Related provisions for COBS 18.5.4A
41 - 60 of 112 items.
(1) Subject to (3) and (4), a firm must ensure that a direct offer financial promotion that is addressed to, or disseminated in such a way that it is likely to be received by, a retail client contains:(a) such of the information referred to in the rules on information disclosure (COBS 6.1.4 R, COBS 6.1.6 R, COBS 6.1.7 R, COBS 6.1.9 R, COBS 14.3.2 R, COBS 14.3.3 R, COBS 14.3.4 R and COBS 14.3.5 R) as is relevant to that offer or invitation; and[Note: article 29(8) of the MiFID
In order to enable a client to make an informed assessment of a relevant investment or relevant business, a firm may wish to include in a direct offer financial promotion:(1) a summary of the taxation of any investment to which it relates and the taxation consequences for the average member of the group to whom it is directed or by whom it is likely to be received;1(2) a statement that the recipient should seek a personal recommendation if he has any doubt about the suitability
4COBS 4.13.2 R (Marketing communications relating to UCITS schemes or EEA UCITS schemes) and COBS 4.13.3 R (Marketing communications relating to feeder UCITS) contain additional disclosure requirements for firms in relation to marketing communications (other than key investor information) that concern particular investment strategies of a UCITS scheme or EEA UCITS scheme.
(1) 2A firm must not communicate or approve a direct offer financial promotion:(a) relating to a warrant or derivative;(b) to or for communication to a retail client; and(c) where the firm will not itself be required to comply with the rules on appropriateness (see COBS 10);unless the firm has adequate evidence that the condition in (2) is satisfied.(2) The condition is that the person who will arrange or deal in relation to the derivative or warrant will comply with the rules
(1) When providing a service to which this chapter applies, a firm must ask the client to provide information regarding his knowledge and experience in the investment field relevant to the specific type of product or service offered or demanded so as to enable the firm to assess whether the service or product envisaged is appropriate for the client.(2) When assessing appropriateness, a firm:(a) must determine whether the client has the necessary experience and knowledge in order
The information regarding a client's knowledge and experience in the investment field includes, to the extent appropriate to the nature of the client, the nature and extent of the service to be provided and the type of product or transaction envisaged, including their complexity and the risks involved, information on:(1) the types of service, transaction and designated investment with which the client is familiar;(2) the nature, volume, frequency of the client's transactions in
If a firm is satisfied that the client has the necessary experience and knowledge in order to understand the risks involved in relation to the product or service, there is no duty to communicate this to the client. If the firm does so, it must not do so in a way that amounts to making a personal recommendation unless it complies with the rules in COBS 9 on suitability.
Each of the following is a per se eligible counterparty (including an entity that is not from an EEA state that is equivalent to any of the following) unless and to the extent it is given a different categorisation under this chapter:(1) an investment firm;(2) a credit institution;(3) an insurance company;(4) a collective investment scheme authorised under the UCITS Directive or its management company;(5) a pension fund or its management company;(6) another financial institution
A firm may treat a client as an elective eligible counterparty if:(1) the client is an undertaking and:(a) is a per se professional client (except for a client that is only a per se professional client because it is an institutional investor under COBS 3.5.2 R (5)) and, in relation to business other than MiFID or equivalent third country business:1(i) is a body corporate (including a limited liability partnership) which has (or any of whose holding companies or subsidiaries has)
In the case of MiFID or equivalent third country business, in the event of a transaction where the prospective counterparties are located in different EEA States, the firm shall defer to the status of the other undertaking as determined by the law or measures of the EEA State in which that undertaking is established. [Note: first paragraph of article 24(3) of MiFID]
A firm must:(1) on request, provide its PPFM, or the PPFM applicable to specified with-profits funds:(a) free of charge to its with-profits policyholders; or(b) for a reasonable charge to any person who is not its with-profits policyholder; and(2) if the firm publishes its PPFM on its website, prominently signpost its location there.
