1Section 87A(2A) of the Act provides that information about certain guarantors may be omitted from a prospectus:
87A |
(2A) |
If, in the case of transferable securities to which section 87 applies, the prospectus states that the guarantor is a specified EEA State, the prospectus is not required to include other information about the guarantor. |
Frequently asked questions about allocation of functions in SYSC 4.4.5 R
Question |
Answer |
|
1 |
Does an individual to whom a function is allocated under SYSC 4.4.5 R need to be an approved person? |
An individual to whom a function is allocated under SYSC 4.4.5 R will be performing the apportionment and oversight function (CF 8, see SUP 10A.7.1 R17) and an application must be made under section 59 of the Act for approval of the individual before the function is performed. There are exceptions from this in SUP 10A.117 (Approved persons - Application). 1717 |
2 |
If the allocation is to more than one individual, can they perform the functions, or aspects of the functions, separately? |
If the functions are allocated to joint chief executives under SYSC 4.4.5 R, column 2, they are expected to act jointly. If the functions are allocated to an individual under SYSC 4.4.5 R, column 2, in addition to individuals under SYSC 4.4.5 R, column 3, the former may normally be expected to perform a leading role in relation to the functions that reflects his position. Otherwise, yes. |
3 |
What is meant by "appropriately allocate" in this context? |
The allocation of functions should be compatible with delivering compliance with Principle 3, SYSC 4.4.3 R and SYSC 4.1.1 R. The appropriate regulator considers that allocation to one or two individuals is likely to be appropriate for most firms. |
4 |
If a committee of management governs a firm or group, can the functions be allocated to every member of that committee? |
Yes, as long as the allocation remains appropriate (see Question 3). If the firm also has an individual as chief executive, then the functions must be allocated to that individual as well under SYSC 4.4.5 R, column 2 (see Question 7). |
5 |
Does the definition of chief executive include the possessor of equivalent responsibilities with another title, such as a managing director or managing partner? |
Yes. |
6 |
Is it possible for a firm to have more than one individual as its chief executive? |
Although unusual, some firms may wish the responsibility of a chief executive to be held jointly by more than one individual. In that case, each of them will be a chief executive and the functions must be allocated to all of them under SYSC 4.4.5 R, column 2 (see also Questions 2 and 7). |
7 |
If a firm has an individual as chief executive, must the functions be allocated to that individual? |
Normally, yes, under SYSC 4.4.5 R, column 2. But if the firm is a body corporate and a member of a group, the functions may, instead of being allocated to the firm'schief executive, be allocated to a director or senior manager from the group responsible for the overall management of the group or of a relevant group division, so long as this is appropriate (see Question 3). Such individuals may nevertheless require approval under section 59 (see Question 1). If the firm chooses to allocate the functions to a director or senior manager responsible for the overall management of a relevant group division, the FSA would expect that individual to be of a seniority equivalent to or greater than a chief executive of the firm for the allocation to be appropriate. See also Question 14. |
8 |
If a firm has a chief executive, can the functions be allocated to other individuals in addition to the chief executive? |
Yes. SYSC 4.4.5 R, column 3, permits a firm to allocate the functions, additionally, to the firm's (or where applicable the group's) directors and senior managers as long as this is appropriate (see Question 3). |
9 |
What if a firm does not have a chief executive? |
Normally, the functions must be allocated to one or more individuals selected from the firm's (or where applicable the group's) directors and senior managers under SYSC 4.4.5 R, column 3. But if the firm: (1) is a body corporate and a member of a group; and (2) the group has a director or senior manager responsible for the overall management of the group or of a relevant group division; then the functions must be allocated to that individual (together, optionally, with individuals from column 3 if appropriate) under SYSC 4.4.5 R, column 2. |
10 |
What do you mean by "group division within which some or all of the firm's regulated activities fall"? |
