Related provisions for PERG 8.3.4
101 - 120 of 719 items.
1Firms that are part of a group may submit a joint report to the
FCA
. The joint report must contain the information required from all firms concerned and clearly indicate the firms on whose behalf the report is submitted. The requirement to provide a report, and the responsibility for the report, remains with each firm in the group.
(1) 4Twice a year a firm must provide the
FCA
with a complete report concerning complaints received from eligible complainants about matters relating to the retail investment activities carried out by its retail investment advisers. The report must be set out in the format in DISP 1 Annex 1C R. (2) DISP 1 Annex 1C R requires (for the relevant reporting period) information about:(a) the total number of complaints received by the firm about matters relating tothe retail investment
For the purpose of inclusion in the public record maintained by the FCA, a firm must:(1) provide the FCA, at the time of its authorisation, with details of a single contact point within the firm for complainants; and(2) notify the
FCA
of any subsequent change in those details when convenient and, at the latest, in the firm's next report under the complaints reporting rules.
1The FCA is required by article 23 of the short selling regulation to consider whether
to impose measures to prohibit or restrict short selling or otherwise limit
transactions in a financial instrument on
a trading venue where the price
of that financial instrument on
that trading venue has fallen
significantly during a single trading day in
relation to the closing price on that venue on the previous trading
day. In fulfilling this obligation, the FCA will assess:(1) whether the
The FCA will assess whether the price fall
in a financial instrument on
a trading venue is or may become
disorderly having regard to at least the following factors:(1) whether there have been violent
movements in the price of the particular financial
instrument on a particular trading
venue, including any sudden or significant movements in price
of a financial instrument during
the trading day;(2) whether there is evidence of unusual
or improper trading in the financial instrument
The FCA will consider at least the following
factors when assessing whether measures to prohibit or restrict short selling
or otherwise limit transactions are necessary or likely to prevent a further
disorderly decline in the price of the financial
instrument:(1) the volume of trading in that financial instrument on the trading venue as compared with the total
trading volume in the financial instrument over
at least that trading day;
and(2) whether the price of the financial instrument
Where the FCA imposes measures under article
23 of the short selling regulation it
will normally specify that the measures will not apply to natural or legal
persons who have satisfied the criteria to use the market
maker exemption or the authorised
primary dealer exemption and who are included on the list maintained
and published by ESMA pursuant
to article 17(13) of the short selling regulation.
(1) For the purposes of article 23(1)(b)
of Commission Delegated Regulation (EU) No 918/2012 the FCA will convert the figure of EUR
0.50 into pounds sterling using the daily spot foreign exchange rate of Sterling
to Euro of the Bank of England applicable at the end of the first business day of October 2012 rounded up to
the nearest £0.01. The FCA will state this figure (the 'sterling
figure') on its public website.(2) The rate will be calculated on
the same basis at the end of
The FCA will treat the FTSE 100 index as
the main national equity index of the Member State for the purposes of article
6(4) of Commission Implementing Regulation (EU) No 827/2012 and article 4
of Commission Delegated Regulation (EU) No 826/2012 and article 23(1) of Commission
Delegated Regulation (EU) No 918/2012, all subject to approval by European
Parliament and Council.
(1) 1The FCA's3 approach to determining penalties described in DEPP 6.5 to DEPP 6.5C is intended to ensure that financial penalties are proportionate to the breach. The FCA3 recognises that penalties may affect persons differently, and that the FCA3 should consider whether a reduction in the proposed penalty is appropriate if the penalty would cause the subject of enforcement action serious financial hardship.333(2) Where an individual or firm claims that payment of the penalty
(1) In assessing whether a penalty would cause an individual serious financial hardship, the FCA3 will consider the individual’s ability to pay the penalty over a reasonable period (normally no greater than three years). The FCA's3 starting point is that an individual will suffer serious financial hardship only if during that period his net annual income will fall below £14,000 and his capital will fall below £16,000 as a result of payment of the penalty. Unless the FCA3 believes
In cases against individuals, including market abuse cases, the FCA3 may make a prohibition order under section 56 of the Act or withdraw an individual’s approval under section 63 of the Act, as well as impose a financial penalty. Such action by the FCA3 reflects the FCA's3 assessment of the individual’s fitness to perform regulated activity or suitability for a particular role, and does not affect the FCA's3 assessment of the appropriate financial penalty in relation to a breach.
