Related provisions for BIPRU 4.10.8
1 - 20 of 181 items.
(1) 8Part VII of the Act prescribes certain statutory functions in relation to insurance business transfer schemes for both the PRA and the FCA. In accordance with the Act, the PRA and the FCA maintain a Memorandum of Understanding, which describes each regulator’s role in relation to the exercise of its functions under the Act relating to matters of common regulatory interest and how each regulator intends to ensure the coordinated exercise of such functions. Under the Memorandum
Transfers may have both positive and negative effects on individual consumers.A key concern in this regard for each regulator will be to be satisfy itself that each consumer has adequate information and reasonable time within which to determine whether or not he is adversely affected and, if adversely affected, whether to make representations to the court.888
When an insurance business transfer scheme is being considered, the scheme promoters should discuss the scheme with the appropriate regulator8 as soon as reasonably practical, to enable the regulators8 to consider what issues are likely to arise, and to enable a practical timetable for the scheme to be established.88888(1) [deleted]8338(2) [deleted]88(3) [deleted]88(4) [deleted]88(5) [deleted]88
The initial documentary8 information on the scheme should be provided to the PRA, who will share it with the FCA, and8 should include its broad outline and its purpose. Each regulator may8 indicate to the promoters how closely it wishes to monitor the progress of the scheme, including the extent to which it wishes to see draft documentation.88
The suitability of a person to act as an independent expert depends on the nature of the scheme and the firms concerned. On the basis of the preliminary information supplied by the scheme promoters (and any other knowledge it has of the circumstances and the firms), the appropriate regulator8 will consider what skills are needed to make a proper report on the scheme and what criteria should therefore be applied to the choice of independent expert. The appropriate regulator8 will
Under section 107(2) of the Act, the application to the court may be made by the transferor or the transferee or both. As soon as reasonably practical, the intended applicant should choose their nominee for independent expert in the light of any criteria advised by the appropriate regulator. The intended applicant(s) should then advise the appropriate regulator of their choice, unless the appropriate regulator8 wishes them to defer nomination or to make its own nomination. The
The regulators8 may wish to have preliminary discussions with the nominee about the transfer before the appropriate regulator determines if8 he is suitably qualified to address issues arising from the transfer. The regulators8 will consider the suitability of the nominee and the appropriate regulator will8 inform the firm that nominated him whether he has been approved8. Since the nature of the scheme is a factor in determining the suitability of the nominee, the appropriate regulator8
(1) If the transferee is (or will be) an EEA firm (authorised in its Home State to carry on insurance business under the Insurance Directives) or a Swiss general insurance company, then the appropriate regulator8 has to consult the transferee's Home State regulator, who has 3 months to respond. It will be necessary for the appropriate regulator8 to obtain from the transferee's Home State regulator a certificate confirming that the transferee will meet the Home State's solvency
The transferor will need to provide the appropriate regulator8 with the information that the Home State regulator requires from the appropriate regulator8. This information includes:88(1) the transfer agreement or a draft, with:(a) the names and addresses of the transferor and transferee; and(b) the classes of insurance business and details of the nature of the risks or commitments to be transferred;(2) for the business to be transferred (both before and after reinsurance):(a)
If the transferee is not (and will not be) authorised and will be neither an EEA firm nor a Swiss general insurance company, then the appropriate regulator8 will need to consult the transferee's8 insurance supervisor in the place where the business is to be transferred. The appropriate regulator8 will need confirmation from this supervisor that the transferee will meet his solvency margin requirements there (if any) after the transfer.888
If the transferor is a UK insurer (other than a pure reinsurer)8 and the business to be transferred includes business carried on from a branch in another EEA State, then the appropriate regulator8 has to consult the Host State regulator, who has 3 months to respond. The appropriate regulator8 will need to be given the information that the Host State regulator requires from it. This information should identify the parties to the transfer and include the transfer agreement or draft
If the transferor is a8UK insurer and the business to be transferred includes a long-term insurance contract (other than reinsurance) for which the state of the commitment is an EEA state other than the United Kingdom, then the appropriate regulator8 has to consult the Host State regulator. If the transferor is a8UK insurer and the business to be transferred includes a general insurance contract (other than reinsurance) for which the state of the risk is an EEA state other than
Where the transferor is a8UK-deposit insurer and, following the transfer, it will no longer be carrying on insurance business in the United Kingdom, the appropriate regulator8 will need to collaborate with regulatory bodies in the other EEA States in which it is carrying on business to ensure that effective supervision of the business carried on in the EEA continues. The transferor should cooperate with the appropriate regulator8 and the other regulatory bodies in this process
Under section 109 of the Act, a scheme report must accompany an application to the court to approve an insurance business transfer scheme. This report must be made in a form approved by the appropriate regulator. The appropriate regulator would generally expect a scheme report to contain at least the information specified in SUP 18.2.33 G before giving its approval.88
There may be matters relating to the scheme or the parties to the transfer that the regulators wish8 to draw to the attention of the independent expert. The regulators8 may also wish the report to address particular issues. The independent expert should therefore contact the regulators8 at an early stage to establish whether there are such matters or issues. The independent expert should form his own opinion on such issues, which may differ from the opinion of the regulators8
The purpose of the scheme report is to inform the court and the independent expert, therefore, 8has a duty to the court. However reliance will also be placed on it by policyholders, by reinsurers,8 by others affected by the scheme and by the regulators8. The amount of detail that it is appropriate to include will depend on the complexity of the scheme, the materiality of the details themselves and the circumstances.88
The regulators are8 entitled to be heard by the court on any application for a transfer. A consideration for the regulators8 in determining whether to oppose a transfer would be their8 view on whether adequate steps had been taken to tell policyholders and, as appropriate, other affected persons,8about the transfer and whether they had adequate information and time to consider it. The regulators8 would not normally consider adequate a period of less than six weeks between sending
Where the transferee is a friendly society, the notice should include information about the meeting at which a special resolution in accordance with paragraph 7 of Schedule 12 to the Friendly Societies Act 1992 is to be voted on, including the date of the meeting, how notice of the meeting is to be given to members and the terms of the special resolution. After the meeting the friendly society should inform the appropriate regulator8 whether the special resolution has been passed.
The assessment is a continuing process, starting when the scheme promoters first approach the appropriate regulator8 about a proposed scheme. Each regulator will have an interest in assessing the scheme.8Among the considerations that may be relevant to both the depth of consideration each gives to, and each regulator's8 opinion on, a scheme are:88(1) the potential risk posed by the transfer to its statutory objectives8;8(2) the purpose of the scheme;(3) how the security of policyholders'
The scheme report will be an important factor in the view each of the regulators8 forms on a scheme. Considerable reliance will be placed8 on the opinions of the independent expert and the reasons for them. However each regulator8 will form its own view taking into account other relevant8 information and having regard to its statutory objectives.888
8If at any time the regulators, or either of them, conclude that policyholders and/or, as appropriate, other relevant affected persons have not had adequate information and/or sufficient time to consider information, they will seek to resolve such issues with the scheme promoters. This may require further notification. If either regulator remains unsatisfied that such policyholders and/or other persons have received adequate information and sufficient time to consider it they
Neither regulator is required under its statutory objectives8 to object to a scheme merely because some other scheme might have been in the better interests of policyholders, if the scheme itself is not adverse to their interests. However there may be circumstances where either regulator might8 require a firm to consider or to implement an alternative scheme. 88
8The provision of reports from one or other (or both) regulators to assist the court is common practice. In most cases, a first report will be provided to the court in advance of the directions hearing and a second report will be provided to the court in advance of the final hearing. Where additional information needs to be given to the court by either regulator, this will be provided using the most appropriate format for the circumstances in each case, and may include the provision
8When assessing a proposed scheme under Part VII of the Act each regulator will, taking into account all relevant matters in each case, consider whether it should provide a report to the court. As it will lead the Part VII process for insurance business transfers, the PRA will usually provide such a report.
