Related provisions for GEN 1.1.2

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SUP 13.1.1GRP
This chapter applies to a UK firm, that is, a person whose head office is in the United Kingdom and which is entitled to carry on an activity in another EEA State subject to the conditions of a Single Market Directive. Such an entitlement is referred to in the Act as an EEA right and its exercise is referred to in the Handbook as passporting.1
SUP 13.1.3AGRP
9Other than the notification requirements in SUP 13.5.1AA R and SUP 13.5.2-A R and the related guidance in SUP 13.5.1B G, SUP 13.5.2A G and SUP 13.5.7 G, this chapter does not apply to a UK firm in relation to its exercise of an EEA right under the auction regulation to provide services or establish a branch in another EEA state. This is because a UK firm is not subject to the requirements in Schedule 3 to the Act in respect of its exercise of that EEA right.
SUP 13.1.5GRP
This chapter gives guidance on Schedule 3 to the Act for a UK firm which wishes to exercise its EEA right and establish a branch in, or provide cross border services into, another EEA State. That is, when a UK firm wishes to establish its first branch in, or provide cross border services for the first time into, a particular EEA State.
COLL 7.4.1GRP
(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
COLL 7.4.2AGRP

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))

Step number

Explanation

When

COLLrule (unless stated otherwise)

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

Send annual long report of manager and trustee to the FSA

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)
COLL 7.4.3RRP
(1) Upon the happening of any of the events or dates referred to in (2) and not otherwise:1(a) COLL 6.2 (Dealing), COLL 6.3 (Valuation and pricing) and COLL 5 (Investment and borrowing powers) cease to apply to the AUT or to the units and scheme property in the case of a sub-fund;1(b) the trustee must cease to issue and cancel1units, except in respect of the final cancellation under COLL 7.4.4 R (1) or (2);11(c) the manager must cease to sell and redeem units; (d) the manager
SUP 11.2.1GRP
Part XII of the Act (Notices of acquisitions of control 3 over UK3 authorised persons) places an obligation on the controllers and proposed controllers of those UK domestic firms not listed in SUP 11.1.1 R (1) to SUP 11.1.1 R (6) to notify the FSA of changes in control, including acquiring, increasing or reducing control or ceasing to have control over a firm.3 Furthermore, those persons are required to obtain the FSA's approval before becoming a controller or increasing their
SUP 11.2.3GRP
As the approval of the FSA is not required under the Act for a new controller of an overseas firm, the notification rules on such firms are less prescriptive than they are for UK domestic firms. Nevertheless, the FSA still needs to monitor such an overseas firm's continuing satisfaction of the threshold conditions, which normally includes consideration of a firm's connection with any person, including its controllers and parent undertakings (see COND). The FSA therefore needs
SUP 11.2.5GRP
Similarly, the FSA needs to monitor a firm's continuing satisfaction of threshold condition 3 (Close links) (see COND 2.32), which requires that a firm's close links are not likely to prevent the FSA's effective supervision of that firm. Accordingly the FSA needs to be notified of any changes in a firm's close links. This requirement is contained in SUP 11.9.2
SUP 11.5.8GRP
A firm and its controller or proposed controller may discharge an obligation to notify the FSA by submitting a single joint section 178 notice5containing the information required from the firm and the controller or proposed controller. In this case, the section 178 notice53 may be used on behalf of both the firm and the controller or proposed controller.5355
SUP 11.5.9GRP
If a person is proposing a change in control over more than one firm within a group, then the controller or proposed controller may submit a single section 178 notice5 to the PRA in respect of all those firms. The section 178 notice5should contain all the required information as if separate notifications had been made, but information and documentation need not be duplicated.55
SUP 11.5.10GRP
When an event occurs (for example, a group restructuring or a merger) as a result of which: (1) more than one firm in a group would undergo a change in control; or(2) a single firm would experience more than one change in control;then, to avoid duplication of documentation, all the firms and their controllers or proposed controllers may discharge their respective obligations to notify the FSA by submitting a single section 178 notice5 containing one set of information.5
COND 2.2.2GRP
Threshold condition 2(1) and (2) (Location of offices), implement the requirements of article 6 of the Post BCCI Directive and article 5(4) of MiFID3 and threshold condition 2(3) and (4) implements article 2.9 of the Insurance Mediation Directive, although the Act extends threshold condition 2 to firms which are outside the scope of the Single Market Directives and the UCITS Directive.1
COND 2.2.3GRP
