Related provisions for PERG 2.7.1
21 - 40 of 269 items.
Section 39 of the Act (Exemption of appointed representatives) exempts appointed representatives from the need to obtain authorisation. An appointed representative is a person who is party to a contract with an authorised person which permits or requires him to carry on certain regulated activities (see Glossary for full definition). SUP 12 (Appointed representatives) contains rules and guidance relating to appointed representatives.
An appointed representative can carry on only those regulated activities which are specified in the Appointed Representatives Regulations. The regulated activities set out in the table in PERG 5.13.4 G are included in those regulations. As set out in the table, the insurance mediation activities that can be carried on by an appointed representative differ depending on the type of contracts of insurance in relation to which the activities are carried on.
Insurance mediation activities able to be carried on by an appointed representative. This table belongs to PERG 5.13.3 G.
Type of contract of insurance |
Regulated activities an appointed representative can carry on |
|
|
|
|
|
A person who is not already an appointed representative may wish to become one in relation to the regulated activitiesspecified in the Appointed Representatives Regulations (see table in PERG 5.13.4 G). If so, he must be appointed under a written contract by an authorised person, who has permission to carry on those regulated activities and who accepts responsibility for the appointed representative's actions when acting for him. SUP 12.4 (What must a firm do when it appoints
Where a person is already an appointed representative and he proposes to carry on any insurance mediation activities, he will need to consider the following matters.(1) He must become authorised if his proposed insurance mediation activities include activities that do not fall within the table in PERG 5.13.4 G (for example, dealing as agent in pure protection contracts) and he wishes to carry on these activities. The Act does not permit any person to be exempt for some activities
This is a guide only and should not be used as a substitute for legal advice
in individual cases.
Table 3: Insurance Directive activities |
Part II RAO Activities |
Part III RAO Investments |
|
1. Non-life insurance activities |
|||
1. |
Taking up and carrying on direct non-life insurance business |
Article 10 |
Article 75 |
2. |
Classes 1 to 18 of direct non-life insurance business in Point A of the Annex to the First Directive |
Corresponding paragraphs 1 to 18 of Schedule 1, Part I |
|
2. Consolidated Life Directive activities |
|||
1. |
Taking up and carrying on direct life insurance business |
Article 10 |
Article 75 |
2. |
Classes I to IX of direct life insurance business in the Annex 1 to the Consolidated Life Directive |
Corresponding paragraphs I to IX of Schedule 1, Part II |
|
Most of the exclusions under the Directives, however, are not excluded from being regulated activities. For example, article 3 of the Consolidated Life Directive and article 3 of the Non-Life Directive exclude certain mutual associations whose annual contribution income falls below a defined threshold. In the United Kingdom, these include certain smaller friendly societies commonly referred to as "non-directive friendly societies". The activities of such societies are regulated
So, the effect of App 3.12.1 is that an insurer may be carrying on insurance business in the United Kingdom which is to be treated as a regulated activity under article 10 to the Regulated Activities Order (Effecting and carrying out contracts of insurance) in circumstances where the risks covered are treated as located in another EEA State. In that event, the insurer is required by Schedule 3 to the Act to passport into the State concerned and may be subject to conduct of business
An insurer authorised in another EEA State who is insuring UK risks and so passports on a services basis under the Insurance Directives into the United Kingdom (see ), may not be carrying on a regulated activity in the United Kingdom. But, if it passports into the United Kingdom, it will qualify for authorisation under paragraph 12 of Schedule 3 to the Act (Firms qualifying for authorisation). Where this is the case, the insurer will be subject to conduct of business requirements
Although the Insurance Directives are concerned with the regulated activities of effecting and carrying out contracts of insurance, an incoming EEA firm passported under the Insurance Directives2 will be entitled to carry on certain other regulated activities without the need for top-up permission. This is where the regulated activities are carried on for the purposes of or in connection with the incoming EEA Firm's insurance business1. These regulated activities may include:(1)
There are a number of exemptions in the Financial Promotion Order relating to financial promotions sent into the United Kingdom by an overseas communicator who does not carry on certain controlled activities in the United Kingdom. These exemptions apply in addition to any other exemptions which may apply to any particular financial promotion by an overseas communicator.