8In relation to the matters at SUP 18.2.57A G to SUP 18.2.57C G above and to facilitate the provision to the court of a first report in advance of a directions hearing, near final versions of relevant documents will need to be made available to each of the regulators as soon as practicable. Scheme promoters should be aware that where such documents are produced less than six weeks before the date set for the hearing the regulators will be less likely to be in a position to complete
8Matters included at SUP 18.2.57EG (5) should include sufficient information to enable:(1) the appropriate regulator to decide which other non-UK regulators must be consulted. This information should be provided to the appropriate regulator as soon as it is available;(2) the appropriate regulator to decide whether to approve the notices at SUP 18.2.57EG (3); and(3) each regulator to form an opinion on any matters arising in connection with press advertising and notifications,
8In relation to the matters at SUP 18.2.57A G to SUP 18.2.57C G and to facilitate the provision to the court of a second or final report in advance of the final hearing, near-final versions of relevant documents will need to be made available to each of the regulators as soon as practicable. Scheme promoters should be aware that where such documents are produced less than six weeks before the date set for that hearing, the regulators will be less likely to be in a position to
8Provided that any necessary consents have been obtained in respect of confidential information, where either regulator has made a report it will give a copy of its report to the court and will give a copy of its report as filed with the court to each of the parties to the proposed transfer as soon as practicable after such filing.
8Where either regulator has indicated to the parties to the proposed transfer that it intends to appear at any hearing before the court in relation to a proposed scheme under Part VII of the Act a copy set of the bundle of documents filed with the court should be provided to it as soon as practicable.
BIPRU 7.10 provides details of when the appropriate regulator expects to allow a firm to use a VaR model (value at risk model) for the purpose of calculating part or all of its PRR. It introduces the concept of a VaR model, the methodology behind it and the link to the standard market risk PRR rules. It then goes on to detail the application and review process. The bulk of BIPRU 7.10 specifies the model standards and risk management standards that firms will be required to meet
The models described in BIPRU 7.10 are described as VaR models in order to distinguish them from CAD 1 models, which are dealt with in BIPRU 7.9 (Use of a CAD 1 model). A VaR model is a risk management model which uses a statistical measure to predict profit and loss movement ranges with a confidence interval. From these results PRR charges can be calculated. The standards described in BIPRU 7.10, and which will be applied by the appropriate regulator, are based on and implement
There are a number of general methodologies for calculating PRR using a VaR model. The appropriate regulator does not prescribe any one method of computing VaR measures. Moreover, it does not wish to discourage any firm from developing alternative risk measurement techniques. A firm should discuss the use of any alternative techniques used to calculate PRR with the appropriate regulator.
A waiver or other permission allowing the use of models in the calculation of PRR will not be granted if that would be contrary to the Capital Adequacy Directive and any VaR model permission which is granted will only be granted on terms that are compatible with the Capital Adequacy Directive. Accordingly, the appropriate regulator is likely only to grant a waiver or other permission allowing the use of models in the calculation of PRR if it is a VaR model permission or a CAD
BIPRU 7.10 sets out the minimum standards that the appropriate regulator expects firms to meet before granting a VaR model permission. The appropriate regulator will not grant a VaR model permission unless it is satisfied that the requirements of BIPRU 7.10 are met and it is satisfied about the procedures in place at a firm to calculate the model PRR. In particular the appropriate regulator will not normally grant a VaR model permission unless it is satisfied about the quality
The appropriate regulator recognises that the nature of VaR models will vary between firms. The scope of and the requirements and conditions set out in a VaR model permission may therefore differ in substance or detail from BIPRU 7.10 in order to address individual circumstances adequately. However any differences will only be allowed if they are compliant with the Capital Adequacy Directive. A VaR model permission will implement any such variation by modifying BIPRU 7.10. A VaR
Details of the general process for applying for a VaR model permission are set out in BIPRU 1.3 (Applications for advanced approaches). Because of the complexity of a VaR model permission, it is recommended that a firm discuss its proposed application with its usual contact at the appropriate regulator before it makes the application.
The VaR model review process may be conducted through a series of visits covering various aspects of a firm's control and IT environment. Before these visits the appropriate regulator may ask the firm to provide some information relating to the firm'sVaR model permission request accompanied by some specified background material. The VaR model review visits are organised on a timetable that allows the firm being visited sufficient time to arrange the visit and provide the appropriate
The appropriate regulator may complement its own review of a VaR model permission request with one or more reviews by a skilled person under section 166 of the Act (Reports by skilled persons). Such a review may also be used where a VaR model permission has been granted to ensure that the requirements BIPRU 7.10 and of the VaR model permission continue to be met.
It is the appropriate regulator's view that, where a firm uses a VaR model for one risk category as described in BIPRU 7.10.19G, it is good practice to extend its model over time to calculate all of its PRR risk categories. A firm will typically be expected to have a realistic plan in place to do this.
The appropriate regulator accepts that the scope and nature of VaR models varies across firms. This means that different firms are likely to calculate different estimates of market risk for the same portfolio. Systematic differences are due to length of data series, choice of methodology (historical or Monte Carlo simulation or variance-covariance method or a hybrid of these), differences in aggregating risks within and across broad risk factors, the treatment of options and other
If a firm uses a holding period other than 10 business days and converts the resulting VaR measure to a ten business day equivalent measure, it should be able to justify the choice of conversion technique. For example, the square root of time method will usually be justifiable. The appropriate regulator considers it good practice ultimately to move towards the application of an actual ten business day holding period, rather than using different holding periods.
3The stressed VaR measure must be based on inputs calibrated to historical data from a continuous twelve-month period of significant financial stress relevant to the firm's portfolio. The choice of that historical period will be subject to the appropriate regulator's approval and will form part of a firm'sVaR model permission.
In aggregating VaR measures across risk or product categories, a firm must not use the square root of the sum of the squares approach unless the assumption of zero correlation between these categories is empirically justified. If correlations between risk categories are not empirically justified, the VaR measures for each category must simply be added in order to determine its aggregate VaR measure. But to the extent that a firm'sVaR model permission provides for a different way
(1) This paragraph contains guidance on the inclusion of CIUs in a VaR model.(2) The appropriate regulator may allow all types of CIU to be included within the scope of a firm'sVaR model permission.(3) BIPRU 7.10 does not distinguish between specific risk and general market risk for positions in CIUs. Therefore even if specific risk is not otherwise included within the scope of a firm'sVaR model permission, a firm should be able to demonstrate that its VaR model captures specific
For example, BIPRU 7.10.53R might involve creating and documenting a prudent incremental PRR charge for the risk not captured in the VaR model and holding sufficient capital resources against this risk. In that case the firm should hold capital resources at least equal to its capital resources requirement as increased by adding this incremental charge to the model PRR. Alternatively the firm may make valuation adjustments through its profit and loss reserves to cover this material
3As part of its VaR model permission, the appropriate regulator may authorise a firm to use the all price risk measure to calculate an additional capital charge in relation to positions in its correlation trading portfolio if it meets the following minimum standards:(1) it adequately captures all price risks at a 99.9% confidence interval over a capital horizon of one year under the assumption of a constant level of risk, and adjusted, where appropriate, to reflect the impact
3A firm must demonstrate through backtesting or other appropriate means that its all price risk measure can appropriately explain the historical price variation of these positions. A firm must be able to demonstrate to the appropriate regulator that it can identify the positions within its correlation trading portfolio, in relation to which it is authorised to use the all price risk measure, separately from those other positions in relation to which it is not authorised to do
(1) 3For positions within its correlation trading portfolio in relation to which a firm may use the all price risk measure, a firm must regularly apply a set of specific, predetermined stress scenarios. These stress scenarios must examine the effects of stress to default rates, recovery rates, credit spreads, and correlations on the profit and loss of the correlation trading portfolio.(2) A firm must apply the stress scenarios in (1) at least weekly and report the results to the
3If the results of the stress tests carried out in accordance with BIPRU 7.10.55Z R indicate a material shortfall in the amount of capital required under the all price risk measure, a firm must notify the appropriate regulator of this circumstance by no later than two business days after the business day on which the material shortfall occurred.