Neither the Post BCCI Directive, MiFID,3 the Insurance Mediation Directive nor the Act define what is meant by a firm's 'head office'. This is not necessarily the firm's place of incorporation or the place where its business is wholly or mainly carried on. Although the FSA will judge each application on a case-by-case basis, the key issue in identifying the head office of a firm is the location of its central management and control, that is, the location of: 1(1) the directors
PERG 5.2.3GRP
A person who is concerned to know whether his proposed insurance mediation activities may require authorisation will need to consider the following questions (these questions are a summary of the issues to be considered and have been reproduced, in slightly fuller form, in the flow chart in PERG 5.15.2 G (Flow chart: regulated activities related to insurance mediation – do you need authorisation?):(1) will the activities relate to contracts of insurance (see PERG 5.3(Contracts
PERG 5.2.4GRP
It is recognised pursuant to section 22 of the Act that a person will not be carrying on regulated activities in the first instance, including insurance mediation activities, unless he is carrying on these activities by way of business. Similarly, where a person's activities are excluded he cannot, by definition, be carrying on regulated activities. To this extent, the content of the questions above does not follow the scheme of the Act. For ease of navigation, however, the questions
PERG 5.2.10GRP
An unauthorised person who intends to carry on activities connected with contracts of insurance will need to comply with section 21 of the Act (Restrictions on financial promotion). This guidance does not cover financial promotions that relate to contracts of insurance. Persons should refer to the general guidance on financial promotion in PERG 8 (Financial promotion and related activities). (See in particular PERG 8.17A (Financial promotions concerning insurance mediation activities)
PERG 9.6.3GRP
Section 236(3) of the Act states clearly that the investment condition must be met 'in relation to BC'. In the FSA's view, this means that the investment condition should not be applied rigidly in relation to specific events such as particular issues of shares or securities or in relation to particular points in time. The requirements of the investment condition must be satisfied in relation to the overall impression of the body corporate itself, having regard to all the circ
PERG 9.6.5GRP
Certain matters are to be disregarded in determining whether the investment condition is satisfied. Section 236(4) of the Act states that, for these purposes, no account is to be taken of any actual or potential redemption or repurchase of shares or securities under:(1) Chapters 3 to 71 of Part 181 of the Companies Act 2006;1or1(2) [deleted]11(3) corresponding provisions in force in another EEA State; or(4) provisions in force in a country or territory other than an EEA State
PERG 9.6.7GRP
The FSA's views on the following three elements of the investment condition are explained separately:(1) the 'reasonable investor' (see PERG 9.7 (The investment condition: the 'reasonable investor'));(2) the 'expectation' test (see PERG 9.8 (The investment condition: the 'expectation test' (section 236(3)(a) of the Act))); and(3) the 'satisfaction' test (see PERG 9.9 (The investment condition: the 'satisfaction test' (section 236(3)(b) of the Act)).
BIPRU 12.9.9GRP
Consistent with Principle 11 (Relations with regulators), the FSA will expect a firm to notify it if the firm does not propose to follow its individual liquidity guidance. The FSA will expect any such notification to be accompanied by a clear account of the firm's reasons for considering the individual liquidity guidance to be inappropriate. The FSA will expect to receive any such notification within one month from the date on which it gives individual liquidity guidance to the
BIPRU 12.9.15GRP
As part of the FSA's enquiry into the reasons for a firm's deviation, or expected deviation, from its individual liquidity guidance or, as the case may be, its simplified buffer requirement, the FSA may ask for further assessments and analyses of a firm's liquidity resources and the risks faced by the firm. The FSA may consider the use of its powers under section 166 of the Act to assist in such circumstances.
BIPRU 12.9.21GRP
If agreement through discussion with the FSA cannot be reached as to the necessary actions and timescales to remedy deviation from that guidance, the FSA will consider using its powers under the Act (for example, its power under section 45 to vary, on its own initiative, a firm'sPart IV permission or its power of intervention under section 196) so as to require the firm to take such actions as the FSA considers are necessary to return the firm to conformity with the terms of its
PR 1.2.1UKRP

Sections 85 and 86 of the Act provide for when a prospectus approved by the FSA will be required:

85

(1)

It is unlawful for transferable securities to which this subsection applies to be offered to the public in the United Kingdom unless an approved prospectus has been made available to the public before the offer is made.

