Related provisions for PERG 6.5.2
21 - 40 of 754 items.
In the3 case of a senior staff committee,3 the
decision will be taken by FCA3 staff who have not been directly involved in establishing the
evidence on which the decision is based
or by two or more FCA staff
who include a person not directly involved in establishing that evidence,3 except in accordance with section 395(3) of the Act.33
A senior
staff committee will consist of such FCA3 staff members as the FCA's3 senior executive committee may from time to time determine. The FCA's3 senior
executive committee may authorise the chairman of a senior
staff committee to select its other members. A senior staff committee is accountable for
its decisions to the FCA's3 senior executive committee and, through it, to the FCA3 Board.33333
A senior
staff committee may operate through standing or specific sub-committees
to consider particular decisions or classes of decision, for which accountability
will lie through the committee. Each meeting of a senior
staff committee, or sub-committee, will include:(1) an individual with authority to
act as its chairman; and(2) at least two other members.
Statutory
notice decisions to be taken under executive procedures and decisions referred
to in DEPP
2.5.6A G,3 and not falling within the responsibility of a senior
staff committee, will be taken by an individual FCA3 staff member. The decision will be:3(1) made by an executive director of
the FCA3 Board
or his delegate (who will be of at least the level of associate);3(2) on the recommendation of an FCA3 staff
member of at least the level of associate; and3(3) with the benefit
An FCA3 staff member who considers that a statutory
notice decision or
a decision referred to in DEPP
2.5.6A G3 should be taken above his own
level is free to refer that decision to a more senior level. If an FCA3 staff
member consults another staff member about a decision, the decision remains
the independent decision of the FCA3 staff member who consults his colleague, unless it is agreed
that the decision should instead be taken by the colleague, and the colleague
has the delegated
If an individual responsible for
a decision under executive procedures (or
a more senior FCA3 staff
member with responsibilities in relation to the decision concerned) considers
that it warrants collective consideration, the individual may:3(1) take the decision himself, following
consultation with other FCA3 staff members, as above; or3(2) refer it to a senior
staff committee, which will take the decision itself.
(1) FCA3staff
are required by their contract of employment to comply with a code of conduct
which imposes strict rules to cover the handling of conflicts of interest
which may arise from personal interests or associations. FCA3 staff subject to a conflict of interest must declare that interest
to the person to whom they are
immediately responsible for a decision.33(2) If a member of a senior
staff committee has a potential conflict of interest in any
matter in which he is asked
The procedure for taking decisions
under executive procedures will
generally be less formal and structured than that for decisions by the RDC. Broadly, however, FCA3 staff responsible for taking statutory
notice decisions under executive
procedures will follow a procedure similar to that described
at DEPP 3.2.7 G to DEPP 3.2.27 G for
the RDC except that:3(1) in a case where the decision will
be taken by a senior staff committee: (a) the chairman or deputy chairman
of the senior
3Broadly, FCA staff
responsible for taking decisions referred to in DEPP
2.5.6A G will follow
a procedure similar to that described at DEPP 3.2.7 G to DEPP 3.2.27 G for the RDC (subject to the exceptions in DEPP 4.1.13 G (1) to DEPP 4.1.13 G (5) which also reflects that these decisions
are not statutory notice decisions.
Schedule to the Recognition Requirements Regulations, paragraph 3
2(1) |
The [UK RIE] must ensure that the systems and controls used in the performance of its [relevant functions] are adequate, and appropriate for the scale and nature of its business. |
|
(2) |
Sub-paragraph (1) applies in particular to systems and controls concerning - |
|
(a) |
the transmission of information; |
|
(b) |
the assessment, mitigation and management of risks to the performance of the [UK RIE'srelevant functions]; |
|
(c) |
the effecting and monitoring of transactions on the [UK RIE]; |
|
(ca) |
the technical operation of the [UK RIE], including contingency arrangements for disruption to its facilities; |
|
(d) |
the operation of the arrangements mentioned in paragraph 4(2)(d); and |
|
(e) |
(where relevant) the safeguarding and administration of assets belonging to users of the [UK RIE's] facilities. |
|
In assessing whether the systems and controls used by a UK recognised body in the performance of its relevant functions are adequate and appropriate for the scale and nature of its business, the FCA3 may have regard to the UK recognised body's:3(1) arrangements for managing, controlling and carrying out its relevant functions, including: (a) the distribution of duties and responsibilities among its key individuals and the departments of the UK recognised body responsible for performing
The following paragraphs set out other matters to which the FCA3 may have regard in assessing the systems and controls used for the transmission of information, risk management, the effecting and monitoring of transactions, the operation of settlement arrangements (the matters covered in paragraph 4(2)(d) of the Schedule to the Recognition Requirements Regulations) and the safeguarding and administration of assets .33
In assessing a UK recognised body's systems and controls for the transmission of information, the FCA3 may also have regard to the extent to which these systems and controls ensure that information is transmitted promptly and accurately: 3(1) within the UK recognised body itself; (2) to members; and (3) (where appropriate) to other market participants or other relevant persons.
In assessing a UK RIE's systems and controls for the effecting and monitoring of transactions, and for the operation of settlement arrangements, the FCA3 may have regard to the totality of the arrangements and processes through which the UK RIE's transactions are effected, cleared,3 and settled, including:333(1) a UK RIE's arrangements under which orders are received and matched, its arrangements for trade and transaction reporting, and (if relevant) its arrangements with another
In assessing a UK recognised body's systems and controls for the safeguarding and administration of assets belonging to users of its facilities, the FCA3 may have regard to the totality of the arrangements and processes by which the UK recognised body: 3(1) records the assets held and the identity of the owners of (and other persons with relevant rights over) those assets; (2) records any instructions given in relation to those assets;(3) records the carrying out of those instructions;(4)
The FCA3 recognises that a UK RIE3 has legitimate interests of its own and that its general business policy may properly be influenced by other persons (such as its owners). Such a connection does not necessarily imply the existence of a conflict of interest nor is it necessary to exclude individuals closely connected with other persons (for example, those responsible for the stewardship of the owner's interests) from all decision-making processes in a UK recognised body. However,
The FCA3 may have regard to the arrangements a UK recognised body makes to structure itself and to allocate responsibility for decisions so that it can continue to take proper regulatory decisions notwithstanding any conflicts of interest, including:3(1) the size and composition of the governing body and relevant committees; (2) the roles and responsibilities of key individuals, especially where they also have responsibilities in other organisations; (3) the arrangements for transferring
The FCA3 may also have regard to the systems and controls intended to ensure that confidential information is only used for proper purposes. Where relevant, recognised bodies will have to comply with section 348 (Restrictions on disclosure of confidential information by the FCA3 etc.) and regulations made under section 349 (Exemptions from section 348) of the Act.33
The FCA3 may also have regard to the contracts of employment, staff rules, letters of appointment for members of the governing body, members of relevant committees and other key individuals and other guidance given to individuals on handling conflicts of interest. Guidance to individuals may need to cover:3(1) the need for prompt disclosure of a conflict of interest to enable others, who are not affected by the conflict, to assist in deciding how it should be managed;(2) the circumstances
A UK recognised body's arrangements for internal and external audit will be an important part of its systems and controls. In assessing the adequacy of these arrangements, the FCA3 may have regard to: 3(1) the size, composition and terms of reference of any audit committee of the UK recognised body'sgoverning body;(2) the frequency and scope of external audit; (3) the provision and scope of internal audit; (4) the staffing and resources of the UK recognised body's internal audit
Information technology is likely to be a major component of the systems and controls used by any UK recognised body. In assessing the adequacy of the information technology used by a UK recognised body to perform or support its relevant functions, the FCA3 may have regard to:3(1) the organisation, management and resources of the information technology department within the UK recognised body;(2) the arrangements for controlling and documenting the design, development, implementation
(1) If a member of the RDC has a potential conflict of interest in any matter in which he is asked to participate he will disclose the conflict to the RDC Office, and disclose it:(a) in the case of the Chairman of the RDC, to the Chairman or Deputy Chairman of the FCA1; or1(b) in the case of a Deputy Chairman of the RDC, to the Chairman of the RDC, or if he is unavailable to the Chairman or Deputy Chairman of the FCA1; or1(c) in the case of any other member, to the Chairman or
If the RDC considers it relevant to its consideration, it may ask FCA1 staff to explain or provide any or all of the following:1(1) additional information about the matter (which FCA1 staff may seek by further investigation); or1(2) further explanation of any aspect of the FCA1 staff recommendation or accompanying papers; or1(3) information about FCA1 priorities and policies (including as to the FCA's view on the law or on the correct legal interpretation of provisions of the
If the RDC decides that the FCA1 should give a warning noticeor a first supervisory notice:1(1) the RDC will settle the wording of the warning notice or first supervisory notice, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions;(3) the RDC staff will make appropriate arrangements for the notice to be given; and(4) the RDC staff will make appropriate arrangements for the disclosure
1If the RDC proposes that the FCA should publish information about the matter to which a warning notice falling within section 391(1ZB) of the Act relates:(1) the RDC will settle the wording of the statement it proposes the FCA should publish (warning notice statement);(2) the RDC staff will make appropriate arrangements for the warning notice statement it proposes the FCA should publish to be given to the persons to whom the warning notice was given or copied;(3) the proposed
1If the RDC decides that the FCA should publish a warning notice statement:(1) the RDC will notify the relevant parties (including the relevant FCA staff) in writing of that decision;2(2) the RDC will settle the wording of the warning notice statement; and(3) the FCA will make appropriate arrangements for the warning notice statement to be published.