(1) An example of documents required by BIPRU 7.10.67R may be a manual that describes the basic principles of the risk management framework, clearly setting out empirical techniques, principles and assumptions used within it.(2) This documentation should be of sufficient detail for the appropriate regulator to be able to develop a clear understanding of how the VaR model works from that documentation on its own.
In assessing whether the VaR model is implemented with integrity as described in BIPRU 7.10.58R (Stress testing), the appropriate regulator will consider in particular the information technology systems used to run the model and associated calculations. The assessment may include:(1) feeder systems; risk aggregation systems; time series databases; the VaR model system; stress testing system; the backtesting system including profit and loss cleaning systems where appropriate; data
Backtesting conducted only at a whole portfolio level using a single measure of profit and loss has limited power to distinguish an accurate VaR model from an inaccurate one. Backtesting should therefore be regarded as an additional safeguard rather than a primary validation tool. Such testing does however form the basis of the appropriate regulator'splus factor system. The test has been chosen as the basis of the backtesting regime because of its simplicity. A firm will therefore
The appropriate regulator will review as part of a firm'sVaR model permission application the processes and documentation relating to the derivation of profit and loss used for backtesting. A firm's documentation should clearly set out the basis for cleaning profit and loss. To the extent that certain profit and loss elements are not updated every day (for example certain reserve calculations) the documentation should clearly set out how such elements are included in the profit
If a backtesting exception occurs, the firm must notify its usual supervisory contact at the appropriate regulator orally by close of business two business days after the business day for which the backtesting exception occurred. Within five business days following the end of each Month, the firm must submit to the appropriate regulator a written account of the previous Month'sbacktesting exceptions (if any). This explanation must include the causes of the backtesting exceptions,
(1) This paragraph gives guidance on the backtesting calculation and reporting process in BIPRU 7.10.96R - BIPRU 7.10.104R.(2) Let the day on which the loss referred to in BIPRU 7.10.100R is made be day n. The value-at-risk measure for that day will be calculated on day n-1, or overnight between day n-1 and day n. Profit and loss figures are produced on day n+1, and backtesting also takes place on day n+1. The firm's supervisor should be notified of any backtesting exceptions
(1) This paragraph gives guidance on the process for excluding backtesting exceptions as referred to in BIPRU 7.10.103R.(2) The appropriate regulator will respond flexibly to backtesting exceptions. However, the appropriate regulator's starting assumption will be that a backtesting exception should be taken into account for the purpose of the calculation of plus factors. If the firm believes that a backtesting exception should not count for that purpose, then it should seek a
Where backtesting reveals severe problems with the basic integrity of the VaR model, the appropriate regulator may withdraw model recognition. In particular, if ten or more backtesting exceptions are recorded in a 250 business day period, the appropriate regulator may apply a plus factor greater than one or the appropriate regulator may consider revoking a firm'sVaR model permission. The appropriate regulator may also consider revoking a firm'sVaR model permission if ten or more
3The definition of hypothetical profit and loss figure may be amended or replaced in an individual VaR model permission if the firm can demonstrate to the appropriate regulator that the alternative method meets the spirit and purpose of the provisions in BIPRU 7.10 about the hypothetical profit and loss figure.
The minimum multiplication factor, for VaR and stressed VaR,3 will never be less than three. If the appropriate regulator does set the minimum multiplication factor, for VaR and stressed VaR,3 above three the VaR model permission will have a table that sets out the reasons for that add on and specify how much of the add on is attributable to each reason (see BIPRU 7.10.121R). If there are weaknesses in the VaR model that may otherwise be considered a breach of the minimum standards
Typically, any add on will be due to a specific weakness in systems and controls identified during the appropriate regulator's review that the appropriate regulator does not consider material enough to justify withholding overall model recognition. The firm will be expected to take action to address the reasons for any add on. The appropriate regulator will then review these periodically and, where satisfactory action has been taken, the add on will be removed through a variation
A VaR model permission will contain requirements for what the firm should report to the appropriate regulator and the procedures for reporting. The precise requirements will vary from VaR model permission to VaR model permission. BIPRU 7.10.129R-BIPRU 7.10.130R set out what the appropriate regulator regards as the standard requirements.
A firm must, no later than the number of business days after the end of each quarter specified in the VaR model permission for this purpose, submit, in respect of that quarter, a report to the appropriate regulator about the operation of the VaR model, the systems and controls relating to it and any changes to the VaR model and those systems and controls. Each report must outline as a minimum the following information in respect of that quarter:(1) methodological changes and developments
A firm must provide to, and discuss with, the appropriate regulator details of any significant planned changes to the VaR model before those changes are implemented. These details must include information about the nature of the change and an estimate of the impact on VaR numbers and the incremental risk charge.33
The information in BIPRU 7.10.131G will vary over time. It is therefore not included in a VaR model permission as a rule but for information only. The appropriate regulator will update that information regularly in accordance with information supplied under BIPRU 7.10.129R. That updating will not amount to a variation of the VaR model permission.
By modifying GENPRU 2.1.52 R (Calculation of the market risk capital requirement) to allow the firm to use the VaR model to calculate all or part of its PRR for certain positions, the appropriate regulator is treating it like an application rule. The modification means that the PRR calculation set out in BIPRU 7.10 supersedes the standard market risk PRR rules for products and risks coming within the scope of the VaR model permission.