(1) The FCA3 will consider reducing the amount of a penalty if a firm will suffer serious financial hardship as a result of having to pay the entire penalty. In deciding whether it is appropriate to reduce the penalty, the FCA3 will take into consideration the firm’s financial circumstances, including whether the penalty would render the firm insolvent or threaten the firm’s solvency. The FCA3 will also take into account its statutory objectives3, for example in situations where
2The FCA3 may withdraw a firm’s authorisation under section 33 of the Act, as well as impose a financial penalty. Such action by the FCA3 does not affect the FCA's3 assessment of the appropriate financial penalty in relation to a breach. However, the fact that the FCA3 has withdrawn a firm’s authorisation, as a result of which the firm may have less earning potential, may be relevant in assessing whether the penalty will cause the firm serious financial hardship.3333
Where the FCA3 considers that, following commencement of an FCA3 investigation, an individual or firm has reduced their solvency in order to reduce the amount of any disgorgement or financial penalty payable, for example by transferring assets to third parties, the FCA3 will normally take account of those assets when determining whether the individual or firm would suffer serious financial hardship as a result of the disgorgement and financial penalty.333
24Under section 55H(3) of the Act (Variation by FCA at request of authorised person), if an FCA-authorised person applies to the FCA, the FCA may cancel its Part 4A permission. Cancellation applies to a firm's entire Part 4A permission, that is to every activity and every specified investment and not to the individual elements such as specified investments. Changes to the individual elements of a permission would require a variation.
(1) A firm other than a credit union wishing to cancel its Part 4A permission, must apply online at the appropriate regulator website using the form specified on the ONA system.9924(2) [deleted]24924(3) [deleted]2(4) Until the application has been determined, a firm which submits an application for cancellation of Part 4A permission24 must inform the relevant regulator24 of any significant change to the information given in the application immediately it becomes aware of the
(1) In addition to applying for cancellation of Part 4A permission24 in accordance with SUP 6.4.5 D, a firm may discuss prospective cancellations with its supervisory contact at the appropriate regulator.244 Alternatively a firm can contact the Firms Contact Centre on 0845 606 9966.2442424(2) To contact the Cancellations Team: 424(a) write to: Cancellations Team, The Financial Conduct24Authority, 25 The North Colonnade, Canary Wharf, London, E14 5HS; or24; or2424(b) email cancellation.team@fca.org.uk24(3)
(1) If a firm is subject to the complaints rules in DISP, the FCA24 may request confirmation from the firm that there are no unresolved, unsatisfied or undischarged complaints against the firm from a customer of the firm.24(2) If there are unresolved or undischarged complaints against a firm from a customer of the firm, the FCA24 may request confirmation, as appropriate, of the steps (if any) which have been taken under the firm's complaints procedures and the amount of compensation
Consequently, the relevant regulator24 considers that it will have good reason not to grant a firm's application for cancellation of permission where:24(1) the FCA and/or the PRA24 proposes to exercise any of the powers described in SUP 6.4.24 G; or24(2) the FCA and/or the PRA24 has already begun disciplinary and/or24 restitution proceedings against the firm by exercising either or both of these powers against the firm.24
12This Code of Practice for Approved Persons is
issued under section 64 of the Act (Conduct:
statements and codes) for the purpose of helping to determine whether or not
an approved person's conduct
complies with a Statement of Principle.
