Related provisions for PERG 6.5.2
161 - 180 of 667 items.
(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) A firm other than a credit union must submit the form in SUP 15 Ann 2 R online at www.fsa.gov.uk using the FSA's ONAsystem.2(2) A credit union must submit the form in SUP 15 Ann 2 R in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).2(3) Where a firm is obliged to submit an application online under (1), if the FSA'sinformation technology systems fail and online submission is unavailable for 24 hours or more, until such time as facilities for
(1) If the FSA's information technology systems fail and online submission is unavailable for 24 hours or more, the FSA will endeavour to publish a notice on its website confirming that online submission is unavailable and that the alternative methods of submission set out in SUP 15.4.3R(3) and SUP 15.7.4R to SUP 15.7.9G (Form and method of notification) should be used.2(2) Where SUP 15.4.3R (3) applies to a firm, GEN 1.3.2 R (Emergency) does not apply.2
(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.
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) The FSA will determine a figure dependent on the seriousness of the market abuse and whether or not it was referable to the individual’s employment. This reflects the FSA’s view that where an individual has been put into a position where he can commit market abuse because of his employment the fine imposed should reflect this by reference to the gross amount of all benefits derived from that employment.(2) In cases where the market abuse was referable to the individual’s employment,
(1) The FSA may increase or decrease the amount of the financial penalty arrived at after Step 2, but not including any amount to be disgorged as set out in Step 1, to take into account factors which aggravate or mitigate the market abuse. Any such adjustments will be made by way of a percentage adjustment to the figure determined at Step 2.(2) The following list of factors may have the effect of aggravating or mitigating the market abuse:(a) the conduct of the individual in
(1) If the FSA considers the figure arrived at after Step 3 is insufficient to deter the individual who committed the market abuse, or others, from committing further or similar abuse then the FSA may increase the penalty. Circumstances where the FSA may do this include:(a) where the FSA considers the absolute value of the penalty too small in relation to the market abuse to meet its objective of credible deterrence;(b) where previous FSA action in respect of similar market abuse
The FSA and the individual on whom a penalty is to be imposed may seek to agree the amount of any financial penalty and other terms. In recognition of the benefits of such agreements, DEPP 6.7 provides that the amount of the financial penalty which might otherwise have been payable will be reduced to reflect the stage at which the FSA and the individual concerned reached an agreement. The settlement discount does not apply to the disgorgement of any benefit calculated at Step
(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 FSA will consider it appropriate to impose a suspension or restriction
where it believes that such action will be a more effective and persuasive
deterrent than the imposition of a financial penalty alone. This is likely
to be the case where the FSA considers that direct and visible action in relation to a particular breach is necessary. Examples of circumstances
where the FSA may
consider it appropriate to impose a suspension or restriction include:(1) where the FSA (or
The FSA expects usually to suspend or restrict a person from
carrying out activities directly linked to the breach.
However, in certain circumstances the FSA may also suspend or restrict a person from
carrying out activities that are not directly linked to the breach,
for example, where an authorised person's relevant
business area no longer exists or has been restructured.
Schedule to the Recognition Requirements Regulations, Paragraph 6
2(1) The [UK RIE] must be able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on of regulated activities by persons in the course of using the facilities provided by the [UK RIE]. |
(2) The [UK RIE] must be able and willing to cooperate by the sharing of information or otherwise, with the [FSA],with any other authority, body or person having responsibility in the United Kingdom for the supervision or regulation of any regulated activity or other financial service, or with an overseas regulator within the meaning of section 195 of the Act. |
In determining whether a UK recognised body is able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on of regulated activities, the FSA may have regard to the extent to which the UK recognised body seeks to promote and encourage, through its rules, practices and procedures, conduct in regulated activities which is consistent with the Code of Market Conduct (see MAR 1) and with any other codes of conduct, rules or principles relating
In assessing the ability of a UK recognised body to cooperate with the FSA and other appropriate bodies, the FSA may have regard to the extent to which the constitution and rules of the UK recognised body and its agreements with its members enable it to obtain information from members and to disclose otherwise confidential information to the FSA and other appropriate bodies.
In assessing the willingness of a UK recognised body to cooperate with the FSA and other appropriate bodies, the FSA may have regard to:(1) the extent to which the UK recognised body is willing to provide information about it and its activities to assist the FSA in the exercise of its functions;(2) the extent to which the UK recognised body is open with the FSA or other appropriate bodies in regulatory matters;(3) how diligently the UK recognised body investigates or pursues enquiries
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,
1Under
section 312B of the Act, the FSA may
prohibit an EEA market operator from
making or, as the case may be, continuing arrangements in the United Kingdom, to facilitate access to,
or use of, a regulated market,
or multilateral trading facility,
operated by the operator if:(1) the FSA has clear and demonstrable grounds for believing that the operator
has contravened a relevant requirement, and(2) the FSA has first complied with sections 312B(3) to (9) of the Act.
The operator's right to make
arrangements in the United Kingdom,
to facilitate access to, or use of, a regulated
market, or multilateral trading
facility, operated by the operator may be reinstated (together
with its exempt person status)
if the FSA is
satisfied that the contravention which led the FSA to exercise its prohibition power has been remedied.
