Related provisions for MCOB 9.4.138
41 - 60 of 246 items.
12(1) Principle 6 (Customers' interests) requires that a firm must pay due regard to the interests of its customers and treat them fairly. This means, for example, that a firm should avoid selling practices that commit customers (or lead customers to believe that they are committed) to any regulated mortgage contract or home reversion plan before they have been able to consider the illustration and offer document. One such practice might be to present a new customer with an illustration,
Principle 7 (Communications with clients) requires that a firm must pay due regard to the information needs of its clients, and communicate information to them in a way which is clear, fair and not misleading. This means, for example, that a firm should avoid giving any customer a false impression about the availability of a regulated mortgage contract, home reversion plan1 or regulated sale and rent back agreement2, such as describing it as a 'special offer' not available after
Even with a cross-border element a person may still be carrying on an activity 'in the United Kingdom'. For example, a person who is situated in the United Kingdom and who is safeguarding and administering investments will be carrying on activities in the United Kingdom even though his client may be overseas.
A person who is based outside the United Kingdom but who sets up an establishment in the United Kingdom must therefore consider the following matters. First, he must not, unless he is authorised, carry on regulated activities in the United Kingdom. Second, unless he is authorised, the day-to-day management of the carrying on of the regulated activity must not be the responsibility of the UK establishment. This may, for example, affect those UK establishments that in the context
In the FCA's view, guiding a person through a decision tree should not, of itself, involve advice within the meaning of article 53 (it should be generic advice). For example, helping a person to understand what the questions or options are and how to determine which option applies to his particular circumstances. But a recommendation that the person concerned should, if the results of using the decision tree so indicate, buy a stakeholder personal pension from a particular provider
Examples of a particular investment include:(1) securities – shares in ABC plc, Treasury 10% 2001 stock, XYZ plc warrants;(2) units in collective investment schemes - ABC smaller companies fund, XYZ Growth Trust;(3) exchange-traded derivatives - LME Copper Grade A 3 months, LIFFE Japanese Government bond, ABC plc traded options;(4) contractual investments, for example, futures and other contracts having specified terms and conditions such as duration, volume, interest rate or
The power to impose a suspension
or a restriction is a disciplinary measure which the FCA2 may use in addition to, or instead of, imposing a financial penalty
or issuing a public censure.
The principal purpose of imposing a suspension or a restriction is to promote
high standards of regulatory and/or market conduct by deterring persons who have committed breaches from
committing further breaches,
helping to deter other persons from
committing similar breaches,
and demonstrating
The powers to impose a suspension or a restriction in relation
to authorised persons and approved persons are disciplinary measures;2 where the FCA2 considers it necessary to take action, for example, to protect consumers from an authorised
person, the FCA2 will seek to cancel or vary the authorised
person'spermissions.
If the FCA2 has
concerns with a person's fitness
to be approved, and considers it necessary to take action, the FCA2 will
seek to prohibit the approved person
(1) 3CASS 8.1.2A R is not an absolute exemption, but it excludes the application of the mandate rules in relation to money or assets that a firm has received, is holding, or is responsible for (as appropriate and in the circumstances described in CASS 8.1.2A R).(2) This means that, for example in respect of CASS 8.1.2A R (1), a firm holding client money in accordance with CASS 5 or CASS 7 does not also need to comply with the mandate rules in relation to the client money which
3The mandate rules only apply to a firm that has a mandate, and do not affect the duties of any other person to whom the firm is able to give the types of instructions referred to in CASS 8.2.1R (4). For example, if a person (A) has accepted a deposit from a client, and a firm (B) has a mandate in respect of that client'sdeposit held by A, the mandate rules only apply to B, and do not affect the duties of A in relation to the deposit.
Persons subject to enforcement action may be prepared to agree the amount of any financial penalty, or the length of any period of suspension or restriction,2 and other conditions which the FCA3 seeks to impose by way of such action. Such conditions might include, for example, the amount or mechanism for the payment of compensation to consumers. The FCA3 recognises the benefits of such agreements, in that they offer the potential for securing earlier redress or protection for
(1) Any settlement agreement between the FCA3 and the person concerned will therefore need to include a statement as to the appropriate penalty discount in accordance with this procedure.3(2) In certain circumstances the person concerned may consider that it would have been possible to reach a settlement at an earlier stage in the action, and argue that it should be entitled to a greater percentage reduction in penalty than is suggested by the table at DEPP 6.7.3G (3). It may
In the opinion of thewhether the disclosure is permitted by the rules of a
prescribed market
, a prescribed auction platform,3 of the
FCA
or the Takeover Code; or
FCA
, the following factors are to be taken into account in determining whether or not the disclosure was made by a person in the proper course of the exercise of his employment, profession or duties, and are indications that it was:(1) whether the disclosure
The following are examples 4of market abuse (improper disclosure).444(1) 4X, a director at B PLC has lunch with a friend, Y, who has no connection with B PLC or its advisers. X tells Y that his company has received a takeover offer that is at a premium to the current share price at which it is trading.(2) 4A, a person discharging managerial responsibilities in B PLC, asks C, a broker, to sell some or all of As shares in B PLC. C discloses to a potential buyer that A is a person
Where a tied product is operated separately from the regulated mortgage contract, for example where the premiums on a tied insurance product are not combined with payments on the regulated mortgage contract, the statement required by MCOB 7.5.1 R in relation to the tied product may be provided in a separate communication.
