Related provisions for PERG 6.4.3
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(1) If an issuer wishes to transfer its category of equity shares2listing it must notify the FSA of the proposal.(2) The notification must be made as early as possible and in any event not less than 20 business days before it sends the circular required under LR 5.4A.4 R (2)(a) or publishes the announcement required under LR 5.4A.5 R (2).(3) The notification must include:(a) an explanation of why the issuer is seeking the transfer;(b) if a sponsor's letter is not required under
The circular referred to in LR 5.4A.4 R must:(1) comply with the requirements of LR 13.1, LR 13.2 and LR 13.3;(2) be approved by the FSA before it is circulated or published; and(3) include the anticipated transfer date (which must be not less than 20 business days after the passing of the resolution under LR 5.4A.4 R).
Information required under LR 13.3.1R(1) (Contents of all circulars) to be included in the circular or announcement should include an explanation of:(1) the background and reasons for the proposed transfer;(2) any changes to the issuer's business that have been made or are proposed to be made in connection with the proposal;(3) the effect of the transfer on the issuer's obligations under the listing rules;(4) how the issuer will meet any new eligibility requirements, for example
If an issuer has initially notified the FSA under LR 5.4A.3 R it may apply to the FSA to transfer the listing of its equity shares2 from one category to another. The application must include:(1) the issuer's name;(2) details of the equity shares2 to which the transfer relates;(3) the date on which the issuer wishes the transfer to take effect;(4) a copy of any circular, announcement or other document on which the issuer is relying;(5) if relevant, evidence of any resolution required
If an issuer applies under LR 5.4A.10 R, the FSA may approve the transfer if it is satisfied that:(1) the issuer has complied with LR 5.4A.4 R or LR 5.4A.5 R (whichever is relevant);(2) the 20 business day period referred to in LR 5.4A.6 R or LR 5.4A.7 R (whichever is relevant) has elapsed; and(3) the issuer and the equity shares2 will comply with all eligibility requirements that would apply if the issuer was seeking admission to listing of the equity shares2 to the category
(1) If the FSA approves a transfer of a listing then it must announce its decision on a RIS.(2) The transfer becomes effective when the FSA's decision to approve is announced on the RIS.(3) The issuer must continue to comply with the requirements of its existing category of listing until the decision is announced on the RIS.(4) After the decision is announced the issuer must comply with the requirements of the category of listing to which it has transferred.
There may be situations in which an issuer's business has changed over a period of time so that it no longer meets the requirements of the applicable listing category against which it was initially assessed for listing. In those situations, the FSA may consider cancelling the listing of the equity shares2 or suggest to the issuer that, as an alternative, it applies for a transfer of its listing category.
The first activity (article 25A(1)) is referred to in this guidance as arranging (bringing about) regulated mortgage contracts. Various points arise:(1) It is not necessary for the potential borrower himself to be involved in making the arrangements.(2) This activity is carried on only if the arrangements bring about, or would bring about a regulated mortgage contract. This is because of the exclusion in article 26 (see PERG 4.5.4 G).(3) This activity therefore includes the activities
Article 26 of the Regulated Activities Order (Arrangements not causing a deal) excludes from article 25A(1) arrangements which do not bring about or would not bring about the regulated mortgage contract in question. In the FSA's view, a person brings about or would bring about a regulated mortgage contract if his involvement in the chain of events leading to the transaction is of enough importance that without that involvement it would not take place.