A "division" in this context should be interpreted by reference to geographical operations, product lines or any other method by which the group's business is divided. If the firm's regulated activities fall within more than one division and the firm does not wish to allocate the functions to its chief executive, the allocation must, under SYSC 4.4.5 R, be to: (1) a director or senior manager responsible for the overall management of the group; or (2) a director or senior manager responsible for the overall management of one of those divisions; together, optionally, with individuals from column 3 if appropriate. (See also Questions 7 and 9.) |
11 |
How does the requirement to allocate the functions in SYSC 4.4.5 R apply to an overseas firm which is not an incoming EEA firm, incoming Treaty firm or UCITS qualifier? |
The firm must appropriately allocate those functions to one or more individuals, in accordance with SYSC 4.4.5 R, but: (1) The responsibilities that must be apportioned and the systems and controls that must be overseen are those relating to activities carried on from a UK establishment with certain exceptions (see SYSC 1 Annex 1.1.8R). Note that SYSC 1 Annex 1.1.10R does not extend the territorial scope of SYSC 4.4 for an overseas firm. (2) The chief executive of an overseas firm is the person responsible for the conduct of the firm's business within the United Kingdom (see the definition of "chief executive"). This might, for example, be the manager of the firm'sUK establishment, or it might be the chief executive of the firm as a whole, if he has that responsibility. The apportionment and oversight function applies to such a firm, unless it falls within a particular exception from the approved persons regime (see Question 1). |
12 |
How does the requirement to allocate the functions in SYSC 4.4.5 R apply to an incoming EEA firm or incoming Treaty firm? |
SYSC 1 Annex 1.1.1R(2) and SYSC 1 Annex 1.1.8R restrict the application of SYSC 4.4.5 R for such a firm. Accordingly: (1) Such a firm is not required to allocate the function of dealing with apportionment in SYSC 4.4.5R (1). (2) Such a firm is required to allocate the function of oversight in SYSC 4.4.5R (2). However, the systems and controls that must be overseen are those relating to matters which the appropriate regulator, as Host State regulator, is entitled to regulate (there is guidance on this in SUP 13A Annex 2). Those are primarily, but not exclusively, the systems and controls relating to the conduct of the firm's activities carried on from its UK branch. (3) Such a firm need not allocate the function of oversight to its chief executive; it must allocate it to one or more directors and senior managers of the firm or the firm'sgroup under SYSC 4.4.5 R, row (2). (4) An incoming EEA firm which has provision only for cross border services is not required to allocate either function if it does not carry on regulated activities in the United Kingdom; for example if they fall within the overseas persons exclusions in article 72 of the Regulated Activities Order. See also Questions 1 and 15. |
13 |
What about a firm that is a partnership or a limited liability partnership? |
The appropriate regulator envisages that most if not all partners or members will be either directors or senior managers, but this will depend on the constitution of the partnership (particularly in the case of a limited partnership) or limited liability partnership. A partnership or limited liability partnership may also have a chief executive (see Question 5). A limited liability partnership is a body corporate and, if a member of a group, will fall within SYSC 4.4.5 R, row (1) or (2). |
14 |
What if generally accepted principles of good corporate governance recommend that the chief executive should not be involved in an aspect of corporate governance? |
The Note to SYSC 4.4.5 R provides that the chief executive or other executive director or senior manager need not be involved in such circumstances. For example, the UK Corporate Governance Code5 recommends that the board of a listed company should establish an audit committee of non-executive directors to be responsible for oversight of the audit. That aspect of the oversight function may therefore be allocated to the members of such a committee without involving the chief executive. Such individuals may require approval under section 59 in relation to that function (see Question 1). 5 |
15 |
What about incoming electronic commerce activities carried on from an establishment in another EEA State with or for a person in the United Kingdom? |
SYSC does not apply to an incoming ECA provider acting as such. |
1Note: The following definitions relevant to the prospectus rules are extracted from the Glossary.