In relation to any with-profits policyholder who is habitually resident in the United Kingdom, an EEA insurer must:(1) on request, provide the information necessary to enable that policyholder properly to understand the insurer's commitment under the policy;(2) ensure that the information provided is not narrower in scope or less detailed in content than the equivalent PPFM; and(3) send the policyholder who is affected by any information being changed written notice, setting out:(a)
A firm must produce an annual report to its with-profits policyholders, which must:(1) state whether, throughout the financial year to which the report relates, the firm believes it has complied with its obligations relating to its PPFM and setting out its reasons for that belief;(2) address all significant relevant issues, including the way in which the firm has:(a) exercised, or failed to exercise, any discretion that it has in the conduct of its with-profits business; and(b)
The following documents should be annexed to the annual report in this section:(1) the report to with-profits policyholders made by a with-profits actuary in respect of each financial year (see SUP 4.3.16AR(4)); and(2) any statement or report provided by the person or committee who provides the independent judgement under the firm's governance arrangements for its with-profits business.
(1) A firm must take reasonable steps to ensure that a personal recommendation, or a decision to trade, is suitable for its client.(2) When making the personal recommendation or managing his investments, the firm must obtain the necessary information regarding the client's:(a) knowledge and experience in the investment field relevant to the specific type of designated investment or service;(b) financial situation; and(c) investment objectives;so as to enable the firm to make the
(1) A firm must obtain from the client such information as is necessary for the firm to understand the essential facts about him and have a reasonable basis for believing, giving due consideration to the nature and extent of the service provided, that the specific transaction to be recommended, or entered into in the course of managing:(a) meets his investment objectives;(b) is such that he is able financially to bear any related investment risks consistent with his investment
The information regarding a client’s knowledge and experience in the investment field includes, to the extent appropriate to the nature of the client, the nature and extent of the service to be provided and the type of product or transaction envisaged, including their complexity and the risks involved, information on:(1) the types of service, transaction and designated investment with which the client is familiar;(2) the nature, volume, frequency of the client’s transactions in
Although a firm may not be permitted to make a personal recommendation or take a decision to trade because it does not have the necessary information, its client may still ask the firm to provide another service such as, for example, to arrange a deal or to deal as agent for the client. If this happens, the firm should ensure that it receives written confirmation of the instructions. The firm should also bear in mind the client's best interests rule and any obligation it may have
(1) If a firm makes a personal recommendation or manages investments for a professional client in the course of MiFID or equivalent third country business, it is entitled to assume that, in relation to the products, transactions and services for which the professional client is so classified, the client has the necessary level of experience and knowledge for the purposes of COBS 9.2.2R (1)(c).(2) If the service consists of making a personal recommendation to a per se professional
(1) When recommending a small friendly societylife policy, a firm, for the purpose of assessing suitability, need only obtain details of the net income and expenditure of the client and his dependants.(2) A friendly societylife policy is small if the premium:(a) does not exceed £50 a year; or(b) if payable weekly, £1 a week.(3) The firm must keep for five years a record of the reasons why the recommendation is considered suitable.
Under the territorial application rules in COBS 1, the rules in this section apply to:(1) a UK firm's business carried on from an establishment in an EEA State other than the United Kingdom for a retail client in the United Kingdom unless, if the office from which the activity is carried on were a separate person, the activity:(a) would fall within the overseas persons exclusion in article 72 of the Regulated Activities Order; or(b) would not be regarded as carried on in the United
(1) If a firm sells or arranges the sale of a packaged product to a retail client, and subsequently if the retail client requests it, the firm must disclose to the client in cash terms:2(a) any commission receivable by it or any of its associates in connection with the transaction; (b) if the firm is also the product provider, any commission or commission equivalent payable in connection with the transaction; and (c) if the firm or any of its associates is in the same immediate
3An indicative adviser charge is likely to be reasonably representative of the services associated with making the personal recommendation if:(1) the expected long term costs associated with making a personal recommendation and distributing the pure protection contract do not include the costs associated with manufacturing and administering the pure protection contract;(2) the allocation of costs and profit to the indicative adviser charge and product charges is such that any
(1) A firm must make the disclosure required by the rule on disclosure of commission or equivalent (COBS 6.4.3 R) as close as practicable to the time that it sells or arranges the sale of a packaged product.2(2) The firm must make the disclosure:(a) in a durable medium; or(b) when a retail client does not make a written application to enter into a transaction, orally. In these circumstances, the firm must give written confirmation as soon as possible after the date of the transaction,
(1) When determining the value of cash payments, benefits and services under the rule on disclosure of commission equivalent (COBS 6.4.3 R), a firm should follow the provisions of COBS 6 Annex 6.(2) Compliance with this evidential provision may be relied on as tending to establish compliance with COBS 6.4.3 R; and(3) Contravention of this evidential provision may be relied on as tending to establish contravention of COBS 6.4.3 R.