If a firm ceases to meet any of the requirements set out in BIPRU 7.10, the appropriate regulator's policy is that the VaR model permission should cease to have effect. In part this will be achieved by making it a condition of a firm'sVaR model permission that it complies at all times with the minimum standards referred to in BIPRU 7.10.26R - BIPRU 7.10.53R. Even if they are not formally included as conditions, the appropriate regulator is likely to consider revoking the VaR model
Friendly societies are encouraged to discuss a proposed transfer or amalgamation with the appropriate authority2, at an early stage to help ensure that a workable timetable is developed. This is particularly important where there are notification requirements for supervisory authorities in EEA States other than the United Kingdom, or for an amalgamation where additional procedures are required.2
For a transfer to another friendly society, if the conditions of 87(1) and 87(2) of the Friendly Societies Act 1992 are met a report is required from the appropriate actuary of the transferee to confirm that it will meet the necessary margin of solvency2. Where the conditions of 87(1) and 87(3) are met the appropriate authority2 may require a report from the appropriate actuary of the transferee to confirm that it will have an excess of assets over liabilities.22
For a transfer of long-term insurance business, the appropriate authority2 may, under section 88 of the Friendly Societies Act 1992, require a report from an independent actuary on the terms of the proposed transfer and on his opinion of the likely effects of the transfer on long-term policyholder members of either the transferor or (if it is a friendly society) the transferee. A summary is included in the statement sent to members (see SUP 18.4.13 G) and the full report is required
Under the Friendly Societies Act 1992 the appropriate authority is required to confirm a proposed2 transfer of engagements. It will do so only where it is2 satisfied that the transfer is in the interests of the members of each friendly society participating in the transfer (see SUP 18.4.25 G (2)(b)). The appropriate authority2 will therefore ask that the participating societies' actuaries confirm that the transfer is in the interests of the members.222
Under the Friendly Societies Act 1992, members will normally have the opportunity to vote on a proposed transfer or amalgamation (SUP 18.4.11 G and SUP 18.4.12 G describe exceptions). A friendly society has to ensure that, before casting their votes, its members are clearly and fully informed of the terms on which the amalgamation or transfer of engagements is to take place and that they have all the information needed to understand how their interests will be affected. If the
For an amalgamation the successor society, and for a transfer the transferee, may need to apply for permission, or to vary its permission, under Part 4A2 of the Act. The regulators2 will need sufficient time before a transfer is confirmed2 to consider whether any necessary permission or variation should be given. If the transferee is an EEA firm or a Swiss general insurance company, then confirmation will be needed from its Home State regulator that it meets the Home State's solvency
It is likely that the information sent to members will include a statement explaining the reasons for the amalgamation or transfer and the choice of partner. Although this is not a statutory statement and not subject to either regulator's approval, the regulator's views on the content of the statement will be a factor that the appropriate authority2 will take into account before2 considering whether to confirm the amalgamation or transfer. A friendly society will therefore find
The appropriate authority2 has discretion under section 86(3)(b) of the Friendly Societies Act 1992 to allow a transferee society to resolve to undertake to fulfil the engagements of a transferor society by resolution of the committee of management, rather than by special resolution. Among the issues on which the appropriate authority will wish to be satisfied2 before exercising this discretion, are that the transfer will be in the interests of the members of both societies and
The appropriate authority2 has discretion under section 89 of the Friendly Societies Act 1992 to modify some of the requirements for a transfer of engagements from a friendly society, on the application of a specified number of its members, if it is satisfied that it is expedient to do so in the interests of its members or potential members.2
Schedule 15 to the Friendly Societies Act 1992 requires a statement to be sent to every member of a friendly society entitled to vote on a transfer or amalgamation. Among other matters this statement has to cover the financial position of the friendly society and every other participant in the transfer or amalgamation. The members should be provided with sufficient financial information about the respective financial positions of the participants to gain an understanding of the
The information should state whether any of the participants has any significant future capital commitments. The appropriate authority2 will require it to state that the transfer of engagements or amalgamation will not conflict with any contractual commitment by a society, any subsidiary or any body jointly controlled by it and others.2
The appropriate authority2 may require confirmation from the auditors of either friendly society involved in the transfer or amalgamation about the reasonableness of any part of the information in the statement. For instance such confirmation would normally be required if the financial information relates to a date more than six months previously.2
Under the Friendly Societies Act 1992:(1) when the members of a transferor society have approved the transfer of its engagements by passing a special resolution and the transferee has approved the transfer (by passing a resolution where the transferee is a friendly society); or(2) when two or more societies have approved a proposed amalgamation by passing a special resolution;it, or they jointly, must then obtain confirmation by the appropriate authority2 of the transfer. Notice
For a directive friendly society, if the transfer or amalgamation includes policies where the state of the risk or the state of the commitment is an EEA State other than the United Kingdom, consultation with the Host State regulator is required and SUP 18.2.25 G to SUP 18.2.29 G apply (for an amalgamation they apply as if the business of the amalgamating societies is to be transferred to the successor society). Paragraph 6(1) of Schedule 15 to the Friendly Societies Act 1992 requires
The criteria that the appropriate authority2 must use in determining whether to confirm a proposed amalgamation or transfer are set out in schedule 15 to the Friendly Societies Act 1992. These criteria include that:2(1) confirmation must not be given if the appropriate authority2 considers that:2(a) there is a substantial risk that the successor society or transferee will be unable lawfully to carry out the engagements to be transferred to it;(b) information material to the members'
The appropriate authority2 may (as an alternative to refusing confirmation) direct the society or societies to remedy certain procedural defects in a proposed transfer or amalgamation, and after they have been remedied confirm the application. If it appears to the appropriate authority2 that failure to meet a "relevant requirement" of the Friendly Societies Act 1992 or the rules of the friendly society could not be material to the members' decision, then it may direct that this
Any interested party has the right to make representations to the appropriate authority2 about an application for confirmation of a transfer or amalgamation. This includes any person (whether a member of the friendly society or not) who claims that he would be adversely affected by the amalgamation or transfer. The person making the representations should state clearly why he or she claims to be an interested party and the ground or grounds to which the representations are di
Written representations, or written notice of a person's intention to make oral representations, or both, are required to reach the appropriate authority2 by the date published in the relevant Gazettes and other newspapers. Those giving notice of intent to make oral representations are advised to state the nature and general grounds of the oral representations they intend to make. Persons who make written representations but subsequently decide also to make oral representations
The appropriate authority2 will send copies of all written representations to the society(ies), and will afford them an opportunity to comment on the representations. It may consider the written representations and a society's response to them, before the date set for hearing oral representations. A synopsis of the written representations (probably in the form of a summary of each of the points made and the numbers of persons making each point) and a society's responses will be
The regulators expect2 that any documents referred to in a society's comments will be made available by the society for inspection at its registered office and, if reasonably possible, at the venue of the hearing on the date of the hearing. However if a society applies to put documents which it considers to be sensitive to the regulator(s)2 in confidence, the regulators2 will balance any disadvantage this might cause interested parties in making representations against the commercial
The hearing referred to in SUP 18.4.30 G will be at a time and place that will be notified to the participants and will be conducted by the appropriate authority's2 representatives. The hearing may last longer than one day and may be adjourned. The appropriate authority2 will try to tell participants when they may expect to make their representations and when the society may be expected to respond.22
The appropriate authority2 expects that oral hearings will be held in public though this is not required. At the start members of the general public and the press will be asked to wait outside while participants are asked if any of them has good reason to object to the admission of the general public or the press. Unless an objection by a participant is upheld by the appropriate authority's2 representatives, the press and the general public will then be admitted, within the limits