In the FSA's view, the crucial element of the exclusion in article 27 is the inclusion of the word "merely". When a publisher, broadcaster or Internet website operator goes beyond what is necessary for him to provide his service of publishing, broadcasting or otherwise facilitating the issue of promotions, he may well bring himself within the scope of article 25A(2). Further detailed guidance relating to the scope of the exclusion in article 27 is contained in PERG 8.32.6 G to
Arranging a regulated mortgage contract (or contract variation) to which the arranger is to be a party is excluded from both article 25A(1) and (2) by article 28A of the Regulated Activities Order (Arranging contracts to which the arranger is a party). As a result, a person cannot both be entering into a regulated mortgage contract and arranging a regulated mortgage contract under article 25A as regards a particular regulated mortgage contract. This means that a direct sale by
An unauthorised person who makes arrangements for or with a view to a regulated mortgage contract between a borrower and an authorised person, is excluded from article 25A(1) and (2) by article 29 of the Regulated Activities Order (Arranging deals with or through authorised persons) if specified conditions as to advice and remuneration are satisfied. For example, the exclusion is dependent on the borrower not receiving any advice on the regulated mortgage contract from the unauthorised
The exclusion applies for introductions to:(1) an authorised person who has permission to carry on a regulated activity specified in article 25A (Arranging regulated mortgage contracts) or article 53A (Advising on regulated mortgage contracts) or article 61(1) (Entering into a regulated mortgage contract as lender); introducers can check the status of an authorised person and its permission by visiting the FSA's registerat http://www.fsa.gov.uk/register/;(2) an appointed representative
In the FSA's view, money payable to an introducer on his own account includes money legitimately due to him for services rendered to the borrower, whether in connection with the introduction or otherwise. It also includes sums payable to an introducer (for example, a housebuilder) by a buyer in connection with a transfer of property. For example, article 33A allows a housebuilder to receive the purchase price on a property that he sells to a borrower, whom he previously introduced
In the FSA's view, details of fees or commission referred to in PERG 4.5.14G (2) does not require an introducer to provide an actual sum to the borrower, where it is not possible to calculate the full amount due prior to the introduction. This may arise in cases where the fee or commission is a percentage of the eventual loan taken out and the amount of the required loan is not known at the time of the introduction. In these cases, it would be sufficient for the introducer to
In the FSA's view, the information condition in PERG 4.5.14G (3) requires the introducer to indicate to the borrower any other advantages accruing to him as a result of ongoing arrangements with N relating to the introduction of borrowers. This may include, for example, indirect benefits such as office space, travel expenses, subscription fees and this and other relevant information may be provided on a standard form basis to the borrower, as appropriate.
(1) An application should be made by the proprietor of the relevant publication or service using the appropriate form, accessible from our website (see Forms/ Perimeter Guidance manual forms). The form asks for general information about the applicant and gives guidance notes on completion and other details of how the FSA can help.(2) An applicant will be asked to state his own view of the principal purpose of the publication or service. This should include an explanation why the
The Act does not specify a time limit for processing the application but the FSA intends to deal with an application as quickly as possible. The more complete and relevant the information provided by an applicant, the more quickly a decision can be expected. But on occasion it may be necessary to allow time in which the FSA can monitor the content of the service. This might happen where, for example, a service is in a form that makes record keeping difficult (such as a large website
The FSA will form an overall view as to the purpose (or purposes) underlying the publication or service. It will then determine whether the principal purpose is neither of those referred to in article 54 of the Regulated Activities Order. Because the possible range of subject matter covered by different publications or services is very wide it is not possible to apply standard tests. The FSA will form a judgment as to the overall impression created by the publication or service.
If the FSA decides to grant the application it will issue a certificate. The certificate will normally be granted for an indefinite period. It will state what it is that the FSA considers constitutes the periodical or service in relation to which the FSA is satisfied that the exclusion in article 54 of the Regulated Activities Order applies. In many cases this will be self-evident. But it may sometimes be necessary to include further details in the certificate indicating what
An application may be refused on the grounds that the FSA is not satisfied that the principal purpose of the publication or service is neither of those mentioned in article 54(1)(a) or (b) of the Regulated Activities Order (see PERG 7.4.5 G). An application may also be refused on the grounds that the FSA considers that the vehicle through which advice is to be given is not a newspaper, journal, magazine or other periodical publication, a regularly updated news or information service
An auditor of a firm must submit a client assets 5report addressed to the FSA which: 5(1) 5(a) states the matters set out in SUP 3.10.5 R; and55(b) specifies the matters to which SUP 3.10.9 R and SUP 3.10.9A R refer; or (2) if the firm claims not to hold client money or custody assets, states whether anything has come to the auditor's attention that causes him to believe that the firm held client money or custody assets during the period covered by the report.