Act |
||||
admission to trading |
admission to trading on a regulated market. |
|||
advertisement |
(as defined in the PD Regulation) announcements: |
|||
(1) |
relating to a specific offer to the public of securities or to an admission to trading on a regulated market; and |
|||
(2) |
aiming to specifically promote the potential subscription or acquisition of securities.4 |
|||
applicant |
an applicant for approval of a prospectus or supplementary prospectus relating to transferable securities. |
|||
asset backed security |
(as defined in the PD Regulation) securities which: |
|||
(1) |
represent an interest in assets, including any rights intended to assure servicing, or the receipt or timeliness of receipts by holders of assets of amounts payable thereunder; or |
|||
(2) |
are secured by assets and the terms of which provide for payments which relate to payments or reasonable projections of payments calculated by reference to identified or identifiable assets. |
|||
base prospectus |
a base prospectus referred to in PR 2.2.7 R. |
|||
body corporate |
(in accordance with section 417(1) of the Act (Definitions) any body corporate, including a body corporate constituted under the law of a country or territory outside the United Kingdom; |
|||
building block |
(as defined in the PD Regulation) a list of additional information requirements, not included in one of the schedules, to be added to one or more schedules, as the case may be, depending on the type of instrument and/or transaction for which a prospectus or base prospectus is drawn up.4 |
|||
collective investment undertaking other than the closed-end type |
(in PR) (as defined in Article 2.1(o) of the prospectus directive) unit trusts and investment companies: |
|||
(1) |
the object of which is the collective investment of capital provided by the public, and which operate on the principle of risk-spreading; |
|||
(2) |
the units of which are, at the holder's request, repurchased or redeemed, directly or indirectly, out of the assets of these undertakings.4 |
|||
any body corporate. |
||||
Consolidated Admissions and Reporting Directive |
Directive 2001/34/EC of the European Parliament and of the Council on the admission of securities to official stock exchange listing and on information to be published on those securities. |
|||
credit institution |
as defined in article 1(1) of the Banking Consolidation Directive. |
|||
director |
(in accordance with section 417(1)(a) of the Act) a person occupying in relation to it the position of a director (by whatever name called) and, in relation to an issuer which is not a body corporate, a person with corresponding powers and duties. |
|||
EEA State |
(in accordance with paragraph 8 of Schedule 3 to the Act (EEA Passport Rights)) a State which is a contracting party to the agreement on the European Economic Area signed at Oporto on 2 May 1992, as it has effect for the time being; as at 1 May 2004, the following are the EEA States: Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, the Slovak Republic, Slovenia, Spain, Sweden and the United Kingdom. |
|||
equity security |
(as defined in Article 2.1(b) of the prospectus directive) shares and other transferable securities equivalent to shares in companies, as well as any other type of transferable securities giving the right to acquire any of the aforementioned securities as a consequence of their being converted or the rights conferred by them being exercised, provided that securities of the latter type are issued by the issuer of the underlying shares or by an entity belonging to the group of the said issuer. |
|||
equity share |
shares comprised in a company'sequity share capital. |
|||
equity share capital |
(for a company), its issued share capital excluding any part of that capital which, neither as respects dividends nor as respects capital, carries any right to participate beyond a specified amount in a distribution. |
|||
6ESMA recommendations |
the recommendations for the consistent implementation of the European Commission’s Regulation on Prospectuses No 809/2004 published by the European Securities and Markets Authority (ESMA/2011/81). |
|||
executive procedures |
the procedures relating to the giving of warning notices, decision notices and supervisory notices that are described in DEPP 4 (Decision by FCA staff under executive procedures)2. 22 |
|||
FCA |
the Financial Conduct Authority. |
|||
guarantee |
(as defined in the PD Regulation) any arrangement intended to ensure that any obligation material to the issue will be duly serviced, whether in the form of guarantee, surety, keep well agreement, mono-line insurance policy or other equivalent commitment. |
|||
guarantor |
||||
Home State or Home Member State |
(as defined in section 102C of the Act) in relation to an issuer of transferable securities, the EEA State which is the "home Member State" for the purposes of the prospectus directive (which is to be determined in accordance with Article 2.1(m) of that directive). |
|||
Host State or Host Member State |