Article 30 exempts any solicited real time financial promotion made by an overseas communicator in the course of or for the purposes of certain controlled activities which he carries on outside the United Kingdom. This enables an overseas communicator, for example, to respond to an unprompted telephone enquiry made by a person in the United Kingdom or an enquiry which follows a financial promotion made by the overseas communicator and which was approved by an authorised perso
In order to make an unsolicited real time financial promotion, an overseas communicator must rely on either article 32 or article 33. Article 32 provides an exemption for unsolicited real time financial promotions made by an overseas communicator to persons who were previously overseas and were a customer of his then. This is subject to certain conditions, including that, in broad terms, the customer would reasonably expect to be contacted about the subject matter of the financial
This exemption allows a person in another EEA State who lawfully carries on a controlled activity in that State to promote into the United Kingdom. The terms of the exemption are that the promotion must comply with the rules inCOBS 45or MCOB 3 (as relevant). Care should be taken as any failure to satisfy any of the relevant requirements of these rules may mean that this exemption is not satisfied and that the financial promotion may breach section 21 if it has not been approved
Article 39 of the Financial Promotion Order exempts a financial promotion that:(1) is communicated by one participator or potential participator in a joint enterprise to another; and(2) is in connection with or for the purposes of that enterprise.A joint enterprise means, in general terms, arrangements entered into by two or more persons for commercial purposes related to a business that they carry on. The business must not involve a controlled activity. The term ‘participant’
In the FCA's opinion;(1) it will not matter that a person enters into arrangements for investment or other purposes provided that he also enters them into for commercial purposes; and(2) each participant must be carrying on the business in question in their own right.This means that the sponsors or promoters of a company who arrange for private investors to become shareholders will not be setting up a joint enterprise simply because the company may intend to carry on a relevant
To be a sophisticated investor for the purposes of article 50, the recipient of a financial promotion must have a current certificate from an authorised person stating that he has enough knowledge to be able to understand the risks associated with the description of investment to which the financial promotion relates. Where the financial promotion is an outgoing electronic commerce communication3, the certificate may be signed by a person who is entitled, under the law of an EEA
The exemption is subject to certain conditions. In broad terms, these are that the financial promotion must be accompanied by an indication:(1) that the directors or promoters of the company have taken all reasonable care to ensure that the financial promotion is true and not misleading;(2) that the directors or promoters have not limited their liability;(3) that any person who is in doubt about the investment should consult an authorised person; and(4) that:(a) the directors
1The effect of SUP 16.1.1 R is that this section applies to every firm carrying on business set out in column (1) of SUP 16.12.4 R except:(1) an incoming EEA firm2 with permission for cross border services only;(1A) an incoming EEA firm in relation to its carrying on of bidding in emissions auctions;32(2) an oil market participant that is not subject to the requirements of IPRU(INV) Chapter 32;(3) an authorised professional firm (other than one that must comply with IPRU(INV)
(1) Principle 4 requires firms to maintain adequate financial resources. The Interim Prudential sourcebooks, BIPRU and GENPRU set out the appropriate regulator's97 detailed capital adequacy requirements. By submitting regular data, firms enable the appropriate regulator97 to monitor their compliance with Principle 4 and their prudential requirements in the Handbook97.97979797(2) The data items submitted help the appropriate regulator97 analyse firms' financial and other conditions
(1) Any firm permitted to 5carry5 on any of the activities within each of the RAGs set out in column (1) of the table in SUP 16.12.4 R must:(a) (i) unless (ii) or (iii) 11applies, submit to the appropriate regulator97 the duly completed data items or other items applicable to the firm as set out in the provision referred to in column (2) of that table;97(ii) unless (iii) applies, where 11 a firm is required to submit completed data items for 11more than one RAG, that11firm must
Table of applicable rules containing data items4, frequency and submission periods
(1) |
(2) |
(3) |
(4) |
|
RAGnumber |
Provisions containing: |
|||
applicabledata items |
reporting frequency/ period |
due date32 32 |
||
RAG 1 |
• accepting deposits • meeting of repayment claims12 • managing dormant account funds (including the investment of such funds)12 27 |
|||
RAG 2.1 |
• effecting contracts of insurance • carrying out contracts of insurance • entering as provider into a funeral plan contract |
|||
RAG 2.2 |
• managing the underwriting capacity of a Lloyds syndicate as a managing agent at Lloyds • advising on syndicate participation at Lloyds • arranging deals in contracts of insurance written at Lloyds |
|||
RAG 3 |
• dealing in investment as principal • dealing in investments as agent • advising on investments (excluding retail investment activities) • arranging (bringing about) deals in investments (excluding retail investment activities) |
|||
RAG 4 |
• managing investments • establishing, operating or winding up a collective investment scheme • establishing, operating or winding up a stakeholder pension scheme • establishing, operating or winding up a personal pension scheme2 3838 |
|||
RAG 5 |
• home finance administration or home finance providing activity11 11 |
|||
RAG 6 |
• acting as the depositary of an authorised contractual scheme36 • safeguarding and administration of assets (without arranging) • arranging safeguarding and administration of assets • acting as trustee or depositary of an AIF38 • acting as trustee or depositary of a UCITS38 3838 |
|||
RAG 7 |
• retail investment activities • advising on pensions transfers & opt-outs • arranging (bringing about deals) in retail investments |
|||
RAG 8 |
• making arrangements with a view to transactions in investments • operating a multilateral trading facility4 |
|||
RAG 9 |
• home finance mediation activity14 • insurance mediation activity (non-investment insurance contracts) 14 |
|||
RAG 10 |
97 | |||
2The applicable data items, reporting frequencies and submission deadlines referred to in SUP 16.12.4 R are set out in the table below. Reporting frequencies are calculated from a firm'saccounting reference date, unless indicated otherwise. The due dates are the last day of the periods given in the table below following the relevant reporting frequency period.