(1) A warning notice or a first supervisory notice will (as required by the Act) specify the time allowed for making representations. This will not be less than 141 days.1(2) The FCA1 will also, when giving a warning notice or a first supervisory notice, specify a time within which the recipient is required to indicate whether he wishes to make oral representations.1
(1) The recipient of a warning notice or a first supervisory notice may request an extension of the time allowed for making representations. Such a request must normally be made within seven1days of the notice being given.1(2) If a request is made, the Chairman or a Deputy Chairman of the RDC will decide whether to allow an extension, and, if so, how much additional time is to be allowed for making representations. In reaching his decision he may take account of any relevant comments
(1) If the recipient of a warning notice or a first supervisory notice indicates that he wishes to make oral representations, the RDC staff, in conjunction with the Chairman or a Deputy Chairman of the RDC, will fix a date or dates for a meeting at which the relevant RDC members will receive those representations.(2) In making those arrangements the RDC staff will draw the Chairman's or Deputy Chairman's attention to any particular issues about the timing of the meeting which
The chairman of the relevant meeting will ensure that the meeting is conducted so as to enable:(1) the recipient of the warning notice or first supervisory notice to make representations;(2) the relevant FCA1 staff to respond to those representations;1(3) the RDC members to raise with those present any points or questions about the matter (whether in response to particular representations or more generally about the matter); and(4) the recipient of the notice to respond to points
If the RDC decides that the FCA1 should give a decision notice or a second supervisory notice:1(1) the RDC will settle the wording of the notice which will include a brief summary of the key representations made and how they have been dealt with, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions, including whether the FCA1 is required to give a copy of the notice to a third
FCA1 staff responsible for recommending action to the RDC will continue to assess the appropriateness of the proposed action in the light of new information or representations they receive and any material change in the facts or circumstances relating to a particular matter. It may be therefore that they decide to give a notice of discontinuance to a person to whom a warning notice or decision notice has been given. The decision to give a notice of discontinuance does not require
The FCA considers the effect of each of the conditions in PERG 8.14.3G (1) to PERG 8.14.3G (3) to be as follows.(1) The first condition requires the financial promotion to be made, so ruling out any financial promotions which are directed at persons. The effect of article 6(b) and (e) of the Financial Promotion Order is that a communication is made to a person when it is addressed to him and that person to whom the financial promotion is addressed is its recipient. This means
In the FCA's opinion, the indicators referred to in PERG 8.14.4 G suggest that there are two essential elements of a one-off financial promotion. These are that it is tailored to the circumstances of the recipient and that it is individual in nature (in that it is not simply a personalised letter sent out as part of a general mailshot). Apart from this there is no need for the communication to be an isolated instance. For example, the fact that there may be a considerable number
In the FCA's view, a group of recipients who may be engaging in investment activity jointly could include:(1) a married couple;(2) two or more persons who will invest jointly in a product (for example, a cohabiting couple who are not married or members of a family);(3) the directors of a company or partners in a firm;(4) members of a group of companies;(5) the participants in a joint commercial enterprise;(6) the members of an investment club; and(7) the managers or prospective
A financial promotion may fail to satisfy all of the indicators referred to in PERG 8.14.4 G because it is addressed to more than one recipient and they are not persons who will engage in investment activity jointly. In the FCA's view, such a financial promotion is capable of being one-off where the persons are to enter into the same transaction and the promotion is tailored to their individual circumstances. This may typically happen during negotiations for the sale of a company
In the FCA's view, a person such as an investment manager or adviser is not conducting an organised marketing campaign purely because he regularly provides a particular client with financial promotions as part of his service. Neither is such a person conducting an organised marketing campaign purely because he may have several clients whose personal circumstances and objectives may suggest that a particular investment opportunity may attract them. If he considers the individual
In the FCA's view, a person will not be making one-off financial promotions simply by sending out a series of letters to a number of customers or potential customers where a few details are changed (such as the name and address) but the bulk of the letter is standard. Such letters would be likely to be part of an organised marketing campaign.
In the FCA's view, the article 28A exemption should provide scope for persons such as professional advisers to make unsolicited real time financial promotions in various situations. For example, when approaching persons with whom their clients are proposing to do business or those persons’ professional advisers. The exemption will not apply where the financial promotions are part of an organised marketing campaign (see PERG 8.14.4G (3)). So, in cases where a professional adviser
Whether or not it would be reasonable to believe that any person understands the risks associated with the investment activity covered in a financial promotion or would expect to be contacted about it must be judged on the particular circumstances. In the FCA's opinion, the exemption requires that the recipient has the required understanding of risk at the time the promotion is made to him. However, it would be reasonable to believe that a person understands the risk involved
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
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
A person seeking to make a financial promotion to another person may wish to make enquiries of that person to establish whether he is certified. Unless another exemption applies or the financial promotion is approved by an authorised person, such enquiries will not be possible if the enquiry communication is an inducement or invitation to engage in investment activity. In the FCA's8 view, a communication which is merely an enquiry seeking to establish that a person holds a current
Article 49(4) gives the list of conditions which, if all are met, is proof that the financial promotion is directed at relevant persons. It is not necessary for all or any of the conditions to be met for a financial promotion to be regarded as directed at relevant persons. Ultimately the matter will be one of fact to be determined by taking account of the circumstances in which the financial promotion is made. In the FCA's opinion, it is not necessary for a financial promotion,
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 also requires that certain warnings are given to the potential investor. In this respect, article 50(3)(d) provides that the financial promotion must state that there is a significant risk of losing all monies invested or of incurring additional liability. In the FCA's view, these are alternative statements and whichever is the relevant statement should be included. If there is no risk of incurring additional liability the statement may simply say that there is a
In the FCA's view, a main aim of the exemption (see PERG 8.14.35G (1)) is to remove from the scope of section 21 a financial promotion concerning the sale of a corporate business by a person who, either alone or with others, controls the business to another person who, either alone or with others, proposes to control the business.
In the FCA's17 opinion, provided that the purpose of the transaction is for the buyer to acquire the necessary control, it is irrelevant who is the seller. The exemption specifically applies to financial promotions which are communicated on behalf of the parties or potential parties to the transaction.1717
Several exemptions, including article 43 of the Financial Promotion Order (Members and creditors of certain bodies corporate), apply only in relation to relevant investments being shares or debentures or alternative debentures7 in the body corporate or a member of its group, or warrants or certificates representing certain securities relating to such shares or debentures or alternative debentures.7 In the FCA's view, an exchangeable debt security which is partly a debenture or
The exemptions for bearer instruments (articles 41 and 42 of the Financial Promotion Order) relate to financial promotions made to or directed at persons entitled to bearer instruments. For clarity, the FCA takes the view that persons who hold bearer instruments through a clearing system such as Euroclear or Clearstream are persons entitled to those instruments for the purposes of articles 41 and 42.
(1) 11If a UKfirm has exercised an EEA right under AIFMD and established a branch in another EEA State, the UKfirm must not make a material change in the requisite details of the branch or the identity of the AIFs it manages in the EEA State in which it has established a branch (see SUP 13 Annex 1), unless: (a) it has complied with regulation 17A(4) for a planned change; or(b) it has complied with regulation 17A(5) for a unplanned change.(2) The requirements in regulation 17A(4)
17Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give consent to a change (or proposed change) and where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give consent in relation to a UK firm whose immediate group includes a PRA-authorised person.