(as defined in Article 2.1(n) of the prospectus directive) the EEA State where an offer to the public is made or admission to trading is sought, when different from the home State. |
|||
issuer |
(as defined in section 102A of the Act) a legal person who issues or proposes to issue the transferable securities in question.4 |
|||
(in PR) (as defined in section 87A(9) and (10) of the Act) the information which is essential to enable investors to understand the transferable securities to which the prospectus relates and decide whether to consider the offer further. The key information must include: |
||||
(a) |
the essential characteristics of, and risks associated with, the issuer and any guarantor, including their assets, liabilities and financial positions; |
|||
(b) |
the essential characteristics of, and risks associated with, investment in the transferable securities, including any rights attaching to the securities; |
|||
(c) |
the general terms of the offer, including an estimate of the expenses charged to an investor by the issuer and the offeror, if not the issuer; |
|||
(d) |
details of the admission to trading; and |
|||
(e) |
the reasons for the offer and proposed use of the proceeds. |
|||
(a) |
a body corporate incorporated under the Limited Liability Partnerships Act 2000; |
|||
(b) |
a body corporate incorporated under legislation having the equivalent effect to the Limited Liability Partnerships Act 2000. |
|||
The European Parliament and Council Directive on markets in financial instruments (No. 2004/39/EC). See also MiFID Regulation and MiFID implementing Directive.3 |
||||
non-equity transferable securities |
(as defined in section 102A of the Act) all transferable securities that are not equity securities. |
|||
Note: In the prospectus directive and the PD Regulation, the Commission uses the term "non-equity securities" rather than "non-equity transferable securities". |
||||
offer |
||||
offer of transferable securities to the public |
(as defined in section 102B of the Act), in summary: |
|||
(a) |
a communication to any person which presents sufficient information on:
to enable an investor to decide to buy or subscribe for the securities in question; |
|||
(b) |
which is made in any form or by any means; |
|||
(c) |
including the placing of securities through a financial intermediary; |
|||
(d) |
but not including a communication in connection with trading on:
|
|||
Note: This is only a summary, to see the full text of the definition, readers should consult section 102B of the Act. |
||||
offering programme |
(as defined in Article 2.1(k) of the prospectus directive) a plan which would permit the issuance of non-equity securities, including warrants in any form, having a similar type and/or class, in a continuous or repeated manner during a specified issuing period. |
|||
offeror |
a person who makes an offer of transferable securities to the public. |
|||
(in relation to a body corporate) (as defined in section 400(5) of the Act (Offences by bodies corporate etc)) a director, member of the committee of management, chief executive, manager, secretary, or other similar officer of the body, or a person purporting to act in that capacity or a controller of the body. |
||||
overseas company |
a company incorporated outside the United Kingdom. |
|||
Part 6 rules |
(in accordance with section 73A(1) of the Act), rules made for the purposes of Part 6 of the Act. |
|||
5partnership |
(in accordance with section 417(1) of the Act (Definitions)) any partnership, including a partnership constituted under the law of a country or territory outside the United Kingdom, but not including a limited liability partnership. |
|||
PD |
||||
PD Regulation |
Regulation number 809/2004 of the European Commission. |
|||
person |
(in accordance with the Interpretation Act 1978) any person, including a body of persons corporate or unincorporated that is, a natural person, a legal person and, for example, a partnership). |
|||
PR |
the Prospectus Rules sourcebook. |
|||
profit estimate |
(as defined in the PD Regulation) a profit forecast for a financial period which has expired and for which results have not yet been published. |
|||
profit forecast |
(as defined in the PD Regulation) a form of words which expressly states or by implication indicates a figure or a minimum or maximum figure for the likely level of profits or losses for the current financial period and/or financial periods subsequent to that period, or contains data from which a calculation of such a figure for future profits or losses may be made, even if no particular figure is mentioned and the word "profit" is not used. |
|||
property collective investment undertaking |
(as defined in the PD Regulation) a collective investment undertaking whose investment objective is the participation in the holding of property in the long term. |
|||
prospectus |
a prospectus required under the prospectus directive. |
|||
prospectus directive |
the Directive of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading (No 2003/71/EC). |
|||
Prospectus Rules |
(as defined in section 73A(4) of the Act) rules expressed to relate to transferable securities. |