Frequency |
Submission deadline |
|||
Annual regulated business revenue up to and including £5 million |
Annual regulated business revenue over £5 million |
|||
Balance Sheet |
Section A RMAR |
Half yearly |
Quarterly |
|
Income Statement |
Section B RMAR |
Half yearly |
Quarterly |
|
Capital Adequacy |
Section D1 RMAR |
Half yearly |
Quarterly |
|
Professional indemnity insurance (note 2)11 |
Section E RMAR |
Half yearly |
Quarterly 11 11 |
|
Threshold Conditions |
Section F RMAR |
Half yearly |
Half yearly |
|
Training and Competence |
Section G RMAR |
Half yearly |
Half yearly |
|
COBS11 data |
Section H RMAR |
Half yearly |
Half yearly |
|
Supplementary product sales data |
Section I RMAR |
Half yearly11 11 |
Annually |
|
Client money and client assets |
Section C RMAR |
Half yearly |
Quarterly |
|
Fees and levies |
Section J RMAR |
Annually |
Annually |
|
Note 1 |
When submitting the completed data item required, a firm must use the format of the data item set out in SUP 16 Annex 18A. Guidance notes for the completion of the data items is set out in SUP 16 Annex 18B. |
|||
11Note 2 |
This item only applies to firms that may be subject to an FSA requirement to hold professional indemnity insurance and are not exempt CAD firms. |
|||
(1) 2An authorised professional firm, other than one that must comply with IPRU(INV) 3, 5 or 13 in accordance with IPRU(INV) 2.1.4R,3 must submit an annual questionnaire, contained in SUP 16 Annex 9R, unless:11(a) its only regulated activities are one or more of:(i) insurance mediation;(ii) mortgage mediation;(iii) retail investment;(iv) mortgage lending;(v) mortgage administration; or(b) its "main business" as determined by IPRU(INV) 2.1.2R(3) is advising on, or arrangingdeals
Article 55 of the Financial Promotion Order contains a specific exemption for professional firms allowing them to make solicited or unsolicited real time financial promotions. This is provided the financial promotion is made:(1) by a person who carries on a regulated activity without needing authorisation under the Part XX exemption; and(2) to someone who has already (that is, before the financial promotion is made) engaged the person making the financial promotion to provide
The article 55 exemption also requires that:(1) the financial promotion relates to an activity to which the Part XX exemption applies or which would be a regulated activity but for the exclusion in article 67 of the Regulated Activities Order (Activities carried on in the course of a profession or non-investment business) which concerns activities which are a necessary part of professional services; and(2) the activity to which the financial promotion relates would be undertaken
The FCA considers that, to satisfy the condition in PERG 8.15.2G (2) that an activity be incidental to the provision of professional services, regulated activities cannot be a major part of the practice of the professional firm. The FCA also considers that the following further factors are relevant.(1) The scale of regulated activity in proportion to other professional services provided.(2) Whether and to what extent services that are regulated activities are held out as separate
One of the effects of the requirements in PERG 8.15.2 G concerns financial promotions which relate to an activity which is not a regulated activity as the result of an exclusion in the Regulated Activities Order. In this case, a professional firm using the Part XX exemption cannot make a real time financial promotion relying on article 55 of the Financial Promotion Order unless the exclusion is provided by article 67 of the Regulated Activities Order. Neither can a professional
Article 55A of the Financial Promotion Order exempts non-real time financial promotions where the financial promotion:1(1) is made by a person who carries on a regulated activity without needing authorisation under the Part XX exemption (referred to in PERG 8.15.6 G and PERG 8.15.7 G as ‘Part XX activities’); and(2) contains a specified statement and is limited in its content to the matters referred to in PERG 8.15.6 G.