7When the appropriate UK regulator17 receives a notice from a UK MiFID investment firm (see SUP 13.6.5BG (1)), it is required by regulation 11A(3) to inform the relevant Host State regulator of the proposed change as soon as reasonably practicable. The firm in question may make the change once the period of one month beginning with the day on which it gave notice has elapsed.17
(1) 11When the FCA receives a notice from an AIFM (see SUP 13.6.9C G) for a planned change and such change means the AIFM no longer complies with AIFMD, the FCA must inform the AIFM without undue delay that:(a) the FCA objects to the change, including reasons for its decision; and(b) the AIFM must not implement the change.In these circumstances the AIFM may refer the matter to the Tribunal.(2) If a planned change is implemented or an unplanned change takes place and results in
Data may be deemed insufficient if, for example, it contains missing data points, or data points which contain stale data. With regard to less liquid risk factors or positions, the FCA expects the firm to make a conservative assessment of those risks, using a combination of prudent valuation techniques and alternative VaR estimation techniques to ensure there is a sufficient cushion against risk over the close-out period, which takes account of the illiquidity of the risk factor
(1) In determining whether it is appropriate for a firm to use empirical correlations within risk categories and across risk categories within a model, the FCA expects certain features to be observed in assessing whether such an approach is sound and implemented with integrity. In general, the FCA expects a firm to determine the aggregate VaR measure by adding the relevant VaR measure for each category, unless the firm's permission provides for a different method of aggregating
Any overshooting initially counts for the purpose of the calculation of the plus factor, even if subsequently the FCA agrees to exclude it. Thus, where the firm experiences an overshooting and already has four or more overshootings for the previous 250 business days, changes to the multiplication factor arising from changes to the plus factor become effective at day n+3.
The FCA, will review as part of a firm's VaR model permission application, the processes and documentation relating to the derivation of profit and loss used for back-testing. A firm's documentation should clearly set out the basis for cleaning profit and loss. To the extent that certain profit and loss elements are not updated every day (for example, certain reserve calculations) the documentation should clearly set out how such elements are included in the profit and loss s
In accordance with article 363(3) of the EU CRR (Permission to use internal models), the FCA expects a firm to provide and discuss with us details of any significant planned changes to the VaR model before those changes are implemented. These details must include detailed information about the nature of the change, including an estimate of the impact on VaR numbers and the incremental risk charge.
The use of overlapping intervals of 10-day holding periods for article 365 of the EU CRR (VaR and stressed VaR calculation) introduces an autocorrelation into the data that would not exist should truly independent 10-day periods be used. This may give rise to an under-estimation of the volatility and the VaR at the 99% confidence level. To obtain clarity on the materiality of the bias, a firm should measure the bias arising from the use of overlapping intervals for 10-day VaR
Article 365 of the EU CRR requires a firm that uses an internal model for calculating its own funds requirement to calculate, at least weekly, a stressed VaR (sVaR) of their current portfolio. When the FCA considers a firm's application to use a sVaR internal model it would expect the features in IFPRU 6.3.20 G to IFPRU 6.3.24 G to be present prior to permission being granted, as indicative that the conditions for granting permission have been met.
The firm should calculate the sVaR measure to be greater than or equal to the average of the 2nd and 3rd worst loss in a 12-month time series comprising of 250 observations. The FCA expects, as a minimum, that a corresponding linear weighting scheme should be applied if the firm uses a larger number of observations.
Article 372 of the EU CRR (Requirement to have an internal IRC model) requires a firm that use an internal model for calculating own funds requirements for specific risk of traded debt instruments to also have an internal incremental default and migration risk (IRC) model in place to capture the default and migration risk of its trading book positions that are incremental to the risks captured by its VaR model. When the FCA considers a firm's application to use an IRC internal
The FCA expects the IRC model to capitalise pre-default basis risk. In this respect, the model should reflect that in periods of stress the basis could widen substantially. The firm should disclose to the FCA its material basis risks that are incremental to those already captured in existing market risk capital measures (VaR-based and others). This must take actual close-out periods during periods of illiquidity into account.
To achieve a soundness standard comparable to those under the IRB approach, LGD estimates should reflect the economic cycle. Therefore, the FCA expects a firm to incorporate dependence of the recovery rate on the economic cycle into the IRC model. Should the firm use a conservative parameterisation to comply with the IRB standard of the use of downturn estimates, evidence of this should be submitted in quarterly reporting to the FCA, bearing in mind that for trading portfolios,
The appropriate regulator uses various methods of information gathering on its own initiative which require the cooperation of firms:55(1) Visits may be made by representatives or appointees of the appropriate regulator. These visits may be made on a regular basis, on a sample basis, for special purposes such as theme visits (looking at a particular issue across a range of firms), or when the appropriate regulator has a particular reason for visiting a firm. Appointees of the
The appropriate regulator expects to request meetings or access to business premises during reasonable business hours. The appropriate regulator also normally expects to be able to give reasonable notice to a firm or connected person when it seeks information, documents, meetings or access to business premises. On rare occasions, however, the appropriate regulator may seek access to premises without notice. The prospect of unannounced visits is intended to encourage firms to
In complying with Principle 11, the appropriate regulator considers that a firm should, in relation to the discharge by the appropriate regulator of its functions under the Act:(1) make itself readily available for meetings with representatives or appointees of the appropriate regulator as reasonably requested;(2) give representatives or appointees of the appropriate regulator reasonable access to any records, files, tapes or computer systems, which are within the firm's possession
In complying with Principle 11, the appropriate regulator considers that a firm should take reasonable steps to ensure that the following persons act in the manner set out in SUP 2.3.3 G: (1) its employees, agents and appointed representatives; and(2) any other members of its group, and their employees and agents.(See also, in respect of appointed representatives, SUP 12.5.3 G (2)).
(1) A firm must permit representatives of the appropriate regulator, or persons appointed for the purpose by the appropriate regulator, to have access, with or without notice, during reasonable business hours to any of its business premises in relation to the discharge of the appropriate regulator's functions under the Act or its obligations under the short selling regulation3.(2) A firm must take reasonable steps to ensure that its agents, suppliers under material outsourcing
The cooperation that a firm is expected to procure from such suppliers is similar to that expected of the firm, in the light of the guidance in SUP 2.3.3 G to SUP 2.3.4 G, but does not extend to matters outside the scope of the appropriate regulator's functions in relation to the firm. SUP 2.3.5 R (2) also requires a firm to take reasonable steps regarding access to the premises of such suppliers.
When a firm appoints or renews the appointment of a supplier under a material outsourcing arrangement, it should satisfy itself that the terms of its contract with the supplier require the supplier to give the appropriate regulator7 access to its premises as described in SUP 2.3.5 R (2), and to cooperate with the appropriate regulator7 as described in SUP 2.3.7 R. The appropriate regulator7 does not consider that the 'reasonable steps' in SUP 2.3.7 R would require a firm to
The appropriate regulator may ask a firm to provide it with information at the request of or on behalf of other regulators to enable them to discharge their functions properly. Those regulators may include overseas regulators or the Takeover Panel. The appropriate regulator may also, without notifying a firm, pass on to those regulators information which it already has in its possession. The appropriate regulator's disclosure of information to other regulators is subject to
7In complying with Principle 11, the FCA considers that a firm should cooperate with it in providing information for other regulators. Sections 169 (Investigations etc. in support of overseas regulator) of the Act gives the FCA certain statutory powers to obtain information and appoint investigators for overseas regulators if required (see DEPP 7 and EG 3).
Section 395 of the Act (The FCA's and PRA's procedures) requires the FCA2 to
publish a statement of its procedure for the giving of statutory
notices. The procedure must be designed to secure, among other
things, that the decision which gives rise to the obligation to give a statutory notice is taken by a person not
directly involved in establishing the evidence on which that decision is based or by two or more persons who include
a person not directly involved in establishing
Table: Summary of statutory and related notices
Notice |
Description |
Act reference |
Further information |
Gives the recipient details about action that the FCA2 proposes to take and about the right to make representations. 2 |
Section 387 |
||
Gives the recipient details about action that the FCA2 has decided to take. The FCA2 may also give a further decision notice if the recipient of the original decision notice consents. 22 |
Section 388 |
||
Identifies proceedings set out in a warning notice or decision notice and which are not being taken or are being discontinued. |
Section 389 |
||
Sets out the terms of the action that the FCA2 is taking. 2 |
Section 390 |
||
Gives the recipient details about action that the FCA2 has taken or proposes to take, for example to vary a Part 4A permission.2 22 |
Section 395(13) |
2Section 395 of the Act also
requires the FCA to publish
a statement of its procedure for decisions which gives rise to an obligation
for the PRA to include a statement
under section 387(1A) in a warning notice or
a statement under section 388(1A) in a decision
notice as follows:(1) Section 387(1A) provides that where
the FCA proposes to refuse
consent for the purposes of section 55F, 55I or 59 of the Act,
or to give conditional consent as mentioned in section 55F(5) or 55I(8),
2Where an application for Part
4A permission is made to the PRA as
the appropriate regulator (section 55A(2)(a) of the Act),
the PRA may only give permission
with the consent of the FCA (section
55F of the Act). FCA consent can be conditional on the PRA imposing limitations or specifying the
permission is for certain regulated activities only.