SUP 3.10.4 R provides that an auditor must ensure that a client assets report is prepared in accordance with the terms of, as the case may be, a reasonable assurance engagement or a limited assurance engagement. However, the FSA also expects an auditor to have regard, where relevant, to material published by the Auditing Practices Board that deals specifically with the client assets report which the auditor is required to submit to the FSA. In the FSA's view, a client assets report
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
1It is the responsibility of an insurance intermediary's senior management to determine, on a continuing basis, whether the firm is an exempt insurance intermediary for the purposes of this requirement and to appoint an auditor if management determines the firm is no longer exempt. SUP 3.7 (amplified by SUP 15) sets out what a firm should consider when deciding whether it should notify the FSA of matters raised by its auditor.
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.
(1) 5The FSA expects that the list of breaches will include every breach of a rule in CASS insofar as that rule is within the scope of the client assets report and is identified in the course of the auditor’s review of the period covered by the report, whether identified by the auditor or disclosed to it by the firm, or by any third party.(2) 5For the purpose of determining whether to qualify its opinion or express an adverse opinion, the FSA would expect an auditor to exercise
Under section 294 of the Act (Modification or waiver of rules), the FSA may, on the application or with the consent of a recognised body (including an overseas recognised body), direct that any notification rule is not to apply to the body or is to apply with such modifications as may be specified in the waiver.
Under section 294(4) of the Act, before the FSA may give a waiver of notification rules, it must be satisfied that:(1) compliance by the recognised body with those notification rules, or with those rules as unmodified, would be unduly burdensome or would not achieve the purpose for which those rules were made; and(2) the waiver would not result in undue risk to persons whose interests those rules are designed to protect.
There is no application form, but applicants should make their application formally and in writing and in accordance with any direction the FSA may make under section 294(2) of the Act. Each application should set out at least:(1) full particulars of the waiver which is requested; (2) the reason why the recognised body believes that the criteria set out in section 294(4) (and described in REC 3.3.3 G) would be met, if this waiver were granted; and (3) where the recognised body
Any waiver given by the FSA under section 294 of the Act will be made in writing, stating: (1) the name of the recognised body in respect of which the waiver is made;(2) the notification rules which are to be waived or modified in respect of that body;(3) where relevant, the manner in which any rule is to be modified;(4) any condition or time limit to which the waiver is subject; and(5) the date from which the waiver is to take effect.
Where the FSA considers that it will not give the waiver which has been applied for, the FSA will give reasons to the applicant for its decision. The FSA will endeavour, where practicable, to inform an applicant in advance where it seems that an application is likely to fail unless it is amended or expanded, so that the applicant will have the opportunity to make any necessary amendments or additions before the application is considered.
The FSA will periodically review any waiver it has given. The FSA has the right to revoke a waiver under section 294(6) of the Act. This right is likely to be exercised in the event of a material change in the circumstances of the recognised body or in any fact on the basis of which the waiver was given.
If a registered society fails to file an R by the date it is required to be filed:(1) the R used to determine the amount of the periodic fee payable by the registered society will be that shown in the R last filed with the FSA or its predecessor; and(2) the registered society must pay an administrative fee equal to the lower of the periodic fee payable by the registered society under Annex 1R for that year, and £250.
If a registered society ceases to be a registered society on or after 1 April in a particular financial year, but before an invoice for the periodic fee payable under 1.2.1 R for the financial year in which the society ceases to be a registered society has been issued by the FSA, the periodic fee payable by that registered society under 1.2.1 R is the amount of the periodic fee under Annex 1R for the immediately preceding financial year.
A registered society need not pay a periodic fee on the date which it is due under the relevant provision in these rules, if:(1) that date falls during a period during which circumstances of the sort set out in R(Emergencies) exist, and that registered society has reasonable grounds to believe that those circumstances impair its ability to pay the fee, in which case it must pay on or before the fifth business day after the end of that period; or(2) that date would otherwise
The FSA expects to issue invoices for periodic fees at least 30 days before the date on which they fall due. Accordingly, it will generally be the case that a registered society will have at least 30 days from the issue of the invoice before an administrative fee becomes payable, and at least 45 days before any interest becomes payable.
