Related provisions for MCOB 1.3.2

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COBS 4.1.1RRP
1This chapter applies to a firm:(1) communicating with a client in relation to its designated investment business;(2) communicating or approving a financial promotion other than:(a) a financial promotion of qualifying credit, a home purchase plan or a home reversion plan; or(b) a financial promotion in respect of a non-investment insurance contract; or(c) a promotion of an unregulated collective investment scheme that would breach section 238(1) of the Act if made by an authorised
COBS 4.1.8RRP
(1) In relation to communications by a firm to a client in relation to its designated investment business this chapter applies in accordance with the general application rule and the rule on business with UKclients from an overseas establishment (COBS 1 Annex 1 Part 2 paragraph 2.1R).(2) In addition, the financial promotion rules apply to a firm in relation to:(a) the communication of a financial promotion to a person inside the United Kingdom;(b) the communication of a cold call
COBS 4.1.9GRP
(1) The EEA territorial scope rule modifies the general territorial scope of the rules in this chapter to the extent necessary to be compatible with European law. This means that in a number of cases, the rules in this chapter will apply to communications made by UK firms to persons located outside the United Kingdom and will not apply to communications made to persons inside the United Kingdom by EEA firms. Further guidance on this is located in COBS 1 Annex 1.(2) One effect
COBS 4.10.4RRP
A firm must not approve a financial promotion to be made in the course of a personal visit, telephone conversation or other interactive dialogue.
PERG 8.12.20GRP
The conditions in article 18 also require that the person acting as the mere conduit must communicate in the course of an activity1 carried on by him the principal purpose of which is transmitting or receiving material provided to him by others. In the FSA's view, what matters is that the person is carrying on an activity1 which has the required principal purpose. Such an activity1 might represent but a part of a person’s overall business1 activities (however small), so long as
PERG 8.6.4GRP
The FSA considers that, to communicate, a person must take some active step to make the communication. This will be a question of fact in each case. But a person who knowingly leaves copies of a document where it is reasonable to presume that persons will pick up copies and may seek to act on them will be communicating them.
PERG 8.6.10GRP
In the FSA's opinion, the matters in PERG 8.6.9 G have the following effects.(1) Any one particular communication will either be real time or non-real time but not both. This is because:(a) a real time communication is one made in the course of an interactive dialogue (see PERG 8.10.2 G for guidance on the meaning of real time);(b) those exemptions which concern real time communications apply only to communications which are made to persons and not those which are directed at
PERG 8.8.1GRP
Section 21(3) of the Act states that, in the case of a communication originating outside the United Kingdom, the restriction in section 21(1) applies only if it is capable of having an effect in the United Kingdom. In this respect, it is irrelevant whether the communication has an effect provided it is capable of doing so.
PERG 8.8.2GRP
This appears to give a potentially broad jurisdictional scope to section 21. It seems clear that a communication which originates overseas will be capable of having an effect in the United Kingdom if it is an invitation or inducement to engage in investment activity which is communicated to a person in the United Kingdom. It would seem that communications made in other circumstances may also be capable of having an effect in the United Kingdom. However, the exemption for communications
PERG 8.8.3GRP
Where communications by persons in another EEA State are made to or directed at persons in the United Kingdom account must be taken of the effect of any relevant EU Directives. For example, the E-Commerce Directive will, with limited exceptions, prevent the United Kingdom from imposing restrictions on incoming financial promotions in information society services. The Treasury has given effect to this through the Financial Promotion Order (see1PERG 8.12.38 G). Other potentially
COBS 4.5.1RRP
(1) Subject to (2) and (3), this section applies to a firm in relation to:(a) the provision of information in relation to its designated investment business; and(b) the communication or approval of a financial promotion;where such information or financial promotion is addressed to, or disseminated in such a way that it is likely to be received by, a retail client.(2) If3 a communication relates to a firm's3MiFID or equivalent third country business, this section does not apply:3(a)
MCOB 5.4.16GRP
MCOB 5.4.13 R places no restrictions on the provision of information that is not specific to the amount the customer wants to borrow, for example, marketing literature including generic mortgage repayment tables or graphs illustrating the benefits of making a regular overpayment on a flexible mortgage. Such literature may, however, constitute a financial promotion2 and be subject to the provisions of MCOB 3 (Financial promotion).2
PERG 8.32.5GRP
The Regulated Activities Order contains an exclusion (article 27: Enabling parties to communicate) to bring a degree of certainty to this area. This applies to arrangements which might otherwise fall within article 25(2) merely because they provide the means by which one party to a transaction (or potential transaction) is able to communicate with other parties. In the FSA's view, the crucial element of the exclusion is the inclusion of the word ‘merely’. So that, where a publisher,
ICOBS 2.2.2RRP
When a firm communicates information, including a financial promotion, to a customer or other policyholder, it must take reasonable steps to communicate it in a way that is clear, fair and not misleading.
PERG 8.36.6GRP