2Where an application to vary a Part
4A permission is made to the PRA as
the appropriate regulator (section 55A(2)(a) of the Act),
the PRA may only give permission
with the consent of the FCA (section
55I of the Act). The FCA may withhold its consent to a proposed
variation if it appears to it that it is desirable to do so in order to advance
one or more of its operational objectives. FCA consent
can be conditional on the PRA imposing
limitations, or the PRA specifying
the permission
Decisions on whether to give a statutory notice will be taken by a 'decision
maker'. The FCA's2 assessment
of who is the appropriate decision maker is subject to the requirements of
section 395 of the Act and will
depend upon the nature of the decision, including its complexity, importance
and urgency. References to the 'decision maker' in DEPP are
to:2(1) the Regulatory
Decisions Committee (RDC);
or(2) FCA2 staff
under executive procedures;
or2(3) FCA2 staff
under the settlement
The decision maker will also take
decisions associated with a statutory notice (a
'statutory notice associated decision'). Statutory notice associated decisions include
decisions:(1) to set or extend the period for
making representations;(2) on whether the FCA2 is required to give a copy of
the statutory notice to any
third party and, if so, the period for the third party to make representations;
and2(3) on whether to refuse access to FCA2 material,
relevant to the relevant statutory
DEPP 2 to DEPP 5 set out:(1) which decisions require the giving
of statutory notices and who takes them (DEPP 2);(2) the nature and procedures of the RDC (DEPP 3);(3) the procedure for decision making
by FCA2 staff
under executive procedures (DEPP 4);2(4) the procedure for decision making
by FCA2 staff
under the settlement decision procedure (DEPP 5).2
The power in regulation 5A of the RAP Regulations to impose a civil penalty
or publish a statement adds to the FCA's2 other supervisory powers in relation to RAPs (see REC 4) and
its power to impose penalties on an RAP under
the Money Laundering Regulations.
The FCA2 will
use this power under the RAP Regulations where
it is appropriate to do so and with regard to the relevant factors listed
in DEPP 6.2.1 G.
In deciding between a civil penalty or a public statement, the FCA2 will
The FCA2 will notify the subject of the investigation that it has appointed
officers to carry out an investigation under either or both the RAP Regulations or the Money
Laundering Regulations and the reasons for the appointment,
unless notification is likely to prejudice the investigation or otherwise
result in it being frustrated. The FCA2 expects to carry out a scoping visit early on in the enforcement
process in most cases.22
The FCA2 will also have regard to whether the person followed any of the FCA's2 guidance
and will not take action under regulation 5A where there are reasonable grounds
for it to be satisfied that the person took all reasonable steps and exercised
all due diligence to ensure that the requirement was complied with.22
When the FCA2 proposes or decides to take action against an RAP in
exercise of its power in regulation 5A of the RAP
Regulations, it must give the RAP a warning notice or a decision
notice respectively. Those notices must state the amount of
the penalty or set out the terms of the statement, as applicable. On receiving
a warning notice, the RAP has a right to make representations
on the FCA's2 proposed
decision.22
Where the FCA2 is proposing or deciding to publish a statement censuring an RAP or impose a penalty on the RAP under regulation 5A of the RAP Regulations, the FCA's2 decision maker will be the RDC.
This is to ensure that the FCA's2 power to censure or impose a penalty on an RAP has
the same layer of separation in the decision making process, and is exercised
consistently with, similar penalty and censure powers of the FCA2 under other legislation. The RDC will
make its decisions
Method of submission of reports (see SUP 16.3.8 R)
Method of delivery |
|
1. |
Post to the published address of the FCA49 for postal submission of reports 49 |
2. |
Leaving the report marked for the attention of "Central Reporting"22 at the published address of the FCA49 for hand delivery of reports and obtaining a dated receipt 49 |
3. |
Electronic mail or fax to the published e-mail address or fax number of the FCA's49 Central Reporting team.22 2249 |
4.22 |
Online submission via the appropriate systems accessible from the22appropriate regulator's49 website 49822 |
8
- (1)
The current published address of the FCA49 for postal submission of reports is:
49Central Reporting22
The Financial Conduct49 Authority
49PO BOX 35747
London E14 5WP
- (2)
The current published address of the FCA49 for hand delivery of reports is:
49- (a)
Central Reporting22
The Financial Conduct49Authority
4925 The North Colonnade
Canary Wharf
London E14 5HS
if the firm's usual supervisory contact at the appropriate regulator49 is based in London, or:
49 - (b)
The Financial Conduct49Authority
49Quayside House
127 Fountainbridge
Edinburgh EH3 8DJ
if the firm's usual supervisory contact at the FCA49 is based in Edinburgh.2
49
- (a)
- (3)
22The current published email address and fax number for the FCA's49 Central Reporting team is regulatory.reports@fca.org.uk49 and 020 7066 3905. The Central Reporting team does not handle general correspondence between firms and the appropriate regulator49. Accordingly, firms should not make submissions to the Central Reporting team's email address or fax number other than as directed in SUP 16.3.8 R.
4949
(1) A firm must submit a report required by this chapter in the frequency, and so as to be received by the appropriate regulator49 no later than the due date, specified for that report.49(2) If the due date for submission of a report required by this chapter falls on a day which is not a business day, the report must be submitted so as to be received by the appropriate regulator49 no later than the first business day after the due date. 49(3) If the due date for submission of
9Failure to submit a report in accordance with the rules in, or referred to in,12 this chapter or the provisions of relevant legislation12 may also lead to the imposition of a financial penalty and other disciplinary sanctions. A firm may be subject to reporting requirements under relevant legislation other than the Act, not referred to in this chapter. An example of this is reporting to the appropriate regulator49 by building societies under those parts of the Building Societies
The firm is responsible for ensuring delivery of the required report at the by the due date. If a report is received by the appropriate regulator49after the due date and the firm believes its delivery arrangements were adequate, it may be required to provide proof of those arrangements. Examples of such proof would be:4949(1) "proof of posting" receipts from a UK post office or overseas equivalent which demonstrates that the report was posted early enough to allow delivery by
(1) A firm must notify the appropriate regulator49if it changes its accounting reference date.49(2) When a firm extends its accounting period, it must make the notification in (1) before the previous accounting reference date.(3) When a firm shortens its accounting period, it must make the notification in (1) before the new accounting reference date.4(4) SUP 16.10.4A R to SUP 16.10.4C G (Requirement to check the accuracy of standing data and to report changes to the appropriate
SUP 16.2.1 G emphasises the importance to the appropriate regulator49 of timely and accurate information. The extension of a firm's accounting period to more than 15 months may hinder the timely provision of relevant and important information to the appropriate regulator49. This is because many due dates for reporting to the appropriate regulator49 are linked to firms'accounting reference dates. Indeed, for some categories of firm, the only reports required by the appropriate
When the appropriate regulator49 receives a report which contains confidential information and whose submission is required under this chapter, it is obliged under Part 2349of the Act (Public Record, Disclosure of Information and Co-operation) to treat that information as confidential. (See SUP 2.2.4 G for the FCA and SUP 2.2.4A G for the PRA49) 4949
SUP 2.3.12A G and SUP 2.3.12B G state that the appropriate regulator49 may pass to other regulators information which it has in its possession. Such information includes information contained in reports submitted under this chapter. The appropriate regulator's49 disclosure of information to other regulators is subject to SUP 2.2.4 G or SUP 2.2.4A G49 (Confidentiality of information).4949
The appointment of a skilled person to produce a report under section 166 of the Act (Reports by skilled persons) is one of the appropriate regulator's6 regulatory tools. The tool may be used:6(1) for diagnostic purposes, to identify, assess and measure risks; (2) for monitoring purposes, to track the development of identified risks, wherever these arise;(3) in the context of preventative action, to limit or reduce identified risks and so prevent them from crystallising or increasing;
The decision by the appropriate regulator6 to require a report by a skilled person under section 166 of the Act (Reports by skilled persons) 6will normally be prompted by a specific requirement for information, analysis of information, assessment of a situation,4 expert advice or recommendations or by a decision to seek assurance in relation to a regulatory return4. It may4 be part of the risk mitigation programme applicable to a firm, or the result of an event or development
6The decision by the appropriate regulator to require the collection or updating of information by a skilled person under section 166A of the Act (Appointment of skilled person to collect and update information) will be prompted where the appropriate regulator considers there has been a breach of a requirement by a firm to collect, and keep up to date, information of a description specified in the appropriate regulator'srules.