(2)

It is unlawful to request the admission of transferable securities to which this subsection applies to trading on a regulated market situated or operating in the United Kingdom unless an approved prospectus has been made available to the public before the request is made.

(3)

A person who contravenes subsection (1) or (2) is guilty of an offence and liable –

(a)

on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both;

(b)

on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

(4)

A contravention of subsection (1) or (2) is actionable, at the suit of a person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.

(5)

Subsection (1) applies to all transferable securities other than –

(a)

those listed in Schedule 11A;

(b)

such other transferable securities as may be specified in prospectus rules [see PR 1.2.2 R].

(6)

Subsection (2) applies to all transferable securities other than –

(a)

those listed in Part 1 of Schedule 11A;

(b)

such other transferable securities as may be specified in prospectus rules [see PR 1.2.3 R].

(7)

"Approved prospectus" means, in relation to transferable securities to which this section applies, a prospectus approved by the competent authority of the home State in relation to the issuer of the securities.

86

Exempt offers to the public

(1)

A person does not contravene section 85(1) if –

(a)

the offer is made to or directed at qualified investors only;

(b)

the offer is made to or directed at fewer than 1502 persons, other than qualified investors, per EEA State;

(c)

the minimum consideration which may be paid by any person for transferable securities acquired by him pursuant to the offer is at least 100,0003 euros (or an equivalent amount);

3

(d)

the transferable securities being offered are denominated in amounts of at least 100,0003 euros (or equivalent amounts);

33

(e)

the total consideration for the transferable securities being offered in the EEA states3 cannot exceed 100,000 euros (or an equivalent amount); or3

3

3(f)

the offer falls within subsection (1A).

3(1A)

An offer (“the current offer”) falls within this subsection where transferable securities are resold or placed through a financial intermediary where:

3(a)

the transferable securities have previously been the subject of one or more offers to the public;

3(b)

in respect of one or more of those previous offers, any of paragraphs (a) to (e) of subsection (1) applied;

3(c)

a prospectus is available for the securities which has been approved by a competent authority no earlier than 12 months before the date the current offer is made; and

3(d)

the issuer or other person who was responsible for drawing up the prospectus has given written consent to the use of the prospectus for the purpose of the current offer.

(2)

Where -

(a)

a person who is not a qualified investor ("the client") has engaged a qualified investor falling within point (1) of Section 1 of Annex II to the markets in financial instruments directive3 to act as his agent; and

3

(b)

the terms on which the qualified investor is engaged enable him to make decisions concerning the acceptance of offers of transferable securities on the client's behalf without reference to the client,

an offer made to or directed at the qualified investor is not to be regarded for the purposes of subsection (1) as also having been made to or directed at the client.

(3)

For the purposes of subsection (1)(b), the making of an offer of transferable securities to –

(a)

trustees of a trust,

(b)

members of a partnership in their capacity as such, or

(c)

two or more persons jointly,

is to be treated as the making of an offer to a single person.

(4)

In determining whether subsection (1)(e) is satisfied in relation to an offer ("offer A"), offer A is to be taken together with any other offer of transferable securities of the same class made by the same person which –

(a)

was open at any time within the period of 12 months ending with the date on which offer A is first made; and

(b)

had previously satisfied subsection (1)(e).

(5)

For the purposes of this section, an amount (in relation to an amount denominated in euros) is an "equivalent amount" if it is an amount of equal value denominated wholly or partly in another currency or unit of account.

(6)

The equivalent is to be calculated at the latest practicable date before (but in any event not more than 3 working days before) the date on which the offer is first made.