Table Application of Exemptions to Forms of Promotions

Financial Promotion Order

Applies to

Article No.

Title and PERG 8 reference (where applicable)

Unsolicited real time

Solicited real time

Non-real time

(solicited or unsolicited)

12

Communications to overseas recipients (8.12.2G)

*1

*

*

13

Communications from customers and potential customers (8.12.9G)

*

*

*

14

Follow up non-real time communications and solicited real time communications (8.12.10G)

*

*

15

Introductions (8.12.11G)

*

*

*1

16

Exempt persons (8.12.12G)

*2

*3

*3

17

Generic promotions (8.12.14G and 8.21.4G)

*

*

*

17A1

Communications caused to be made or directed by unauthorised persons (8.6.7AG)

*

*

*

18

Mere conduits (8.12.18G)

*

*

*

18A

Outgoing electronic commerce communications: mere conduits, caching and hosting (8.12.18G)1

*

*

*

19

Investment professionals (8.12.21G and 8.21.5G)

*

*

*

20

Communications by journalists (8.12.23G)

*

20A

Promotion broadcast by company director etc (8.12.23G and 8.21.6G)

*

*

*

20B

Incoming electronic commerce communications (8.12.38G)

*

*

*

22

Deposits : non-real time communications (8.13)

*

23

Deposits : real time communications (8.13)

*

*

24

Relevant insurance activity : non-real time communications (8.13)

*

25

Relevant insurance activity : non-real time communications : reinsurance and large risks (8.13)

*

26

Relevant insurance activity : real time communications (8.13)

*

*

28

One-off non-real time communications and solicited real time communications (8.14.3G)

*

*

28A

One-off unsolicited real time communications (8.14.11G)

*

28B1

Real time communications: introductions in connection with qualifying credit (8.17.12G)

*

*

29

Communications required or authorised by enactments

*

*

*

30

Overseas communicators: solicited real time communications (8.14.15G)

*

31

Overseas communicators: non-real time communications to previously overseas customers (8.14.17G)

*

32

Overseas communicators: unsolicited real time communications to previously overseas customers (8.14.16G)

*

33

Overseas communicators: unsolicited real time communications to knowledgeable customers (8.14.16G)

*

34

Governments, central banks etc

*

*

35

Industrial and provident societies

*

*

36

Nationals of the EEA States other than United Kingdom (8.14.18G)

*

*

37

Financial markets

*

*

38

Persons in the business of placing promotional material

*

*

*

39

Joint enterprises (8.14.19G)

*

*

*

40

Participants in certain recognised collective investment schemes

*

*

41

Bearer instruments: promotions required or permitted by market rules (8.14.42G)

*

*

42

Bearer instruments: promotions to existing holders (8.14.42G)

*

*

43

Members and creditors of certain bodies corporate (8.14.41G and 8.21.8G)