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
The issuer or the owner, as the case may be, must notify the FSA immediately in writing by e-mail, or hand-delivered letter, if requirements relating to the relevant regulated covered bond under the RCB Regulations or RCB are, or are likely to be, materially breached, or of any other matter which the FSA should be made aware of.
Achieving the regulatory objectives involves the FSA informing itself of developments in firms and in markets. The Act requires the FSA to monitor a firm's compliance with requirements imposed by or under the Act, or by any directly applicable Community regulation or decision made under MiFID or the UCITS Directive or the auction regulation4 (paragraph 6 (1) of Schedule 1). The Act also requires the FSA to take certain steps to cooperate with other relevant bodies and 3regulators
The FSA receives the information in SUP 2.1.3 G through a variety of means, including notifications by firms (see SUP 15) and regular reporting by firms (see SUP 16). This chapter is concerned with the methods of information gathering that the FSA may use on its own initiative in the discharge of its functions under the Act. This chapter does not deal with the information gathering powers that the FSA has under the Unfair Terms Regulations. These are dealt with in UNFCOG2.12
Part XI of the Act (Information Gathering and Investigations) gives the FSA statutory powers, including: (1) to require the provision of information (see sections 165, 165A, 3EG 32 and FINMAR 13);332(2) to require reports from skilled persons (see section 166 and SUP 5);(3) to appoint investigators (see sections 167, 168 and 169 of the Act and EG 32); and2(4) to apply for a warrant to enter premises (see section 176 of the Act and EG 42).2
The FSA prefers to discharge its functions by working in an open and cooperative relationship with firms. The FSA will look to obtain information in the context of that relationship unless it appears that obtaining information in that way will not achieve the necessary results, in which case it will use its statutory powers. The FSA has exercised its rule-making powers to make Principle 11 which requires that a firm must deal with its regulators in an open and cooperative way,
The purpose of SUP 2.3 is to amplify Principle 11 in the context of information gathering by the FSA on its own initiative in the discharge of its functions under the Act. SUP 2.3 therefore sets out, in guidance on Principle 11 and in rules, how the FSA expects firms to deal with the FSA in that context, including the steps that a firm should take with a view to ensuring that certain connected persons should also cooperate with the FSA.
The purpose of SUP 2.4 is to explain a particular method of information gathering used by the FSA, known as "mystery shopping". Information about how a firm sells financial products can be very difficult to obtain, and the purpose of this method is to obtain such information from individuals who approach a firm in the role of potential retail consumers on the FSA's initiative. The FSA may seek information about particular issues or the activities of individual firms by means
Section 19 of the Act (The general prohibition) provides that the requirement to be authorised under the Act only applies in relation to regulated activities which are carried on 'in the United Kingdom'. In many cases, it will be quite straightforward to identify where an activity is carried on. But when there is a cross-border element, for example because a borrower is outside the United Kingdom or because some other element of the activity happens outside the United Kingdom,
The exclusions in article 72(5A) to (5F) of the Regulated Activities Order (Overseas persons) provide that an overseas person does not carry on the regulated activities of:(1) arranging (bringing about) or making arrangements with view to a regulated mortgage contract;(2) entering into a regulated mortgage contract; or(3) administering a regulated mortgage contract;if the borrower (and each of them, if more than one) is an individual and is normally resident overseas. In the case
The FSA's view of the effect of the Act and Regulated Activities Order in various territorial scenarios is set out in the remainder of this section. In those scenarios:(1) the term "service provider" is used to describe a person carrying on any of the regulated mortgage activities;(2) the term "borrower" refers to a borrower who is an individual and not a trustee; the position of a borrower acting as a trustee is not considered; and(3) it is assumed that the activity is not an
When a person is arranging (bringing about) regulated mortgage contracts or making arrangements with a view to regulated mortgage contracts from overseas, the question of whether he will be carrying on regulated activities in the United Kingdom will depend on the relevant circumstances. In the FSA's view, factors to consider include:(1) the territorial limitation in the definition of regulated mortgage contract so that regulation only applies if the land is in the United Kingdom;(2)
In the FSA's view:(1) if the borrower is normally resident in the United Kingdom, the clear territorial limitation in the definition of regulated mortgage contract carries most weight in determining where regulation should apply; it is likely that the arranger will be carrying on regulated activities in the United Kingdom;(2) if the borrower is normally resident overseas, the arrangements are excluded by the overseas persons exclusion.In the case of arranging (bringing about)
In the FSA's view, advising on regulated mortgage contracts is carried on where the borrower receives the advice. Accordingly:(1) if the borrower is located in the United Kingdom, a person advising that borrower on regulated mortgage contracts is carrying on a regulated activity in the United Kingdom; but(2) if the service provider and borrower are both located overseas, the regulated activity is not carried on in the United Kingdom.