The code sets out descriptions of conduct which, in the FCA's opinion,
do not comply with the relevant Statements
of Principle. The code also sets out certain factors which,
in the opinion of the FCA,
are to be taken into account in determining
The
significance of conduct identified in the Code
of Practice for Approved Persons as tending to establish compliance
with or a breach of a Statement of Principle will
be assessed only after all the circumstances of a particular case have been
considered. Account will be taken of the context in which a course of conduct
was undertaken, including the precise circumstances of the individual case,
the characteristics of the particular accountable
function12 and the behaviour to
The Code of Practice for Approved Persons (and
in particular the specific examples of behaviour which may be in breach of
a generic description of conduct in the code) is not exhaustive of the kind
of conduct that may contravene the Statements
of Principle. The purpose of the code is to help determine whether
or not a person's conduct complies
with a Statement of Principle.
The code may be supplemented from time to time. The appropriate
regulator12 will amend the code if there
12In
applying Statements of Principle 5
to 7, the nature, scale and complexity of the business under management and
the role and responsibility of the individual performing an accountable higher management function within the firm will
be relevant in assessing whether an approved
person's conduct was reasonable. For example, the smaller and
less complex the business, the less detailed and extensive the systems of
control need to be. The FCA will
be of the opinion that an individual
UK domestic firmslisted on
the London Stock Exchange are subject to the UK
Corporate Governance Code4, whose internal
control provisions are amplified in the publication entitled "Internal Control: Revised Guidance
for Directors on the Combined Code (October 2005)" 4issued by the Financial Reporting Council4. Firms regulated
by the appropriate regulator12 in this category will thus be subject
to that code as well as to the requirements and standards of the regulatory system.
A UK firm, other than a UK pure reinsurer or an AIFM exercising an EEA right to market an AIF under AIFMD13,9 cannot start providing cross border services into another EEA State under an EEA right unless it satisfies the conditions in paragraphs 20(1) of Part III of Schedule 3 to the Act and, if it derives its EEA right from the Insurance Directives, AIFMD, MiFID or the UCITS Directive,13paragraph 20(4B) of Part III of Schedule 3 to the Act. It is an offence for a UK firm which
4An exempt professional firm which is included in the record of unauthorised persons carrying on insurance mediation activity maintained by the FCA20 under article 93 of the Regulated Activities Order may provide cross border services in another EEA State under the Insurance Mediation Directive (see PROF 7.2).20
14A UKfirm that is an AIFM may exercise an EEA right to market a UK AIF or EEA AIF managed by it under AIFMD when the following conditions are satisfied:(1) the UKfirm has given the FCA a notice of intentionSUP 13.5.2 R; and(2) the FCA has sent a copy of the notice of intention to the Host State regulator where the AIF will be marketed and has given the UKfirm written notice that it has done so.
8(1) If8 the UK firm'sEEA right derives from MiFID8, the Banking Consolidation Directive or the UCITS Directive, paragraph 20(3) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to send a copy of the notice of intention8 to the Host State Regulator within one month8 of receipt.8A UK firm passporting under the Banking Consolidation Directive10 may start providing cross border services as soon as it satisfies the relevant conditions (see SUP 13.4.2 G).8882088810(2)
(1) 14If the UKfirm'sEEA right derives from AIFMD (other than the EEA right to market an AIF (referred to in (3)) and the condition in (2) is met, paragraph 20(3D) of Part III of Schedule 3 to the Act requires the FCA to:(a) send a copy of the notice of intention to the Host State regulator within one month of receipt; (b) include confirmation that the UKfirm has been authorised by the FCA under AIFMD; and(c) immediately inform the UKfirm that the notice of intention and confirmation
20Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give a consent notice and 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) A notification claiming exemption under DISP 1.1.12 R from the complaints reporting rules and the rules relating to the funding of the Financial Ombudsman Service must be given to the
FCA
by the Society on behalf of any member eligible for an exemption. (2) The Society must notify the
FCA
if the conditions relating to such an exemption no longer apply to a member who is exempt.
1The Society may choose how it publishes the complaints data summary. However, the complaints data summary should be readily available. For this reason, the
FCA
recommends that the Society publishes the summary on its website. The Society may publish further information with the complaints data summary to aid understanding.