1This sourcebook applies to a firm with respect to the following activities carried on from an establishment maintained by it, or its appointed representative, in the United Kingdom:(1) [deleted]33(2) designated investment business;(3) long-term insurance business in relation to life policies;and activities connected with them.
3This sourcebook does not apply to a firm with respect to the activity of accepting deposits carried on from an establishment maintained by it, or its appointed representative, in the United Kingdom, except for COBS 4.6 (Past, simulated past and future performance), COBS 4.7.1 R (Direct offer financial promotions), COBS 4.10 (Systems and controls and approving and communicating financial promotions), COBS 13 (Preparing product information) and COBS 14 (Providing product information to clients) which apply as set out in those provisions, COBS 4.1 and the Banking: Conduct of Business sourcebook (BCOBS).
4COBS 4.4.3 R, COBS 5 (Distance communications), COBS 15.2 (The right to cancel), COBS 15.3 (Exercising a right to cancel), COBS 15.4 (Effects of cancellation) and COBS 15 Annex 1 (Exemptions from the right to cancel) apply to a firm with respect to the activity of issuing electronic money as set out in those provisions.
5The following rules in COBS apply to a firm in relation to its carrying on of auction regulation bidding:(1) COBS 5 (Distance communications);(2) (for a firm that has exercised an opt-in to CASS in accordance with CASS 1.4.9 R in relation only to those clients for which it holds client money or safe custody assets in accordance with CASS) COBS 3 (Client categorisation), COBS 6.1.7 R (Information concerning safeguarding of designated investments belonging to clients and client
1A firm must provide a suitability report to a retail client if the firm makes a personal recommendation to the client and the client:(1) acquires a holding in, or sells all or part of a holding in:(a) a regulated collective investment scheme;(b) an investment trust where the relevant shares have been or are to be acquired through an investment trust savings scheme;(c) an investment trust where the relevant shares are to be held within an ISA which has been promoted as the means
The obligation to provide a suitability report does not apply:(1) if the firm, acting as an investment manager for a retail client, makes a personal recommendation relating to a regulated collective investment scheme;(2) if the client is habitually resident outside the EEA and the client is not present in the United Kingdom at the time of acknowledging consent to the proposal form to which the personal recommendation relates;(3) to any personal recommendation by a friendly society
A firm must provide the suitability report to the client:(1) in the case of a life policy, before the contract is concluded unless the necessary information is provided orally or immediate cover is necessary; or(2) in the case of a personal pension scheme or stakeholder pension scheme, where the rules on cancellation (COBS 15) require notification of the right to cancel, no later than the fourteenth day after the contract is concluded; or(3) in any other case, when or as soon
In the case of telephone selling of a life policy, when the only contact between a firm and its client before conclusion of a contract is by telephone, the suitability report must:(1) comply with the distance marketing disclosure rules (COBS 5.1);(2) be provided immediately after the conclusion of the contract; and(3) be in a durable medium.[Note: article 13(3) of the Insurance Mediation Directive]
The suitability report must, at least:(1) specify the client's demands and needs;(2) explain why the firm has concluded that the recommended transaction is suitable for the client having regard to the information provided by the client; and(3) explain any possible disadvantages of the transaction for the client.[Note: article 12(3) of the Insurance Mediation Directive]
If a firm is providing a suitability report in the course of insurance mediation activity, the information must be provided:(1) in a durable medium which is available and accessible to the client;(2) in a clear and accurate manner, comprehensible to the client; and(3) in an official language of the State of the commitment in which the contract of insurance is made or in any other language agreed by the parties.[Note: article 13 of the Insurance Mediation Directive]
When a firm is making a personal recommendation to a retail client about income withdrawals or purchase short-term annuities, explanation of possible disadvantages in the suitability report should include the risk factors involved in entering into an income withdrawal or purchase of a short-term annuity. These may include:(1) the capital value of the fund may be eroded;(2) the investment returns may be less than those shown in the illustrations;(3) annuity or scheme pension rates
When a firm is carrying on Lloyd's market activities, any reference in COBS to the term:(1) designated investment is to be taken to include the following specified investments:(a) the underwriting capacity of a Lloyd's syndicate;(b) membership of a Lloyd's syndicate; and (c) rights to or interests in the specified investments in (a) or (b);(2) designated investment business is to be taken to include the following regulated activities:(a) advising on syndicate participation at