In the FSA's view, in circumstances other than those excluded by article 72(5D) of the Regulated Activities Order, an overseas lender is likely to carry on the regulated activity of entering into regulated mortgage contracts in the United Kingdom. This is because of:(1) the territorial limitation in the definition of regulated mortgage contract so that regulation applies only if the land is in the United Kingdom;(2) the general principle and practice that contracts relating to
In the FSA's view, in circumstances other than those excluded by article 72(5E) of the Regulated Activities Order, an overseas administrator is likely to carry on the regulated activity of administering a regulated mortgage contract in the United Kingdom. This is because:(1) the territorial limitation in the definition of regulated mortgage contract means that regulation applies only if the land is in the United Kingdom;(2) when administrators notify borrowers resident in the
In most cases, there will be no preliminary agreement to enter into a regulated mortgage contract in advance of entering into the contract itself. Moreover, the exclusions relevant to a regulated activity are taken into account to determine whether a person is agreeing to carry on that regulated activity. So, for example, agreeing to arrange regulated mortgage contracts in cases where borrower and service provider are overseas, would not be regulated activities because the activities
The FSA will be responsible for implementing the Distance Marketing Directive for those firms and activities it regulates. The FSA and the Treasury agree that the Distance Marketing Directive is intended to operate on a country of origin basis, except where a firm is marketing into the UK from an establishment in an EEA State which has not implemented the Directive.
(1) The applicant must submit to the FSA by the date specified in paragraph (2):(a) the completed form A in final form;(b) the relevant fee; and(c) the other information referred to in PR 3.1.1 R in draft form.(2) The date referred to in paragraph (1) is:(a) at least 10 working days before the intended approval date of the prospectus; or(b) at least 20 working days before the intended approval date of the prospectus if the applicant does not have transferable securitiesadmission
If an applicant wishes the FSA to provide a certificate of approval to another competent authority at the time the prospectus is approved, it should include a request for the supply of the certificate with its application for approval of the prospectus (PR 5.3.2 R sets out the requirements for such a request).
Section 87A(1) of the Act provides for the approval of a prospectus by the FSA:
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The [FSA] may not approve a prospectus unless it is satisfied that: |
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the United Kingdom is the home State in relation to the issuer of the transferable securities to which it relates, |
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the prospectus contains the necessary information, and |
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all of the other requirements imposed by or in accordance with this Part or the prospectus directive have been complied with (so far as those requirements apply to a prospectus for the transferable securities in question). |
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The FSA will follow the executive procedures for statutory notice decisions and statutory notice associated decisions if it:(1) proposes to refuse to approve a prospectus; or(2) decides to refuse to approve a prospectus after having given the applicant a written notice.Note: DEPP 44 sets out the executive procedures for statutory notice decisions and statutory notice associated decisions.4
(1) A person seeking to have the function of approving a prospectus transferred to the competent authority of another EEA State must make a written request to the FSA at least 10 working days before the date the transfer is sought.(2) The request must:(a) set out the reasons for the proposed transfer;(b) state the name of the competent authority to whom the transfer is sought; and(c) include a copy of the draft prospectus.
The FSA will consider transferring the function of approving a prospectus to the competent authority of another EEA State:(1) if requested to do so by the issuer, offeror or person requesting admission or by another competent authority; or(2) in other cases if the FSA considers it would be more appropriate for another competent authority to perform that function.