Members will individually comply with this chapter if and only if all complaints by policyholders against members are dealt with under the Lloyd's complaints procedures. Accordingly, certain of the obligations under this chapter, for example the obligation to report on complaints received and the obligation to pay fees under the rules relating to the funding of the Financial Ombudsman Service (FEES 5), must be complied with by the Society on behalf of members. Managing agents
(1) 8The resources of A must be appropriate in relation to the regulated activities that A carries on or seeks to carry on.(2) The matters which are relevant in determining whether A has appropriate resources include-(a) the nature and scale of the business carried on, or to be carried on, by A;(b) the risks to the continuity of the services provided by, or to be provided by, A; and(c) A’s membership of a group and any effect which that membership may have.(3) The matters which
(1) The non-financial resources of B must be appropriate in relation to the regulated activities that B carries on or seeks to carry on, having regard to the operational objectives of the FCA.(2) The matters which are relevant in determining whether the condition in sub-paragraph (1) is met include-(a) the nature and scale of the business carried on, or to be carried on, by B;(b) the risks to the continuity of the services provided by, or to be provided by, B;(c) B’s a member
8Paragraph 3C of Schedule 6 to the Act sets out the appropriate non-financial resources threshold condition which is relevant to the discharge by the FCA of its functions under the Act in relation to firms carrying on, or seeking to carry on, regulated activities which include a PRA-regulated activity.
8The guidance in COND 2.4 should be read as applying to both paragraph 2D of Schedule 6 of the Act and, as far as relevant to the discharge by the FCA of its functions in respect of firms carrying on, or seeking to carry on, a PRA-regulated activity under the Act, paragraph 3C of Schedule 6 of the Act.
(1) [deleted]88(2) In this context, the FCA will interpret the term 'appropriate88' as meaning sufficient in terms of quantity, quality and availability, and 'resources' as including all financial resources (though only in the case of firms not carrying on, or seeking to carry on, a PRA-regulated activity)8, non-financial resources and means of managing its resources; for example, capital, provisions against liabilities, holdings of or access to cash and other liquid assets, human
(1) [deleted]88(2) Although8 it is the firm that is being assessed, the FCA8 may take into consideration the impact of other members of the firm's group on the adequacy of its resources8, where relevant to the discharge of the FCA's functions8. For example, in relation to a firm other than a firm carrying on, or seeking to carry on, a PRA-regulated activity, the FCA8 may assess the consolidated solvency of the group. The FCA's8 approach to the consolidated supervision of such
(1) [deleted]88(2) Relevant matters to which the FCA may have regard when assessing whether a firm will satisfy, and continue to satisfy, this threshold condition8may include but are not limited to:(a) (in relation to a firm other than a firm carrying on, or seeking to carry on, a PRA-regulated activity),8 whether there are any indications that the firm may have difficulties if the application is granted, at the time of the grant or in the future, in complying with any of the
The FCA may modify LR 2.2.4 R to allow partly paid securities to be listed if
it is satisfied that their transferability is not restricted and investors
have been provided with appropriate information to enable dealings in the securities to take place on an open and
proper basis. [Note: articles 46 and 54 CARD]
(1) This rule applies
if under the Act or under the
law of another EEA State:(a) a prospectus must
be approved and published for the securities;
or(b) the applicant is
permitted and elects to draw up a prospectus for
the securities.(2) To be listed:(a) a prospectus must
have been approved by the FCA and published in relation to the securities; or(b) if another EEA
State is the Home Member State for
the securities, the relevant
competent authority must have supplied the FCA with:(i)
The periodic fee referred to in FEES 4.3.1 R is (except in relation to the Society,10fee-paying payment service providers and fee-paying electronic money issuers)107 calculated as follows:(1) identify each of the tariffs set out in Part 1 of FEES 4 Annex 2AR and Part 1 of FEES 4 Annex 2BR2727 which apply to the business of the firm for the period specified in that annex;(2) for each of the applicable27 tariffs, calculate the sum payable in relation to the business of the firm