The procedure will be informal. All participants will be expected to speak concisely and avoid repetition. The appropriate authority2 will, as far as practicable, help those who are not professionally represented. Those taking the hearing may question the participants. The sequence of events will normally be broadly:2(1) any preliminary matters (such as the admission of the public or other procedural questions) will be dealt with;(2) the chair of the hearing will introduce the
The appropriate authority2 will not decide whether to confirm the transfer or amalgamation at the hearing. A copy of its written decision, including its findings on the points made in representations, will be sent to the society(ies) and to those making representations. It will also be available to any other person on request and may be published.2
12SUP 11 Annex 6G provides guidance on when one person's holding of shares or voting power must be aggregated with that of another person for the purpose of determining whether an acquisition or increase of control will take place as contemplated by section 181 or 182 of the Act such that notice must be given to the appropriate regulator17 in accordance with section 178 of the Act before making the acquisition or increase. This will be:17(1) where those persons are acting in concert,
Sections 178(1) and 191D(1)10 of the Act require a person (whether or not he is an authorised person) to notify the appropriate regulator17 in writing if he decides 10to acquire, increase or reduce10control or to cease to have control10 over a UK domestic firm . Failure to notify is an offence under section 191F10 of the Act (Offences under this Part).46101710101010
If a person decides10 to acquire control or increase control over a UK domestic firm in a way described in SUP 11.4.2 Ror acquire control in a way described in SUP 11.4.2AR (1)4, he must obtain the appropriate regulator's17 approval before doing so. Making an acquisition before the appropriate regulator17 has approved of it10is an offence under section 191F of the Act (Offences under this Part).10101710174610
6The appropriate regulator17 recognises that firms acting as investment managers may have difficulties in complying with the prior notification requirements in sections 178 and 191D 10of the Act as a result of acquiring or disposing of listed shares in the course of that fund management activity. To ameliorate these difficulties, the appropriate regulator17 may accept pre-notification of proposed changes in control, made in accordance with SUP D, and may grant approval of such
6The appropriate regulator17 may treat as notice given in accordance with sections 178 and 191D17 of the Act a written notification from a firm which contains the following statements:171017(1) that the firm proposes to acquire and/or dispose of control, on one or more occasions, of any UK domestic firm whose shares or those of its ultimate parent undertaking are, at the time of the acquisition or disposal of control, listed or which are admitted to listing on a designated investment
6Where the appropriate regulator17 approves changes in control proposed in a notice given under SUP 11.3.5B D:17(1) the controller remains subject to the requirement to notify the appropriate regulator17 when a change in control actually occurs; and17(2) the notification of change in control should be made no later than five business days after the end of each month and set out all changes in the controller's control position for each UK domestic firm for the month in question.At
A section 178 notice10 given to the appropriate regulator17 by a person who is acquiring control or increasing his control over a UK domestic firm, in a way described in SUP 11.4.2 R (1) to (4), or acquiring control in a way described in SUP 11.4.2A R, must contain the information and be accompanied by such documents as are required by the controllers form approved by the appropriate regulator17 for the relevant application. 4610171017
(1) A person who has submitted a section 178 notice10under SUP 11.3.7 D must notify the appropriate regulator17 immediately if he becomes aware, or has information that reasonably suggests, that he has or may have provided the appropriate regulator17 with information which was or may have been false, misleading, incomplete or inaccurate, or has or may have changed, in a material particular. The notification must include:101717(a) details of the information which is or may be false,
Where a17controller or proposed controller which is an authorised person is required to submit less information under SUP 11.3.7 D than other persons,17 the appropriate regulator17 may ask for confirmation of details already held by it17 or any additional information required under SUP 11.5.1R10.1017171710
10A notice given to the appropriate regulator17 by a person who is reducing or ceasing to have control over a UK domestic firm, as set out in SUP 11.4.2Ror SUP 11.4.2A R must:17(1) be in writing; and(2) provide details of the extent of control (if any) which the controller will have following the change in control.
Under section 169(1)(b) and section 131FA2 of the Act,
the FCA3 may
appoint an investigator to investigate any matter at the request of an overseas regulator or EEA regulator2. The powers of the investigator appointed by the FCA3 (referred to here as the 'FCA's3 investigator') include the power to require persons to
attend at a specified time and place and answer questions (the compulsory
interview power).333
Where the FCA3 appoints an investigator in response to a request from an overseas regulator or EEA regulator2 it may, under section 169(7) or section 131FA2 of the Act,
direct him to permit a representative of that regulator to attend and take
part in any interviews conducted for the purposes of the investigation. The FCA3 may
only give a direction under section 169(7) or section 131FA2 if it is satisfied that any information
obtained by an overseas regulator or EEA
regulator2
The FCA3 may need to consider whether to use its direction power at two
stages of an investigation:3(1) at the same time that it considers
the request from the overseas regulator or EEA
regulator2 to appoint investigators;(2) after it has appointed investigators,
either at the request of the overseas regulator or EEA
regulator2 or on the recommendation of the
investigators.
Before making a direction under
section 169(7) or section
131FA2 the FCA3 will discuss and determine with the overseas
regulator or EEA regulator2 how this statement of policy will
apply to the conduct of the interview, taking into account all the circumstances
of the case. Amongst other matters, the FCA3 will at this stage determine the extent to which the representative
of the overseas regulator or EEA
regulator2 will be able to participate in
the interview. The overseas regulator
The direction will contain the
identity of the representative of the overseas
regulator or EEA regulator2 that is permitted to attend any
interview and the role that he will play in the interview. If the FCA3 envisages that there will be more than one interview in the course
of the investigation, the direction may also specify which interview(s) the representative is allowed to attend.32
The FCA's3 investigator will act on behalf of the FCA3 and under its control. He may be instructed to permit the representative
of the overseas regulator or EEA
regulator2 to assist in the preparation of
the interview. Where the FCA3 considers it appropriate, it may permit the representative to
attend and ask questions of the interviewee in the course of the interview.
The interview will be conducted according to the terms of the direction and
the notification referred to in DEPP
If the direction does permit the
representative of an overseas regulator or EEA
regulator2 to attend the interview and ask
the interviewee questions, the FCA's3 investigator will retain control of the interview throughout.
Control of the interview means the following will apply:3(1) The FCA's3 investigator instigates and concludes the interview, introduces
everyone present and explains the procedure of the interview. He warns the
interviewee of the possible consequences of refusing
The FCA3 will in general provide written notice of the appointment of
an investigator to the person under
investigation pursuant to the request of an overseas
regulator or EEA regulator2. Whether or not the interviewee
is the person under investigation,
the FCA's3 investigator
will inform the interviewee of the provisions under which he has been appointed,
the identity of the requesting authority and general nature of the matter
under investigation. The interviewee will also normally
When the FCA's3 investigator has exercised the compulsory interview power, at
the outset of the interview the interviewee will be given an appropriate warning.
The warning, amongst other things, must state that the interviewee is obliged
to answer all questions put to them during the interview, including any put
by the representative of the overseas regulator or EEA
regulator2. It will also state that in criminal
proceedings or proceedings for market abuse the FCA3 will
not use
The FCA's3 investigator may decide which documents or other information
may be put to the interviewee, and whether it is appropriate to give the interviewee
sight of the documents before
the interview takes place. Where the overseas
regulator or EEA regulator2 wishes to ask questions about documents during the interview and the FCA's3 investigator
wishes to inspect those documents before
the interview, he will be given the opportunity to do so. If the FCA's3 investigator wishes
When the FCA's3 investigator has exercised the compulsory interview power, the FCA's3 investigator
will require the person attending
the interview to answer questions. Where appropriate, questions may also be
posed by the representative of the overseas
regulator or EEA regulator2. The interviewee will also be
required to answer these questions. The FCA's3 investigator may intervene at any stage during questioning by
the representative of the overseas regulator or EEA
regulato
Interviews will, in general, be
conducted in English. Where the interviewee's first language is not English,
at the request of the interviewee arrangements will be made for the questions
to be translated into the interviewee's first language and for his answers
to be translated back into English. If a translator is employed at the request
of the representative of the overseas regulator or EEA
regulator2 then the translation costs will
normally be met by the overseas regulator
All compulsory interviews will
be tape-recorded. The method of recording will be decided on and arranged
by the FCA's3 investigator.