A person who wishes the FSA to vet an equivalent document referred to in PR 1.2.2 R (2) or (3) or PR 1.2.3R (3) or (4) must submit to the FSA:(1) a copy of the document;(2) a cross reference list identifying the pages in the document where each item that is equivalent to the disclosure requirements for a prospectus may be found;(3) contact details of individuals who are:(a) sufficiently knowledgeable about the documentation to be able to answer queries from the FSA; and(b) available
A firm must give the FSA reasonable advance notice of a change in:(1) the firm's name (which is the registered name if the firm is a body corporate); (2) any business name under which the firm carries on a regulated activity or ancillary activity either from an establishment in the United Kingdom or with or for clients in the United Kingdom.
A firm must give the FSA reasonable advance notice of a change in any of the following addresses, and give details of the new address and the date of the change:(1) the firm's principal place of business in the United Kingdom; (2) in the case of an overseas firm, its registered office (or head office) address.
A firm must give the FSA reasonable advance notice of a change in any of the following telephone numbers, and give details of the new telephone number and the date of the change:13(1) the number of the firm's principal place of business in the United Kingdom;(2) in the case of an overseas firm, the number of its head office.3
(1) 2A firm other than a credit union must submit any notice underSUP 15.5.1R, SUP 15.5.4R, SUP 15.5.5 R3 and SUP 15.5.7R by submitting the form in SUP 15 Ann 3R online at www.fsa.gov.uk.(2) A credit union must submit any notice under SUP 15.5.1R, SUP 15.5.4R, SUP 15.5.5 R3 and SUP 15.5.7R by submitting the form in SUP 15 Ann 3R in the way set out in SUP 15.7.4R to SUP 15.7.9G (Form and method of notification).(3) Where a firm is obliged to submit a notice online under (1), if
(1) If the FSA's information technology systems fail and online submission is unavailable for 24 hours or more, the FSA will endeavour to publish a notice on its website confirming that online submission is unavailable and that the alternative methods of submission set out in SUP 15.5.9R(3) and SUP 15.7.4R to SUP 15.7.9G (Form and method of notification) should be used.(2) Where SUP 15.5.9R(3) applies to a firm, GEN 1.3.2 R (Emergency) does not apply.
A decision to: (1) revoke a recognition order under section 297 of the Act (Revoking recognition) or (for RAPs) regulation 4 of the RAP regulations; or3(2) make a direction under section 296 (FSA's powers to give directions) or (for RAPs) regulation 3 of the RAP regulations; or3(3) refuse to make a recognition order under section 290 (Recognition orders) or 290A (Refusal of recognition on ground of excessive regulatory provision) or (for RAPs) regulation 2 of the RAP regulations32;is
In considering whether it would be appropriate to exercise the powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations,3 the FSA will have regard to all relevant information and factors including:(1) its guidance to recognised bodies;(2) the results of its routine supervision of the body concerned;(3) the extent to which the failure or likely failure to satisfy one or more of the recognised body requirements31may affect the regulatory
In considering whether or not to make a recognition order, the FSA will have regard to all relevant information and factors, including its guidance to recognised bodies and applicants and the information provided by applicants. Details of the application processes and other guidance for applicants are set out in REC 5 and (for overseas applications) REC 6.
Before exercising its powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations3, the FSA will usually discuss its intention, and the basis for this, with the key individuals or other appropriate representatives of the recognised body. It will usually discuss its intention not to make a recognition order with appropriate representatives of the applicant.
Key steps in the section 298 and (for RAPs) regulation 5 procedure3
The FSA will: |
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give written notice to the recognised body (or applicant); |
The notice will state why the FSA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made . |
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take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the recognised body or of the applicant, as the case may be; |
The FSA will also notify persons individually (as far as it considers it reasonably practicable to do so) if it considers that the action it proposes to take would affect them adversely in a way which would be different from its effect on other persons of the same class. |
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publish the notice so as to bring it to the attention of other persons likely to be affected; |
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receive representations from the recognised body or applicant concerned, any member of the recognised body or applicant, and any other person who is likely to be affected by the action the FSA proposes to take; |
The FSA will not usually consider oral representations without first receiving written representations from the person concerned. It will normally only hear oral representations from the recognised body (or applicant) itself or of a person whom it has notified individually, on request. |
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write promptly to any person who requests the opportunity to make oral representations if it decides not to hear that person's representations; |
The FSA will indicate why it will not hear oral representations and the FSA will allow the person concerned further time to respond. |
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have regard to representations made; |
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(when it has reached its decision) notify the recognised body (or applicant) concerned in writing. |
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(if it has decided to give a direction, or revoke or refuse to make a recognition order) take such steps as it considers reasonably practicable to bring its decision to the attention of members of the recognised body or applicant and to other persons likely to be affected. |
The FSA will usually give notice of its decision to the same persons and in the same manner as it gave notice of its intention to act. |
Where a UK RIE proposes to operate a new regulated market or close an existing regulated market it must give the FSA notice of that event and the information specified for the purposes of this rule in REC 3.14A.3 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them).
