Related provisions for PERG 6.1.1
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Where collective investment schemes are concerned additional restrictions are placed on their promotion to ensure that only those which are regulated are promoted to the general public. This is achieved by a combination of sections 21 and 238 (Restrictions on promotion) of the Act as explained in PERG 8.20.2 G. A regulated collective investment scheme is:(1) an authorised unit trust scheme; or(2) an investment company with variable capital; or(3) a scheme recognised under section
Section 21 precludes the promotion by unauthorised persons of unregulated collective investment schemes unless the financial promotion is approved by an authorised person or is exempt. Section 238 then precludes the promotion of an unregulated collective investment scheme by authorised persons except where:(1) there is an exemption in an order made by the Treasury under section 238(6); or(2) the financial promotion is permitted under rules made by the FCA under section 238(5)
Section 21(3) of the Act states that, in the case of a communication originating outside the United Kingdom, the restriction in section 21(1) applies only if it is capable of having an effect in the United Kingdom. In this respect, it is irrelevant whether the communication has an effect provided it is capable of doing so.
Where communications by persons in another EEA State are made to or directed at persons in the United Kingdom account must be taken of the effect of any relevant EU Directives. For example, the E-Commerce Directive will, with limited exceptions, prevent the United Kingdom from imposing restrictions on incoming financial promotions in information society services. The Treasury has given effect to this through the Financial Promotion Order (see1PERG 8.12.38 G). Other potentially
8As a result of section 404B(11) of the Act, the Ombudsman can also consider under the Compulsory Jurisdiction a complaint from a complainant who:(1) is not satisfied with a redress determination made by a respondent under a consumer redress scheme; or(2) considers that a respondent has failed to make a redress determination in accordance with a consumer redress scheme.
Section 87A(1) of the Act provides for the approval of a prospectus by the FCA:
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The [FCA] may not approve a prospectus unless it is satisfied that: |
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(a) |
the United Kingdom is the home State in relation to the issuer of the transferable securities to which it relates, |
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(b) |
the prospectus contains the necessary information, and |
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(c) |
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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This chapter sets out the FCA's3 approach to the supervision of recognised bodies and contains guidance on: 3(1) the arrangements for investigating complaints about recognised bodies made under section 299 of the Act (Complaints about recognised bodies) (REC 4.4); (2) the FCA's3approach to the exercise of its powers under:3(a) (for RIEs)2section 296 of the Act (Appropriate regulator's3 power to give directions) or (for RAPs) regulation 3 of the RAP regulations2 to give directions
A public sector issuer that seeks admission of debt securities referred to in paragraphs 2 and 4 of Schedule 11A of the Act must submit to the FCA in final form a completed Application for Admission of Securities to the Official List.Note: The Application for Admission of Securities to the Official List form can be found on the UKLA section of the FCA's website.1
As explained in SUP 8, under sections 138A and 138B of the Act, the appropriate regulator may not grant a waiver to a firm unless it is satisfied that:(1) compliance by the firm with the rules, or with the rules as modified, would be unduly burdensome or would not achieve the purpose for which the rules were made; and(2) the waiver would not result in undue risk to persons whose interests the rules are intended to protect objects.
The conditions relating to the use of an approach listed in BIPRU 1.3.2 G referred to in the relevant chapter of BIPRU are minimum standards. Satisfaction of those conditions does not automatically mean the appropriate regulator will grant a waiver referred to in those paragraphs. The appropriate regulator will in addition also apply the tests in section 138A of the Act.
(1) Section 283A(1) (Master-feeder structures) of the Act, in implementation of article 59(1) of the UCITS Directive, provides that the operator of a UCITS scheme may not invest a higher proportion of scheme property in units of another UCITS than is permitted by rules made by the FCA implementing article 55 of the UCITS Directive, unless the investment is approved by the FCA in accordance with that section.(2) The FCA has implemented article 55(1) of the UCITS Directive in
(1) An application for approval of an investment in a master UCITS under section 283A of the Act must be accompanied by the following documents:(a) the instrument constituting the scheme of the feeder UCITS and of the master UCITS;(b) the prospectus and the key investor information referred to in COLL 4.7.2 R (Key investor information) of the feeder UCITS and of the master UCITS;(c) the master-feeder agreement or the internal conduct of business rules in accordance with COLL 11.3.2R
This chapter applies to an incoming firm or a UCITS qualifier only in respect of a top-up permission. An incoming firm or a UCITS qualifier should refer to SUP 14 (Variation of passport rights by incoming EEA firms and ending authorisation) for the procedures for changes to permission granted under Schedules 3, 4 or 5 of the Act.