Costs will be addressed similarly to that set out in the preceding paragraph.
The FCA3 will
not provide the overseas regulator or EEA
regulator2 with transcripts of the tapes
of interviews unless specifically agreed to, but copies of the tapes will
normally be provided where requested. The interviewee will be provided with
a copy of tapes of the
The interviewee may be accompanied
at the interview by a legal adviser or a non-legally qualified observer of
his choice. The costs of any representation will not be met by the FCA3. The
presence at the interview of a representative of the overseas
regulator or EEA regulator2 may mean that the interviewee
wishes to be represented or accompanied by a person either
from or familiar with that regulator's jurisdiction. As far as practical the
arrangements for the interview should
(1) Where a firm is submitting an application for variation of Part 4A permission27 which would lead to a change in the controlled functions of its approved persons, it should, at the same time and as appropriate:27(a) make an application for an internal transfer of an approved person, Form E (Internal transfer), or make an application for an individual to perform additional controlled functions, the relevant11 Form A (Application); see2727SUP 10.13.3 D to SUP 10.13.5 G; (b)
The application for variation of Part 4A permission27 will need to provide information about the classes of contract of insurance for which variation of Part 4A permission27 is requested and also those classes qualifying to be carried on, on an ancillary or supplementary basis. For example, an insurer applying to vary its permission to include class 10 (motor vehicle liability, other than carrier's liability) must satisfy the FCA27 that it will meet, and continue to meet, threshold
(1) A firm other than a credit union wishing to make an application under SUP 6 must apply online using the form specified on the ONA system.1414272727(2) [deleted]271427(3) Until the application has been determined, a firm which submits an application must inform the relevant regulator27 of any significant change to the information given in the application immediately it becomes aware of the change.27(3A) Where an application requires the consent of the FCA, a firm which submits
(1) 14If the ONA27 systems fail and online submission is unavailable for 24 hours or more, the relevant regulator27 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 6.3.15 D (4) and SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification) should be used.2727(2) 14Where SUP 6.3.15 D (4) applies to a firm, GEN 1.3.2 R (Emergency) does not apply.
(1) Section 55(U)(2)27 of the Act (Applications under this Part) requires that the application for variation of Part 4A permission27 must contain a statement:2727(a) of the desired variation; and(b) of the regulated activity or regulated activities which the firm proposes to carry on if its permission is varied.(1A) Section 55(U)(3) of the Act requires that an application for variation of a requirement imposed under section 55L or 55M or the imposition of a new requirement must
(1) [deleted]7(2) A firm is advised to discuss its application with the relevant regulator27 before submission, particularly if it is seeking a variation of Part 4A permission or imposition, variation or cancellation of a requirement27 within a short timescale. A firm is also advised to include as much detail as possible (including any additional information identified by its supervisors at this stage) with its application.72727
The relevant regulator,27 as soon as possible after receipt of an application, will advise the firm of any additional information which is required as part of its application (see SUP 6.3.23 G to SUP 6.3.27 G). The amount of information required27 will vary depending on the scale of the variation in the context of the firm as a whole, and the nature, risk profile and complexity of the variation.2727
In certain cases, the relevant regulator may consider that granting an application for imposition, variation or cancellation of any requirement or for variation of Part 4A permission27 which includes adding further regulated activities or changing a limitation would cause a significant change in the firm's business or risk profile. In these circumstances, the relevant regulator27 may require the firm to complete appropriate parts of the full application pack (see the relevant
A firm that wishes to make a significant change to its business, or is unsure whether the changes it is proposing would be considered to be significant, should contact the relevant regulator. The relevant regulator27 will discuss with the firm whether it will be required to submit parts of the application pack and whether any reports from third parties may be required.127
(1) The relevant regulator27 may ask for any information it reasonably requires before determining the application. The information required will be determined on a case by case basis, taking into account the relevant regulator's27 existing knowledge of the firm and the change27 requested. The relevant regulator27 will advise the firm of the information required at an early stage in the application process.272727(2) The nature of the information and documents requested will be
Information which may be required. See SUP 6.3.24 G
Type of business |
Information which may be required |
All |
1. Details of how the firm plans to comply with the relevant regulator's27 regulatory requirements relating to any additional regulated activities it is seeking to carry on. 27 |
2. Descriptions of the firm's key controls, senior management arrangements and audit and proposed compliance arrangements in respect of any new regulated activity (see SYSC). |
|
3. Organisation charts and details of individuals transferring or being recruited to perform new controlled functions (see SUP 10 for details of the application or transfer procedures under the approved persons regime). |
|
1. A scheme of operations in accordance with SUP App 2. |
|
2. (If the application seeks to vary a permission to include motor vehicle liability insurance business) details of the claims representatives12 required by threshold condition 3F27 (Appointment of claims representatives), if applicable. 12 |
|
1. A business plan which includes the impact of the variation on the firm's existing or continuing business financial projections for the firm, including the impact of the requested change27 on the firm's financial resources and capital adequacy requirements.2 27 |
When determining whether to grant an application, the relevant regulator27 may request further information, including reports from third parties such as the firm's auditors, and may require meetings with, and visits to, the firm. The relevant regulator27 may also require a statement from members of the firm's governing body confirming, to the best of their knowledge, the completeness and accuracy of the information supplied. The relevant regulator27 may also discuss the application
(1) The relevant regulator27 is required by section 55B(3) of the Act to ensure that a firm applying to gain or vary a Part 4A permission or to impose or vary a requirement27 satisfies and will continue to satisfy the threshold conditions in relation to all the regulated activities for which the firm has or will have a Part 4A permission.2727271527(2) [deleted]27151527
In considering whether to grant (or consent to, as the case may be)27 a firm's application to vary its Part 4A permission or impose or vary a requirement, the regulator concerned will also have regard, under section 55R(1)27 of the Act (Persons connected with an applicant), to any person6 appearing to be, or likely to be, in a relationship with the firm which is relevant. The Financial Groups Directive Regulations make special consultation provisions where the regulator is exercising
If limitationsare varied or imposed or requirements are imposed by the relevant regulator27 which were not included in the firm's application for variation of Part 4A permission, the relevant regulator27 will be required to issue the firm with a warning notice and decision notice (see SUP 6.3.39 G).2727
If the relevant regulator27 receives an application which is incomplete (that is, if information or a document required as part of the application is not provided), section 55V(2)27 of the Act requires the relevant regulator27 to determine that incomplete application within 12 months of the initial receipt of the application.272727
A decision to grant an application will be taken by appropriately experienced staff at the relevant regulator.27 However, if the staff dealing with the application recommend that a firm's application for variation of Part 4A permission27 be either refused or granted subject to limitations or requirements or a narrower description of regulated activities than applied for, the decision will be subject to the regulator's formal decision making process.272727272727
If the variation ofPart 4A permission is given, the relevant regulator27 will expect a firm to commence a new regulated activity in accordance with its business plan (revised as necessary to take account of changes during the application process) or scheme of operations for an insurer. Firms should take this into consideration when determining when to make an application to the relevant regulator.272727
The appropriate regulator may ask the auditor to attend meetings and to supply it with information about the firm. In complying with SUP 3.8.2 R, the auditor should attend such meetings as the appropriate regulator requests and supply it with any information the appropriate regulator may reasonably request about the firm to enable the appropriate regulator to discharge its functions under the Act.