|||
Public international body |
(as defined in the PD Regulation) a legal entity of public nature established by an international treaty between sovereign States and of which one or more Member States are members. |
|||
qualified investor |
(as defined in section 86(7) of the Act) in relation to an offer of transferable securities:4 |
|||
(a) |
a person or entity described in points (1) to (4) of Section I of Annex II to MiFID, other than a person who, before the making of the offer, has agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with MiFID; or4 4 |
|||
(b) |
a person who has made a request to one or more relevant firms to be treated as a professional client in accordance with Section II of Annex II to MiFID and has not subsequently, but before the making of the offer, agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II of MiFID; or4 4 |
|||
(c) |
a person who is recognised as an eligible counterparty in accordance with article 24 of MiFID and has not, before the making of the offer, agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II of MiFID; or4 4 |
|||
(d) |
a person whom any relevant firm is authorised to continue to treat as a professional client in accordance with article 71(6) of MiFID.4 |
|||
registration document |
a registration document referred to in PR 2.2.2 R. |
|||
regulated information |
(as defined in the PD Regulation) all information which the issuer, or any person who has applied for the admission of securities to trading on a regulated market without the issuer’s consent, is required to disclose under Directive 2001/34/EC or under Article 6 of Directive 2003/6/EC.3 |
|||
regulated market |
a multilateral system operated and/or managed by a market operator, which brings together or facilitates the bringing together of multiple third-party buying and selling interests in financial instruments in the system and in accordance with its non-discretionary rules in a way that results in a contract, in respect of the financial instruments admitted to trading under its rules and/or systems, and which is authorised and functions regularly and in accordance with the provisions of Title III of MiFID.3 |
|||
RIS |
||||
risk factors |
(as defined in the PD Regulation) a list of risks which are specific to the situation of the issuer and/or the securities and which are material for taking investment decisions. |
|||
rule |
(in accordance with section 417(1) of the Act (Definitions)) a rule made by the FCA under the Act. |
|||
schedule |
(as defined in the PD Regulation) a list of minimum information requirements adapted to the particular nature of the different types of issuers and/or the different securities involved. |
|||
securities issued in a continuous and repeated manner |
(as defined in Article 2.1(l) of the prospectus directive) issues on tap or at least two separate issues of securities of a similar type and/or class over a period of 12 months. |
|||
securities note |
a securities note referred to in PR 2.2.2 R. |
|||
small and medium-sized enterprise |
(as defined in Article 2.1(f) of the prospectus directive) companies, which, according to their last annual or consolidated accounts, meet at least two of the following three criteria: an average number of employees during the financial year of less than 250, a total balance sheet not exceeding €43,000,000 and an annual net turnover not exceeding €50,000,000. |
|||
special purpose vehicle |
(as defined in the PD Regulation) an issuer whose objects and purposes are primarily the issue of securities. |
|||
statutory notice associated decision |
a decision which is made by the FCA and which is associated with a decision to give a statutory notice, including a decision: |
|||
statutory notice decision |
a decision by the FCA on whether or not to give a statutory notice. |
|||
(a) |
to determine or extend the period for making representations; |
|||
(b) |
to determine whether a copy of the statutory notice needs to be given to any third party and the period for him to make representations; |
|||
(c) |
to refuse access to FCA material; |
|||
(d) |
as to the information which it is appropriate to publish about the matter to which a final notice or an effective supervisory notice relates. |
|||
summary |
(in relation to a prospectus) the summary included in the prospectus. |
|||
supplementary prospectus |
a supplementary prospectus containing details of a new factor, mistake or inaccuracy. |
|||
transferable security |
(as defined in section 102A of the Act) anything which is a transferable security for the purposes of MiFID3, other than money-market instruments for the purposes of that directive which have a maturity of less than 12 months. 3 |
|||
Note: In the prospectus directive and PD regulation, the Commission uses the term "security" rather than "transferable security". |
||||
umbrella collective investment scheme |
(as defined in the PD Regulation) a collective investment undertaking invested in one or more collective investment undertakings, the asset of which is composed of separate class(es) or designation(s) of securities. |