When making the decision to require a report by a skilled person under section 166 (Reports by skilled persons) or the collection or updating of information by a skilled person under section 166A (Appointment of skilled person to collect and update information) of the Act, the appropriate regulator6 will have regard, on a case-by-case basis, to all relevant factors. Those are likely to include:6(1) circumstances relating to the firm;(2) alternative tools available, including other
The appropriate regulator6 will have regard to circumstances relating to the firm, for example:6(1) attitude of the firm: whether the firm is being cooperative;(2) history of similar issues: whether similar issues have arisen in the past and, if so, whether timely corrective action was taken;(3) quality of a firm's systems and records: whether the appropriate regulator6 has confidence that the firm has the ability to provide the required information;6(4) objectivity: whether
The appropriate regulator6 will have regard to alternative tools that may be available, including for example:6(1) obtaining what is required without using specific statutory powers (for example, by a visit bystaff of the appropriate regulator6or a request for information on an informal basis); 6(2) requiring information from firms and others, including authorising an agent to require information, under section 165 of the Act (Power6 to require information);6(3) appointing investigators
The appropriate regulator6 will have regard to legal and procedural considerations including:6(1) statutory powers: whether one of the other available statutory powers is more appropriate for the purpose than the power in section 166 (Reports by skilled persons) or section 166A (Appointment of skilled person to collect and update information) of the Act;66(2) subsequent proceedings: whether it is desirable to obtain an authoritative and independent report for use in any subsequent
The appropriate regulator6 will have regard to the objectives of its enquiries, and the relative effectiveness of its available powers to achieve those objectives. For example:6(1) historic information or evidence: if the objectives are limited to gathering historic information, or evidence for determining whether enforcement action may be appropriate, the appropriate regulator's information gathering and investigation powers under sections 165 (Power to require information),
In accordance with its general policy the appropriate regulator6 will have regard to the question of cost, which is particularly pertinent in relation to skilled persons because:6(1) if the appropriate regulator6 uses the section 166 power (Reports by skilled persons) or the section 166A power (Appointment of skilled person to collect and update information), either 6the firm will appoint, and will have to pay for the services of, the skilled person, or the appropriate regulator
In having regard to the cost implications of using the section 166 power (Reports by skilled persons) or the section 166A power (Appointment of skilled person to collect and update information) 6alternative options (such as visits) or other powers, the appropriate regulator6will take into account relevant factors, including:6(1) whether the firm may derive some benefit from the work carried out and recommendations made by the skilled person, for instance a better understanding
The appropriate regulator6 will have regard to appropriate regulator6-related considerations including:66(1) appropriate regulator6expertise: whether the appropriate regulator6has the necessary expertise; and66(2) appropriate regulator6resources: whether the resources required to produce a report or to make enquiries or to appoint a skilled person itself6 are available within the appropriate regulator6, or whether the exercise will be the best use of the appropriate regulator's6
The issuer must send to the FCA annual written confirmation of compliance with Regulations 16 (sums derived from the issue of regulated covered bonds) and 17 (general requirements on the issuer in relation to the asset pool) of the RCB Regulations in the form set out in RCB 3 Annex 1D (annual confirmation of compliance).
1Where possible, the director or senior manager who signs the annual confirmation should be the same director or senior manager who has verified the application for registration under RCB 2.2.6 D. If the director or senior manager is different to the director or senior manager who verified the application for registration, the issuer should notify the FCA at least one month before sending the confirmation to the FCA.
(1) The owner must ensure that a duly authorised representative signs the confirmation and confirms on the FCA's form that the owner has obtained the appropriate third party advice or reports required by this section.(2) The owner must obtain appropriate advice in the same manner as set out in RCB 3.2.2 D and must provide a copy of the asset pool monitor's report to the FCA as set out in RCB 3.2.4B D.1
1The FCA expects the inspection by the asset pool monitor of the compliance of the issuer or owner (as the case may be) with the relevant requirements in the RCB Regulations to address at least the matters to be checked and due diligence procedures set out in RCB 2.3.18 G. The FCA expects that the inspection will be conducted on an agreed-upon-procedures basis.
1As required under Regulation 17A of the RCB Regulations, if it appears to the asset pool monitor that the issuer or owner (as the case may be) has failed to comply with the requirements set out in Regulations 17 or 24 of the RCB Regulations, or has not provided all relevant information or explanations, the asset pool monitor must report that to the FCA in writing as soon as possible.
Where the appropriate regulator requires a report by a skilled person under section 166 of the Act (Reports by skilled persons), the appropriate regulator2 will send a notice in writing requiring the person in SUP 5.2.1 G to provide a report by a skilled person, or notifying the person in SUP 5.2.1 G in writing of the appropriate regulator's appointment of a skilled person to provide a report,2 on any matter if it is reasonably required in connection with the exercise of its functions
2Where the appropriate regulator requires the updating or collection of information by a skilled person under section 166A of the Act (Appointment of skilled person to collect and update information), the appropriate regulator will send a notice in writing requiring the firm to appoint a skilled person, or notifying the firm of the appropriate regulator's appointment of a skilled person, to collect or update the relevant information.
As part of the decision making process the appropriate regulator2 will normally contact the person in SUP 5.2.1 G or in SUP 5.2.2 G2 to discuss its needs before finalising its decision to require a report or the updating or collection of information by a skilled person. This will provide an opportunity for discussion about the appointment, whether an alternative means of obtaining the information would be better, what the scope of a report should be, who should be appointed,
The appropriate regulator2 will give written notification to the person in SUP 5.2.1 G or SUP 5.2.2 G2 of the purpose of the report or collection or updating of information,2 its scope, the timetable for completion and any other relevant matters. The appropriate regulator2 will state the matters which the report is to contain, or the information which is to be collected or updated,2 as well as any requirements as to the report's format. For example, a report on controls may
The written notification in SUP 5.4.3 G may be preceded or followed by a discussion of the appropriate regulator's2 requirements and the reasons for them. This may involve the appropriate regulator,2 the person in SUP 5.2.1 G or in SUP 5.2.2 G2 and the person who has been, or is expected to be, appointed as the skilled person. The appropriate regulator2 recognises that there will normally be value in holding discussions involving the skilled person at this stage. These discussions
A skilled person must appear to the appropriate regulator2 to have the skills necessary to make a report on the matter concerned or collect or update the relevant information.2 A skilled person may be an accountant, lawyer, compliance consultant,2actuary or person with relevant business, technical or technological skills.2
When considering whether to nominate, approve or appoint a skilled person to make a report or collect or update information, the appropriate regulator will have regard to the circumstances of the case, including whether the proposed skilled person appears to have:22(1) the skills necessary to make a report on the matter concerned or collect or update the relevant information;2(2) the ability to complete the report or collect or update the information within the time expected by
In appropriate circumstances, it may be cost effective for the appropriate regulator2 to nominate or approve the appointment of, or appoint itself,2 a skilled person who has previously acted for, or advised, the person in SUP 5.2.1 G or SUP 5.2.2 G.2 For example, the appropriate regulator2 may nominate or approve the appointment of, or appoint,2 the auditor of a person in SUP 5.2.1 G or SUP 5.2.2 G2 to prepare a report or collect or update the information2 taking into account,
Where the skilled person is appointed by the person in SUP 5.2.1 G or SUP 5.2.2 G, the appropriate regulator2 will normally require the skilled person to be appointed to report to the appropriate regulator2 through that person. In the normal course of events the appropriate regulator2 expects that the person in SUP 5.2.1 G or SUP 5.2.2 G2 will be given the opportunity to provide written comments on the report or the collection of the relevant information prior to its submission
The appropriate regulator2 may enter into a dialogue with the skilled person, and is ready to discuss matters relevant to the report or the collection or updating of the relevant information2 with him, during the preparation of the report or the collection or updating of the relevant information.2 Such discussions may2 involve or be through the person in SUP 5.2.1 G or SUP 5.2.2 G.222
The appropriate regulator2 will normally specify a time limit within which it expects the skilled person to deliver the report or collect or update the relevant information. Where the skilled person is appointed by the person in SUP 5.2.1 G or SUP 5.2.2 G, the2skilled person should, in complying with its contractual duty under SUP 5.5.1 R, take reasonable steps to achieve delivery by that time. If the skilled person becomes aware that the report may not be delivered, or collection
LR 8.4.2 R to LR 8.4.4 G2 apply in relation to an application for admission of equity shares to premium listing65if an applicant does not have equity shares5already admitted to premium listing and LR 6.1.1 R does not apply because of the operation of LR 6.1.1A R,6and:2556(1) the production of a prospectus or equivalent document1is required; or(2) the application is accompanied by a certificate of approval from another competent authority; or(3) the application is accompanied by
A sponsor must not submit to the FCA an application on behalf of an applicant, in accordance with LR 3, unless it has come to a reasonable opinion, after having made due and careful enquiry, that:(1) the applicant has satisfied all requirements of the listing rules relevant to an application for admission to listing;(2) the applicant has satisfied all applicable requirements set out in the prospectus rules unless the home Member State of the applicant is not, or will not be, the
