Related provisions for PERG 6.5.2
221 - 240 of 675 items.
(1) This section deals with the circumstances and manner in which an AUT is to be wound up or a sub-fund of an AUT is to be terminated. Under section 256 of the Act (Requests for revocation of authorisation order), the manager or trustee of an AUT may request the FSA to revoke the authorisation order in respect of that AUT. Section 257 of the Act (Directions) gives the FSA the power to make certain directions.(2) The termination of a sub-fund under this section will be subject
1This table belongs to COLL 7.4.1 G (4) (Explanation of COLL 7.4)
Summary of the main steps in winding up an AUT or terminating a sub-fund under FSArules Notes: N = Notice to be given to the FSA under section 251 of the Act. E = commencement of winding up or termination W/U = winding up FAP = final accounting period (COLL 7.4.5 R (4)) |
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Step number |
Explanation |
When |
|
1 |
Receive FSA approval |
N + one month On receipt of notice from the FSA |
Section 251 of the Act |
2 |
Normal business ceases; notify unitholders |
E |
7.4.3R |
3 |
Trustee to realise and distribute proceeds |
ASAP after E |
7.4.4R(1) to (5) |
4 |
Within 4 months of FAP |
7.4.5R(5) |
|
5 |
Request FSA to revoke relevant authorisation order |
On completion of W/U |
7.4.4R(6) |
(1) Where COLL 7.4.3 R (2) (f) applies, the trustee must cancel all units in issue and1 wind up the AUT or terminate the sub-fund in accordance with the approved scheme of arrangement.(2) In any other case falling within COLL 7.4.3 R:(a) once the AUT falls to be wound up or sub-fund terminated, the trustee must realise the scheme property;(b) after paying out or retaining adequate provision for all liabilities payable and for the costs of the winding up or termination, the trustee
(1) For any annual or half-yearly accounting period which begins1 after commencement of the winding up or termination, the manager is not required to prepare a short report (COLL 4.5.13 R (Provision of short report)), provided that it has reasonably determined1 that the report is not required in the interests of the unitholders.11(1A) The manager must consult the trustee before determining that a short report is not required in the interests of unitholders.1(2) Where (1) applies,
(1) The report from a trustee of an AUT to the FSA must state, in relation to the manager of each AUT for which it is a trustee, the number of times during the quarter in which facts came to the firm's knowledge from which it appeared, or might have appeared, that the manager had failed (materially or otherwise) to: (a) give correct instructions to the trustee to create or cancel units in the AUT when the manager should have done so, and the error: (i) resulted in the creation
At least two independent minds should be applied to both the formulation and implementation of the policies of a common platform firm, a management company3 and the UK branch of a non-EEA bank1. Where such1 a firm1 nominates just two individuals to direct its business, the FSA will not regard them as both effectively directing the business where one of them makes some, albeit significant, decisions relating to only a few aspects of the business. Each should play a part in the
Where there are more than two individuals directing the business of a common platform firm, a management company3 or the UK branch of a non-EEA bank,1 the FSA does not regard it as necessary for all of these individuals to be involved in all decisions relating to the determination of strategy and general direction. However, at least two individuals should be involved in all such decisions. Both individuals' judgement should be engaged so that major errors leading to difficulties
(1) There are two specified formats for advice appearing in writing or other legible form.(2) The first is that of a newspaper, journal, magazine or other periodical publication. For these purposes it does not matter what form the periodical publication takes as long as it can be read. This will include, for example, a newspaper appearing as a hard copy or electronically on a website. It will also include any periodical published on an intranet site.(3) The second is that of a
The third specified format is for advice in any service consisting of the broadcast or transmission of television or radio programmes. This will encompass the transmission through cable of interactive television programmes. In the FSA's view, ‘service’ in this context goes beyond any particular series of programmes broadcast or transmitted through a given medium. It refers instead to the administrative system (usually aimed at a particular audience) through which a range of different
For the second disqualifying purpose, the focus switches to assessing whether the principal purpose of a publication or service is to lead a person to engage in a relevant transaction or enable him to do so. This disqualifying purpose is an alternative to the first. So it extends to material not covered by the first. In this respect:(1) material in a publication or service that invites or seeks to procure persons to engage in a relevant transaction can be said to "lead" to those