|||
United Kingdom |
England and Wales, Scotland and Northern Ireland (but not the Channel Islands or the Isle of Man). |
|||
units of a collective investment scheme |
(as defined in Article 2.1(p) of the prospectus directive) securities issued by a collective investment undertaking as representing the rights of the participants in such an undertaking over its assets. |
|||
working day |
(as defined in section 103 of the Act) any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom. |
|||
Table Application of Exemptions to Forms of Promotions
Financial Promotion Order |
Applies to |
|||
Article No. |
Title and PERG 8 reference (where applicable) |
Unsolicited real time |
Solicited real time |
Non-real time (solicited or unsolicited) |
12 |
Communications to overseas recipients (8.12.2G) |
*1 |
* |
* |
13 |
Communications from customers and potential customers (8.12.9G) |
* |
* |
* |
14 |
Follow up non-real time communications and solicited real time communications (8.12.10G) |
* |
* |
|
15 |
Introductions (8.12.11G) |
* |
* |
*1 |
16 |
Exempt persons (8.12.12G) |
*2 |
*3 |
*3 |
17 |
Generic promotions (8.12.14G and 8.21.4G) |
* |
* |
* |
17A1 |
Communications caused to be made or directed by unauthorised persons (8.6.7AG) |
* |
* |
* |
18 |
Mere conduits (8.12.18G) |
* |
* |
* |
18A |
Outgoing electronic commerce communications: mere conduits, caching and hosting (8.12.18G)1 |
* |
* |
* |
19 |
Investment professionals (8.12.21G and 8.21.5G) |
* |
* |
* |
20 |
Communications by journalists (8.12.23G) |
* |
||
20A |
Promotion broadcast by company director etc (8.12.23G and 8.21.6G) |
* |
* |
* |
20B |
Incoming electronic commerce communications (8.12.38G) |
* |
* |
* |
22 |
Deposits : non-real time communications (8.13) |
* |
||
23 |
Deposits : real time communications (8.13) |
* |
* |
|
24 |
Relevant insurance activity : non-real time communications (8.13) |
* |
||
25 |
Relevant insurance activity : non-real time communications : reinsurance and large risks (8.13) |
* |
||
26 |
Relevant insurance activity : real time communications (8.13) |
* |
* |
|
28 |
One-off non-real time communications and solicited real time communications (8.14.3G) |
* |
* |
|
28A |
One-off unsolicited real time communications (8.14.11G) |
* |
||
28B1 |
Real time communications: introductions in connection with qualifying credit (8.17.12G) |
* |
* |
|
29 |
Communications required or authorised by enactments |
* |
* |
* |
30 |
Overseas communicators: solicited real time communications (8.14.15G) |
* |
||
31 |
Overseas communicators: non-real time communications to previously overseas customers (8.14.17G) |
* |
||
32 |
Overseas communicators: unsolicited real time communications to previously overseas customers (8.14.16G) |
* |
||
33 |
Overseas communicators: unsolicited real time communications to knowledgeable customers (8.14.16G) |
* |
||
34 |
Governments, central banks etc |
* |
* |
|
35 |
Industrial and provident societies |
* |
* |
|
36 |
Nationals of the EEA States other than United Kingdom (8.14.18G) |
* |
* |
|
37 |
Financial markets |
* |
* |
|
38 |
Persons in the business of placing promotional material |
* |
* |
* |
39 |
Joint enterprises (8.14.19G) |
* |
* |
* |
40 |
Participants in certain recognised collective investment schemes |
* |
* |
|
41 |
Bearer instruments: promotions required or permitted by market rules (8.14.42G) |
* |
* |
|
42 |
Bearer instruments: promotions to existing holders (8.14.42G) |
* |
* |
|
43 |
Members and creditors of certain bodies corporate (8.14.41G and 8.21.8G) |
* |
* |
|
44 |
Members and creditors of open-ended investment companies |
* |
* |
|
45 |
Group companies |
* |
* |
* |
46 |
Qualifying credit to bodies corporate (8.17.10G)1 |
* |
* |
* |
47 |
Persons in the business of disseminating information (8.21.10G) |
* |
* |
* |
48 |
Certified high net worth individuals (8.14.21G) |
* |
* |
|
49 |
High net worth companies, unincorporated associations etc (8.14.25G) |
* |
* |
* |
50 |
Sophisticated investors (8.14.27G) |
* |
* |
* |
50A |
Self-certified sophisticated investors {8.14.28AG) |
*5 |
* |
* |
51 |
Associations of high net worth or sophisticated investors (8.14.29G) |
* |
* |
|
52 |
Common interest group of a company (8.14.30G) |
* |
* |
|
53 |
Settlors, trustees and personal representatives |
* |
* |
* |
54 |
Beneficiaries of trust, will or intestacy |
* |
* |
* |
55 |
Communications by members of professions (8.15.1G) |
* |
* |
|
55A |
Non-real time communication by members of the professions. (8.15.5G) |
* |
||
56 |
Remedy following report by Parliamentary Commissioner for Administration |
* |
* |
* |
57 |
Persons placing promotional material in particular publications |
* |
* |
* |
58 |
Acquisition of interest in premises run by management companies |
* |
* |
|
59 |
Annual accounts and directors' report (8.21.11G) |
* |
* |
* |
60 |
Participation in employee shares schemes |
* |
* |
* |
61 |
Sale of goods and supply of services |
* |
* |
|
62 |
Sale of body corporate (8.14.35G) |
* |
* |
* |
64 |
Takeovers of relevant unlisted companies |
* |
* |
* |
65 |
Takeovers of relevant unlisted companies: warrants etc |