A sponsor must:(1) submit a completed Sponsor's Declaration on an Application for Listing to the FCA either:2(a) on the day the FCA is to consider the application for approval of the prospectus and prior to the time the prospectus is approved; or(b) at a time agreed with the FCA, if the FCA is not approving the prospectus or if it is determining whether a document is an equivalent document1;(2) submit a completed Shareholder Statement or Pricing Statement, as applicable, to the
A sponsor must not submit to the FCA an application on behalf of an applicant, in accordance with LR 3 (Listing applications), unless it has come to a reasonable opinion, after having made due and careful enquiry, that:(1) the applicant has satisfied all requirements of the listing rules relevant to an application for admission to listing;(2) the applicant has satisfied all applicable requirements set out in the prospectus rules unless the home Member State of the applicant is
A sponsor must:(1) submit a completed Sponsor's Declaration on an Application for Listing to the FCA either:(a) on the day the FCA is to consider the application for approval of the prospectus and prior to the time the prospectus is approved; or11(b) at a time agreed with the FCA if the FCA is not approving the prospectus or if it is determining whether a document is an equivalent document1;(2) submit a completed Shareholder Statement or Pricing Statement, as applicable, to the
LR 8.4.12 R to LR 8.4.13 R apply in relation to transactions involving an issuer with 5 a premium listing4 of equity shares5that:54(1) is required to produce a class 1 circular; or4(2) is producing a circular that proposes a reconstruction or a re-financing which does not constitute a class 1 transaction; or(3) is producing a circular for the proposed purchase of own shares;(a) which does not constitute a class 1 circular; and(b) is required by LR 13.7.1R (2) to include a working
A sponsor must not submit to the FCA, on behalf of a listed company, an application for approval ofa circular regarding a transaction set out in LR 8.4.11 R, unless the sponsor has come to a reasonable opinion, after having made due and careful enquiry, that:(1) the listed company has satisfied all requirements of the listing rules relevant to the production of a class 1 circular or other circular;(2) the transaction will not have an adverse impact on the listed company's ability
A sponsor acting on a transaction falling within LR 8.4.11 R must:(1) submit a completed Sponsor's Declaration for the Production of a Circular to the FCA on the day the circular is to be approved by the FCA and prior to the time the circular is approved;(2) submit a completed Pricing Statement, if applicable, to the FCA by 9 a.m on the day the FCA is to consider the application; and(3) ensure that all matters known to it which, in its reasonable opinion, should be taken into
In relation to a proposed transfer under LR 5.4A, if a sponsor is appointed6 in accordance with LR 8.2.1A R, it6 must:6(1) submit a letter to the FCA setting out how the issuer satisfies each listing rule requirement relevant to the category of listing to which it wishes to transfer, by no later than when the first draft of the circular or announcement required under LR 5.4A is submitted;(2) submit a completed Sponsor’s Declaration for a Transfer of Listing7 to the FCA for the
A sponsor must not submit to the FCA on behalf of an issuer a final circular or announcement for approval or a Sponsor’s Declaration for a Transfer of Listing7, unless it has come to a reasonable opinion, after having made due and careful enquiry, that:7(1) the issuer satisfies all eligibility requirements of the listing rules that are relevant to the new category to which it is seeking to transfer;(2) the issuer has satisfied all requirements relevant to the production of the
6A sponsor acting on a reverse takeover where the issuer decides to make a disclosure announcement under LR 5.6.15 G must:(1) submit to the FCA under LR 5.6.17 R a completed Sponsor’s Declaration for a Reverse Takeover Announcement7;(2) not submit to the FCA the Sponsor’s Declaration for a Reverse Takeover Announcement7 unless it has come to a reasonable opinion, after having made due and careful enquiry, that it is reasonable for the issuer to provide the declarations described
Article 20(6) of the EU CRR states that, where the IRB approach is used on a unified basis by those entities which fall within the scope of article 20(6) (EEA group), the FCA is required to permit certain IRB requirements to be met on a collective basis by members of that group. In particular, the FCA considers that, where a firm is reliant upon a rating system or data provided by another member of its group, it will not meet the condition that it is using the IRB approach on
Where a firm seeks to demonstrate to the FCA that the effect of its non-compliance with the requirements of Part Three, Title II Chapter 3 of the EU CRR (Internal ratings based approach) is immaterial under article 146(b) of the EU CRR (Measures to be taken where the requirements cease to be met), the FCA expects the firm to have taken into account all instances of non-compliance with the requirements of the IRB approach and to have demonstrated that the overall effect of non-compliance
(1) Where the firm's rating systems are used on a unified basis under article 20(6) of the EU CRR, the FCA considers that the governance requirements in article 189 of the EU CRR can only be met if the subsidiaries have delegated to the governing body or designated committee of the EEA parent institution, EEA parent financial holding company or EEA parent mixed financial holding company responsibility for approval of the firm's rating systems.(2) The FCA expects an appropriate
The FCA expects a firm seeking to apply the Standardised Approach on a permanent basis to certain exposures to have a well-documented policy explaining the basis on which exposures are to be selected for permanent exemption from the IRB approach. This policy should be provided to the FCA when the firm applies for permission to use the IRB approach and maintained thereafter. Where a firm also wishes to undertake sequential implementation, the FCA expects the firm's roll-out plan
(1) The FCA may permit the exemption of exposures to sovereigns and institutions under article 150(1)(a) and (b) of the EU CRR respectively only if the number of material counterparties is limited and it would be unduly burdensome to implement a rating system for such counterparties.(2) The FCA considers that the 'limited number of material counterparties' test is unlikely to be met if for the UK group total outstandings to 'higher risk' sovereigns and institutions exceed either
Where a firm wishes permanently to apply the Standardised Approach to certain business units on the grounds that they are non-significant and/or certain exposure classes or types of exposures on the grounds that they are immaterial in terms of size and perceived risk profile, the FCA expects to permit a firm to make use of this exemption only to the extent that the risk-weighted exposure amount calculated under article 92(3)(a) and (f) of the EU CRR that are based on the Standardised
The following points set out the level at which the FCA expects the 15% test to applied for a firm that is a member of a group:(1) if a firm is part of a group subject to consolidated supervision in the EEA and for which the FCA is the consolidating supervisor, the calculations in (1) are carried out with respect to the wider group;(2) if a firm is part of a group subject to consolidated supervision in the EEA and for which the FCA is not the consolidating supervisor the calculation
Where a firm wishes to permanently apply the Standardised Approach to exposures to connected counterparties in accordance with article 150(1)(e) of the EU CRR, the FCA would normally expect to grant permission to do so only if the firm had a policy that provided for the identification of connected counterparties exposures that would be permanently exempted from the IRB approach and also identified connected counterparty exposures (if any) that would not be permanently exempted
In the event that a firm with IRB permission acquires a significant new business, it should discuss with the FCA whether sequential roll-out of the firm's IRB approach to these exposures would be appropriate. In addition, the FCA would expect to review any existing time period and conditions for sequential roll-out and determine whether these remain appropriate (see article 148 of the EU CRR).
The FCA expects a firm to ensure that all documentation relating to its rating systems (including any documentation referenced in this chapter or required by the EU CRR that relate to the IRB approach) is stored, arranged and indexed in such a way that it could make them all, or any subset thereof, available to the FCA immediately on demand or within a short time thereafter.
The disaster recovery provider sets up and maintains a range of IT and related facilities (PABX etc). The disaster recovery contracts so far considered by the FCA give the recipient, subject to certain conditions including an up front payment, priority access to all or a specified part of these facilities if a 'disaster' causes the failure of a similar business system on which the recipient relies. The provider sells access to the same facilities to a number of different recipients,
However, the disaster recovery contracts considered by the FCA had two key features.(1) Priority access to facilities in the event of a disaster was expressed to be on a 'first come, first served' basis. The contracts provided expressly that if the facilities needed by recipient A were already in use, following an earlier invocation by recipient B, the provider's obligation to recipient A was reduced to no more than an obligation of 'best endeavours' to meet A's requirements.
An important part of the conclusion in PERG 6.7.5 G was that, although the provider assumed a risk at the outset of the contract, looking at the contract as a whole and interpreting the common law in the context of the FCA objectives (see PERG 6.5.2 G and PERG 6.5.3 G) there was no relevant assumption of risk.(1) The presence or absence of an assumption of risk is an important part of the statutory rationale for the prudential regulation of insurance.(2) In Medical Defence Union
The FCA is unlikely to classify a contract containing a simple manufacturer's or retailer's warranty as a contract of insurance, if the FCA is satisfied that the warranty does no more that crystallise or recognise obligations that are of the same nature as a seller's or supplier's usual obligations as regards the quality of the goods or services.
It follows from PERG 6.7.10 G that the FCA is unlikely to be satisfied that an obligation in a contract of sale or supply is of the same nature as the seller's or supplier's usual obligations as regards the quality of goods or services, if that obligation has one or more of the following features:(1) it is assumed by a person other than the seller or supplier (a 'third party'); or(2) it is significantly more extensive in content, scope or duration than a seller's usual obligations
Other things being equal, the FCA is likely to classify a contract of sale containing a warranty that has one or more of the features in PERG 6.7.11 G as a contract of insurance. The features in PERG 6.7.11 G (1) and (2) typically distinguish a 'third party' warranty and an 'extended warranty' from a 'simple' manufacturer's or retailer's warranty.