The article 55A exemption should enable professional firms to issue brochures, websites and other non-real time financial promotions without any need for approval by an authorised person. This is provided the financial promotion does not also contain an invitation or inducement relating to regulated activities other than those covered by the Part XX exemption. In this respect, it should be noted that, unlike article 55, the article 55A exemption does not extend to activities which
The following Tables 1, 2, 2A and 2B1 provide an outline of the regulated activities and specified investments that may be of relevance to firms considering undertaking passported activities under the Banking Consolidation Directive, 1MiFID3, the UCITS Directive and the Insurance Mediation Directive.1 The tables may be of assistance to UK firms that are thinking of offering financial services in another EEA State and to EEA firms that may offer those services in the United K
Part II RAO Investments |
Part III RAO Investments |
||
1. |
Reception and transmission of orders in relation to one or more financial instruments |
Article 252 |
Article 76-81, 83-85, 89 |
2. |
Execution of orders on behalf of clients |
Article 14, 21 |
A Article 76-81, 83-85, 89 |
3. |
Dealing on own account |
Article 14 |
Article 76-81, 83-85, 89 |
4. |
Portfolio management |
Article 37 (14, 21, 25 - see Note 1) 2 |
Article 76-81, 83-85, 89 |
5. |
Investment advice |
Article 53 |
Article 76-81, 83-85, 89 |
6. |
Underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis |
Article 14, 21 |
Article 76-81, 83-85, 89 |
7. |
Placing of financial instruments without a firm commitment basis |
Article 21, 25 |
Article 76-81, 83-85, 89 |
8. |
Operation of Multilateral Trading Facilities |
Article 25D5 (see Note 2) 5 |
Article 76-81, 83-85, 89 |
Ancillary services |
Part II RAO Activities |
Part III RAO Investments |
|
1. |
Safekeeping and administration of financial instruments for the account of clients, including custodianship and related services such as cash/collateral management |
Article 40, 45, 64 |
Article 76-81, 83-85, 89 |
2. |
Granting credits or loans to an investor to allow him to carry out a transaction in one or more of the relevant instruments where the firm granting the credit or loan is involved |
||
3. |
Advice to undertakings on capital structure, industrial strategy and related matters and advice and services relating to mergers and the purchase of undertakings |
Article 14, 21, 25, 53, 64 |
Article 76-80, 83-85, 89 |
4. |
Foreign exchange services where these are connected with the provision of investment services |
Article 14, 21, 25, 53, 64 |
Article 83-85, 89 |
5. |
Investment research and financial analysis or other forms of general recommendation relating to transactions in financial instruments |
Article 53, 64 |
Article 76-81, 83-85, 89 |
6. |
Services related to underwriting |
Article 25, 53, 64 |
Article 76-81, 83-85, 89 |
7. |
Investment services and activities as well as ancillary services of the type included under Section A or B of Annex I related to the underlying of the derivatives included under Section C 5, 6, 7 and 10-where these are connected to the provision of investment or ancillary services. |
Article 14, 21, 25, 25D,5 37, 53, 64 5 |
Article 83 and 84 |
Note 1. A firm may also carry on these other activities when it is managing investments.2 |
|||
Note 2. A firm operating an MTF under article 25D5 does not need to have a permission covering other regulated activities, unless it performs other regulated activities in addition to operating an MTF. 5 |
|||
Table 2A: UCITS Directive activities |
Part II RAO Activities |
Part III RAO Investments |
|
1. |
The management of UCITS in the form of unit trusts / common funds or of investment companies; this includes the function mentioned in Annex II of the UCITS Directive (see Note 2). |
Articles 14, 21, 25, 37, 51, 53, 64 |
Articles 76-81, 83-85, 89 |
2. |
Managing portfolios of investments, including those owned by pension funds, in accordance with mandates given by investors on a discretionary, client-by-client basis, where such portfolios include one or more of the instruments listed in Section C 3of Annex I 3to MiFID3. 33 |
Articles 14, 21, 25, 37, 53, 64 |
Articles 76-81, 83-85, 89 |
3. |
Investment advice concerning one or more of the instruments listed in Section C3of Annex I 3to MiFID3. 3 |
Articles 53, 64 |
Articles 76-81, 83-85, 89 |
4. |
Safekeeping and administration services in relation to units of collective investment undertakings. |
Articles 40, 45, 64 |
Articles 76-81, 83-85, 89 |
Note 1. A UCITS management company can only exercise passport rights under the UCITS Directive (article 2(13)(h) of MiFID3). A UCITS management company can only be authorised to carry on the non-core services set out in rows (3) and (4) of Table 2A if it is also authorised to carry on the activity set out in row (2) of the table. 33 |
|||
Note 2. The functions set out in Annex 2 to the UCITS Directive are: |
|||
1. |
Investment management. |
||
2. |
Administration: |
||
a. |
legal and fund management accounting services; |
||
b. |
customer inquiries; |
||
c. |
valuation and pricing (including tax returns); |
||
d. |
regulatory compliance monitoring; |
||
e. |
maintenance of unit-holder register; |
||
f. |
distribution of income; |
||
g. |
unit issues and redemptions; |
||
h. |
contract settlements (including certificate dispatch); |
||
i. |
record keeping. |
||
3. |
Marketing. |
||
Table 2B: Insurance Mediation Directive2 Activities 2 |
Part II RAO Activities |
Part III RAO Investments |
|
1. |
Introducing, proposing or carrying out other work preparatory to the conclusion of contracts of insurance. |
Articles 25, 53 and 64 |
Articles 75, 89 (see Note 1) |
2. |
Concluding contracts of insurance |
Articles 21, 25, 53 and 64 |
Articles 75, 89 |
3. |
Assisting in the administration and performance of contracts of insurance, in particular in the event of a claim. |
Articles 39A, 64 |
Articles 75, 89 |
Note 1. Rights to or interests in life policies are specified investments under Article 89 of the Regulated Activities Order, but rights to or interests in general insurance contracts are not. |
|||
