Related provisions for PERG 6.1.1
1 - 20 of 466 items.
FCA6 staff under executive procedures will take the decision to give a warning notice if the FCA6 proposes to:66(1) refuse an application for a Part 4A permission6 or to refuse an application to cancel a Part 4A permission6;66(2) impose a limitation or a requirement which was not applied for, or specify a narrower description of regulated activity than that applied for, on the grant of a Part 4A permission6;6(3) refuse an application to vary a Part 4A permission6, or to restrict
A fundamental variation or requirement means:66(1) removing a type of activity or investment from the firm'spermission; or(2) refusing an application to include a type of activity or investment; or(3) [deleted]66(4) imposing or varying an assets requirement (as defined in section 55P6 of the Act (Prohibitions and restrictions)), or refusing an application to vary or cancel such a requirement.6
FCA6 staff under executive procedures will take the following statutory notice decisions:6(1) the refusal of an application for listing of securities;(2) the suspension of listing on the FCA's6 own initiative or at the request of the issuer;6(3) [deleted]22(4) the discontinuance of listing of securities at the issuer's request;(5) the exercise of any of the powers in sections 87K or 87L of the Act in respect of a breach of any applicable provision; and2(6) [deleted]22(7) the refusal
If securities have matured or otherwise ceased to exist the FCA6 will remove any reference to them from the official list. This is a purely administrative process, and not a discontinuance of listing in the sense used in Part 6 of the Act. Decisions relating to imposition of limitations or other restrictions of sponsors and primary information providers.66
6Under section 88(4)(aa) of the Act, if the FCA proposes to impose limitations or other restrictions on the services to which a sponsor's approval relates, it must give him a warning notice. If, after considering any representations made in response to the warning notice, the FCA decides to impose limitations or other restrictions on the services to which a sponsor's approval relates, it must give him a decision notice. Where the sponsor has requested or otherwise agrees to the
6If the FCA is proposing or deciding to refuse a sponsor's application for the withdrawal or variation of a limitation or other restriction on the services to which a sponsor's approval relates under section 88(8)(d) of the Act, the decision maker will be FCA staff under executive procedures where FCA staff decided to impose the limitation or other restriction. Otherwise, the RDC will take the decision to give the warning notice and decision notice.
6Under section 89P(5)(b) of the Act, if the FCA proposes to impose limitations or other restrictions on the dissemination of regulated information to which a primary information provider's approval relates, it must give him a warning notice. If, after considering any representations made in response to the warning notice, the FCA decides to impose limitations or other restrictions on the dissemination of regulated information to which a primary information provider's approval
6Under section 89P(9)(d) of the Act, if the FCA is proposing or deciding to refuse a primary information provider's application for the withdrawal or variation of a limitation or other restriction on the dissemination of regulated information to which a primary information provider's approval relates, the decision maker will be FCA staff under executive procedures where FCA staff decided to impose the limitation or other restriction. Otherwise, the RDC will take the decision to
The decisions referred to in DEPP 2.5.12 G are:(1) the decision to give a supervisory notice pursuant to section 259(3), (8) or 9(b) (directions on authorised unit trust schemes); section 268(3), 7(a) or 9(a) (directions in respect of recognised overseas schemes); or section 282(3), (6) or (7)(b) (directions in respect of relevant recognised schemes) of the Act;(1A) the decision to give a supervisory notice pursuant to section 261Z1(3), (8) or (9)(b) (Procedure on giving directions
The FCA6 expects to adopt a procedure in respect of notices under enactments other than the Act which is similar to that for statutory notices under the Act, but which recognises any differences in the legislative framework and requirements. DEPP 2 Annex 1 and DEPP 2 Annex 2 therefore identify notices to be given pursuant to other enactments and the relevant FCA6 decision maker.66