If a warranty is provided by a third party, the FCA will usually treat this as conclusive of the fact that there are different transactions and an assumption or transfer of risk. This conclusion would not usually depend on whether the provider is (or is not) a part of the same group of companies as the manufacturer or retailer. But it will be the third party (who assumes the risk) that is potentially effecting a contract of insurance.
A manufacturer or retailer may undertake a warranty obligation to his customer in a separate contract with the customer, distinct from the contract of sale or supply of goods or services. The FCA will examine the separate contract to see if it is a contract of insurance. But the mere existence of a separate warranty contract is unlikely to be conclusive by itself.
A manufacturer or retailer may undertake an obligation to ensure that the customer becomes a party to a separate contract of insurance in respect of the goods sold. This would include, for example, a contract for the sale of a freezer, with a simple warranty in relation to the quality of the freezer, but also providing insurance (underwritten by an insurer and in respect of which the customer is the policyholder) covering loss of frozen food if the freezer fails. The FCA is unlikely
The FCA distinguishes the contract in PERG 6.7.15 G from a contract under which the manufacturer or retailer assumes the obligation to provide the customer with an indemnity against loss or damage if the freezer fails, but takes out insurance to cover the cost of having to provide the indemnity to the customer. The obligation to indemnify is of a different nature from the seller's or supplier's usual obligations as regards the quality of goods or services and is an insurance obligation.
The following are examples of typical warranty schemes operated by motor dealers. Provided that, in each case, the FCA is satisfied that the obligations assumed by the dealer are not significantly more extensive in content, scope or duration that a dealer's usual obligations as to the quality of motor vehicles of that kind, the FCA would not usually classify the contracts embodying these transactions as contracts of insurance.(1) The dealer gives a verbal undertaking to the purchaser
Some providers argued that these schemes amount to nothing more than a 'manufacturer's warranty' of their own work, within the scope of PERG 6.7.7 G (Example 3: manufacturers' and retailers' warranties). However, HM Revenue and Customs is expected to make a significant number of random checks of self-assessment forms, irrespective of the quality of the work done by the provider. These random checks are also covered by the schemes. The FCA concluded, therefore, that these schemes
If, however, a contract of this kind were structured so that the recipient was charged at a commercial rate for any legal services in fact provided, the FCA's approach will be to treat the arrangement as non-insurance. This is principally because, by taking on obligations of this kind, the provider does not assume a relevant risk (see PERG 6.7.6 G). The position might be different if the solicitor carries the additional obligation to pay for alternative legal services to be provided
An applicant for recognised
body status needs to demonstrate to the FCA5 that it is able to meet the recognised body requirements31before a recognition
order can be made. Once it has been recognised, a recognised body has to comply with the recognised
body requirements31at all times. (Guidance on
the recognised
body requirements3 applicable to UK
recognised bodies (and applicants) is given in REC 2 and REC 2A).35333
In addition, under section 290A
of the Act (Refusal of recognition
on ground of excessive regulatory provision), the FCA5 must refuse to make a recognition
order in relation to a body applying for recognition as a UK RIE if it appears to the FCA5 that an existing or proposed regulatory
provision of the applicant in connection with the applicant's
business as an investment exchange or the provision by the applicant of clearing facilitation services5 imposes, or will impose, an
(1) There
is no standard application form. A prospective applicant should contact the
Markets Division at the FCA5 at an early stage for advice on the preparation, scheduling and
practical aspects of its application.5(2) It
is very important, if an application is to be processed smoothly and in a
reasonable time, that it is comprehensively prepared and based on a well-developed
and clear proposal.
An application should:(1) be
made in accordance with any directions the FCA5 may make under section 287 (Application by an investment exchange) of the Act or (for RAPs)
regulation 2 of the RAP regulations;353355(2) in
the case of an application under section5 287 of the Act, 3be accompanied by the applicant's regulatory
provisions and
in the case of an application under section 287 of the Act information
required pursuant to sub-sections 287(3)(c), (d) and (e) of the Act (see
Under section 289 of the Act (Applications: supplementary) or (for an RAP applicant)
regulation 2 of the RAP regulations,3 the FCA5 may
require the applicant to provide additional information, and may require the
applicant to verify any information in any manner. In view of their likely
importance for any application, the FCA5 will normally wish to arrange for its own inspection of an applicant's
information technology systems.55
1In
the case of an application to become a UK
RIE or an RAP3, under subsection 290(1B) of the Act and
(for an RAP applicant) regulation
2(8) of the RAP regulations3, the application must be determined by the FCA5 before the end of the period of six months beginning
with the date on which it receives the completed application.5
(1) The FCA5 will
keep the applicant informed of the progress of the application.5(2) It
may be necessary to ask the applicant to clarify or amplify some aspects of
its proposals. The FCA5 may wish to discuss various aspects of the application and may
invite the applicant to attend one or more meetings for that purpose. When
requested to do so, the FCA5 will explain the nature of the information which it has asked
an applicant to supply in connection with its application.55
Where the FCA5 considers that it is unlikely to make a recognition
order it will discuss its concerns with
the applicant as early as possible with a view to enabling the applicant to
make changes to its rules or guidance, or other parts of the application (see REC 5.2.7 G).
If the FCA5 decides
that it will not make a recognition order,
it will follow the procedure set out in section 298 of the Act (Directions
and revocation: procedure) or
(in the case of an RAP) regulation
5 of
Information and supporting documentation (see REC 5.2.4 G).
(1) |
Details of the applicant's constitution, structure and ownership, including its memorandum and articles of association (or similar or analogous documents ) and any agreements between the applicant, its owners or other persons relating to its constitution or governance (if not contained in the information listed in REC 5.2.3A G)1. An applicant for RAP status must provide details of the relationship between the governance arrangements in place for the UK RIE and the RAP.3 |
(2) |
Details of all business to be conducted by the applicant, whether or not a regulated activity (if not contained in the information listed in REC 5.2.3A G)1. |
(3) |
Details of the facilities which the applicant plans to operate, including details of the trading platform or (for an RAP) auction platform,3 settlement arrangements, clearing facilitation services5 and custody services which it plans to supply. An applicant for RAP status must provide details on the relationship between the auction platform and any secondary market in emissions auction products4 which it operates or plans to operate.3 54 |
(4) |
Copies of the last three annual reports and accounts and, for the current financial year, quarterly management accounts. |
(5) |
Details of its business plan for the first three years of operation as a UK recognised body (if not contained in the information listed in REC 5.2.3A G)1. |
(6) |
A full organisation chart and a list of the posts to be held by key individuals (with details of the duties and responsibilities) and the names of the persons proposed for these appointments when these names are available (if not contained in the information listed in REC 5.2.3A G)1. |
(7) |
Details of its auditors, bankers, solicitors and any persons providing corporate finance advice or similar services (such as reporting accountants) to the applicant. |
(8) |
Details of any relevant functions to be outsourced or delegated, with copies of relevant agreements. |
(9) |
Details of information technology systems and of arrangements for their supply, management, maintenance and upgrading, and security. |
(10) |
Details of all plans to minimise disruption to operation of its facilities in the event of the failure of its information technology systems. |
(11) |
Details of internal systems for financial control, arrangements for risk management and insurance arrangements to cover operational and other risks. |
(12) |
Details of its arrangements for managing any counterparty risks. 5 |
(13) |
Details of internal arrangements to safeguard confidential or privileged information and for handling conflicts of interest. |
(14) |
Details of arrangements for complying with the notification rules and other requirements to supply information to the FCA5. 5 |
(15) |
Details of the arrangements to be made for monitoring and enforcing compliance with its rules and with its clearing, settlement and default arrangements. |
(16) |
A summary of the legal due diligence carried out in relation to ascertaining the enforceability of its rules (including default rules) and the results and conclusions reached. 5 |
(17) |
Details of the procedures to be followed for declaring a member in default, and for taking action after that event to close out positions, protect the interests of other members and enforce its default rules. |
(18) |
Details of membership selection criteria, rules and procedures, including (for an RAP) details of how the rules of the UK RIE will change in order to reflect RAP status.3 |
(19) |
Details of arrangements for recording transactions effected by, or cleared through, its facilities. |
(20) |
Details of arrangements for detecting financial crime and market abuse , including arrangements for complying with money laundering law. |
(21) |
Details of criteria, rules and arrangements for selecting specified investments to be admitted to trading on (or cleared by) an RIE and, where relevant, details of how information regarding specified investments will be disseminated to users of its facilities. 5 |
(22) |
Details of arrangements for cooperating with the FCA5 and other appropriate authorities, including draft memoranda of understanding or letters. 5 |
(23) |
Details of the procedures and arrangements for making and amending rules, including arrangements for consulting on rule changes. |
(24) |
Details of disciplinary and appeal procedures, and of the arrangements for investigating complaints. |
73A firm which manages the assets of an occupational pension scheme must notify the FCA20 as soon as reasonably practicable if it receives any request or instruction from a trustee which it:20(1) knows; or(2) on substantial grounds:(a) suspects; or(b) has cause reasonably to suspect;is at material variance with the trustee's duties.1
(1) An insurer must notify the FCA20in respect of any firm (the "intermediary") as soon as reasonably practicable if:20(a) any amount of commission due from the intermediary to the insurer in accordance with an indemnity commission clawback arrangement remains outstanding for four months after the date when the insurer gave notice to the intermediary that the relevant premium had not been paid; or(b) any amount of commission due from the intermediary to the insurer as a result
(1) 467In accordance with article 3111of the Money Laundering Regulations, with effect from 15 December 200711, a firm is required to notify the FCA:20111120(a) before it begins or within 28 days of it beginning11; and(b) immediately11 after it ceases;11to operate a money service business or a trust or company service provider.1111(2) The notification referred to in (1) should be made in accordance with the requirements in SUP 15.7 (Form and method of notification)
467A firm which is already operating a money service business or a trust or company service provider11 as at 15 December 200711 is required by the Money Laundering Regulations to notify the FCA20 of that fact and should do so in the manner specified in SUP 15.8.4 G(2) before 15 January 200811.111120
(1) 9If a firm begins or ceases to hold itself out as acting as a CTF provider, it must notify the FCA20 as soon as reasonably practicable that it has done so.20(2) A firm that acts as a CTF provider must provide theFCA,20 as soon as reasonably practicable, with details of:20(a) any third party administrator that it engages;(b) details of whether it intends to offer HMRC allocated CTFs12; and12(c) whether it intends to provide its own stakeholder CTF account.