In the context of the second disqualifying purpose, whether or not the presence of a hypertext link to another website indicates that the purposes of a publication or service include leading to relevant transactions (or enabling them to be entered into) will depend on all the circumstances. It will, in particular, be necessary to consider the form of the link and the content of the destination website. In the FSA's view, the presence on a host publication or service of a hypertext
Under section 296 of the Act (FSA's power to give directions) and (for RAPs) under regulation 3 of the RAP regulations3, the FSA has the power to give directions to a recognised body to take specified steps 1in order to secure its compliance with the recognised body requirements. In the case of a UK RIE (including one which operates an RAP) 3those steps may include granting the FSA access to the UK RIE's premises for the purposes of inspecting those premises or any documents on
The FSA is likely to exercise its power under section 296 of the Act or regulation 3 of the RAP regulations3 if it considers that:(1) there has been, or was likely to be, a failure to satisfy one or more of the recognised body requirements31which has serious consequences; (2) compliance with the direction would ensure that 1one or more of the recognised body requirements is3 satisfied; and(3) the recognised body is capable of complying with the direction.
Under section 298(7) of the Act (Directions and revocation: procedure), and (for RAPs) regulation 5(7) of the RAP regulations,3 the FSA need not follow the consultation procedure set out in the rest of section 298 (see REC 4.8) 3or (for RAPs) regulation 5 of the RAP regulations, or may cut short that procedure, if it considers it essential to do so. The FSA is likely to consider it essential to cut short the procedure if, in the absence of immediate action, there would be:(1)
Reports of transactions made in accordance with Articles 25 (3) and (5) of MiFID shall contain the information specified in SUP 17 Annex 1 EU which is relevant to the type of financial instrument in question and which the FSA declares is not already in its possession or is not available to it by other means. |
[Note: article 13(1) of the MiFID Regulation.] |
11A firm must keep at the disposal of the FSA, for at least five years, the relevant
data relating to all transactions in financial instruments which it has carried
out, whether on own account or on behalf of a client.
In the case of transactions carried
out on behalf of clients, the
records shall contain all the information and details of the identity of the client, and the information required under
the money laundering directive.[Note:
article 25(2) of MiFID]
11The
requirement to keep information at the disposal of the FSA means that a firm should
maintain that information in such a form that it can readily be gathered and
transmitted to the FSA upon request. Where more than
one firm has given effect to
a transaction, each firm should be considered to have carried
out the transaction for the
purposes of SUP 17.4.3 R and should keep the records, even where only
one firm makes a transaction report as contemplated in this
Chapter.
Section 250 of the Act and regulation 7 of the OEIC Regulations allow the FSA to waive the application of certain rules in COLL to:10(1) a person, as respects a particular AUT or ICVC, on the application or with the consent of that person; and(2) an AUT or ICVC on the application or with the consent of the manager and trustee (in the case of an AUT) or the ICVC and its depositary (in the case of an ICVC).2
Application of different sections of SUP 16 (excluding SUP 16.13 and SUP 16.15)27
(1) This chapter contains requirements to report to the FSA on a regular basis. These requirements include reports relating to a firm's financial condition, and to its compliance with other rules and requirements which apply to the firm. Where the relevant requirements are set out in another section of the Handbook, this chapter contains cross references. An example of this is financial reporting for insurers and friendly societies.(2) Where such requirements already apply to
A firm should satisfy itself that the terms of the contract with its appointed representative (including an introducer appointed representative):(1) are designed to enable the firm to comply properly with any limitations or requirements on its own permission;(2) require the appointed representative to cooperate with the FSA as described in SUP 2.3.4 G (Information gathering by the FSA on its own initiative: cooperation by firms) and give access to its premises, as described in
1The purpose of the rules and guidance in this section is to ensure that, in addition to the notifications made under SUP 12.7 (Appointed representatives; notification requirements), the FSA receives regular and comprehensive information about the appointed representatives engaged by a firm, so that the FSA is in a better position to pursue the regulatory objective of the protection of consumers.3
(1) 1A firm must:(a) submit a report to the FSA annually, in the form of an amended copy of the relevant extract from the FSA Register, containing the information in (2);3(b) submit the report in (1) to the FSA within four months of the firm'saccounting reference date.(2) The report in (1) must contain a list of all the current appointed representatives of the firm as at the firm'saccounting reference date.(3) The report in (1) is not required if:(a) the firm has no appointed
A firm (with the exception of a sole trader who has no employees)21 must:12(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.
