Related provisions for MCOB 9.4.52
1 - 20 of 152 items.
The FSA may ask the auditor to attend meetings and to supply it with information about the firm. In complying with SUP 3.8.2 R, the auditor should attend such meetings as the FSA requests and supply it with any information the FSA may reasonably request about the firm to enable the FSA to discharge its functions under the Act.
SUP 3.6.1 R requires a firm to cooperate with its auditor. SUP 3.6.3 G refers to the rights to information which an auditor is granted by the Act. SUP 3.6.4 G refers to similar rights granted by the Companies Act 1985 or where applicable, the Companies Act 2006,2 the Building Societies Act 1986 and the Friendly Societies Act 1992.
Within the legal constraints that apply, the FSA may pass on to an auditor any information which it considers relevant to his function. An auditor is bound by the confidentiality provisions set out in Part XXIII of the Act (Public record, disclosure of information and cooperation) in respect of confidential information he receives from the FSA. An auditor may not pass on such confidential information without lawful authority, for example if an exception applies under the Financial
(1) Auditors are subject to regulations made by the Treasury under sections 342(5) and 343(5) of the Act (Information given by auditor or actuary to the FSA). Section 343 and the regulations also apply to an auditor of an authorised person in his capacity as an auditor of a person who has close links with the authorised person.3(2) These regulations oblige auditors to report certain matters to the FSA. Sections 342(3) and 343(3) of the Act provide that an auditor does not contravene
In the FSA's view the requirements relating to risk management policy and risk measurement set out in this section are the regulatory responsibility of the management company'sHome State regulator but to the extent that they constitute fund application rules, are also the responsibility of the UCITS'Home State regulator. As such, these responsibilities may overlap between the competent authorities of the Home and Host States. EEA UCITS management companies providing collective
UK UCITS management companies operating EEA UCITS schemes are advised that to the extent that the matters referred to in COLL 6.12.5 R (3)(a) are viewed by the UCITSHome State regulator as falling under its responsibility, they will be expected to comply with the UCITS Home State measures implementing articles 40 and 41 of the UCITS implementing Directive.
(1) An authorised fund manager of a UCITS scheme or a UK UCITS management company of an EEA UCITS scheme must assess, monitor and periodically review:(a) the adequacy and effectiveness of the risk management policy and of the arrangements, processes and techniques referred to in COLL 6.12.5 R;(b) the level of compliance by the authorised fund manager or the UK UCITS management company with the risk management policy and with those arrangements, processes and techniques referred
UK UCITS management companies are advised that when they applied for authorisation from the FSA under the Act, their ability to comply with the requirements in COLL 6.12.7 R would have been assessed by the FSA as an aspect of their fitness and properness in determining whether the threshold conditions set out in Schedule 6 (Threshold conditions) of the Act were met. Firms are further advised that their compliance with these requirements is subject to review by the FSA on an ongoing
(1) An authorised fund manager of a UCITS scheme or a UK UCITS management company of an EEA UCITS scheme must adopt adequate and effective arrangements, processes and techniques in order to:(a) measure and manage at any time the risks to which that UCITS is or might be exposed; and(b) ensure compliance with limits concerning global exposure and counterparty risk, in accordance with COLL 5.2.11B R (Counterparty risk and issuer concentration) and COLL 5.3 (Derivative exposure).(2)
UK UCITS management companies operating EEA UCITS schemes are advised that to the extent that the matters referred to in COLL 6.12.9R (1)(b) are viewed by the UCITSHome State regulator as falling under its responsibility, they will be expected to comply with the UCITS Home State measures implementing articles 41 and 43 of the UCITS implementing Directive.
(1) An authorised fund manager or a UKUCITS management company of an EEA UCITS scheme must employ an appropriate liquidity risk management process in order to ensure that each UCITS it manages is able to comply at any time with COLL 6.2.16 R (Sale and redemption) or the equivalent UCITS Home State measures implementing article 84(1) of the UCITS Directive.(2) Where appropriate, the authorised fund manager or UKUCITS management company must conduct stress tests to enable it to
To enable the FSA to be satisfied that the issuer and the proposed owner will comply with requirements imposed on the issuer or owner, as the case may be, by or under the RCB Regulations, the applicant should use the application form to provide relevant details of the proposed covered bond or programme and demonstrate how each of the requirements will be complied with.