Within the legal constraints that apply, the appropriate regulator may pass on to an auditor any information which it considers relevant to his function. An auditor is bound by the confidentiality provisions set out in Part XXIII of the Act (Public record, disclosure of information and cooperation) in respect of confidential information he receives from the appropriate regulator. An auditor may not pass on such confidential information without lawful authority, for example if
(1) Auditors are subject to regulations made by the Treasury under sections 342(5) and 343(5) of the Act (Information given by auditor or actuary to a regulator). Section 343 and the regulations also apply to an auditor of an authorised person in his capacity as an auditor of a person who has close links with the authorised person.3(2) These regulations oblige auditors to report certain matters to the appropriate regulator. Sections 342(3) and 343(3) of the Act provide that an
If an auditor ceases to be, or is formally notified that he will cease to be, the auditor of a firm, he must notify the appropriate regulator without delay:(1) of any matter connected with his so ceasing which he thinks ought to be drawn to the appropriate regulator's attention; or (2) that there is no such matter.
Where the change arises from circumstances within the control of the incoming EEA firm, the requirements in regulation 4(4) are that:(1) the incoming EEA firm has given notice to the appropriate UK regulator12 (see SUP 14.4.1 G) and to its Home State regulator stating the details of the proposed change;12(2) the appropriate UK regulator12 has received a notice stating those details; and12(3) either:(a) the appropriate UK regulator12 has informed the firm that it may make the change;
Changes to the requisite details may lead to changes to the applicable provisions to which the incoming EEA firm is subject. The appropriate UK regulator12 will, as soon as practicable after receiving a notice in SUP 14.2.3 G or SUP 14.2.8 G, inform the incoming EEA firm of any consequential changes in the applicable provisions (regulation 4(6)).112
If the change arises from circumstances beyond the incoming EEA firm's control, the firm is required by regulation 4(5) (see SUP 14.2.2 G) or regulation 6(5) (see SUP 14.2.5 G (2)) to give a notice to the appropriate UK regulator12 (see SUP 14.4.1 G) and to its Home State regulator stating the details of the change as soon as reasonably practicable.12
The appropriate UK regulator12 believes that for a change to arise from circumstances beyond the control of an incoming EEA firm, the circumstances should be outside the control of the firm as a whole and not just its UK branch. For example, the appropriate UK regulator12 considers that this provision would be unlikely to apply to circumstances in which lack of planning at the incoming EEA firm's head office resulted in a problem arising in a UKbranch which was outside its control.
6The relevant requirements in regulation 4A(3) are that:(1) the EEA MiFID investment firm has given notice to its Home State regulator stating the details of the proposed change; and(2) the period of one month beginning with the date on which the EEA MiFID investment firm gave the notice mentioned in (1) has elapsed.
6Changes to the requisite details may lead to changes to the applicable provisions to which the EEA MiFID investment firm is subject. The appropriate UK regulator12 will, as soon as practicable after receiving a notice in SUP 14.2.11 G inform the EEA MiFID investment firm of any consequential changes in the applicable provisions. 12
Under section 115 of the Act, the appropriate regulator3 has the power to give a certificate confirming that a firm possesses any required minimum margin, to facilitate an insurance business transfer to the firm under overseas legislation from a firm authorised in another EEA State or from a Swiss general insurance company. This section provides guidance on how the appropriate regulator3 would exercise this power and on related matters.33
Under cooperation agreements between EEA regulators, if it has serious concerns about the proposed transferee, the appropriate regulator3 should inform the regulatory body of the transferor within 3 months of the original request from that regulatory body. The appropriate regulator3 is not obliged to reply, but if it does not, its opinion is taken to be favourable3. Although the protocol does not apply to Switzerland, the appropriate regulator3 is required to cooperate with the
If the effect of the transfer may be material, the appropriate regulator3 will need to consider whether to request a scheme of operations or other information from the proposed transferee to assist in determining whether the likely effect of the transfer is such that the appropriate regulator3 should have serious concerns.33
Where the change arises from circumstances within the control of the UK firm, the requirements in regulation 11(2) are that:(1) the UK firm has given notice to the appropriate UK regulator17 and to the Host State regulator stating the details of the proposed change;17(2) the appropriate UK regulator17 has given the Host State regulator a notice informing it of the details of the change; and17(3) either the Host State regulator has informed the UK firm that it may make the change,
(1) If the change arises from circumstances beyond the UK firm's control, the UK firm:17(a) is required by regulation 11(3) or regulation 13(3) to give a notice to the appropriate UK regulator17 and to the Host State regulator stating the details of the change as soon as reasonably practicable;17(b) may, if it is passporting under the Insurance Directives, make a change to its relevant UK details7 under regulation 15(1) if it has, as soon as practicable (whether before or after
When the appropriate UK regulator17 receives a notice from a UK firm other than a MiFID investment firm7(see SUP 13.6.5 G (1) and SUP 13.6.7 G (1)) or a pure reinsurer (see SUP 13.6.9B R) 8it is required by regulations 11(4) and 13(4) to either refuse, or consent to the change within a period of one month7 from the day on which it received the notice.177
17Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give consent to a change (or proposed change) and where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give consent in relation to a UK firm whose immediate group includes a PRA-authorised person.
If the appropriate UK regulator17 refuses to consent to a change, then under regulations 11(6) and 13(6):17(1) the appropriate UK regulator17 will give notice of the refusal to the UK firm, stating its reasons and giving an indication of the UK firm's right to refer the matter to the Tribunal and the procedures on such a reference; and17(2) the UK firm may refer the matter to the Tribunal.62
A firm must notify the appropriate regulator9 immediately it becomes aware of any of the following matters in respect of one or more of its controllers: 9(1) if a controller, or any entity subject to his control, is or has been the subject of any legal action or investigation which might put into question the integrity of the controller; (2) if there is a significant deterioration in the financial position of a controller; (3) if a corporate controller undergoes a substantial
In assessing whether a matter should be notified to the appropriate regulator9 under SUP 11.8.1 R (1), SUP 11.8.1 R (2) or SUP 11.8.1 R (3), a firm should have regard to the guidance on satisfying the threshold conditions set out in paragraphs 2E and 3D of Schedule 6 to the Act9 contained in COND 2.5.99
The level of a firm's awareness of its controller's circumstances will depend on its relationship with that controller. The appropriate regulator9 does not expect firms to implement systems or procedures so as to be certain of any changes in its controllers' circumstances. However, the appropriate regulator9 does expect firms to notify it of such matters if the firm becomes aware of them, and it expects firms to make enquiries of its controllers if it becomes aware that one of
1Under section 312C of the Act, if a UK RIE wishes to make arrangements in an EEA State other than the UK to facilitate access to or use of a regulated market,2multilateral trading facility or auction platform2 operated by it, it must give the FCA3written notice of its intention to do so. The notice must:3(1) describe the arrangements; and(2) identify the EEA State in which the UK RIE intends to make them.