When a firm prepares a suitability report it must:(1) (in the case of a personal pension scheme), explain why it considers the personal pension scheme to be at least as suitable as a stakeholder pension scheme; and(2) (in the case of a personal pension scheme, stakeholder pension scheme or2FSAVC) explain why it considers the personal pension scheme, stakeholder pension scheme or2FSAVC to be at least as suitable as any facility to make additional contributions to an occupational
When a firm promotes a personal pension scheme, including a group personal pension scheme, to a group of employees it must:(1) be satisfied on reasonable grounds that the scheme is likely to be at least as suitable for the majority of the employees as a stakeholder pension scheme; and(2) record why it thinks the promotion is justified.
1When a firm prepares documents or information in accordance with this chapter, the firm should consider the rules on providing product information (COBS 14). Those rules require a firm to provide the product information in a durable medium or via a website that meets the website conditions (if the website is not a durable medium). [Note: article 29(4) of the MiFID implementing Directive]
A key features document and a key features illustration2must also:(1) (if it is a key features document) 2be produced and presented to at least the same quality and standard as the sales or marketing material used to promote the relevant product;(2) (if it is a key features document) 2display the firm's brand at least as prominently as any other;(3) (if it is a key features document or a key features illustration which does not form an integral part of the key features document)
1A firm that communicates a projection for an in-force packaged product which is not a financial instrument:(1) must include a standardised deterministic projection; (2) may also include an alternative projection except that the most prominent projection must be a standardised deterministic projection; andmust follow the projectionrules in COBS 13 Annex 2.
A firm that communicates a projection for a packaged product which is not a financial instrument,(1) for which a key featureillustration is not required to be provided; and (2) which is not an in-force packaged product;must ensure that such a projection is either a standardised deterministic projection or an alternative projection in accordance with COBS 13 Annex 2.
A firm that communicates a projection of benefits for a packaged product which is not a financial instrument, as part of a combined projection where other benefits being projected include those for a financial instrument or structured deposit, is not required to comply with the projection rules in COBS 13.4, COBS 13.5 and COBS 13 Annex 2 to the extent that it complies with the future performance rule (COBS 4.6.7 R).
The general requirement that communications be fair, clear and not misleading will nevertheless mean that a firm that elects to comply with the future performance rule in COBS 4.6.7 R will need to explain how the combined projection differs from other information that has been or could be provided to the client, including a projection provided under the projectionrules in COBS 13.4, COBS 13.5 and COBS 13 Annex 2.
The provisions of COBS in the table do not apply in relation to any energy market activity or oil market activity carried on by a firm which is MiFID or equivalent third country business:
COBS |
Description |
Adviser charging and remuneration |
|
Retail investment product provider requirements relating to adviser charging and remuneration |
|
Describing advice services |
|
Disclosing information about services, fees and commission - packaged products |
|
Disclosure of charges, remuneration and commission |
|
Suitability reports |
|
Special rules for providing basic advice on a stakeholder product |
|
Use of dealing commission |
|
Guidance on contingent liability transaction |
|
Quotations for surrender values |
|
Life insurance contracts - communications to clients |
|
Information to be provided in accordance with COBS 16.2.1 R and 16.3 |
The provisions of COBS in the table are unlikely to be relevant to any energy market activity or oil market activity carried on by a firm which is MiFID or equivalent third country business:
COBS |
Description |
Distance communications |
|
Insurance mediation |
|
Preparing product information |
|
Providing product information to clients |
|
Cancellation |
|
Claims handling for long-term care insurance |
|
Trustee firms' regime |
|
Corporate finance business |
|
Stock lending activity |
|
Pensions - supplementary provisions |
|
With-profits |
1The duty to provide best execution does not apply where:(1) the firm has agreed with a professional client that it does not owe a duty of best execution to him; or(2) the firm relies on another person to whom it passes a customer order for execution to provide best execution, but only if it has taken reasonable care to ensure that he will do so.