Some of the distinguishing features of notices given under enactments other than the Act are as follows: (1) [deleted]66(2) [deleted]66(3) Friendly Societies Act 1992, section 58A1: The warning notice and decision notice must set out the terms of the direction which the FCA6 proposes or has decided to give and any specification of when the friendly society is to comply with it. A decision notice given under section 58A(3) must give an indication of the society's right, given by
12SUP 11 Annex 6G provides guidance on when one person's holding of shares or voting power must be aggregated with that of another person for the purpose of determining whether an acquisition or increase of control will take place as contemplated by section 181 or 182 of the Act such that notice must be given to the appropriate regulator17 in accordance with section 178 of the Act before making the acquisition or increase. This will be:17(1) where those persons are acting in concert,
Sections 178(1) and 191D(1)10 of the Act require a person (whether or not he is an authorised person) to notify the appropriate regulator17 in writing if he decides 10to acquire, increase or reduce10control or to cease to have control10 over a UK domestic firm . Failure to notify is an offence under section 191F10 of the Act (Offences under this Part).46101710101010
The Treasury have made the following exemptions from the obligations under section 178 of the Act10:(1) controllers and potential controllers of non-directive friendly societiesare exempt from the obligation to notify a change in control (The Financial Services and Markets Act 2000 (Controllers) (Exemption) Order 2009 (SI 2009/77410));10(2) controllers and potential controllers of building societies are exempt from the obligation to notify a change in control unless the change
If a person decides10 to acquire control or increase control over a UK domestic firm in a way described in SUP 11.4.2 Ror acquire control in a way described in SUP 11.4.2AR (1)4, he must obtain the appropriate regulator's17 approval before doing so. Making an acquisition before the appropriate regulator17 has approved of it10is an offence under section 191F of the Act (Offences under this Part).10101710174610
6The appropriate regulator17 recognises that firms acting as investment managers may have difficulties in complying with the prior notification requirements in sections 178 and 191D 10of the Act as a result of acquiring or disposing of listed shares in the course of that fund management activity. To ameliorate these difficulties, the appropriate regulator17 may accept pre-notification of proposed changes in control, made in accordance with SUP D, and may grant approval of such
6The appropriate regulator17 may treat as notice given in accordance with sections 178 and 191D17 of the Act a written notification from a firm which contains the following statements:171017(1) that the firm proposes to acquire and/or dispose of control, on one or more occasions, of any UK domestic firm whose shares or those of its ultimate parent undertaking are, at the time of the acquisition or disposal of control, listed or which are admitted to listing on a designated investment
A section 178 notice10 given to the appropriate regulator17 by a person who is acquiring control or increasing his control over a UK domestic firm, in a way described in SUP 11.4.2 R (1) to (4), or acquiring control in a way described in SUP 11.4.2A R, must contain the information and be accompanied by such documents as are required by the controllers form approved by the appropriate regulator17 for the relevant application. 4610171017
(1) A person who has submitted a section 178 notice10under SUP 11.3.7 D must notify the appropriate regulator17 immediately if he becomes aware, or has information that reasonably suggests, that he has or may have provided the appropriate regulator17 with information which was or may have been false, misleading, incomplete or inaccurate, or has or may have changed, in a material particular. The notification must include:101717(a) details of the information which is or may be false,
(1) 6A must be capable of being effectively supervised by the FCA having regard to all the circumstances including-(a) the nature (including the complexity) of the regulated activities that A carries on or seeks to carry on;(b) the complexity of any products that A provides or will provide in carrying on those activities;(c) the way in which A’s business is organised;(d) if A is a member of a group, whether membership of the group is likely to prevent the FCA’s effective supervision
6The guidance in COND 2.3 should be read as applying to both paragraph 2C of Schedule 6 of the Act and, as far as relevant to the discharge by the FCA of its functions under the Act in respect of firms carrying on, or seeking to carry on, a PRA-regulated activity, paragraph 3B of Schedule 6 of the Act.