Where a UK RIE proposes to operate a new MTF or close an existing MTF it must give the FSA notice of that event and the information specified for the purposes of this rule in REC 3.14A.5 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them).
The following information is specified for the purposes of REC 3.14A.4 R:(1) where the UK RIE proposes to operate a new MTF:(a) a description of the MTF; and(b) a description of the specified investments which will be admitted to trading on that MTF.(2) where the UK RIE proposes to close a MTF, the name of that MTF.
(1) 1Under section 313A of the Act, the FSA may for the purpose of protecting:(a) the interests of investors; or (b) the orderly functioning of the financial markets; require a UK RIE to suspend or remove a financial instrument from trading.(2) If the FSA exercises this power, the UK RIE concerned may refer the matter to the Tribunal.
The procedure the FSA will follow if it exercises its power to require a UK RIE to suspend or remove a financial instrument3 from trading is set out in sections 313B to 313BE of the Act.3 The FSA's internal arrangements provide for decisions to exercise this power to be taken at an appropriately senior level. If the FSA exercises this power, the UK RIE concerned and the issuer (if any) of the relevant financial instrument may refer the matter to the Tribunal(see EG 2.39)2.233
The guidance in COND 2 explains each threshold condition in Part I of Schedule 6 (threshold conditions) to the Act and how the FSA will interpret it in practice. An overview of the threshold conditions is given in COND 1 Annex 1 G. This guidance is not, however, exhaustive and is written in very general terms. A firm will need to have regard to the obligation placed upon the FSA under section 41 (the threshold conditions) of the Act; that is, the FSA must ensure that the firm
(1) The FSA will consider whether a firm satisfies, and will continue to satisfy, the threshold conditions in the context of the size, nature, scale and complexity of the business which the firm carries on or will carry on if the relevant application is granted.(2) In relation to threshold conditions 4 and 5, the FSA will consider whether a firm is ready, willing and organised to comply, on a continuing basis, with the requirements and standards under the regulatory system which
Although the FSA may consider that a matter is relevant to its assessment of a firm, the fact that a matter is disclosed to the FSA, for example in an application, does not necessarily mean that the firm will fail to satisfy the threshold conditions. The FSA will consider each matter in relation to the regulated activities for which the firm has, or will have, permission, having regard to the regulatory objectives set out in section 2 of the Act (The FSA's general duties). A firm
(1) For ease of reference, the threshold conditions in or under Schedule 6 to the Act have been quoted in full in COND 2. (2) As these provisions impose obligations, they are printed in bold type. The use of bold type is not intended to indicate that these quotations are rules made by the FSA.(3) Where words have been substituted for the text of these provisions the substitutions are enclosed in square brackets ([ ]). However, none of the changes made by the FSA in these quotations
There
is no duty on an approved person to
report such information directly to the FSA unless he is one of the approved persons responsible within the firm for reporting matters to the FSA. However, if an approved
person takes steps to influence the decision so as not to report
to the FSA or acts in a way that is intended to
obstruct the reporting of the information to the FSA, then the FSA will, in respect of that information,
view him as being one of those within the firm who
has
In
determining whether or not an approved person's conduct
under APER 4.4.4 E complies with Statement of Principle 4,
the following are factors which, in the opinion of the FSA, are to be taken into account:(1) the
likely significance to the FSA of the information which it was
reasonable for the individual to assume;(2) whether
the information related to the individual himself or to his firm;(3) whether
any decision not to report the matter internally was taken after reasonable
enquiry
In
determining whether or not an approved person's conduct
under APER 4.4.7 E complies with Statement of Principle 4(APER
2.1.2 P), the following are factors which, in
the opinion of the FSA, are to be taken into account:(1) the
likely significance of the information to the FSA which it was reasonable for the approved person to assume;(2) whether
any decision not to inform the FSA was taken after reasonable enquiry
and analysis of the situation.