1To provide best execution, a firm must:(1) take reasonable care to ascertain the price which is the best available for the customer order in the relevant market at the time for transactions of the kind and size concerned; and (2) execute the customer order at a price which is no less advantageous to the customer, unless the firm has taken reasonable steps to ensure that it would be in the customer's best interests not to do so.
(1) 1In order to take reasonable care to ascertain the price which is the best available, a firm:(a) should disregard any charges and commission made by it or its agents that are disclosed to the customer under COBS 6.1.9 R (Information about costs and associated charges);(b) need not have access to competing exchanges, or to all, or a minimum number of, available price sources; but if a firm can access prices displayed by different exchanges and trading platforms and make a direct
(1) A firm that holds clientdesignated investments or client money for a client must send that client at least once a year a statement in a durable medium of those designated investments or that client money unless such a statement has been provided in a periodic statement.(2) A credit institution need not send a statement in respect of deposits held by it.(3) This rule does not apply in relation to a firm holding clientdesignated investments or client money under a personal pension
A firm must include in a statement of client assets referred to under this section the following information:(1) details of all the designated investments or client money held by the firm for the client at the end of the period covered by the statement;(2) the extent to which any clientdesignated investments or client money have been the subject of securities financing transactions; and(3) the extent of any benefit that has accrued to the client by virtue of participation in any
In cases where the portfolio of a client includes the proceeds of one or more unsettled transactions, the information in a statement provided under this section may be based either on the trade date or the settlement date, provided that the same basis is applied consistently to all such information in the statement. [Note: article 43(2) of the MiFID implementing Directive]
1In reporting to a client in accordance with this section, a firm should consider whether to provide details of any assets loaned or charged including:(1) which investments (if any) were at the end of the relevant period loaned to any third party and which investments (if any) were at that date charged to secure borrowings made on behalf of the portfolio; and(2) the aggregate of any interest payments made and income received during the period in respect of loans or borrowings
A key features document must:(1) include enough information about the nature and complexity of the product, how it works, any limitations or minimum standards that apply and the material benefits and risks of buying or investing for a retail client to be able to make an informed decision about whether to proceed; and(2) explain:(a) the arrangements for handling complaints about the product;(b) that compensation might be available from the FSCS if the firm cannot meet its liabilities
Table
A key features document for a packaged product must: |
||
(1) |
Include the title: ‘key features of the [name of product]’; |
|
(2) |
describe the product in the order of the following headings, and by giving the following information under those headings: |
|
Heading |
Information to be given |
|
‘Its aims’ |
A brief description of the product’s aims |
|
‘Your commitment’ or ‘Your investment’ |
What a retail client is committing to or investing in and any consequences of failing to maintain the commitment or investment |
|
‘Risks’ |
The material risks associated with the product, including a description of the factors that may have an adverse effect on performance or are material to the decision to invest |
|
‘Questions and Answers’ |
(in the form of questions and answers) the principle terms of the product, what it will do for a retail client and any other information necessary to enable a retail client to make an informed decision. |
|
3A key features document for a short-term money market fund, a money market fund or a qualifying money market fund must include a statement identifying it as such a fund and a statement that the authorised fund's investment objectives and policies will meet the conditions of the definition of short-term money market fund, money market fund or qualifying money market fund, as appropriate.
4A key features document for a feeder NURS must include:(1) a statement identifying it as such a scheme;(2) information specific to the feeder NURS and its qualifying master scheme which enables investors to understand the qualifying master scheme's key particulars; and(3) a description and explanation of any material differences between the risk profile of the feeder NURS and that of the qualifying master scheme.