In relation to registration of an issuer of regulated covered bonds, the FSA will need to be satisfied that the issuer's compliance with the requirements of the regulatory system has been adequate and does not give rise to any material cause for concern over the issuer's ability to issue regulated covered bonds in compliance with the RCB Regulations.
To demonstrate that the issuer and the proposed owner will comply with Regulation 17, and Regulations 23 and 24 of the RCB Regulations (capability of the asset pool to cover claims), the issuer should set out what it considers to be the risks of the regulation not being complied with and show how those risks have been adequately mitigated by reference to the tests and provisions set out in the covered bond or programme documentation.
The risk factors which the FSA will take into account in assessing the issuer's and owner's compliance with Regulations 17(2)(d) (general requirements on issuer in relation to the asset pool) and 23(2) (requirements on owner relating to the asset pool) will include credit risk of the assets, concentration risk, market risk and counterparty risk.
The FSA expects the issuer to demonstrate, as part of showing that Regulations 17 (general requirements on issuer in relation to the asset pool) and 24 (requirements on owner relating to the asset pool) of the RCB Regulations will be complied with, that there are provisions in the covered bond or programme which enable the views and interests of investors in the regulated covered bond to be taken account of in an appropriate and timely way by a suitably qualified, adequately resourced,
(1) The FSA expects legal advice to deal adequately with at least the following matters in relation to the actual or proposed arrangements:(a) whether the transfer of the assets to the owner would be upheld in the event of liquidation or administration, or similar collective insolvency proceedings, of the issuer or the transferor (if different from the issuer);(b) the risk of the transfer of an asset to the owner being re-characterised as the creation of a security interest;(c)
(1) The FSA expects the report from the accountants to address at least the following matters:(a) that the level of over collateralisation meets the limits set out in the covered bond arrangements which are designed to ensure compliance with the requirement that the asset pool is capable of covering claims attaching to the bond in Regulation 17 (requirements on issuer in relation to the asset pool) of the RCB Regulations; and(b) that appropriate due diligence procedures have been
(1) The authorised fund manager must manage the scheme in accordance with:(a) the instrument constituting the scheme;(b) the rules in this sourcebook;(c) the most recently published prospectus; and(d) for an ICVC, the OEIC Regulations.(2) The authorised fund manager must carry out such functions as are necessary to ensure compliance with the rules in this sourcebook that impose obligations on the authorised fund manager or ICVC, as appropriate.(3) The authorised fund manager must:(a)
(1) The depositary is responsible for the safekeeping of all the scheme property.(2) The depositary must:(a) take all steps to ensure that transactions properly entered into for the account of the scheme are completed;(b) take all steps to ensure that instructions properly given by the authorised fund manager in respect of the exercise of rights related to scheme property are carried out;(c) ensure that any scheme property in registered form is as soon as reasonably practicable
Directors of an ICVC, authorised fund managers and depositaries should also have regard to 6SYSC 85 (Outsourcing).6SYSC 8.1.6 R5states that a firm remains fully responsible for discharging all of its obligations under the regulatory system if it outsources crucial or important operational functions or any relevant services and activities. 5555
(1) The authorised fund manager must:(a) ensure that at each valuation point there are at least as many units in issue of any class as there are units registered to unitholders of that class; and(b) not do, or omit anything that would, or might confer on itself a benefit or advantage at the expense of a unitholder or potential unitholder.(2) For the purposes of (1) the authorised fund manager may take into account sales and redemptions after the valuation point, provided it has
Before a firm appoints a person as an appointed representative (other than an introducer appointed representative) and on a continuing basis, it must establish on reasonable grounds that:11(1) the appointment does not prevent the firm from satisfying and continuing to satisfy the threshold conditions;(2) the person:(a) is solvent;(b) is otherwise 1suitable to act for the firm in that capacity;and1(c) has no close links which would be likely to prevent the effective supervision
8A firm must ensure that a tied agent that is an appointed representative is of sufficiently good repute and that it possesses appropriate general, commercial and professional knowledge so as to be able to communicate accurately all relevant information regarding the proposed service to the client or potential client. This does not limit a firm's obligations under SUP 12.4.2 R.[Note: paragraphs 3 and 4 of article 23(3) of MiFID]
1If a firm proposes to appoint an appointed representative, but not to prohibit its appointment by any other principals (see SUP 12.5.2 G (3)), the firm should, in particular:(1) require, in the contract, that the appointed representative notifies the firm about other principals (see SUP 12.5.5 R (3)) and (2) unless the appointed representative is an introducer appointed representative:(a) take reasonable steps to check whether the appointed representative is already appointed
1Before a firm appoints a person as an appointed representative to carry on insurance mediation activity, it must in relation to insurance mediation activity ensure that the person will comply on appointment, and will continue to comply with, the provisions of 3MIPRU 2.3.1 R3 and 3MIPRU 2.3.3 R (Knowledge and ability, and good repute) as if the appointed representative were a firm.