Where a UK recognised body is to circulate any notice or other document proposing any amendment to its memorandum or articles of association (or other similar agreement or document relating to its constitution) to:(1) its shareholders (or any group or class of them); or(2) its members (or any group or class of them); or(3) any other group or class of persons which has the power to make that amendment or whose consent or approval is required before it may be made;that UK recognised
Where a UK recognised body makes an amendment to its memorandum or articles of association (or other similar agreement or document relating to its constitution), that UK recognised body must immediately give the FSA notice of that event, and give written particulars of that amendment and of the date on which it is to become or became effective.
Where any change is made to an agreement which relates to the constitution or governance of a UK recognised body:(1) between that UK recognised body and another person; or(2) between the owners of that UK recognised body; or(3) between the owners of that UK recognised body and another person; or(4) between other persons; that UK recognised body must give the FSA notice of that event as soon as it is aware of it, and give written particulars of that change and of the date on which
The purpose of REC 3.6.6 R is to ensure that the FSA is informed of changes to agreements which specify the arrangements by which a UK recognised body will be governed or by which important decisions will be taken within that body. It is not intended to cover any agreement by which someone is appointed to be a key individual or which covers the terms and conditions of service in such an appointment.
GEN 6.1.4A R,2GEN 6.1.5 R and GEN 6.1.6 R do not prevent a firm or member from entering into, arranging, claiming on or making any payment under a contract of insurance which indemnifies any person against all or part of the costs of defending FSA enforcement action or any costs they may be ordered to pay to the FSA.
(1) The FSA may dispense with or modify the listing rules in such cases and by reference to such circumstances as it considers appropriate (subject to the terms of EU directives and the Act).(2) A dispensation or modification may be either unconditional or subject to specified conditions.(3) If an issuer or sponsor has applied for, or been granted, a dispensation or modification, it must notify the FSA immediately it becomes aware of any matter which is material to the relevance
(1) An application to the FSA to dispense with or modify a listing rule must be in writing.(2) The application must:(a) contain a clear explanation of why the dispensation or modification is requested;(b) include details of any special requirements, for example, the date by which the dispensation or modification is required;(c) contain all relevant information that should reasonably be brought to the FSA's attention;(d) contain any statement or information that is required by
If an issuer applies to the FSA to dispense with or modify a listing rule on the basis that it is in severe financial difficulty, the FSA would ordinarily expect the issuer to comply with the conditions in LR 10.8 (to the extent relevant to the particular rule for which the dispensation or modification is sought). In particular, the FSA would expect the issuer to comply with those conditions that are directed at demonstrating that it is in severe financial difficulty.
An issuer or sponsor should consult with the FSA at the earliest possible stage if it:
- (1)
is in doubt about how the listing rules apply in a particular situation; or
- (2)
considers that it may be necessary for the FSA to dispense with or modify a listing rule.
Address for correspondence
Note: The FSA's address for correspondence is:
The Financial Services Authority |
25 The North Colonnade |
Canary Wharf |
London, E14 5HS |
Tel: 020 7066 8333 |
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(1) An issuer'slistedsecuritised derivatives must be admitted to trading on a RIE's market for listed securities at all times.(2) An issuer must inform the FSA in writing as soon as possible if it has:(a) requested a RIE to admit or re-admit any of its listedsecuritised derivatives to trading; or(b) requested a RIE to cancel or suspend trading of any of its listedsecuritised derivatives; or(c) been informed by a RIE that the trading of any of its listedsecuritised derivatives
(1) The removal of the exclusion for groups and joint enterprises in article 69 of the Regulated Activities Order (Groups and joint enterprises) may have implications for a company providing services for:(a) other members of its group; or(b) other participants in a joint enterprise of which it is a participant.(2) Such companies might typically provide risk or treasury management or administration services which may include regulated activities relating to a contract of insurance.
Article 67 excludes from the activities of dealing as agent, arranging (bringing about) deals in investments, making arrangements with a view to transactions in investments, assisting in the administration and performance of a contract of insurance and advising on investments, any activity which:(1) is carried on in the course of carrying on any profession or business which does not otherwise consist of the carrying on of regulated activities in the United Kingdom; and(2) may
Article 67 may also apply to activities relating to assignments of insurance policies, as, in the FSA's view, article 2.3 of the IMD applies essentially to the creation of new contracts of insurance and not the assignment of rights under existing policies. As such, where a solicitor or licensed conveyancer arranges an assignment of a contract of insurance, the exclusion in article 67 remains of potential application. For similar reasons, trustees advising on or arranging assignments
Article 72B (see also PERG 5.3.7 G (Connected contracts of insurance)) may be of relevance to persons who supply non-motor goods or provide services related to travel in the course of carrying on a profession or business which does not otherwise consist of carrying on regulated activities. In the FSA's view, the fact that a person may carry on regulated activities in the course of the carrying on of a profession or business does not, of itself, mean that the profession or business
In the FSA's view, the liability risks referred to in PERG 5.11.13G (5) cover risks in relation to liabilities that the policyholder might have to others (that is, third party claims). Many policies will provide this sort of cover and so fall outside the scope of the exclusion. For example, a policy that covers the cost of unauthorised calls made when a mobile telephone is stolen includes 'liability risks' and would not be a 'connected contract of insurance'. By contrast, travel
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) [paragraph suspended by FSA 2004/79]5(3) If any standing data is incorrect, the firm must submit5 the corrected standing data to the FSA,5 using the appropriate form set out in SUP 15 Ann 3 and in accordance with SUP 16.10.4A R.55
(1) 5A firm other than a credit union must submit any corrected standing data under SUP 16.10.4R (3) online at www.fsa.gov.uk using the FSA's ONAsystem.(2) A credit union must submit any corrected standing data under SUP 16.10.4R (3) in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).(3) Where a firm is obliged to submit corrected standing data online under (1), if the FSA's information technology systems fail and online submission is unavailable
5If the FSA's information technology systems fail and online submission is unavailable for 24 hours or more, the FSA will endeavour to publish a notice on its website confirming that online submission is unavailable and that the alternative methods of submission set out inSUP 16.10.4AR (3) and SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification) should be used.