A firm should have regard to the urgency and significance of a matter and, if appropriate, should also notify its usual supervisory contact at the appropriate regulator7 by telephone or by other prompt means of communication, before submitting a written notification. Oral notifications should be given directly to the firm's usual supervisory contact at the appropriate regulator.7 An oral notification left with another person or left on a voicemail or other automatic messaging
The appropriate regulator7 is entitled to rely on any information it receives from a firm and to consider any notification received as being made by a person authorised by the firm to do so. A firm should therefore consider whether it needs to put procedures in place to ensure that only appropriate employees make notifications to the appropriate regulator7 on its behalf.77
Unless stated in the notification rule, or on the relevant form (if specified), a written notification required from a firm under any notification rule must be:2(1) given to or addressed for the attention of the firm's usual supervisory contact at the appropriate regulator;7 and7(2) delivered to the appropriate regulator7 by one of the methods in SUP 15.7.5A R or SUP 15.7.5B R as applicable:77
7Methods of notification
Method of delivery |
|
1. |
Post to the appropriate address in SUP 15.7.6A G |
2. |
Leaving the notification at the appropriate address in SUP 15.7.6A G and obtaining a time-stamped receipt |
3. |
Electronic mail to an address for the firm's usual supervisory contact at the FCA and obtaining an electronic confirmation of receipt |
4. |
Hand delivery to the firm's usual supervisory contact at the FCA |
5. |
Fax to a fax number for the firm's usual supervisory contact at the FCA and receiving a successful transmission report for all pages of the notification |
6. |
Online submission via the FCA's website at www.fca.org.uk. |
7The current published address of the FCA for postal submission or hand delivery of notifications is:
- (1)
The Financial Conduct Authority
25 The North Colonnade London
Canary Wharf
E14 5HS
if the firm's usual supervisory contact at the FCA is based in London, or
- (2)
The Financial Conduct Authority
Quayside House 127
Fountainbridge
Edinburgh EH3 8DJ
if the firm's usual supervisory contact at the FCA is based in Edinburgh.7
If the firm or its group is subject to lead supervision arrangements by the appropriate regulator,7 the firm or group may give or address a notice under SUP 15.7.4 R(1) to the supervisory contact at the appropriate regulator,7 designated as lead supervisor, if the firm has chosen to make use of the lead supervisor as a central point of contact (see SUP 1.5).77
If a firm is a member of a group which includes more than one firm, any one undertaking in the group may notify the appropriate regulator7 on behalf of all firms in the group to which the notification applies. In this way, that undertaking may satisfy the obligation of all relevant firms in the group to notify the appropriate regulator.7 Nevertheless, the obligation to make the notification remains the responsibility of the individual firm itself. See also SUP 15.7.3 G.77
If a notification rule requires notification within a specified period:(1) the firm must give the notification so as to be received by the appropriate regulator7no later than the end of that period; and 7(2) if the end of that period falls on a day which is not a business day, the notification must be given so as to be received by the appropriate regulator7 no later than the first business day after the end of that period. 7
The appropriate regulator7 has made arrangements with the Society of Lloyd's with respect to the monitoring of underwriting agents. Underwriting agents should check whether these arrangements provide for any notifications required under this chapter to be sent to the Society instead of to the appropriate regulator.7 [For further details see the appropriate regulator's7 website.]777
The Financial Services and Markets Act 2000 (Service of Notices) Regulations 2001 (SI 2001/1420) contain provisions relating to the service of documents on the appropriate regulator.7 They do not apply to notifications required under notification rules because of the specific rules in this section.7
The FCA expects that an IPRE rating system will only be compliant if a firm is able to demonstrate the following in respect of its treatment of cash flows (except where the firm can demonstrate that this is not an appropriate risk driver):(1) the difference in deal ratings when tenant ratings are altered is intuitive;(2) the transformation of ratings into non-rent payment probability is intuitive. Even where tenants are rated by the firm the PD will not usually represent a direct
The FCA expects that an IPRE rating system will only be compliant if a firm is able to demonstrate the following in respect of its treatment of interest-rate risk (IRR):(1) IRR is included as a relevant risk driver (unless the portfolio is exclusively hedged);(2) the way in which IRR is included in the deal rating is intuitive with respect to model philosophy. For example, a 'point in time' rating should consider the current interest rate and likely change over a one-year time
The FCA expects that firms will not be compliant with the calibration requirements relating to use of a long-run default rate, unless it can demonstrate that:(1) the internal data series is the longest relevant and accurate data series, on a EU CRR compliant definition of default, that is available;(2) the determination of long-run default rate includes reference to an appropriate source of downturn data (this may require the use of external data);(3) the relevance of any external
The FCA expects that a firm will only be compliant with the calibration requirements relating to model philosophy if it can demonstrate that:(1) the model philosophy is clearly articulated and justified. Justification should include analysis of the performance of assets, and the corresponding ratings assigned, over a change in economic conditions (ie, as long as period as possible); and(2) in addition to encapsulating this information in a coherent way in the calibration, the
The FCA considers that, to meet the requirements referred to in IFPRU 4.11.1 G, it will be necessary for firms to demonstrate that a firm has a good understanding of PD models that are constructed theoretically and that the parameter estimates reflect a one-year PD. In addition, even if empirical data were not used to determine the PD estimate it should, where available, be used to back-test the estimates.
The FCA expects that, as most models of this type will be able to produce one-year estimates of PD that correspond closely to point-in-time estimates, firms should conduct robust back-testing of such estimates by comparing them with realised default rates. Firms would need to demonstrate that the results of such back-testing meet pre-defined and stringent standards in order for the FCA to be satisfied that the IRB requirements are met.
Because assumptions in the model build process are likely to materially impact the resulting PDs, the FCA would expect these choices to be clearly justified in the model documentation and to have been independently reviewed. To be satisfied that a firm is complying with article 176(1)(d) of the EU CRR, the FCA expects a firm to support justification for all assumptions with analysis of the sensitivity of the model outputs to changes in the assumptions.
The FCA expects that a firm will not be compliant with the validation requirements unlessit can demonstrate, in respect of discriminatory power, that:(1) appropriate minimum standards that the rating system is expected to reach are defined, together with reasoning behind the adoption of such standards and that the factors considered when determining the tests are clearly documented;(2) an objective rank-ordering metric, measured using an appropriate time horizon (eg, using ratings
The FCA expects that a firm will not be compliant with the validation requirements unlessit can demonstrate in respect of the calibration that:(1) observed default rate versus PD is considered at grade level and across a range of economic environments (ie, as long as period as possible);(2) where the PD does not relate to a pure point-in-time estimate, either the PD or the observed default rate is transformed such that comparison between the two is meaningful. This transformation
The FCA also expects that a firm will not be compliant with the validation requirements unlessit can demonstrate that:(1) appropriate stability metrics should be considered across a range of economic environments (ie, longest period possible including most recent data);(2) the tolerances for the degree of divergence, and associated actions for what should happen when they are not met, is pre-defined; and(3) subsections of portfolios by characteristics affecting risk profile,
The FCA expects that a firm would not be able to comply with certain other EU CRR requirements unless it coulddemonstrate that:(1) in relation to article 144(1)(e) of the EU CRR, where more than one model is used, the rationale, and the associated boundary issues, is clearly articulated and justified and the criteria for assigning an asset to a rating model are objective and clear;(2) in relation to article 173(1)(c) of the EU CRR, the firm has a process in place to ensure valuations