4When producing the key features document, the authorised fund manager of the feeder NURS should have due regard to the provisions in COLL 4.6.8 R (Contents of the simplified prospectus) in terms of additional information appropriate to a feeder NURS and its qualifying master scheme. In particular, the appropriate charges information required by COBS 13.4.1 R and COBS 13 Annex 3 (Charges) should represent the aggregate of the charges of the feeder NURS and its qualifying master
Unless a client expressly instructs otherwise, a firm must, in the case of a clientlimit order in respect of shares admitted to trading on a regulated market which is not immediately executed under prevailing market conditions, take measures to facilitate the earliest possible execution of that order by making public immediately that clientlimit order in a manner which is easily accessible to other market participants. [Note: article 22(2) of MiFID]
An investment firm shall be considered to disclose clientlimit orders that are not immediately executable if it transmits the order to a regulated market or MTF that operates an order book trading system, or ensures that the order is made public and can be easily executed as soon as market conditions allow. [Note: article 31 of MiFID Regulation]
1A firm must, in relation to each with-profits fund it operates:(1) appoint:(a) a with-profits committee; or(b) a with-profits advisory arrangement (referred to in this section as an ‘advisory arrangement’), but only if appropriate, in the opinion of the firm'sgoverning body, having regard to the size, nature and complexity of the fund in question;(2) ensure that the with-profits committee or advisory arrangement operates in accordance with its terms of reference; and(3) make
(1) Ultimate responsibility for managing a with-profits fund rests with the firm through its governing body. The role of the with-profits committee or advisory arrangement is, in part, to act in an advisory capacity to inform the decision-making of a firm'sgoverning body. The with-profits committee or advisory arrangement also acts as a means by which the interests of with-profits policyholders are appropriately considered within a firm's governance structures. The with-profits
A firm must ensure that the terms of reference contain, as a minimum, terms having the following effect:(1) the role of the with-profits committee or advisory arrangement is, as relevant, to assess, report on, and provide clear advice and, where appropriate, recommendations to the firm'sgoverning body on:(a) the way in which each with-profits fund is managed by the firm and, if a PPFM is required, whether this is properly reflected in the PPFM;(b) if applicable, whether the firm
A firm must: (1) ensure that its governing body, in the context of its consideration of issues referred to in COBS 20.5.3R (1)(a) to (d) and (2)(b)(i) to (x):(a) obtains, as relevant, assessments, reports, advice and/or recommendations of the with-profits committee or advisory arrangement, if the governing body, the with-profits committee or advisory arrangement considers that significant issues concerning the interests of with-profits policyholders need to be considered by the
(1) COBS 20.5.5R (2) requires that a firm provides a with-profits committee or advisory arrangement with sufficient resources. A with-profits committee or advisory arrangement should be able to obtain external professional, including actuarial, advice, at the expense of the firm, if the with-profits committee or advisory arrangement considers the advice to be necessary to perform its role effectively. In a proprietary firm the with-profits committee or advisory arrangement should
(1) The FCA expects the governing body of the firm to decide whether a member of the with-profits committee or a person (other than a non-executive director) carrying out the advisory arrangement is independent. The FCA expects a firm'sgoverning body to adopt the following approach and have regard to the following factors when making this assessment:(a) the governing body should determine whether the person is independent in character and judgment and whether there are relationships
In complying with the rule on systems and controls in relation to compliance, financial crime and money laundering (SYSC 3.2.6 R), a firm should maintain governance arrangements designed to ensure that it complies with, maintains and records, any applicable PPFM. These arrangements should:(1) be appropriate to the scale, nature and complexity of the firm'swith-profits business; and(2) include the approval of the firm'sPPFM by its governing body.
