considers relevant to the question of whether a recognised body should remain recognised as such. This section describes aspects of the FSA's arrangements for investigating
Where the FSA receives a complaint about a recognised body, it will, in the first instance, seek to establish whether the complainant has approached the recognised body. Where this is not the case, the FSA will ask the complainant to complain to the recognised body. Where the complainant is dissatisfied with the handling of the complaint, but has not exhausted the recognised body's own internal complaints procedures (in the case of a complaint against a UK recognised body, including
When it is considering a relevant complaint, the FSA will make its own enquiries as appropriate with the recognised body, the complainant and other persons. It will usually ask the recognised body and the complainant to comment upon any preliminary or draft conclusions of its review and to confirm any matters of fact at that stage.
The characteristics that a reasonable investor can be expected to have will inform the use of judgment required by the 'expectation test' and the 'satisfaction test'. These tests relate to the investor's ability to realise an investment within a reasonable period and to do so on the basis of the net value of its assets. In the FSA's view, the characteristics of the reasonable investor include:(1) sound judgment based on good sense;(2) some knowledge of, and possibly experience
The reasonable investor is a hypothetical investor. The implications of this are that the test does not relate to actual investment by a particular person at a particular time or in relation to a particular issue of any class of shares or securities. In the FSA's view, what underlies the test is what a reasonable investor would think he was getting into if he were contemplating investment in a particular body corporate. In addition, because the investor is hypothetical, the investment
After an initial assessment, however, the FSA's view is that subsequent applications of the investment condition could produce a different result, but only if there is a change to the constitution or practice of the body corporate which is significant and sustained. For example, this may happen if there is a change in the body corporate's published intentions or regular practices. As the Economic Secretary to the Treasury said in parliamentary debate when commenting on the definition,
Section 236(3) uses the words "the investor would, if he were to participate in the scheme". This is consistent with the fact that the reasonable investor is hypothetical. But applying the test at this early stage makes it clear that there must be objectively justifiable grounds on which the reasonable investor could base the expectation in section 236(3)(a). And on which he could be satisfied on the matters in section 236(3)(b). In the FSA's view, this requires, for example,
The FSA will not refund periodic fees if, after the start of the period to which they relate:(1) a fee payer ceases to have the status set out in column (1) of the table in FEES 4.2.11 R; or(2) a firm reduces its permission or payment services activities 9so that it then falls out of the fee-block previously applied to it;99(but see FEES 2.3 (Relieving Provisions) and FEES 4.3.13 R (Firms Applying to Cancel or Vary Permission Before Start of Period)).
A person need not pay a periodic fee on the date on which it is due under the relevant provision in FEES 4.2.1 R, if:(1) that date falls during a period during which circumstances of the sort set out in GEN 1.3.2 R (Emergencies) exist, and that person has reasonable grounds to believe that those circumstances impair its ability to pay the fee, in which case he must pay it on or before the fifth business day after the end of that period; or(2) unless FEES 4.3.6R (3), 9FEES 4.3.6R
Table of periodic fees
1 Fee payer |
2 Fee payable |
3 Due date |
4 Events occurring during the period leading to modified periodic fee |
Any firm (except an ICVC or a UCITS qualifier) |
As specified in FEES 4.3.1 R |
(1) Unless (2) or (3) apply7, on or before the relevant dates specified in FEES 4.3.6 R (2) Unless (3) applies, if 7an event specified in column 4 occurs during the course of a financial year, 30 days after the occurrence of that event, or if later the dates specified in FEES 4.3.6 R.7 (3) Where the permission is for operating a multilateral trading facility, the date specified in FEES 4 Annex 10 (Periodic fees for MTF operators). 77 |
Firm receives permission, or becomes authorised or registered under the Payment Services Regulations ;9 or firm9extends permission or its payment service activities9 9 |
Any firm which reports transactions3 to the FSA using the FSA's Direct Reporting System or FSA's Transaction Reporting System (see SUP 17) 3 |
(1) For transaction charges, the first working day of each month (2) For licence fees and enrolment charges, by the date set out on the relevant invoice |
Not applicable |
|
Persons who hold a certificate issued by the FSA under article 54 of the Regulated Activities Order (Advice given in newspapers etc.) |
£1,000 |
(1) Unless (2) applies, on or before 30 April (2) If an event in column 4 occurs during the course of a financial year, 30 days after the occurrence of that event |
|
Any manager of an authorised unit trust; |
In relation to each unit trust the amount specified in FEES 4 Annex 4 |
Authorisation order is made in relation to the relevant scheme |
|
In relation to each ICVC the amount specified in FEES 4 Annex 4 |
|||
Persons who, under the constitution or founding arrangements of a recognised scheme, is responsible for the management of the property held for or within the scheme; |
In relation to each recognised scheme the amount specified in FEES 4 Annex 4 |
The relevant scheme becomes a recognised collective investment scheme |
|
Not applicable |
|||
FEES 4 Annex 6, part 1 |
(1) Unless (2) applies, by the due dates set out in FEES 4 Annex 6, part 1 (2) If the event in column 4 occurs during the course of a financial year, 30 days after the occurrence of that event |
Recognition order is made.Modified periodic fee: (1) for a UKrecognised investment exchange, 150,000; (2) for a UKrecognised clearing house, 250,000. |
|
FEES 4 Annex 6, part 2 |
(1), unless (2) applies, 1 July. (2) If the event in column 4 occurs during the course of a financial year , 30 days after the occurrence of that event. |
Recognition order is made.Modified periodic fee: (1) for an overseas investment exchange, 10,000; (2) for a overseas clearing house, 35,000. |
|
Listedissuers (in LR) of shares, depositary receipts and securitised derivatives (in LR), unless the conditions set out below apply.3 The first condition is that the listedissuer, or a related entity, has already paid a periodic fee in respect of the period concerned. The second condition is that the listedissuer is subject to listing rules as a result of a reverse takeover, or that the listedissuer is a newly formed entity, created as a result of a restructuring.3 |
Within 30 days of the date of the invoice |
Listedissuer3 (in LR) becomes subject to listing rules 3 |
|
12,50010 per year for the period from 1 April to 31 March the following year (see Note)2 10 |
Within 30 days of the date of the invoice |
Approval of sponsor |
|
All non-listed issuers (in DTR) of shares, depositary receipts and securitised derivatives.6 6 |
Within 30 days of the date of the invoice |
Non-listed issuer (in DTR) becomes subject to disclosure rules and transparency rules6 |
|
6All firms reporting transactions in securities derivatives10to the FSA in accordance with SUP 17, and market operators who provide facilities for trading in securities derivatives.10 10 |
Within 30 days of the date of the invoice |
Not applicable |
Note:Sponsors on the list of approved sponsors as at 1 April each year will be liable for the full year's annual fee unless FEES 4.3.13 R applies.2