(1) A firm which becomes authorised or registered 7during the course of a fee year26 will be required to pay a proportion of the periodic fee which reflects the proportion of the year for which it will have a permission or the right to provide particular payment services or the right to issue electronic money107- see FEES 4.2.5 G and FEES 4.2.6 R.26(2) Similarly a firm which extends its permission or its right to provide particular payment services7so that its business then falls
(1) Subject to FEES TP 8, if27 the firm's, designated professional body's, recognised investment exchange's, 12or regulated covered bondissuer's11periodic fee for the previous fee year27 was at least £50,000, it11 must pay the FCA:27272711(a) an amount equal to 50% of the FCA27 periodic fee payable for the previous fee year, by 30 April or, if later, within 30 days of the date of the invoice, in the fee year27 to which the sum due under FEES 4.2.1 R relates; and 27(b) the balance
A firm which is a member of a group may pay all of the amounts due from other firms in the same group under FEES 4.2.1 R, if:(1) it notifies the FCA (in its own capacity and, if applicable, in its capacity as agent for the PRA)26 in writing of the name of each other firm within the group for which it will pay; and26(2) it pays the fees, in accordance with this chapter, as a single amount as if that were the amount required from the firm under FEES 4.2.1 R.
If the payment made does not satisfy in full the periodic fees payable by all of the members of the group notified to the FCA26 under FEES 4.3.7 R, the FCA (in its own capacity and, if applicable, in its capacity as agent for the PRA)26 will apply the sum received among the firms which have been identified in the notification given under FEES 4.3.7R (1) in proportion to the amounts due from them. Each firm will remain responsible for the payment of the outstanding balance attributable
The appropriate regulator recognises that its responsibilities in respect of an incoming EEA firm,7 an incoming Treaty firm, an EEA authorised payment institution7 or an EEA authorised electronic money institution10 are reduced compared with a firm which is incorporated in the United Kingdom. Accordingly the periodic fees which would otherwise be applicable to incoming EEA firms,7incoming Treaty firms,10EEA authorised payment institutions7 and EEA authorised electronic money institutions10
(1) If:(a) a firm makes an application to vary its permission (by reducing its scope), or cancel it, in the way set out in SUP 6.3.15 D (3) (Variation of permission) and SUP 6.4.5 D (Cancellation of permission), or applies to vary (by reducing its scope) or cancel its authorisation or registration (regulation 8 and 10(1) of the Payment Services Regulations including as applied by regulation 14 of the Payment Services Regulations) or applies to cancel its authorisation or registration
Where a firm has applied to cancel its Part 4A permission, or its authorisation or registration under the Payment Services Regulations7or the Electronic Money Regulations, 10 or the appropriate regulator has exercised its own-initiative powers to cancel a firm's7Part 4A permission or the appropriate regulator has exercised its powers under regulation 10 (Cancellation of authorisation), including as applied by regulation 14 (Supplementary provisions) of the Payment Services Regulations
The Companies Act 1989 also gives the FCA1 powers to supervise the taking of action under default rules. Under section 166 of the Companies Act 1989 (Powers of the appropriate regulator1 to give directions) (see REC 4.5.4 G), the FCA1 may direct a UK RIE1to take, or not to take, action under its default rules. Before exercising these powers the FCA1 must consult the UK RIE.1 The FCA1 may also exercise these powers if a relevant office-holder applies to it under section 167 of
The Companies Act 1989: section 166
The FCA1 may issue a "positive" direction (to take action) under section 166(2)(a) of the Companies Act 1989: 1 |
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Where in any case a [UK RIE] has not taken action under its default rules- if it appears to [the FCA] that it could take action, [the FCA may direct it to do so,1 1 |
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but under section 166(3)(a) of the Companies Act 1989: |
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Before giving such a direction the [FCA] shall consult the [UK RIE] in question; and [the FCA] shall not give a direction unless [the FCA] is satisfied, in the light of that consultation that failure to take action would involve undue risk to investors or other participants in the market, or that the direction is necessary having regard to the public interest in the financial stability of the United Kingdom, or that the direction is necessary to facilitate a proposed or possible use of a power under Part 1 of the Banking Act 2009 or in connection with a particular exercise of a power under that Part.1 1 |