(1) 7In SUP 6 the "relevant regulator" is the regulator to which a firm with a Part 4A permission has made or can make (in accordance with SUP 6) an application to vary or cancel its Part 4A permission or to have imposed on it a new requirement or to vary or cancel any existing requirement (see SUP 6.2.3A G to SUP 6.2.3E G).(2) Where the PRA can only determine an application with the consent of the FCA, the FCA may request further information as if it were the relevant regulator.(3)
This guidance is issued under section 139A of Act (Guidance). It is designed to throw light on particular aspects of regulatory requirements, not to be an exhaustive description of a person's obligations. If a person acts in line with the guidance in the circumstances contemplated by it, then the FCA will proceed on the footing that the person has complied with aspects of the requirement to which the guidance relates.
2In the event that the appropriate regulator decides that the possible reduction in risk weighted exposure amounts which the originator would achieve by the securitisation referred to in BIPRU 9.4.11R is not justified by a commensurate transfer of credit risk to third parties, it will use its powers under section 55J (Variation etc on the Authority's own initiative) of the Act to require the firm to increase its risk weight exposure amount to an amount commensurate with the appropriate
2BIPRU 1.3.10 G sets out the appropriate regulator's approach to the granting of waivers. The conditions in BIPRU 9.4.15D are minimum requirements. Satisfaction of those does not automatically mean the appropriate regulator will grant the relevant waiver. The appropriate regulator will in addition also apply the tests in section 138A (Modification or waiver of rules) of the Act.
If a person established in the EEA: (1) does not have an EEA right; (2) does not have permission as a UCITS qualifier; and(3) does not have, or does not wish to exercise, a Treaty right (see SUP 13A.3.4 G to SUP 13A.3.11 G);to carry on a particular regulated activity in the United Kingdom, it must seek Part 4A permission from the appropriate UK regulator3 to do so (see the appropriate UK regulator's website: http://www.fca.org.uk/firms/about-authorisation/getting-authorised for
For guidance on how to apply for Part 4A permission3 under the Act, see the appropriate UK regulator's website: http://www.fca.org.uk/firms/about-authorisation/getting-authorised for the FCA and www.bankofengland.co.uk/pra/Pages/authorisations/newfirm/default.aspx for the PRA.31 If an EEA firm or Treaty firm wishes to make any subsequent changes to its top-up permission, it can make an application for variation of that permission (see SUP 6 (Applications to vary and cancel Part
A firm and its controllers are required to notify certain changes in control (see7SUP 11 (Controllers and close links)). The purpose of the rules and guidance in this section is:7(1) to ensure that, in addition to such notifications, the appropriate regulator15 receives regular and comprehensive information about the identities of all of the controllers of a firm, which is relevant to a firm's continuing to satisfy the effective supervision threshold conditions15; 158(2) to implement
This chapter gives guidance to UK firms. In most cases UK firms will be authorised persons under the Act. However, under the Banking Consolidation Directive, a subsidiary of a firm which is a credit institution which meets the criteria set out in that Directive also has an EEA right. Such an unauthorised subsidiary is known as a financial institution. References in this chapter to a UK firm include a financial institution.
A UK firm should be aware that the guidance is the FSA's interpretation of the Single Market Directives, the Act and the legislation made under the Act. The guidance is not exhaustive and is not a substitute for firms consulting the legislation or taking their own legal advice in the United Kingdom and in the relevant EEA States.
Another consequence of a breach of section 21 of the Act is that certain agreements could be unenforceable (see section 30 of the Act (Enforceability of agreements resulting from unlawful communications)). This applies to agreements entered into by a person as a customer as a consequence of a communication made in breach of section 21.
Firms are reminded that section 398 of the Act (Misleading the FCA or PRA:9 residual cases) makes it an offence for a firm knowingly or recklessly to provide the appropriate regulator9 with information which is false or misleading in a material particular in purported compliance with the appropriate regulator's9rules or any other requirement imposed by or under the Act. An offence by a body corporate, partnership or unincorporated association may be attributed to an officer or
1The effect of sections 20 (Authorised persons acting without permission) and 39(4) (Exemption of appointed representatives) of the Act is that the regulated activities covered by an appointed representative's appointment need to:(1) fall within the scope of the principal's permission; or(2) be excluded from being regulated activities when carried on by the principal, for example because they fall within article 28 of the Regulated Activities Order (Arranging transactions to which
(1) 8A tied agent that is an appointed representative may not start to act as a tied agent until it is included on the applicable register (section 39(1A) of the Act). If the tied agent is established in the UK, the register maintained by the FCA is the applicable register for these purposes. If the tied agent is established in another EEA State, it should consult section 39(1B) of the Act to determine the applicable register.(2) A UK MiFID investment firm that appoints an FCA