(1) This rule applies in relation to a distance contract that is not a life policy, personal pension scheme, cash deposit ISA or CTF.(2) When the consumer exercises his right to cancel he may be required to pay, without any undue delay, for the service actually provided by the firm in accordance with the contract. The performance of the contract may only begin after the consumer has given his approval. The amount payable must not:(a) exceed an amount which is in proportion to
(1) The firm may require the consumer to pay for any loss under a contract caused by market movements that the firm would reasonably incur in cancelling it. The period for calculating the loss shall end on the day on which the firm receives the notification of cancellation.(2) This rule:(a) does not apply for a distance contract or for a contract established on a regular or recurring premium or payment basis; and(b) only applies if the firm has complied with its obligations to
The firm must, without any undue delay and no later than within 30 calendar days, return to the consumer any sums it has received from him in accordance with the contract2, except for any amount that the consumer may be required to pay under this section. This period shall begin from the day on which the firm receives the notification of cancellation.2 [Note: article 7(4) of the Distance Marketing Directive]
The firm is entitled to receive from the consumer any sums and/or property he has received from the firm without any undue delay and no later than within 30 calendar days. This period shall begin from the day on which the consumer dispatches the notification of cancellation. [Note: article 7(5) of the Distance Marketing Directive]
(1) A firm must ensure that a communication or a financial promotion is fair, clear and not misleading.(2) This rule applies in relation to:(a) a communication by the firm to a client in relation to designated investment business other than a third party prospectus;(b) a financial promotioncommunicated by the firm that is not:(i) an excluded communication;(ii) a non-retail communication;(iii) a third party prospectus; and(c) a financial promotion approved by the firm.[Note: article
(1) 1The fair, clear and not misleading rule applies in a way that is appropriate and proportionate taking into account the means of communication and the information the communication is intended to convey. So a communication addressed to a professional client may not need to include the same information, or be presented in the same way, as a communication addressed to a retail client.(2) COBS 4.2.1R(2)(b)1 does not limit the application of the fair, clear and not misleading
A firm should ensure that a financial promotion:(1) for a product or service that places a client's capital at risk makes this clear;(2) that quotes a yield figure gives a balanced impression of both the short and long term prospects for the investment;(3) that promotes an investment or service whose charging structure is complex, or in relation to which the firm will receive more than one element of remuneration, includes the information necessary to ensure that it is fair, clear
2A communication or a financial promotion should not describe a feature of a product or service as “guaranteed”, “protected” or “secure”, or use a similar term unless:24(1) that term is capable of being a fair, clear and not misleading description of it; and(2) the firm communicates all of the information necessary, and presents that information with sufficient clarity and prominence, to make the use of that term fair, clear and not misleading.45
(1) 1This
chapter applies to a firm in
relation to designated investment business carried
on for:(a) a retail
client; and(b) in relation to MiFID
or equivalent third country business, a professional
client.(2) If expressly provided, this chapter
also applies to a firm in relation
to other ancillary services carried
on for a client, but only in
relation to its MiFID or equivalent third
country business.(3) But this chapter does not apply
to a firm to the extent that
it is effecting
If a firm carries
on designated investment business,
other than advising on investments with or for a new retail client,
the firm must enter into a written
basic agreement, on paper or other durable
medium, with the client setting
out the essential rights and obligations of the firm and
the client.[Note: article 39 of the MiFID
implementing Directive]
(1) A firm must,
in good time before a retail client is
bound by any agreement relating to designated
investment business or ancillary
services or before the provision of those services, whichever
is the earlier, provide that client with:(a) the terms of any such agreement;
and(b) the information about the firm and its services relating to that agreement
or to those services required by COBS 6.1.4 R, including information on communications, conflicts
of interest and authorised
(1) A firm must
establish a record that includes the document or documents agreed between
it and a client which set out
the rights and obligations of the parties, and the other terms on which it
will provide services to the client.(2) The record must be maintained for
at least whichever is the longer of:(a) 5 years; or(b) the duration of the relationship
with the client; or(c) in the case of a record relating
to a pension transfer, pension opt-out or FSAVC,
indefinitely. [Note:
When considering its approach to
client agreements, a firm should
be aware of other obligations in the Handbook which
may be relevant. These include the fair,
clear and not misleading rule and the rules on
disclosure of information to a client before
providing services and the rules on
distance communications (principally in COBS 2.2, 5, 6 and 13).