(1) Under section 19 of the Act (The general prohibition), no person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is an authorised person, or he is an exempt person in relation to that activity.(2) A person will be an exempt person if he satisfies the conditions in section 39(1) of the Act, guidance on which is given in SUP 12.2.2 G. A person who is exempt as a result of satisfying these conditions is referred to in the Act as an appointed
(1) A person must satisfy the conditions in section 39(1) of the Act to become an appointed representative. These are that:(a) the person must not be an authorised person, that is, he must not have permission under the Act to carry on any regulated activity in his own right (section 39(1) of the Act); (b) the person must have entered into a contract with an authorised person, referred to in the Act as the 'principal', which:(i) permits or requires him to carry on business of
As long as the conditions in section 39 of the Act are satisfied, any person, other than an authorised person, may become an appointed representative, including a body corporate, a partnership or an individual in business on his own account. However, an appointed representative cannot be an authorised person under the Act; that is, it cannot be exempt for some regulated activities and authorised for others.
(1) The Appointed Representatives Regulations are made by the Treasury under section 39(1) of the Act. These regulations describe, among other things, the business for which an appointed representative may be exempt, which is business which comprises any of:(a) dealing in investments as agent (article 21 of the Regulated Activities Order) where the transaction relates to a pure protection contract (but only where the contract is not a long-term care insurance contract) or general
(1) An introducer is an individual appointed by a firm or by an appointed representative of such a firm to carry out, in the course of designated investment business, either or both of the following activities:4(a) effecting introductions; (b) distributing non-real time financial promotions.(2) An introducer is not an exempt person under section 39 of the Act (unless he is also an introducer appointed representative) and hence cannot benefit from the exemption to carry on regulated
(1) 6A must be capable of being effectively supervised by the FCA having regard to all the circumstances including-(a) the nature (including the complexity) of the regulated activities that A carries on or seeks to carry on;(b) the complexity of any products that A provides or will provide in carrying on those activities;(c) the way in which A’s business is organised;(d) if A is a member of a group, whether membership of the group is likely to prevent the FCA’s effective supervision
(1) 6B must be capable of being effectively supervised by the FCA having regard to all the circumstances including-(a) the nature (including the complexity) of the regulated activities that B carries on or seeks to carry on;(b) the complexity of any products that B provides or will provide in carrying on those activities;(c) the way in which B’s business is organised;(d) if B is a member of a group, whether membership of the group is likely to prevent the FCA’s effective supervision
6Firms carrying on, or seeking to carry on, a PRA-regulated activity, should note that the PRA is also responsible for assessing effective supervision under its own threshold conditions. Paragraphs 4F and 5F of Schedule 6 to the Act set out the effective supervision threshold conditions which are relevant to the discharge by the PRA of its functions under the Act in relation to firms carrying on, or seeking to carry on, a PRA-regulated activity. For the avoidance of doubt, this
In assessing the threshold conditions set out in paragraphs 2C and 3B of Schedule 6 to the Act6, factors which the FCA6 will take into consideration include, among other things, whether: 6(1) it is likely that the FCA6 will receive adequate information from the firm, and those persons with whom the firm has close links, to enable it to determine whether the firm is complying with the requirements and standards under the regulatory system for which the FCA is responsible6 and to
Principle 11 requires a firm to deal with its regulators in an open and cooperative way and to disclose to the appropriate regulator35appropriately anything relating to the firm of which the appropriate regulator35 would reasonably expect notice. Principle 11 applies to unregulated activities as well as regulated activities and takes into account the activities of other members of a group3535
Compliance with Principle 11 includes, but is not limited to, giving the appropriate regulator35 notice of:35(1) any proposed restructuring, reorganisation or business expansion which could have a significant impact on the firm's risk profile or resources, including, but not limited to:(a) setting up a new undertaking within a firm'sgroup, or a new branch (whether in the United Kingdom or overseas); or (b) commencing the provision of cross border services into a new territory;
A firm must notify the appropriate regulator35 immediately if one of the following events arises and the event is significant:35(1) it becomes aware that an employee may have committed a fraud against one of its customers; or(2) it becomes aware that a person, whether or not employed by it, may have committed a fraud against it; or(3) it considers that any person, whether or not employed by it, is acting with intent to commit a fraud against it; or(4) it identifies irregularities
3SUP 15.3.23 D to SUP 15.3.25 D are given in relation to the exercise of the powers of the Society and of the Council generally, with a view to achieving the objective of enabling the appropriate regulator35to:35(1) comply with its general duty under section 314 of the Act (Regulators’35 general duty);35(2) determine whether underwriting agents, or approved persons acting for them or on their behalf, are complying with the requirements imposed on them by or under the Act;(3) enforce
3The Society must immediately inform the appropriate regulator35 in writing if it becomes aware that any matter likely to be of material concern to the appropriate regulator35 may have arisen in relation to:(1) the regulated activities for which the Society has permission; or (2) underwriting agents; or (3) approved persons or individuals acting for or on behalf of underwriting agents.