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The FCA1 may issue a "negative" direction (not to take action) under section 166(2)(b) of the Companies Act 1989: 1 |
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Where in any case a [UK RIE] has not taken action under its default rules - if it appears to the [FCA] that it is proposing to take or may take action, [the FCA] may direct it not to do so.1 1 |
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but under section 166(3)(b) of the Companies Act 1989: |
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Before giving such a direction the [FCA] shall consult the [UK RIE] in question; and the [FCA] shall not give a direction unless [the FCA] is satisfied, in the light of that consultation that the taking of action would be premature or otherwise undesirable in the interests of investors or other participants in the market, or that the direction is necessary having regard to the public interest in the financial stability of the United Kingdom, or that the direction is necessary to facilitate a proposed or possible use of a power under Part 1 of the Banking Act 2009 or in connection with a particular exercise of a power under that Part.1 1 |
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Under section 166(7) of the Companies Act 1989, where a UK RIE has taken action either of its own accord or in response to a direction, the FCA may direct it to do or not to do specific things subject to these being within the powers of the UK RIE under its default rules. However,11(1) 1where the UK RIE is acting in accordance with a direction given by the FCA to take action under section 166(2)(a) of the Act on the basis that failure to take action would involve undue risk to
Where, in relation to a member (or designated non-member) of a UK RIE :1(1) a bankruptcy order; or(2) an award of sequestration of his estate; or(3) an order appointing an interim receiver of his property; or(4) an administration or winding-up order; or(5) a resolution for a voluntary winding-up; or(6) an order appointing a provisional liquidator; has been made or passed and the UK RIE1 has not taken action under its default rules as a result of this event or of the matters giving
The procedure is that the FCA1 must notify the UK recognised body of the application and, unless within three business days after receipt of that notice, the UK recognised body: 1(1) takes action under its default rules; or(2) notifies the FCA1 that it proposes to take action forthwith; or1(3) is directed to take action by the FCA1 under section 166(2)(a) of the Companies Act 1989; 1the provisions of sections 158 to 165 of the Companies Act 1989 do not apply in relation to market
(1) 8A firm other than a credit union must submit the form in SUP 12 Annex 3 R onlineat http://www.fca.org.uk using the FCA's ONAsystem.(2) A credit union must submit the form in SUP 12 Annex 3 R in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).(3) Where a firm is obliged to submit an application online under (1), if the FCA's information technology systems fail and online submission is unavailable for 24 hours or more, until such time as facilities
(1) If:434(a) (i) the scope of appointment of an appointed representative is extended to cover insurance mediation activities for the first time; and42(ii) the appointed representative is not included on the Financial Services Register as carrying on insurance mediation activities in another capacity; or42(b) the scope of appointment of an appointed representative ceases to include insurance mediation activity;42the appointed representative's principal must give written notice
(1) As soon as a firm has reasonable grounds to believe that any of the conditions in SUP 12.4.2 R,SUP 12.4.6 R or SUP 12.4.8A R4 (as applicable) are not satisfied, or are likely not to be satisfied, in relation to any of its appointed representatives, it must complete and submit to the FCA the form in SUP 12 Annex 4 R (Appointed representative notification form), in accordance with the instructions on the form.3(2) In its notification under SUP 12.7.8 R (1), the firm must state
(1) 8A firm other than a credit union must submit the form as set out in SUP 12 Annex 4 R online at http://www.fca.org.uk using the FCA's ONAsystem.(2) A credit union must submit the form in SUP 12 Annex 4 R in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).(3) Where a firm is obliged to submit an application online under (1), if the FCA's information technology systems fail and online submission is unavailable for 24 hours or more, until such
8If the FCA's information technology systems fail and online submission is unavailable for 24 hours or more, the FCA will endeavour to publish a notice on its website confirming that online submission is unavailable and that firms, other than credit unions, should use the alternative methods of submission set out in SUP 12.7.1AR (3) and SUP 12.7.8AR (3) (as appropriate), and SUP 15.7.4 R to SUP 15.7.9 G, addressingclearly marking applications for the attention of the Individuals