Whether a firm is likely to provide the information set out in MCOB 7.5.3 R(2) more frequently than once a year will depend on the nature of the regulated mortgage contract. In determining how frequently to provide that information, a firm should take into account the need to keep the customer informed of any changes in the amount they owe, the customer's expectations and, where appropriate, the duration of the loan. For example, for a mortgage credit card the information might
416These procedures should, taking into account the nature, scale and complexity of the respondent's business, ensure that lessons learned as a result of determinations by the Ombudsman are effectively applied in future complaint handling, for example by:(1) relaying a determination by the Ombudsman to the individuals in the respondent who handled the complaint and using it in their training and development;(2) analysing any patterns in determinations by the Ombudsman concerning
In respect of complaints that do not relate to MiFID business, a respondent must put in place appropriate management controls and take reasonable steps to ensure that in handling complaints it identifies and remedies any recurring or systemic problems, for example, by: 1(1) analysing the causes of individual complaints so as to identify root causes common to types of complaint;(2) considering whether such root causes may also affect other processes or products, including those
Principles 3 (Management and control), 4 (Financial prudence) and (in so far as it relates to disclosing to the appropriate regulator) 11 (Relations with regulators) take into account the activities of members of a firm's group. This does not mean that, for example, inadequacy of a group member's risk management systems or resources will automatically lead to a firm contravening Principle 3 or 4. Rather, the potential impact of a group member's activities (and, for example, risk
Breaching a Principle makes a firm liable to disciplinary sanctions. In determining whether a Principle has been breached it is necessary to look to the standard of conduct required by the Principle in question. Under each of the Principles the onus will be on the appropriate regulator to show that a firm has been at fault in some way. What constitutes "fault" varies between different Principles. Under Principle 1 (Integrity), for example, the appropriate regulator would need
The FCA1 will consider it appropriate to impose a suspension or restriction
where it believes that such action will be a more effective and persuasive
deterrent than the imposition of a financial penalty alone. This is likely
to be the case where the FCA1 considers that direct and visible action in relation to a particular breach is necessary. Examples of circumstances
where the FCA1 may
consider it appropriate to impose a suspension or restriction include:111(1) where the FCA1
The FCA1 expects usually to suspend or restrict a person from
carrying out activities directly linked to the breach.
However, in certain circumstances the FCA1 may also suspend or restrict a person from
carrying out activities that are not directly linked to the breach,
for example, where an authorised person's relevant
business area no longer exists or has been restructured.11
Article 28 of the PD Regulation provides examples of information that may be incorporated by reference:
Arrangements for incorporation by reference |
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1. |
Information may be incorporated by reference in a prospectus or base prospectus, notably if it is contained in one the following documents: |
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(1) |
annual and interim financial information; |
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(2) |
documents prepared on the occasion of a specific transaction such as a merger or demerger; |
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(3) |
audit reports and financial statements; |
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(4) |
memorandum and articles of association; |
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(5) |
earlier approved and published prospectuses and/or base prospectuses; |
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(6) |
regulated information; |
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(7) |
circulars to security holders. |
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2. |
The documents containing information that may be incorporated by reference in a prospectus or base prospectus or in the documents composing it shall be drawn up following the provisions of [PR 4.1 (Use of languages)]. |
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3. |
If a document which may be incorporated by reference contains information which has undergone material changes, the prospectus or base prospectus shall clearly state such a circumstance and shall give the updated information. |
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4. |
The issuer, the offeror or the person asking for admission to trading on a regulated market may incorporate information in a prospectus or base prospectus by making reference only to certain parts of a document, provided that it states that the non-incorporated parts are either not relevant for the investor or covered elsewhere in the prospectus. |
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5. |
When incorporating information by reference, issuers, offerors or persons asking for admission to trading on a regulated market shall endeavour not to endanger investor protection in terms of comprehensibility and accessibility of the information. |
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21Firms should make it clear that they will bear the costs of conversion if the rearrangement is made with the existing lender and to the equivalent repayment mortgage. If a complainant is not willing to rearrange with the existing lender, then the costs to be paid by the firm should normally be limited to those which would have been payable had the rearrangement been made with the existing lender and to the equivalent repayment mortgage. If it is not possible to rearrange with
12Example of assessment set out at 1.3.10
The following example illustrates the position: |
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Surrender value |
£10,000 |
TEP value |
£16,000 |
Loss calculated by standard approach |
£5,000 |
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Remortgaging costs |
£300 |
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Total |
£15,300 |
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Complainant receives £16,000 all ultimately funded from the TEP sale. |
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Surrender value |
£10,000 |
TEP value |
£13,000 |
Redress calculated by standard approach |
£5,000 |
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Remortgaging costs |
£300 |
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Total |
£15,300 |
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Complainant receives £15,300, £13,000 ultimately funded from the TEP sale and £2,300 ultimately funded from the firm. |
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The following factors may be relevant
to determining the appropriate length of the period of suspension or restriction
to be imposed on a person under
the Act:(1) DeterrenceWhen determining
the appropriate length of the period of suspension or restriction, the FCA2 will
have regard to the principal purpose for which it imposes sanctions, namely
to promote high standards of regulatory and/or market conduct by deterring persons who have committed breaches from
committing further
The FCA2 may delay the commencement of the period of suspension or restriction.