*

*

44

Members and creditors of open-ended investment companies

*

*

45

Group companies

*

*

*

46

Qualifying credit to bodies corporate (8.17.10G)1

*

*

*

47

Persons in the business of disseminating information (8.21.10G)

*

*

*

48

Certified high net worth individuals (8.14.21G)

*

*

49

High net worth companies, unincorporated associations etc (8.14.25G)

*

*

*

50

Sophisticated investors (8.14.27G)

*

*

*

50A

Self-certified sophisticated investors {8.14.28AG)

*5

*

*

51

Associations of high net worth or sophisticated investors (8.14.29G)

*

*

52

Common interest group of a company (8.14.30G)

*

*

53

Settlors, trustees and personal representatives

*

*

*

54

Beneficiaries of trust, will or intestacy

*

*

*

55

Communications by members of professions (8.15.1G)

*

*

55A

Non-real time communication by members of the professions. (8.15.5G)

*

56

Remedy following report by Parliamentary Commissioner for Administration

*

*

*

57

Persons placing promotional material in particular publications

*

*

*

58

Acquisition of interest in premises run by management companies

*

*

59

Annual accounts and directors' report (8.21.11G)

*

*

*

60

Participation in employee shares schemes

*

*

*

61

Sale of goods and supply of services

*

*

62

Sale of body corporate (8.14.35G)

*

*

*

64

Takeovers of relevant unlisted companies

*

*

*

65

Takeovers of relevant unlisted companies: warrants etc

*

*

*

66

Takeovers of relevant unlisted companies: application forms

*

*

*

67

Promotions required or permitted by market rules (8.21.13G)

*

*

68

Promotions in connection with admission to certain EEA markets (8.21.16G)

*

*

69

Promotions of securities already admitted to certain markets (8.21.17G)

*

*1

701

Promotions included in listing particulars etc (8.21.20G)1

*1

711

Material relating to prospectus for public offer of unlisted securities

*1

721

Pension products offered by employers (8.14.40AG8)

*

*

*

872A

Pension product offers communicated to employees by third parties (8.14.40AAG)

*

*

*

872B

Insurance product offers communicated to employees by employers (8.14.40ABG)

*

*

*

872C

Insurance products offers communicated to employees by third parties (8.14.40ACG)

*

*

*

872D

Staff mortgage offers communicated to employees by employers (8.14.40ADG)

*

*

*

872E

Staff mortgage offers communicated to employees by third parties (8.14.40AEG)

*

*

*

731

Advice centres (8.14.40B)

*

*

*

1 in limited circumstances only – see article 12(2) of the Financial Promotion Order

2 for the purpose of article 16 (2) only

3 for the purpose of article 16 (1) only1
PERG 8.22.1GRP
The Internet is a unique medium for communicatingfinancial promotions as it provides easy access to a very wide audience. At the same time, it provides very little control over who is able to access the financial promotion.
COBS 4.2.5GRP
2A communication or a financial promotion should not describe a feature of a product or service as “guaranteed”, “protected” or “secure”, or use a similar term unless:24(1) that term is capable of being a fair, clear and not misleading description of it; and(2) the firm communicates all of the information necessary, and presents that information with sufficient clarity and prominence, to make the use of that term fair, clear and not misleading.4
MCOB 1.2.10RRP
MCOB does not apply to an authorised professional firm with respect to its non-mainstream regulated activities except for:(1) MCOB 2.2 (Communications);(2) MCOB 3 (Financial promotion); and
COBS 4.3.1RRP
(1) A firm must ensure that a financial promotion addressed to a client is clearly identifiable as such.[Note: article 19(2) of MiFID and article 77 of the UCITS Directive]3(2) If2 a financial promotion relates to a2firm'sMiFID or equivalent third country business, this rule does not apply to the extent that the2financial promotion is a third party prospectus.2(3) If2 a financial promotion relates2 to a 2 firm's business that is not 2MiFID or equivalent third country business,