335(1) 5If an auditor expects that it will fail to comply with SUP 3.10.7 R, it must no later than the end of the four month period in question:(a) notify the FSA that it expects that it will be unable to deliver a client assets report by the end of that period; and(b) ensure that the notification in (a) is accompanied by a full account of the reasons for its expected failure to comply with SUP 3.10.7 R.(2) If an auditor fails to comply with SUP 3.10.7 R, it must promptly:(a)
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
5An auditor must:(1) deliver to a firm a draft of its client assets report such that the firm has an adequate period of time to consider the auditor’s findings and to provide the auditor with comments of the kind to which SUP 3.11.1 G refers; and(2) unless it is the auditor of a firm falling within category (10) of SUP 3.1.2 R, deliver to the firm a copy of the final report at the same time as it delivers that report to the FSA in accordance with SUP 3.10.7 R.
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
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
4Where an incoming EEA firm passporting under MiFID is providing cross border services into the United Kingdom, it must not:5(1) make a change in the details referred to in regulation 5A(1)(a); or5(2) use, for the first time, any tied agent to provide services in the United Kingdom; or5(3) cease to use tied agents to provide services in the United Kingdom;5unless it has complied with the relevant requirements in regulation 5A(3).5
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.
(1) The authorised fund manager must manage the scheme in accordance with:(a) the instrument constituting the scheme;(b) the rules in this sourcebook;(c) the most recently published prospectus; and(d) for an ICVC, the OEIC Regulations.(2) The authorised fund manager must take such steps as necessary to ensure compliance with the rules in this sourcebook that impose obligations upon the ICVC.(3) The authorised fund manager must:(a) make decisions as to the constituents of the scheme
(1) The authorised fund manager must make and retain for six years such records as enable:(a) the scheme and the authorised fund manager to comply with the rules in this sourcebook and the OEIC Regulations; and(b) it to demonstrate at any time that such compliance has been achieved.(2) The authorised fund manager must make and retain for six years a daily record of the units in the scheme held, acquired or disposed of by the authorised fund manager, including the classes of such
(1) The depositary of an authorised fund is responsible for the safekeeping of all of the scheme property (other than tangible movable property) entrusted to it and must:(a) take all steps and complete all documents needed to ensure completion of transactions properly entered into for the account of the scheme;(b) ensure that scheme property in registered form is, as soon as practicable, registered in the name of the depositary, its nominee, or a person retained by it under COLL
(1) The authorised fundmanager must avoid the scheme property being used or invested contrary to COLL 5, or any provision in the instrument constituting the scheme or the prospectus as referred to in COLL 5.2.4 R (Investment powers:general), and COLL 5.6.4 R (Investment powers: general)2, except to the extent permitted by (3)(b).(2) The authorised fund manager must, immediately upon becoming aware of any breach of a provision listed in (1), take action, at its own expense, to
(1) Directors of an ICVC, authorised fund managers and depositaries should also have regard to SYSC 8 (Outsourcing).66SYSC 8.1.6 R4 states that a firm remains fully responsible for discharging 6all of its obligations under the regulatory system6 if it outsources crucial or important operational functions4 or any relevant services and activities.6646644(2) SUP 15.8.6 R (Delegation by UCITS management companies) requires the 8authorised fund manager of a UCITS scheme to inform the
(1) In relying on MCOB 2.5.2 R, a firm should take reasonable steps to establish that the other person providing the information is: (a) not connected with the firm; and(b) competent to provide the information.(2) Compliance with (1) may be relied on as tending to establish compliance with MCOB 2.5.2 R.(3) Contravention of (1) may be relied on as tending to establish contravention of MCOB 2.5.2 R.