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
(1) Regulation 15(8)(f) of the OEIC Regulations (Requirements for authorisation) requires independence between the depositary, the ICVC and the ICVC's directors, as does section 243(4) of the Act (Authorisation orders) for the trustee and manager of an AUT, and section 261D(4) of the Act (Authorisation orders) for the depositary and authorised fund manager of an ACS6. COLL 6.9.3 G to COLL 6.9.5 G give the6FCA's view of the meaning of independence of these relationships. An ICVC,
(1) Independence is likely to be lost if, by means of executive power, either relevant party could control the action of the other.(2) The board of one relevant party should not be able to exercise effective control of the board of another relevant party. Arrangements which might indicate this situation include quorum provisions and reservations of decision-making capacity of certain directors.(3) For an AUT or ACS6, the FCA would interpret the concept of directors in common to
Independence is likely to be lost if either of the relevant parties could control the actions of the other by means of shareholders' votes. The FCA considers this would happen if any shareholding by one relevant party and their respective associates in the other exceeds 15% of the voting share capital, either in a single share class or several share classes. The FCA would be willing, however, to look at cross-shareholdings exceeding 15% on a case-by-case basis to consider if there
(1) Regulation 15(9) of the OEIC Regulations, and sections 243(8) and 261D(10)6 of the Act require that an authorised fund's name must not be undesirable or misleading. This section contains guidance on some specific matters the FCA will consider in determining whether the name of an authorised fund is undesirable or misleading. It is in addition to the requirements of regulation 19 of the OEIC Regulations (Prohibition on certain names).6(2) The FCA will take into account whether
An ICVC must notify the FCA within 14 days of the occurrence of any of the following:(1) any amendment to the instrument of incorporation;(2) any change in the address of the head office of the ICVC;(3) any change of director;(4) any change of depositary;(5) in respect of any director or depositary, any change in the information mentioned in regulation 12(1)(b) or (c) of the OEIC Regulations (Applications for authorisation);(6) any change of the auditor of the ICVC;(7) any order
Under section 61(1) of the Act (Determination of applications), the appropriate regulator may grant an application for approval made under section 60 (Applications for approval) only if it is satisfied that the candidate is fit and proper to perform the controlled function to which the application relates.
The Act does not prescribe the matters which the appropriate regulator should take into account when determining fitness and propriety. However, section 61(2) states that the appropriate regulator may have regard (among other things) to whether the candidate or approved person is competent to carry out a controlled function.
Energy market participants should bear in mind that3sections 138A and 138B of the Act requires that in order to give a waiver of particular rules, the FCA4 must be satisfied that:4344(1) compliance with the rules, or with the rules as unmodified, would be unduly burdensome or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of any of the FCA's operational objectives.44
In particular, clause 4 of the form of waiver in SUP 21 Annex 1 will not ordinarily be inserted in waivers for energy market participants that will not, at the time the waiver will take effect, clearly satisfy the conditions set out in that clause. For these purposes the FCA will take into account the relative proportions of the energy market participant's assets and revenues that are referable to the various parts of its business, as well as to any other factor that the FCA considers
The FCA will try to notify the applicant
of its decision on an application for approval of listing
particulars or supplementary
listing particulars within the same time limits as are specified
in section 87C of the Act (consideration
of application for approval) for an application for approval of a prospectus or supplementary
prospectus.
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.
The decision maker will:(1) consider whether the material on which the recommendation is based is adequate to support it; the decision maker may seek additional information about or clarification of the recommendation, which may necessitate additional work by the relevant FCA2 staff;2(2) satisfy itself that the action recommended is appropriate in all the circumstances;(3) decide whether to give the notice and the terms of any notice given.