In determining whether a UK recognised body has appropriate procedures for it to make rules, for keeping its rules under review and for amending them, the FSA may have regard to:(1) the arrangements made for taking decisions about making and amending rules in the UK recognised body, including the level at which the decisions are taken and any provision for the delegation of decisions by the governing body;(2) the arrangements made for determining whether or not it is appropriate
(1) In determining whether a UK recognised body's procedures include procedures for consulting users of its facilities in appropriate cases, the FSA may have regard to whether those procedures include provision for consulting users of those facilities before changes are made to any rules relating to its regulatory functions. (2) In the FSA's view, a UK recognised body's procedures may not need to contain provision for consulting users of its facilities before making minor changes
(1) In determining whether a UK recognised body's procedures for consulting members and other users of its facilities are appropriate, the FSA may have regard to the range of persons to be consulted by the UK recognised body under those procedures. (2) In the FSA's view, consultation with a smaller range of persons may be appropriate where limited, technical changes to a UK recognised body's rules are proposed.(3) In the FSA's view, a UK recognised body's procedures may include
In determining whether a UK recognised body's procedures for consulting members and other users of its facilities are appropriate, the FSA may have regard to the extent to which the procedures include:(1) informal discussions at an early stage with users of its facilities or appropriate representative bodies; (2) publication to users of its facilities of a formal consultation paper which includes clearly expressed reasons for the proposed changes and an appropriately detailed
The FSA will consider all the relevant circumstances of a case when it
determines the length of the period of suspension or restriction (if any)
that is appropriate for the breach concerned,
and is also a sufficient deterrent. Set out below is a list of factors that
may be relevant for this purpose. The list is not exhaustive: not all of these
factors may be applicable in a particular case, and there may be other factors,
not listed, that are relevant.
The following factors may be relevant
to determining the appropriate length of the period of suspension or restriction
to be imposed on a person under
the Act:(1) DeterrenceWhen determining
the appropriate length of the period of suspension or restriction, the FSA will
have regard to the principal purpose for which it imposes sanctions, namely
to promote high standards of regulatory and/or market conduct by deterring persons who have committed breaches from
committing further
The FSA may delay the commencement of the period of suspension or restriction.
In deciding whether this is appropriate, the FSA will take into account all the circumstances of a case. Considerations
that may be relevant in respect of an authorised
person include:(1) the impact of the suspension or
restriction on consumers;(2) any practical measures the authorised person needs to take before the period of suspension or restriction
begins, for example, changes to its systems and
1The FSA and
the person on whom a suspension
or restriction is to be imposed may seek to agree the length of the period
of suspension or restriction and other terms. In recognition of the benefits
of such agreements, DEPP 6.7 provides that the length of a period of suspension or restriction
which might otherwise have been imposed will be reduced to reflect the stage
at which the FSA and
the person concerned reached
an agreement.