* |
* |
* |
66 |
Takeovers of relevant unlisted companies: application forms |
* |
* |
* |
67 |
Promotions required or permitted by market rules (8.21.13G) |
* |
* |
|
68 |
Promotions in connection with admission to certain EEA markets (8.21.16G) |
* |
* |
|
69 |
Promotions of securities already admitted to certain markets (8.21.17G) |
* |
*1 |
|
701 |
Promotions included in listing particulars etc (8.21.20G)1 |
*1 |
||
711 |
Material relating to prospectus for public offer of unlisted securities |
*1 |
||
721 |
Pension products offered by employers (8.14.40AG8) |
* |
* |
* |
872A |
Pension product offers communicated to employees by third parties (8.14.40AAG) |
* |
* |
* |
872B |
Insurance product offers communicated to employees by employers (8.14.40ABG) |
* |
* |
* |
872C |
Insurance products offers communicated to employees by third parties (8.14.40ACG) |
* |
* |
* |
872D |
Staff mortgage offers communicated to employees by employers (8.14.40ADG) |
* |
* |
* |
872E |
Staff mortgage offers communicated to employees by third parties (8.14.40AEG) |
* |
* |
* |
731 |
Advice centres (8.14.40B) |
* |
* |
* |
1 in limited circumstances only – see article 12(2) of the Financial Promotion Order |
||||
2 for the purpose of article 16 (2) only |
||||
3 for the purpose of article 16 (1) only1 |
||||
This table belongs to SYSC 2.1.5 G
Question |
Answer |
|
1 |
Does an individual to whom a function is allocated under SYSC 2.1.3 R need to be an approved person? |
An individual to whom a function is allocated under SYSC 2.1.3 R will be performing the apportionment and oversight function (CF 8, see SUP 10A.7.1 R15) and an application must be made under section 59 of the Act for approval of the individual before the function is performed. There are exceptions from this inSUP 10A.115 (Approved persons - Application). 15155 |
2 |
If the allocation is to more than one individual, can they perform the functions, or aspects of the functions, separately? |
If the functions are allocated to joint chief executives under SYSC 2.1.4 R, column 2, they are expected to act jointly. If the functions are allocated to an individual under SYSC 2.1.4 R, column 2, in addition to individuals under SYSC 2.1.4 R, column 3, the former may normally be expected to perform a leading role in relation to the functions that reflects his position. Otherwise, yes. |
3 |
What is meant by "appropriately allocate" in this context? |
The allocation of functions should be compatible with delivering compliance with Principle 3, SYSC 2.1.1 R and SYSC 3.1.1 R. The appropriate regulator considers that allocation to one or two individuals is likely to be appropriate for most firms. |
4 |
If a committee of management governs a firm or group, can the functions be allocated to every member of that committee? |
Yes, as long as the allocation remains appropriate (see Question 3).If the firm also has an individual as chief executive, then the functions must be allocated to that individual as well under SYSC 2.1.4 R, column 2 (see Question 7). |
5 |
Does the definition of chief executive include the possessor of equivalent responsibilities with another title, such as a managing director or managing partner? |
Yes. |
6 |
Is it possible for a firm to have more than one individual as its chief executive? |
Although unusual, some firm may wish the responsibility of a chief executive to be held jointly by more than one individual. In that case, each of them will be a chief executive and the functions must be allocated to all of them under SYSC 2.1.4 R, column 2 (see also Questions 2 and 7). |
7 |
If a firm has an individual as chief executive, must the functions be allocated to that individual? |
Normally, yes, under SYSC 2.1.4 R, column 2. But if the firm is a body corporate and a member of a group, the functions may, instead of to the firm's chief executive, be allocated to a director or senior manager from the group responsible for the overall management of the group or of a relevant group division, so long as this is appropriate (see Question 3). Such individuals may nevertheless require approval under section 59 (see Question 1). If the firm chooses to allocate the functions to a director or senior manager responsible for the overall management of a relevant group division, the appropriate regulator would expect that individual to be of a seniority equivalent to or greater than a chief executive of the firm for the allocation to be appropriate. See also Question 14. |
8 |
If a firm has a chief executive, can the functions be allocated to other individuals in addition to the chief executive? |
Yes. SYSC 2.1.4 R, column 3, permits a firm to allocate the functions, additionally, to the firm's (or where applicable the group's) directors and senior managers as long as this is appropriate (see Question 3). |
9 |
What if a firm does not have a chief executive? |