(7)

"Qualified investor" in relation to an offer of transferable securities,3 means –

(a)

a person described in points (1) to (4) of Section I of Annex II to the markets in financial instruments directive, other than a person who, before the making of the offer, has agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II to that directive;3

3

(b)

a person who has made a request to one or more relevant firms to be treated as a professional client in accordance with Section II of Annex II to that directive and has not subsequently, but before the making of the offer, agreed in writing with that relevant firm (or each of those relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II to that directive;3

3

(c)

a person who is recognised as an eligible counterparty in accordance with article 24 of that directive and has not, before the making of the offer, agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II of that directive;3

3

3(d)

a person whom any relevant firm is authorised to continue to treat as a professional client in accordance with article 71(6) of that directive.

3(8)

In subsection (7) “relevant firm” means an investment firm or credit institution acting in connection with the offer.

3(9)

Investment firms and credit institutions must communicate their classification of their clients as being or not being qualified investors on request to an issuer, subject to complying with the Data Protection Act 1998 or any directly applicable EU legislation relating to data protection.

3(10)

In subsections (8) and (9) -

“credit institution” means -

(a) a credit institution authorised under the banking consolidation directive; or

(b) an institution which would satisfy the requirements for authorisation as a credit institution under that directive if it had its registered office (or if it does not have one, its head office) in an EEA State.
PR 1.2.2RRP
In accordance with section 85(5)(b) of the Act, section 85(1) of the Act does not apply to offers of the following types of transferable securities:(1) shares issued in substitution for shares of the same class already issued, if the issue of the new shares does not involve any increase in the issued capital;(2) transferable securities offered in connection with a takeover by means of an exchange offer, if a document is available containing information which is regarded by the
PR 1.2.3RRP
In accordance with section 85(6)(b) of the Act, section 85(2) of the Act does not apply to the admission to trading of the following types of transferable securities:(1) shares representing, over a period of 12 months, less than 10 per cent of the number of shares of the same class already admitted to trading on the same regulated market;(2) shares issued in substitution for shares of the same class already admitted to trading on the same regulated market, if the issue of the
PERG 4.12.1GRP
Section 39 of the Act makes provision exempting appointed representatives from the need to obtain authorisation. An appointed representative is a person who is a party to a contract with an authorised person which permits or requires the appointed representative to carry on certain regulated activities. SUP 12 (Appointed representatives) contains guidance relating to appointed representatives.
PERG 4.12.2GRP
A person who is an authorised person cannot be an appointed representative (see section 39(1) of the Act (Exemption of appointed representatives)).
PERG 4.12.5GRP
Where a person is already an appointed representative (in relation to any non-mortgage activities) and he proposes to carry on any regulated mortgage activities, he will need to consider the following matters.(1) He must become authorised if his proposed mortgage activities include either entering into a regulated mortgage contract or administering a regulated mortgage contract. These activities may not be carried on by appointed representatives and the Act does not permit any
PR 5.3.1UKRP

Sections 87H and 87I of the Act provide:

Prospectus approved in another EEA State

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

(a)

a certificate of approval;

(b)

a copy of the prospectus as approved; and

(c)

if requested by the [FSA], a translation of the summary of the prospectus.

(2)

A document is not a certificate of approval unless it states that the prospectus -

(a)

has been drawn up in accordance with the prospectus directive; and

(b)

has been approved, in accordance with that directive, by the competent authority providing the certificate.

(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.

3(3A)

The competent authority must publish on its website a list of certificates of approval provided to it in accordance with this section.

3(3B)

The list referred to in subsection (3A) must -

(a)

be kept up-to-date;

(b)

retain items on it for a period of at least 12 months; and

(c)

include hyperlinks to any certificate of approval and prospectus published on the website of -

(i)

the competent authority of the EEA State which provided the certificate;

(ii)

the issuer; or

(iii)

the regulated market where admission to trading is sought.

(4)

"Prospectus" includes a supplementary prospectus.

Provision of information to host Member State

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;

(b)

a copy of the specified prospectus (as approved by the [FSA]); and

(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

(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 -

(a)

the person who made the request under this section; and

(b)

ESMA.

(2)

Only the following may make a request under this section –

(a)

the issuer of the transferable securities to which the specified prospectus relates;

(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;

(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.