(1) Every credit union must send to the FSA a copy of its audited accounts published in accordance with section 3A of the Friendly and Industrial and Provident Societies Act 1968 or provided in accordance with article 49 of the Credit Unions (Northern Ireland) Order 1985.1(2) The accounts must: (a) be made up for the period beginning with the date of the credit union's registration or with the date to which the credit union's last annual accounts were made up, whichever is the
Sections 87H and 87I of the Act provide:
Prospectus approved in another EEA State |
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87H |
(1) |
A prospectus approved by the competent authority of an EEA State other than the United Kingdom is not an approved prospectus for the purposes of section 85 unless that authority has notified ESMA and provided the competent authority with -3 |
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(a) |
a certificate of approval; |
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(b) |
a copy of the prospectus as approved; and |
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(c) |
if requested by the [FSA], a translation of the summary of the prospectus. |
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(2) |
A document is not a certificate of approval unless it states that the prospectus - |
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(a) |
has been drawn up in accordance with the prospectus directive; and |
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(b) |
has been approved, in accordance with that directive, by the competent authority providing the certificate. |
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(3) |
A document is not a certificate of approval unless it states whether (and, if so, why) the competent authority providing it authorised, in accordance with the prospectus directive, the omission from the prospectus of information which would otherwise have been required to be included. |
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3(3A) |
The competent authority must publish on its website a list of certificates of approval provided to it in accordance with this section. |
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3(3B) |
The list referred to in subsection (3A) must - |
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(a) |
be kept up-to-date; |
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(b) |
retain items on it for a period of at least 12 months; and |
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(c) |
include hyperlinks to any certificate of approval and prospectus published on the website of - |
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(i) |
the competent authority of the EEA State which provided the certificate; |
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(ii) |
the issuer; or |
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(iii) |
the regulated market where admission to trading is sought. |
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(4) |
"Prospectus" includes a supplementary prospectus. |
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Provision of information to host Member State |
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87I |
(1) |
The [FSA] must, if requested to do so, supply the competent authority of a specified EEA State with – |
|
(a) |
a certificate of approval; |
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(b) |
a copy of the specified prospectus (as approved by the [FSA]); and |
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(c) |
a translation of the summary of the specified prospectus (if the request states that one has been requested by the other competent authority).2 |
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(1A)2 |
If the competent authority supplies a certificate of approval to the competent authority of the specified EEA State, it must also supply a copy of that certificate to - |
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(a) |
the person who made the request under this section; and |
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(b) |
ESMA. |
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(2) |
Only the following may make a request under this section – |
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(a) |
the issuer of the transferable securities to which the specified prospectus relates; |
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(b) |
a person who wishes to offer the transferable securities to which the specified prospectus relates to the public in an EEA State other than (or as well as) the United Kingdom; |
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(c) |
a person requesting the admission of the transferable securities to which the specified prospectus relates to a regulated market situated or operating in an EEA State other than (or as well as) the United Kingdom. |
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(3) |
A certificate of approval must state that the prospectus – |
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(a) |
has been drawn up in accordance with this Part and the prospectus directive; and |
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(b) |
has been approved, in accordance with those provisions, by the [FSA]. |
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(4) |
A certificate of approval must state whether (and, if so, why) the [FSA] authorised, in accordance with section 87B, the omission from the prospectus of information which would otherwise have been required to be included. |
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(5) |
The [FSA] must comply with a request under this section – |
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(a) |
if the prospectus has been approved before the request is made, within 3 working days beginning with the date the request is received2; or 2 |
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(b) |
if the request is submitted with an application for the approval of the prospectus, on the first working day after the date on which it approves the prospectus. |
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(6) |
“Prospectus” includes a supplementary prospectus. |
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(7) |
“Specified” means specified in a request made for the purposes of this section. |
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(1) This rule applies to a request by a person to the FSA to supply information referred to in section 87I of the Act to the competent authority of a relevant Host State.(2) The request must be in writing and must include:(a) the relevant prospectus as approved (if it has already been approved); and(b) a translation of the summary if required by the competent authority of a relevant host State.