(1) Any information which a rule in MCOB requires to be sent to a customer may be sent to another person on the instruction of the customer, so long as the recipient is not connected with the firm. (2) There is no need for a firm to send information to a customer where it has taken reasonable steps to establish that this has been or will be supplied by another person.
The issuer or the owner, as the case may be, should review legal advice as necessary. For example, advice should be reviewed if a relevant statutory provision is amended or where a new decision or judgment of a court might have a bearing on the conclusions reached which is material to the issuer's or owner's compliance with the requirements of the RCB Regulations or the RCB.
Unless otherwise stated, the issuer or the owner, as the case may be, must send the relevant forms and information to the FSA's address marked for the attention of the "Covered Bonds Team, Capital Markets Sector" by any of the following methods:(1) post; or(2) leaving it at the FSA's address and obtaining a time-stamped receipt; or(3) e-mail to rcb@fsa.gov.uk.
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.
Where the authorised fund manager of a feeder UCITS has submitted the documents required under COLL 11.6.3R (1), COLL 11.6.3R (2), COLL 11.6.5R (1), COLL 11.6.5R (2) or COLL 11.6.5R (3) and has received written notice of any required approvals from the FSA, it must:(1) inform the master UCITS of those approvals; and(2) in the case of the required approvals received in respect of documents submitted under COLL 11.6.3 R (1) and COLL 11.6.5 R (2), take the necessary measures to comply
Where the authorised fund manager of a feeder UCITS gives notice to the FSA under section 251 of the Act or regulation 21 of the OEIC Regulations that it intends to wind up the scheme, it must inform:(1) the unitholders of the feeder UCITS; and(2) where notice is given under COLL 11.6.5R (4) (Application for approval by a feeder UCITS where a master UCITS merges or divides), the authorised fund manager of the master UCITS;of its intention without undue delay.[Note: articles 20(3)
If the CAD 1 model ceases to meet the requirements of the waiver, the firm should notify the FSA at once. The FSA may then revoke the waiver unless it is varied in accordance with section 148 of the Act. If the CAD 1 model waiver contains conditions it is a condition of using the CAD 1 model approach that the firm should continue to comply with those conditions.
A firm should be able to demonstrate that the risk management standards set out in BIPRU 7.9 are satisfied by each legal entity with respect to which the CAD 1 model approach is being used (even though they are expressed to refer only to a firm). This is particularly important for subsidiary undertakings in groups subject to matrix management where the business lines cut across legal entity boundaries.
The FSA does not specify the methodology that a firm should employ in order to produce the appropriate outputs from its options risk aggregation CAD 1 model. However, BIPRU 7.9.27G - BIPRU 7.9.43G provide details of how a firm could meet the requirement to capture gamma, vega and rho risks using a scenario matrix approach. Where a firm adopts the scenario matrix approach then the standards set out in BIPRU 7.9.27G - BIPRU 7.9.43G should be followed. The firm should also take into
A firm must establish and implement effective arrangements for complying with the obligation to take all reasonable steps to obtain the best possible result for its clients. In particular, the firm must establish and implement an order execution policy to allow it to obtain, for its client orders, the best possible result in accordance with that obligation. [Note: article 21(2) of MiFID and article 25(3) first paragraph of the UCITS implementing Directive]2
A firm must, when providing the service of portfolio management or, for a management company, collective portfolio management,2 comply with the obligation to act in accordance with the best interests of its clients when placing orders with other entities for execution that result from decisions by the firm to deal in financial instruments on behalf of its client. [Note: article 45(1) of MiFID implementing Directive and article 26(1) of the UCITS implementing Directive]2
In order to comply with the obligation to act in accordance with the best interests of its clients when it places an order with, or transmits an order to, another entity for execution, a firm must:[Note: article 45(3) of the MiFID implementing Directive and article 26(1) of the UCITS implementing Directive]2(1) take all reasonable steps to obtain the best possible result for its clients taking into account the execution factors. The relative importance of these factors must be
A firm must not pay or accept any fee or commission, or provide or receive any non-monetary benefit, in relation to designated investment business or, in the case of its MiFID or equivalent third country business, another ancillary service, carried on for a client other than:(1) a fee, commission or non-monetary benefit paid or provided to or by the client or a person on behalf of the client; or(2) a fee, commission or non-monetary benefit paid or provided to or by a third party
1This table belongs to COBS 2.3.14 G.