3The Society must inform the appropriate regulator35 if it commences investigations or disciplinary proceedings which do not fall within the scope of SUP 15.3.24 D but which:35(1) involve an underwriting agent, or an approved person who carries out controlled functions for it or on its behalf; or (2) may indicate that an individual acting for or on behalf of an underwriting agent may not be a fit and proper person to perform functions in relation to regulated activities.
Article 25A of the Regulated Activities Order describes two types of regulated activities concerned with arrangingregulated mortgage contracts. These are:(1) making arrangements for another person to:(a) enter into a regulated mortgage contract as borrower; or(b) vary the terms of a regulated mortgage contract entered into by him as borrower on or after 31 October 2004 in such a way as to vary his obligations under the contract; and(2) making arrangements with a view to a person
The first activity (article 25A(1)) is referred to in this guidance as arranging (bringing about) regulated mortgage contracts. Various points arise:(1) It is not necessary for the potential borrower himself to be involved in making the arrangements.(2) This activity is carried on only if the arrangements bring about, or would bring about a regulated mortgage contract. This is because of the exclusion in article 26 (see PERG 4.5.4 G).(3) This activity therefore includes the activities
Article 33A of the Regulated Activities Order (Introducing to authorised persons) excludes from article 25A(2) arrangements under which a borrower is introduced to certain persons. Introducing is only a regulated activity under article 25A(2) as it does not of itself bring about regulated mortgage contracts (see PERG 4.5.2 G).
The exclusion applies for introductions to:(1) an authorised person who has permission to carry on a regulated activity specified in article 25A (Arranging regulated mortgage contracts) or article 53A (Advising on regulated mortgage contracts) or article 61(1) (Entering into a regulated mortgage contract as lender); introducers can check the status of an authorised person and its permission by visiting the Financial Services Register1 at http://www.fsa.gov.uk/register/;11(2) an
In addition to the exclusion in article 33A, introducers may be able to take advantage of the exclusion in article 33 of the Regulated Activities Order (Introducing). This excludes arrangements where:(1) they are arrangements under which persons will be introduced to another person;(2) the person to whom the introduction is to be made is:(a) an authorised person; or(b) an exempt person acting in the course of business comprising a regulated activity in relation to which he is
The Regulated Activities Order contains a number of other exclusions which have the effect of preventing certain activities from amounting to regulated activities within article 25. These are referred to in PERG 4.10 (Exclusions applying to more than one regulated activity). There is also an exclusion where both the arranger and borrower are overseas, which is referred to in PERG 4.11 (Link between activities and the United Kingdom).