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
The following documents (to the extent applicable) must be lodged with the FSA in final form before it will approve a circular:(1) a Sponsors Declaration for the Production of a Circular completed by the sponsor;(2) for a class 1 circular or related party circular, a letter setting out any items of information required by this chapter that are not applicable in that particular case;(3) the sponsor's Conflicts Declaration2; and(4) any other document that the FSA has sought in advance
The FSA will only approve a circular between 9a.m. and 5.30p.m. on a business day (unless alternative arrangements are made in advance).Note: LR 9.6.1 R requires a company to forward to the FSA two copies of all circulars issued (whether or not they require approval) for publication on the document viewing facility.
Schedule to the Recognition Requirements Regulations, Paragraph 9A
1(1) |
[A UK RIE] operating a multilateral trading facility must also operate a regulated market. |
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(2) |
[A UK RIE] operating a multilateral trading facility must comply with those requirements of- |
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(a) |
Chapter I of Title II of [MiFID], and |
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(b) |
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which are applicable to a market operator ... operating such a facility. |
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(3) |
The requirements of this paragraph do not apply for the purposes of section 292(3)(a) of the Act (requirements for overseas investment exchanges and overseas clearing houses). |
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1In determining whether a UK RIE operating a multilateral trading facility complies with those requirements of Chapter I of Title II of MiFID and the MiFID implementing Directive which are applicable to a market operator operating such a facility, the FSA will have regard to the compliance of the UK RIE with equivalent recognition requirements.
The FSA will determine, following consultation, the amount to be raised from each industry block. This will be based on the budgeted costs and numbers of Financial Ombudsman Service staff required to deal with the volume of complaints which the Financial Ombudsman Service expects to receive about the firms in each industry block. Modified arrangements have been made for certain types of small firms (see FEES 5.5.3 R to FEES 5.5.5 G).
The Act does not contain any definition of the expressions ‘invitation’ or ‘inducement’, leaving them to their natural meaning. The ordinary dictionary entries for ‘invitation’ and ‘inducement’ offer several possible meanings to the expressions. An ‘invitation’ is capable of meanings ranging from merely asking graciously or making a request to encouraging or soliciting. The expression ‘inducement’ is given meanings ranging from merely bringing about to prevailing upon or persuading.
The FSA recognises that the matter cannot be without doubt. However, it is the FSA's view that the context in which the expressions ‘invitation’ or ‘inducement’ are used clearly suggests that the purpose of section 21 is to regulate communications which have a promotional element. This is because they are used as restrictions on the making of financial promotions which are intended to have a similar effect to restrictions on advertising and unsolicited personal communications
The FSA considers that it is appropriate to apply an objective test to decide whether a communication is an invitation or an inducement. In the FSA's view, the essential elements of an invitation or an inducement under section 21 are that it must both have the purpose or intent of leading a person to engage in investment activity and be promotional in nature. So it must seek, on its face, to persuade or incite the recipient to engage in investment activity. The objective test
Merely asking a person if they wish to enter into an agreement with no element of persuasion or incitement will not, in the FSA's view, be an invitation under section 21. For example, the FSA does not consider an invitation to have been made where:(1) a trustee or nominee receives an offer document of some kind and asks the beneficial owner whether he wishes it to be accepted or declined;(2) a person such as a professional adviser enquires whether or not his client would be willing
PERG 8.4.9 G to PERG 8.4.34 G apply the principles in PERG 8.4.4 G to PERG 8.4.7 G to communications made in certain circumstances. They do not seek to qualify those principles in any way. A common issue in these circumstances arises when contact details are given (for example, of a provider of investments or investment services). In the FSA's view, the inclusion of contact details should not in itself decide whether the item in which they appear is an inducement or, if so, is
Journalism can take many forms. But typically a journalist may write an editorial piece on a listed company or about the investments or investment services that a particular firm provides. This may often be in response to a press release. The editorial may or may not contain details of or, on a website, a link to the site of the company or firm concerned. Such editorial may specifically recommend that readers should consider buying or sellinginvestments (whether or not particular