Reasonable non-monetary benefits |
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Gifts, Hospitality and Promotional Competition Prizes |
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1 |
A product provider giving and a firm receiving gifts, hospitality and promotional competition prizes of a reasonable value. |
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Promotion |
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2 |
A product provider assisting another firm to promote its packaged products so that the quality of its service to clients is enhanced. Such assistance should not be of a kind or value that is likely to impair the recipient firm's ability to pay due regard to the interests of its clients, and to give advice on, and recommend, packaged products available from the recipient firm's whole range or ranges. |
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Joint marketing exercises |
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3 |
A product provider providing generic product literature (that is, letter heading, leaflets, forms and envelopes) that is suitable for use and distribution by or on behalf of another firm if: |
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(a) |
the literature enhances the quality of the service to the client and is not primarily of promotional benefit to the product provider; and |
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(b) |
the total costs (for example, packaging, posting, mailing lists) of distributing such literature to its client are borne by the recipient firm. |
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4 |
A product provider supplying another firm with 'freepost' envelopes, for forwarding such items as completed applications, medical reports or copy client agreements. |
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5 |
A product provider supplying product specific literature (for example, key features documents, minimum information) to another firm if: |
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(a) |
the literature does not contain the name of any other firm; or |
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(b) |
if the name of the recipient firm is included, the literature enhances the quality of the service to the client and is not primarily of promotional benefit to the recipient firm. |
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6 |
A product provider supplying draft articles, news items and financial promotions for publication in another firm's magazine, only if in each case any costs paid by the product provider for placing the articles and financial promotions are not more than market rate, and exclude distribution costs. |
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Seminars and conferences |
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7 |
A product provider taking part in a seminar organised by another firm or a third party and paying toward the cost of the seminar, if: |
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(a) |
its participation is for a genuine business purpose; and |
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(b) |
the contribution is reasonable and proportionate to its participation and by reference to the time and sessions at the seminar when its staff play an active role. |
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Technical services and information technology |
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8 |
A product provider supplying a 'freephone' link to which it is connected. |
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9 |
A product provider supplying another firm with any of the following: |
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(a) |
quotations and projections relating to its packaged products5 and, in relation to specific investment transactions (or for the purpose of any scheme for review of past business), advice on the completion of forms or other documents; |
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(b) |
access to data processing facilities, or access to data, that is related to the product provider's business; |
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(c) |
access to third party electronic dealing or quotation systems that are related to the product provider's business; and |
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(d) |
software that gives information about the product provider'spackaged products or which is appropriate to its business (for example, for use in a scheme for review of past business or for producing projections or technical product information). |
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10 |
A product provider paying cash amounts or giving other assistance to a firm not in the same immediate group for the development of software or other computer facilities necessary to operate software supplied by the product provider, but only to the extent that by doing so it will generate equivalent cost savings to itself or clients. |
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11 |
A product provider supplying another firm with information about sources of mortgage finance. |
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12 |
A product provider supplying another firm with generic technical information in writing, not necessarily related to the product provider's business, when this information states clearly and prominently that it is produced by the product provider or (if different) supplying firm. |
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Training |
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13 |
A product provider providing another firm with training facilities of any kind (for example, lectures, venue, written material and software). |
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Travel and accommodation expenses |
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14 |
A product provider reimbursing another firm's reasonable travel and accommodation expenses when the other firm: |
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(a) |
participates in market research conducted by or for the product provider; |
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(b) |
attends an annual national event of a United Kingdom trade association, hosted or co-hosted by the product provider; |
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(c) |
participates in the product provider's training facilities (see 13); |
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(d) |
visits the product provider'sUnited Kingdom office in order to: |
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(i) |
receive information about the product provider's administrative systems; or |
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(ii) |
attend a meeting with the product provider and an existing or prospective client of the receiving firm. |
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