In deciding whether this is appropriate, the FCA2 will take into account all the circumstances of a case. Considerations
that may be relevant in respect of an authorised
person, sponsor or primary
information provider2 include:22(1) the impact of the suspension or
restriction on consumers;(2) any practical measures the authorised person, sponsor or primary information provider2 needs to take before
(1) This section contains rules on the types of permitted investments and any relevant limits with which non-UCITS retail schemes operating as FAIFs must comply. These rules allow for the relaxation of certain investment and borrowing powers from the requirements for non-UCITS retail schemes under COLL 5.6 .(2) One example2 of the different investment and borrowing powers under the rules in this section for non-UCITS retail schemes operating as FAIFs is the power to invest up
(1) This rule does not apply in respect of government and public securities.(2) Not more than 20% in value of the scheme property is to consist of deposits with a single body.(3) Not more than 10% in value of the scheme property is to consist of transferable securities or approved money-market instruments issued by any single body subject to COLL 5.6.23 R (Schemes replicating an index).(4) The limit of 10% in (3) is raised to 25% in value of the scheme property in respect of covered
An authorised fund manager carrying out due diligence for the purpose of the rules in this section should make enquiries or otherwise obtain information needed to enable him properly to consider:(1) whether the experience, expertise, qualifications and professional standing of the second scheme's investment manager is adequate for the type and complexity of the second scheme;(2) the adequacy of the regulatory, legal and accounting regimes applicable to the second scheme and its
A firm should establish and maintain appropriate systems and controls for the management of operational risks that can arise from employees. In doing so, a firm should have regard to:(1) its operational risk culture, and any variations in this or its human resource management practices, across its operations (including, for example, the extent to which the compliance culture is extended to in-house IT staff);(2) whether the way employees are remunerated exposes the firm to the
A firm should have regard to SYSC 13.6.3 G in relation to approved persons, people occupying positions of high personal trust (for example, security administration, payment and settlement functions); and people occupying positions requiring significant technical competence (for example, derivatives trading and technical security administration). A firm should also consider the rules and guidance for approved persons in other parts of the Handbook (including APER and SUP) and the
(1) The rules in this chapter specify the types of documents and records that must be maintained in a firm'sCASS resolution pack and the retrieval period for the pack. The firm should maintain the component documents of the CASS resolution pack in order for them to be retrieved in accordance with CASS 10.1.7 R, and should not use the retrieval period to start producing these documents.(2) The contents of the documents that constitute the CASS resolution pack will change from time
The appropriate regulator6 will have regard to circumstances relating to the firm, for example:6(1) attitude of the firm: whether the firm is being cooperative;(2) history of similar issues: whether similar issues have arisen in the past and, if so, whether timely corrective action was taken;(3) quality of a firm's systems and records: whether the appropriate regulator6 has confidence that the firm has the ability to provide the required information;6(4) objectivity: whether
The appropriate regulator6 will have regard to alternative tools that may be available, including for example:6(1) obtaining what is required without using specific statutory powers (for example, by a visit bystaff of the appropriate regulator6or a request for information on an informal basis); 6(2) requiring information from firms and others, including authorising an agent to require information, under section 165 of the Act (Power6 to require information);6(3) appointing investigators
2An originator should clearly state the scope of the waiver of the requirements in BIPRU 9.4.11R and BIPRU 9.4.12R it is seeking in its application. For example, residential mortgage backed securities may be subdivided into prime and sub-prime with only one sub-category within the scope of the waiver. Relevant asset classes may therefore be defined according to a firm's internal usage of terms.