(3)

A certificate of approval must state that the prospectus –

(a)

has been drawn up in accordance with this Part and the prospectus directive; and

(b)

has been approved, in accordance with those provisions, by the [FSA].

(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.

(5)

The [FSA] must comply with a request under this section –

(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

(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.

(6)

“Prospectus” includes a supplementary prospectus.

(7)

“Specified” means specified in a request made for the purposes of this section.
PR 5.3.2RRP
(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.
PR 5.3.4GRP
If the FSA receives information referred to in section 87H from another competent authority it will as soon as practicable give notice on the FSA website that it has received the information.11
SUP 7.3.2GRP
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
SUP 7.3.3GRP
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
SUP 7.3.4GRP
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
PERG 5.13.1GRP
Section 39 of the Act (Exemption of appointed representatives) exempts appointed representatives from the need to obtain authorisation. An appointed representative is a person who is party to a contract with an authorised person which permits or requires him to carry on certain regulated activities (see Glossary for full definition). SUP 12 (Appointed representatives) contains rules and guidance relating to appointed representatives.
PERG 5.13.2GRP
A person who is an authorised person cannot be an appointed representative (see section 39(1) of the Act (Exemption of appointed representatives)).
PERG 5.13.6GRP
Where a person is already an appointed representative and he proposes to carry on any insurance mediation activities, he will need to consider the following matters.(1) He must become authorised if his proposed insurance mediation activities include activities that do not fall within the table in PERG 5.13.4 G (for example, dealing as agent in pure protection contracts) and he wishes to carry on these activities. The Act does not permit any person to be exempt for some activities
SUP 5.4.1GRP
The FSA will send a notice in writing requiring the person in SUP 5.2.1 G to provide a report by a skilled person on any matter if it is reasonably required in connection with the exercise of its functions conferred by or under the Act. The FSA may require the report to be in whatever form it specifies in the notice (SUP 5 Annex 2 summarises the appointment and reporting processes).
SUP 5.4.6GRP
The skilled person is appointed by the person in SUP 5.2.1 G. The FSA will normally seek to agree in advance with the person in SUP 5.2.1 G the skilled person who will make the report. The Act requires that the skilled person be nominated or approved by the FSA:(1) if the FSA decides to nominate the skilled person who is to make the report report, it will notify the person in SUP 5.2.1 G accordingly; and (2) alternatively, if the FSA is content to approve a skilled person selected
BIPRU 9.3.9GRP
1In the event that the FSA decides that the possible reduction in risk weighted exposure amounts which the originator would achieve by the securitisation referred to in BIPRU 9.3.7R is not justified by a commensurate transfer of credit risk to third parties, it will use its powers under section 45 of the Act (Variation etc on the Authority's own initiative) to require the firm to increase its risk weighted exposure amount to an amount commensurate with the FSA's assessment of
BIPRU 9.3.12GRP
1BIPRU 1.3.10 G sets out the FSA's approach to the granting of waivers. The conditions in BIPRU 9.3.11D are minimum requirements. Satisfaction of those does not automatically mean the FSA will grant the relevant waiver. The FSA will in addition also apply the tests in section 148 (Modification or waiver of rules) of the Act.
BIPRU 9.3.21GRP
1Subject to BIPRU 9.3.22G, BIPRU 9.15.9R and BIPRU 9.15.10R, where the originator or sponsor of a securitisation fails to meet any of the requirements in BIPRU 9.3.18R to BIPRU 9.3.20R (disclosure requirements) in any material respect by reason of its negligence or omission, the FSA will use its powers under section 45 (Variation etc on the Authority's own initiative) of the Act to impose an additional risk weight of no less than 250% (capped at 1250%) of the risk weight that
PERG 2.11.1GRP
Any person who concludes or is advised that he will need to make an application for Part IV permission should look at PERG 2 Annex 2 G to determine the categories of specified investment and regulated activities that are relevant to the next step and should then refer to the FSA website How do I get authorised: http://www.fsa.gov.uk/Pages/Doing/how/index.shtml1 for details of the application process.1
DISP 2.8.2RRP