The purpose of REC 3.14 is to ensure that the FSA is informed of planned changes to the services a UK recognised body intends to provide and of the normal hours of operation of those services. Unplanned suspensions of those services, unplanned changes in hours of operation and events causing a UK recognised body to be unable to provide those services should be notified to the FSA under the rules in REC 3.15.
Where a UK RIE proposes to admit to trading (or to cease to admit to trading) by means of its facilities:(1) a specified investment (other than a security or an option in relation to a security); or(2) a type of security or a type of option in relation to a security; it must give the FSA notice of that event, and the information specified for the purposes of this rule in REC 3.14.6 R to the FSA, at the same time as that proposal is first formally communicated to its members or
Where a UK recognised body proposes to provide (or to cease to provide) clearing services in respect of:(1) a specified investment (other than a security or an option in relation to a security); or (2) a type of security or a type of option in relation to a security;it must, unless REC 3.14.4 R applies, give the FSA notice of that event and the information specified for the purposes of this rule in REC 3.14.6 R, at the same time as that proposal is first formally communicated
Where:(1) a UK RIE proposes to amend the standard terms of any derivative admitted to trading by means of its facilities; or (2) a UK recognised body proposes to amend the standard terms relating to the provision of clearing services for any derivative in respect of which it provides clearing services;it must give the FSA notice of that event, and written particulars of those proposed amendments, at the same time as that proposal is first formally communicated to its members or
Where a UK recognised body proposes to make (or to cease to make) arrangements for the safeguarding and administration of assets belonging to any other person (other than an undertaking in the same group), that recognised body must give the FSA notice of that event, and the information specified for the purposes of this rule in REC 3.14.9 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them).
The FSA does not need to be notified of proposals to offer (or to withdraw offers of) safeguarding and administration services for individual assets of the same type. Specified investments (other than securities) falling within the same article in Part III of the Regulated Activities Order will normally be regarded as being of the same type. Securities falling within the same article in Part III of the Regulated Activities Order which may be given the same generic description
Where a UK recognised body proposes to change its normal hours of operation or (for RAPs) the timing, frequency or duration of its bidding windows,2 it must give the FSA notice of that proposal, and particulars of, and the reasons for, the actions proposed, at the same time as the proposal is first formally communicated to its members or shareholders, or any group or class of them.
An applicant for admission must apply to the FSA by:(1) submitting, in final form:(a) the documents described in LR 3.3 in the case of an application in respect of equity shares;44(b) the documents described in LR 3.4 in the case of an application in respect of debt securities or other securities;(c) the documents described in LR 3.5 in the case of a block listing;(2) submitting all additional documents, explanations and information as required by the FSA;(3) submitting verification
When considering an application for admission to listing, the FSA may:(1) carry out any enquiries and request any further information which it considers appropriate, including consulting with other regulators or exchanges;(2) request that an applicant, or its specified representative answer questions and explain any matter the FSA considers relevant to the application for listing;(3) take into account any information which it considers appropriate in relation to the application
The issuer must ensure that a director or a1senior manager of the issuer verifies the application by confirming on the FSA's form that the issuer has obtained the appropriate third party advice or reports as required by RCB 2.3.16 D and is satisfied that:(1) the information provided in the application is correct and complete; and (2) the arrangements relating to the covered bond or programme will comply with the requirements in the RCB Regulations and in RCB.
If a UK firm is passporting under the UCITS Directive, regulation 12(1) states that the UK firm must not make a change in its programme of operations, or the activities to be carried on under its EEA right, unless the relevant requirements in regulation 12(2) have been complied with. These requirements are:5(1) the UK firm has given a notice to the FSA and to the Host State regulator stating the details of the proposed change; or(2) if the change arises as a result of circumstances