(1) Section 55C of the Financial Services Act 2012 (Power to amend Schedule 6) gave HM Treasury the power to amend Schedule 6 of the Act. HM Treasury exercised this power by making The Financial Services and Markets Act 2000 (Threshold Conditions) Order 2013 which entered into force on 1 April 2013 (the "TC Order"). The TC Order's main result is the creation of four sets of threshold conditions, namely:(i) conditions for firms authorised and regulated by the FCA only (paragraphs
(1) As a result of the new legal framework for threshold conditions described in COND 1.1A.1G (1), PRA-authorised persons and firms seeking to become PRA-authorised persons are subject to two sets of threshold conditions:(i) the FCA-specific conditions referred to in COND 1.1A.1G (1)(ii)and(ii) one of the two PRA-specific conditions referred to in COND 1.1A.1G (1)(iii) or (iv), depending on the PRA-regulated activities which the PRA-authorised person or firm carries on, or is
COND applies to incoming EEA firms and incoming Treaty firms as set out below:(1) for an incoming EEA firm or an incoming Treaty firm which does not carry on any PRA-regulated activities, FCAthreshold conditions 2C to 2F apply; and(2) for an incoming EEA firm or an incoming Treaty firm which carries on a PRA-regulated activity, FCAthreshold conditions 3B to 3E apply.FCAthreshold conditions apply to incoming EEA firms and incoming Treaty firms only in as far as relevant to the
This part of the guidance deals with:(1) exclusions which are disapplied where the regulated activity relates to contracts of insurance;(2) exclusions which are disapplied where a person carries on insurance mediation; and(3) the following exclusions applying to more than one regulated activity:(a) activities carried on in the course of a profession or non-investment business (article 67 (Activities carried on in the course of a profession or non-investment business));(b) activities
(1) The removal of the exclusion for groups and joint enterprises in article 69 of the Regulated Activities Order (Groups and joint enterprises) may have implications for a company providing services for:(a) other members of its group; or(b) other participants in a joint enterprise of which it is a participant.(2) Such companies might typically provide risk or treasury management or administration services which may include regulated activities relating to a contract of insurance.
Article 67 excludes from the activities of dealing as agent, arranging (bringing about) deals in investments, making arrangements with a view to transactions in investments, assisting in the administration and performance of a contract of insurance and advising on investments, any activity which:(1) is carried on in the course of carrying on any profession or business which does not otherwise consist of the carrying on of regulated activities in the United Kingdom; and(2) may
Although the article 67 exclusion is disapplied (by article 4(4A) of the Regulated Activities Order (Specified investments: general)) when a person takes up or pursues insurance mediation or reinsurance mediation as defined by articles 2.3 and 2.5 of the IMD, there may be cases where a person is not carrying on activities that amount to insurance mediation. For example, where a person's activities amount simply to the provision of information on an incidental basis in the context
Article 72B (see also PERG 5.3.7 G (Connected contracts of insurance)) may be of relevance to persons who supply non-motor goods or provide services related to travel in the course of carrying on a profession or business which does not otherwise consist of carrying on regulated activities. In the FCA's view, the fact that a person may carry on regulated activities in the course of the carrying on of a profession or business does not, of itself, mean that the profession or business
Any person who carries on a regulated activity in the United Kingdom by way of business must either be an authorised person or exempt from the need for authorisation. Otherwise, the person commits a criminal offence and certain agreements may be unenforceable. PERG 2.2 (Authorisation and regulated activities) has further guidance on these consequences.2
It is recognised pursuant to section 22 of the Act that a person will not be carrying on regulated activities in the first instance, including insurance mediation activities, unless he is carrying on these activities by way of business. Similarly, where a person's activities are excluded he cannot, by definition, be carrying on regulated activities. To this extent, the content of the questions above does not follow the scheme of the Act. For ease of navigation, however, the questions
The United Kingdom's approach to implementing the IMD by domestic legislation is, in part, through secondary legislation, which will apply pre-existing regulated activities (slightly amended) in the Regulated Activities Order to the component elements of the insurance mediation definition in the IMD (see PERG 5.2.5 G and the text of article 2.3 IMD in PERG 5.16.2 G (article 2.3 of the Insurance Mediation Directive)).
The effect of the IMD and its implementation described in PERG 5.2.5 G to PERG 5.2.6 G is to vary the application of the existing regulated activities set out in PERG 5.2.8G (1) to PERG 5.2.8G (3), PERG 5.2.8G (5) and PERG 5.2.8G (6), principally by applying these regulated activities to general insurance contracts and pure protection contracts and by making changes to the application of the various exclusions to these regulated activities. These regulated activities applied prior
It follows that each of the regulated activities below potentially apply to any contract of insurance:(1) dealing in investments as agent (article 21 (Dealing in investments as agent));(2) arranging (bringing about) deals in investments (article 25(1) (Arranging deals in investments));(3) making arrangements with a view to transactions in investments (article 25(2) (Arranging deals in investments));(4) assisting in the administration and performance of a contract of insurance
Section 19 of the Act (The general prohibition) provides that the requirement to be authorised under the Act only applies in relation to regulated activities which are carried on 'in the United Kingdom'. In many cases, it will be quite straightforward to identify where an activity is carried on. But, when there is a cross-border element, for example because a customer is outside the United Kingdom or because some other element of the activity happens outside the United Kingdom,
Even if a person concludes that he is not carrying on a regulated activity in the United Kingdom, he will need to ensure that he does not contravene other provisions of the Act that apply to unauthorised persons. These include the controls on financial promotion (section 21 (Financial promotion) of the Act) (see PERG 8 (Financial promotion and related activities)), and on giving the impression that a person is authorised (section 24 (False claims to be authorised or exempt)).