Section 191A deals with the procedure the appropriate regulator6 must follow where the appropriate regulator reasonably believes that:6446(1) there has been a failure to give notice under section 178(1) of the Act in circumstances where notice was required;6(2) there has been a breach of a condition imposed under section 187 of the Act; or6(3) there are grounds for objecting to control on the basis of the matters in section 186 of the Act.6
Before making a determination under section 185 or4 giving a4warning notice under section 191A4, the appropriate regulator6 must comply with the 4 requirements as to consultation with EC41competent authorities set out in section 188 of the Act4and with the other regulator set out in sections 187A, 187B and 191A of the Act, as applicable.646144
Part XII of the Act (Control Over Authorised Persons6) 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 appropriate regulator6 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 appropriate regulator's approval6 before becoming a controller or increasing
As the approval of the appropriate regulator6 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 appropriate regulator6 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
As part of the appropriate regulator's6 function of monitoring a firm's continuing satisfaction of the threshold conditions, the appropriate regulator6 needs to consider the impact of any significant change in the circumstances of one or more of its controllers, for example, in their financial standing and, in respect of corporate controllers, in their governing bodies. Consequently, the appropriate regulator6 needs to know if there are any such changes. SUP 11.8 therefore requires
Similarly, the appropriate regulator6 needs to monitor a firm's continuing satisfaction of the6threshold conditions6 set out in paragraphs 3B, 4F and 5F of Schedule 6 to the Act (as applicable) (in relation to threshold conditions for which the FCA is responsible,6 see COND 2.32), which requires that a firm's close links are not likely to prevent the appropriate regulator's6 effective supervision of that firm. Accordingly the appropriate regulator6 needs to be notified of any
A UK domestic firm,4 other than a non-directive firm, 4must notify the appropriate regulator6 of any of the following events concerning the firm:146(1) a person acquiring control;4(2) an existing controller increasing control4; 4(3) an existing controller reducing control4; 4(4) an existing controller ceasing to have control4.44
Principle 11 requires firms to be open and cooperative with the appropriate regulator6. A firm should discuss with the appropriate regulator6, at the earliest opportunity, any prospective changes of which it is aware, in a controller's4or proposed controller's4shareholdings or voting power (if the change is material). These discussions may take place before the formal notification requirement in SUP 11.4.2 R or SUP 11.4.4 R arises. (See also SUP 11.3.2 G). As a minimum, the appropriate
The steps that the appropriate regulator6 expects a firm to take to comply with SUP 11.4.10 R include, if applicable:6(1) monitoring its register of shareholders (or equivalent);(2) monitoring notifications to the firm in accordance with Part 223 of the Companies Act 20063;33(3) monitoring public announcements made under the relevant disclosure provisions of the Takeover Code or other rules made by the Takeover Panel;2(4) monitoring the entitlement of delegates, or persons with
1This chapter provides guidance in relation to business transfers.(1) SUP 18.2 applies to any firm or to any underwritingmember or any former member3 of Lloyd's proposing to transfer the whole or part of its business by an insurance business transfer scheme or to accept such a transfer. Some of the guidance in this chapter, for example, at3SUP 18.2.31 G to SUP 18.2.41 G also applies3 to the independent expert making the scheme report.33(2) SUP 18.3 applies to any firm proposing
The regulators are likely to consider3 a novation or a number of novations as amounting to3an insurance business transfer only if their number or value were such that the novation was to be regarded as a transfer of part of the business. A novation is an agreement between the policyholder and two insurers whereby a contract with one insurer is replaced by a contract with the other. If3 an insurer agrees to meet the liabilities (this may include undertaking the administration of
3Legislation in respect of other transactions, for example, cross-border mergers, does not negate the requirements under Part VII of the Act. It is for the firms participating in such transactions to determine whether or not the proposed transfer gives rise to an insurance business transfer. The regulators expect firms proposing such transactions to discuss the proposal with them as soon as practicable.
A UK firm other than a UK pure reinsurer9cannot establish a branch in another EEA State for the first time under an EEA right unless the conditions in paragraphs 19(2), (4) and (5) of Part III of Schedule 3 to the Act are satisfied. It is an offence for a UK firm which is not an authorised person to contravene this prohibition (paragraph 21 of Part III of Schedule 3 to the Act). These conditions are that:(1) the UKfirm has given the appropriate UK regulator,20 in accordance with
4An appointed representative appointed by a firm to carry on insurance mediation activity on its behalf may establish a branch in another EEA State under the Insurance Mediation Directive. In this case, the notice of intention8 in SUP 13.3.2 G (1) should be given to the appropriate UK regulator20 by the firm on behalf of the appointed representative.5820
(1) 8If the UK firm'sEEA right derives from the Banking Consolidation Directive or10MiFID8,10 the appropriate UK regulator20 will give the Host State regulator a consent notice within three months unless it has reason to doubt the adequacy of a UK firm's resources or its administrative structure.8 The Host State regulator then has a further two months to notify the applicable provisions (if any) and prepare for the supervision, as appropriate, of the UK firm, or in the case of
20Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give a consent notice, except where paragraph 19(7A) of Part III of Schedule 3 to the Act applies. Where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give a consent notice in relation to a UK firm whose immediate group includes a PRA-authorised person.
(1) If the appropriate UK regulator20 gives a consent notice, it will inform the UK firm in writing that it has done so.20(2) The consent notice will contain, among other matters, the requisite details or, 8if the firm is passporting under the Insurance Directives, the relevant EEA details8 (see SUP 13 Annex 18) provided by the UK firm in its notice of intention8 (see SUP 13.5 (Notices of intention)).8888(3) 10Where a consent notice is given under the UCITS Directive, the FCA20
(1) If the appropriate UK regulator20 proposes to refuse to give a consent notice, then paragraph 19(8) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to give the UK firm a warning notice.2020(2) If the appropriate UK regulator20 decides to refuse to give a consent notice, then paragraph 19(12) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to give the UK firm a decision notice within three months8 of the date on which
The relevant requirements in regulation 5(3) are that:(1) the incoming EEA firm has given a notice to the FCA12 (see SUP 14.4.1 G) and to its Home State regulator stating the details of the proposed change;12(2) if the change arises from circumstances beyond the incoming EEA firm's control, that firm has, as soon as practicable, given to the appropriate UK regulator12 and to its Home State regulator the notice in (1).112
A firm to which this section applies (see SUP 3.1) must:(1) appoint an auditor;(2) notify the appropriate regulator, without delay, on the form in SUP 15 Ann 34 (Standing data form), in accordance with the instructions on the form, when it is aware that a vacancy in the office of auditor will arise or has arisen, giving the reason for the vacancy;24(3) appoint an auditor to fill any vacancy in the office of auditor which has arisen; (4) ensure that the replacement auditor can
(1) Paragraph (2) applies to a firm which is not under an obligation to appoint an auditor imposed by an enactment other than the Act.(2) If a firm fails to appoint an auditor within 28 days of a vacancy arising, the appropriate regulator may appoint an auditor for it on the following terms:(a) the auditor to be remunerated by the firm on the basis agreed between the auditor and firm or, in the absence of agreement, on a reasonable basis; and(b) the auditor to hold office until
SUP 3.3.7 R allows but does not require the appropriate regulator to appoint an auditor if the firm has failed to do so within the 28 day period. When it considers whether to use this power, the appropriate regulator will take into account the likely delay until the firm can make an appointment and the urgency of any pending duties of the appointed auditor.
Firms are reminded that SUP 15.6.4 R requires them to notify the appropriate regulator4 if information notified under SUP 11.4.2 R or SUP 11.4.4 R was false, misleading, inaccurate, incomplete, or changes, in a material particular. This would include a firm becoming aware of information that it would have been required to provide under SUP 11.5.1 R if it had been aware of it.144
After submitting a section 178 notice2under SUP 11.4.2 R orSUP 11.4.2A R2 and until the change in control occurs (or is no longer to take place), SUP 15.6.4 R and SUP 15.6.5 R apply to a UK domestic firm in relation to any information its controller or proposed controller provided to the appropriate regulator4 under SUP 11.5.1 R or SUP 11.3.7 D.1224