19The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service:(1) more than six months after the date on which the respondent sent the complainant its final response or redress determination or summary resolution communication; or3(2) more than: (a) six years after the event complained of; or (if later)(b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for
PERG 8.1.1GRP
This chapter applies to persons who need to know whether their communications are subject to or comply with the Act. It also helps them decide whether their activities in making or helping others to make financial promotions are regulated activities.
PERG 8.1.2GRP
The purpose of this guidance is two fold:(1) to outline the restriction on financial promotion under section 21 of the Act (Restrictions on financial promotion) and the main exemptions from this restriction; and(2) to outline the main circumstances in which persons who are primarily involved in making or helping others to make financial promotions may be conducting regulated activities requiring authorisation or exemption themselves; this part of the guidance may also be of more
PERG 8.1.4GRP
This guidance is issued under section 157 of the Act. It represents the FSA's views and does not bind the courts. For example, it would not bind the courts in an action for damages brought by a private person for breach of a rule (see section 150 of the Act (Actions for damages)), or in relation to the enforceability of a contract where there has been a breach of sections 19 (The general prohibition) or 21 (Restrictions on financial promotion) of the Act (see sections 26 to 30
PERG 8.6.1GRP
The word ‘communicate’ is extended under section 21(13) of the Act and includes causing a communication to be made. This means that a person who causes the communication of a financial promotion by another person is also subject to the restriction in section 21. Article 6(d) of the Financial Promotion Order also states that the word ‘communicate’ has the same meaning when used in exemptions in the Order. Article 6(a) also states that the word ‘communication’ has the same meaning
PERG 8.6.7AGRP
1The position of an unauthorised person (‘U’) who, in the course of business, causes an authorised person to communicate a financial promotion is somewhat different. This is because the authorised person (‘A’) is not subject to section 21 of the Act and so will not necessarily be communicating the financial promotion in circumstances in which an exemption would apply. To avoid any doubt about the application of section 21 to U, a specific exemption is provided in article 17A of
PERG 8.6.9GRP
Section 21(1) of the Act refers only to the communication of an invitation or inducement. It says nothing about communications being 'made to' or 'directed at' persons or about who the 'recipient' of a communication will be. These facts are determined by the following sequence:(1) section 21(13) of the Act indicates that communications are 'made';(2) article 6 of the Financial Promotion Order (Interpretation: communications) indicates that communications are made by being 'addressed
COLL 5.2.10EGRP
(1) 7In addition to instruments admitted to or dealt in on an eligible market, a UCITS scheme may also with the express consent of the FSA (which takes the form of a waiver under section 148 of the Act as applied by section 250 of the Act or regulation 7 of the OEIC Regulations) invest in an approved money-market instrument provided:(a) the issue or issuer is itself regulated for the purpose of protecting investors and savings in accordance with COLL 5.2.10AR (2);(b) investment
COLL 5.2.13RRP
A UCITS scheme must not invest in units in a collective investment scheme ("second scheme") unless the second scheme satisfies all of the following conditions, and provided that no more than 30% of the value of the UCITS scheme is invested in second schemes within (1)(b) to (e):88(1) the second scheme must:(a) satisfy the conditions necessary for it to enjoy the rights conferred by the UCITS Directive; or(b) be recognised under the provisions of section 270 of the Act (Schemes
COLL 5.2.14GRP
(1) COLL 9.3 gives further detail as to the recognition of a scheme under section 270of the Act.(2) Article 5013 of the UCITS Directive sets out the general investment limits. So, a non-UCITS retail scheme, or its equivalent EEAscheme which has the power to invest in gold or immovables would not meet the criteria set in COLL 5.2.13R (1)(c) and COLL 5.2.13R (1)(d).13(3) 8In determining whether a scheme meets the requirements of article 50(1)(e)13 of the UCITS Directive for the
COLL 5.2.34GRP
13Authorised fund managers of UCITS schemes or EEA UCITS schemes should bear in mind that where a UCITS scheme, or an EEA UCITS scheme that is a recognised scheme under section 264 of the Act, employs particular investment strategies such as investing more than 35% of its scheme property in government and public securities, or investing principally in units in collective investment schemes, deposits or derivatives, or replicating an index, COBS 4.13.2R (Marketing communications