Persons carrying on insurance mediation activities from a registered office or head office in the United Kingdom will clearly be carrying on regulated activities in the United Kingdom. However, a person may be considered to be carrying on regulated activities in the United Kingdom even where not carrying on the activity from a registered office or head office in the United Kingdom. This is explained further in PERG 5.12.6 G to PERG 5.12.8 G.
Section 418 of the Act extends the meaning that 'carry on regulated activity in the United Kingdom' would normally have by setting out additional cases in which a person who would not otherwise be regarded as carrying on the activity in the United Kingdom is to be regarded as doing so. Each of the following cases thus amounts to carrying on a regulated activity in the United Kingdom:(1) where a UK-based person carries on a regulated activity in another EEA State in the exercise
Article 72 of the Regulated Activities Order (Overseas persons) provides a potential exclusion for persons with no permanent place of business in the United Kingdom from which regulated activities are conducted or offers to conduct regulated activities are made. Where these persons carry on insurance mediation activities in the United Kingdom, they may be able to take advantage of the exclusions in article 72 of the Regulated Activities Order. In general terms, these apply where
Non-UK-based persons wishing to carry on insurance mediation activities in the United Kingdom must:(1) qualify for authorisation by exercising passport rights (see section 31 (Authorised persons) and schedule 3 (EEA passport rights) to the Act and PERG 5.12.13 G to PERG 5.12.14 G (Passporting)); or(2) make use of the overseas persons exclusion (which then has the effect that activities are deemed not to be regulated activities carried on in the United Kingdom); or(3) seek Part
For a firm which carries on insurance mediation activity or home finance mediation activity1, annual income is the amount of all brokerage, fees, commissions and other related income (for example, administration charges, overriders, profit shares) due to the firm in respect of or in relation to those activities.1
For the purposes of the calculation of the capital resources of a firm carrying on home finance administration1only with all the assets it administers off balance sheet, annual income is the sum of:11(1) revenue (that is, commissions, fees, net interest income, dividends, royalties and rent); and(2) gains;(3) arising in the course of the ordinary activities of the firm, less profit:(a) on the sale or termination of an operation;(b) arising from a fundamental reorganisation or
There is power in the Act for the Treasury to change the meaning of the business element by including or excluding certain things. They have exercised this power (see the Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001 (SI 2001/1177), the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2003 (SI 2003/1476),3 the Financial Services and Markets Act 2000 (Carrying on Regulated Activities
Whether or not an activity is carried on by way of business is ultimately a question of judgement that takes account of several factors (none of which is likely to be conclusive). These include the degree of continuity, the existence of a commercial element, the scale of the activity and the proportion which the activity bears to other activities carried on by the same person but which are not regulated. The nature of the particular regulated activity that is carried on will also
Under section 33(2) of the Act (Withdrawal of authorisation), if the appropriate regulator cancels a firm'sPart 4A permission,1 and as a result there is no regulated activity for which the firm has permission, the regulator authorising that firm1 is required to give a direction withdrawing the firm's status as an authorised person.111
In addition, several separate exclusions focus on the identity of the person paying the money or the person receiving it (or both).(1) Payments by certain persons are excluded if they are made by specified persons (such as local authorities or national, or supranational, bodies) or by persons acting in the course of a business consisting wholly or partly of lending money.(2) Exclusions apply for sums paid between certain persons who are linked in a specified way (such as group
Certain arrangements in relation to funeral plans are specifically excluded from being contracts of insurance if they would otherwise be so. The exclusion applies to arrangements that fall within the definition of a funeral plan contract (see PERG 2.6.26 G) as well as arrangements that are excluded from the regulated activity of entering as provider into funeral plan contracts (see PERG 2.8.14 G).
Shares are defined in the Regulated Activities Order as shares or stock in a wide range of entities; that is, any body corporate wherever incorporated and unincorporated bodies formed under the law of a country other than the United Kingdom. They include deferred shares issued by building societies as well as transferable shares in industrial and provident societies, credit unions and equivalent EEA bodies. These shares are transferable and negotiable in a way similar to other
9It relates only to the regulated activity of bidding in emissions auctions (whereby a bid is received, transmitted and submitted on an auction platform) and captures the two forms of allowance products that may be auctioned under article 4(2) of the auction regulation: a two-day spot or a five-day future.
Rights to, or interests in, all the specified investments in PERG 2.6 (except rights to, or interests in, rights under a home finance transaction3) are themselves treated as specified investments. The effect is that, in most cases, an activity carried on in relation to rights or interests derived from any of those investments is also a regulated activity if the activity would be regulated if carried on in relation to the investment itself. The exception is where the rights or