The FSA expects to maintain a close working relationship with certain
types of firm and expects that
routine supervisory matters arising can be resolved during the normal course
of this relationship by, for example, issuing individual guidance where
appropriate (see SUP 9.3). However,
the FSA may seek to vary a firm's Part
IV permission:(1) in
circumstances where it considers it appropriate for the firm to
be subject to a formal requirement,
breach of which could attract enforcement
The FSAmay seek to vary a firm's Part IV permission on its own initiative
in certain situations including
the following:(1) If
the FSA determines
that a firm's management, business
or internal controls give rise
to material risks that are not fully addressed by its rules,
the FSAmay
seek to vary
the firm's Part
IV permission and impose an additional requirement or limitation on the firm.(2) If
a firm becomes or is to become
involved with new products or selling practices which
The FSA may seek to impose requirements or limitations which
include but are not restricted to:(1) requiring
a firm to submit regular reports
covering, for example, trading results, management accounts, customer complaints, connected party transactions;(2) requiring a firm to
maintain prudential limits, for example on large exposures,
foreign currency exposures or
liquidity gaps;(3) requiring
a firm to submit a business
plan (or
for an insurer, a scheme of operations (see SUP
The FSA will seek to give a firm reasonable
notice of an intent to vary its permission and to agree with the firm an
appropriate timescale. However, if the FSA considers
that a delay may create a risk to any of the FSA's regulatory objectives,3 the FSA may need to act immediately using its powers under section 45 of the Actto vary a firm's Part IV permission with
immediate effect.3
An overseas recognised body is required to notify the FSA of certain events and give information to it on a regular basis and when certain specified events occur. Section 295 of the Act (Notification: overseas investment exchanges and overseas clearing houses) requires each overseas recognised body to provide the FSA, the Treasury and the Director General of Fair Trading with a report (at least once a year) which contains:(1) a statement as to whether any events have occurred
The following events are examples of events likely to affect an assessment of whether an overseas recognised body is continuing to satisfy the recognition requirements, or to have an effect on competition:(1) significant changes to any relevant law or regulation in its home territory, including laws or regulations:(a) governing exchanges or clearing houses;(b) designed to prevent insider dealing, market manipulation or other forms of market abuse or misconduct;(c) designed to
The Society must, as soon as it is practical to do so, notify the FSA of its intention to make any amendment which may alter the meaning or effect of any byelaw, including:(1) any Lloyd's trust deed;(2) any standard form letter of credit prescribed by the Society from time to time; or(3) any standard form guarantee agreement prescribed by the Society from time to time.
The information provided to the FSA by the Society under INSPRU 8.2.25 R must include:(1) a statement of the purpose of any proposed amendment or new Lloyd's trust deed and the expected impact, if any, on policyholders, managing agents, members, and potential members; and(2) a description of the consultation undertaken under INSPRU 8.2.26 R including a summary of any significant responses to that consultation.
23Firms proposing to offer arrangements involving some form of minimum underpinning or 'guarantee' should discuss their proposals with the FSA and1 HM Revenue and Customs1 at the earliest possible opportunity (see DISP App 1.5.8 G). The FSA will need to be satisfied that these proposals provide complainants with redress which is at least commensurate with the standard approaches contained in this appendix.
23One of the reasons for introducing the guidance in this appendix is to seek a reduction in the number of complaints which are referred to the Financial Ombudsman Service. If a firm writes to the complainant proposing terms for settlement which are in accordance with this appendix, the letter may include a statement that the calculation of loss and redress accords with the FSAguidance, but should not imply that this extends to the assessment of whether or not the complaint should
23'Relevant benefits' are those benefits that fall outside what is required in order that policyholders' reasonable expectations at that point of sale can be fulfilled. (The phrase 'policyholders' reasonable expectations' has technically been superseded. However, the concept now resides within the obligations imposed upon firms by FSA Principle 6 ('...a firm must pay due regard to the interests of its customers and treat them fairly....') Additionally, most of these benefits would