Normally, the functions must be allocated to one or more individuals selected from the firm's (or where applicable the group's) directors and senior managers under SYSC 2.1.4 R, column 3. But if the firm: (1) is a body corporate and a member of a group; and (2) the group has a director or senior manager responsible for the overall management of the group or of a relevant group division; then the functions must be allocated to that individual (together, optionally, with individuals from column 3 if appropriate) under SYSC 2.1.4 R, column 2.2 |
10 |
What do you mean by "group division within which some or all of the firm's regulated activities fall"? |
A "division" in this context should be interpreted by reference to geographical operations, product lines or any other method by which the group's business is divided. If the firm's regulated activities fall within more than one division and the firm does not wish to allocate the functions to its chief executive, the allocation must, under SYSC 2.1.4 R, be to: (1) a director or senior manager responsible for the overall management of the group; or (2) a director or senior manager responsible for the overall management of one of those divisions; together, optionally, with individuals from column 3 if appropriate. (See also Questions 7 and 9.) |
11 |
How does the requirement to allocate the functions in SYSC 2.1.3R apply to an overseas firm which is not an incoming EEA firm, incoming Treaty firm or UCITS qualifier? |
The firm must appropriately allocate those functions to one or more individuals, in accordance with SYSC 2.1.4 R, but: (1) The responsibilities that must be apportioned and the systems and controls that must be overseen are those relating to activities carried on from a UK establishment with certain exceptions (see SYSC 1 Annex 1.1.7 R)6. Note that SYSC 1 Annex 1.1.10 R6 does not extend the territorial scope of SYSC 2 for an overseas firm. (2) The chief executive of an overseas firm is the person responsible for the conduct of the firm's business within the United Kingdom (see the definition of "chief executive"). This might, for example, be the manager of the firm's UK establishment, or it might be the chief executive of the firm as a whole, if he has that responsibility. The apportionment and oversight function applies to such a firm, unless it falls within a particular exception from the approved persons regime (see Question 1). 66 |
12 |
How does the requirement to allocate the functions in SYSC 2.1.3R apply to an incoming EEA firm or incoming Treaty firm? |
SYSC 1 Annex 1.1.1R6and SYSC 1 Annex 1.1.8 R6restrict the application of SYSC 2.1.3 R for such a firm. Accordingly: (1) Such a firm is not required to allocate the function of dealing with apportionment in SYSC 2.1.3 R (1). (2) Such a firm is required to allocate the function of oversight in SYSC 2.1.3 R (2). However, the systems and controls that must be overseen are those relating to matters which the appropriate regulator, as Host State regulator, is entitled to regulate (there is guidance on this in SUP 13A Annex 2 G3). Those are primarily, but not exclusively, the systems and controls relating to the conduct of the firm's activities carried on from its UK branch. (3) Such a firm need not allocate the function of oversight to its chief executive; it must allocate it to one or more directors and senior managers of the firm or the firm's group under SYSC 2.1.4 R, row (2). (4) An incoming EEA firm which has provision only for cross border services is not required to allocate either function if it does not carry on regulated activities in the United Kingdom; for example if they fall within the overseas persons exclusions in article 72 of the Regulated Activities Order. See also Questions 1 and 15.1 663 |
13 |
What about a firm that is a partnership or a limited liability partnership? |
The appropriate regulator envisages that most if not all partners or members will be either directors or senior managers, but this will depend on the constitution of the partnership (particularly in the case of a limited partnership) or limited liability partnership. A partnership or limited liability partnership may also have a chief executive (see Question 5). A limited liability partnership is a body corporate and, if a member of a group, will fall within SYSC 2.1.4 R, row (1) or (2). |
14 |
What if generally accepted principles of good corporate governance recommend that the chief executive should not be involved in an aspect of corporate governance? |
The Note to SYSC 2.1.4 R provides that the chief executive or other executive director or senior manager need not be involved in such circumstances. For example, the UK Corporate Governance Code7 recommends that the board of a listed company should establish an audit committee of non-executive directors to be responsible for oversight of the audit. That aspect of the oversight function may therefore be allocated to the members of such a committee without involving the chief executive. Such individuals may require approval under section 59 in relation to that function (see Question 1). 7 |
15 |
What about electronic commerce activities carried on from an establishment in another EEA State with or for a person in the United Kingdom?4 4 |
SYSC does not apply to an incoming ECA provider acting as such.1 4 |