6Firms carrying on, or seeking to carry on, a PRA-regulated activity, should note that the PRA is also responsible for assessing effective supervision under its own threshold conditions. Paragraphs 4F and 5F of Schedule 6 to the Act set out the effective supervision threshold conditions which are relevant to the discharge by the PRA of its functions under the Act in relation to firms carrying on, or seeking to carry on, a PRA-regulated activity. For the avoidance of doubt, this
In assessing the threshold conditions set out in paragraphs 2C and 3B of Schedule 6 to the Act6, factors which the FCA6 will take into consideration include, among other things, whether: 6(1) it is likely that the FCA6 will receive adequate information from the firm, and those persons with whom the firm has close links, to enable it to determine whether the firm is complying with the requirements and standards under the regulatory system for which the FCA is responsible6 and to
(1) Section 420(1) of the Act (Parent and subsidiary undertaking) states that, except in relation to an incorporated friendly society, 'parent undertaking' and 'subsidiary undertaking' have the same meaning as in the Companies Acts (see section 1162 of, and schedule 7 to, the Companies Act 2006)4. These are the cases referred to in COND 2.3.7 G (1)(a) to (f).4(2) Section 420(2) of the Act supplements these definitions in two ways; these are the cases referred to in COND 2.3.7
(1) For the purposes of the threshold conditions set out in paragraphs 2C and 3B of Schedule 6 to the Act,6 and except in relation to an incorporated friendly society, an undertaking is a parent undertaking of another undertaking (a subsidiary undertaking) if any of the following apply to it:6(a) it holds a majority of the voting rights in the subsidiary undertaking; or(b) it is a member of the subsidiary undertaking and has the right to appoint or remove a majority of its board
Section 420(3) of the Act (Parent and subsidiary undertaking) states that an incorporated friendly society is a parent undertaking of another body corporate (a subsidiary undertaking) if it has the following relationship to it:6(1) it holds a majority of the voting rights in the subsidiary undertaking; or(2) it is a member of the subsidiary undertaking and has the right to appoint or remove a majority of the subsidiary undertaking's board of directors; or(3) it is a member of
For the purposes of6 the threshold conditions set out in paragraphs 2C and 3B of Schedule 6 to the Act6, an undertaking is a subsidiary undertaking of another undertaking if:6(1) the other undertaking (its parent) is a member of the undertaking;(2) a majority of the undertaking's board of directors who have held office during the financial year and during the preceding financial year have been appointed solely as a result of the exercise of the parent's voting rights; and(3) no
5Paragraphs 2C(2)(e) and (f) and 3B(2)(e) and (f)6 of Schedule 6 to the Act reflect legislation initially introduced in the Post-BCCI Directive, which defines close links, in part, by reference to participation. Recital 5 of the Post-BCCI Directive gives further guidance on what is meant by ‘participation’ for the purposes of the directive. It states that the sole fact of having acquired a significant proportion of a company’s capital does not constitute participation for the
In addition to the general factors outlined in DEPP 6.2.1 G, there are some additional considerations that may be relevant when deciding whether to take action against an approved person pursuant to section 66 of the Act. This list of those considerations is non-exhaustive. Not all considerations below may be relevant in every case, and there may be other considerations, not listed, that are relevant.(1) The approved person's position and responsibilities. The FCA4 may take into
3In addition to the general factors outlined in DEPP 6.2.1 G, there are some additional considerations that the FCA4 will have regard to when deciding whether to take action against a person that performs a controlled function without approval contrary to section 63A of the Act.4(1) The conduct of the person. The FCA4 will take into consideration whether, while performing controlled functions without approval, the person committed misconduct in respect of which, if he had been
The primary responsibility for ensuring compliance with Part VI of the Act, the Part 6 rules, the prospectus rules or a provision otherwise made in accordance with the Prospectus Directive or a requirement imposed under such provision rests with the persons identified in section 91(1) and section 91(1A) (Penalties for breach of Part 6 rules) of the Act respectively. Normally therefore, any disciplinary action taken by the FCA4 for contraventions of these obligations will in the
However, in the case of a contravention by a person referred to in section 91(1)(a) or section 91(1)(b) or section 91(1A) of the Act ("P"), where the FCA4 considers that another person who was at the material time a director of P was knowingly concerned in the contravention, theFCA4 may take disciplinary action against that person. In circumstances where the FCA4 does not consider it appropriate to seek a disciplinary sanction against P (notwithstanding a breach of relevant requirements
The Principles are set out in PRIN 2.1.1 R. The Principles are a general statement of the fundamental obligations of firms under the regulatory system. The Principles derive their authority from the FCA's4 rule-making powers set out in section 137A4(General rule-making power) of the Act. A breach of a Principle will make a firm liable to disciplinary action. Where the FCA4 considers this is appropriate, it will discipline a firm on the basis of the Principles alone.444
The Listing Principles are set out in LR 7. The Listing Principles are a general statement of the fundamental obligations of listed companies. The Listing Principles derive their authority from the FCA's4 rule making powers set out in section 73A(1) (Part 6 Rules) of the Act. A breach of a Listing Principle will make a listed company liable to disciplinary action by the FCA4.44
In any case where the FCA4 considers that the use of its powers under any of sections 123, 129, 381, 383 or 384 of the Act may be appropriate, if that use may affect the timetable or outcome of a takeover bid or where it is appropriate in the context of any exercise by the Takeover Panel of its powers and authority, the FCA4 will consult the Takeover Panel before using any of those powers.44
Except in relation to a complaint the subject matter of which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, a9 money award may be such amount as the Ombudsman considers to be fair compensation for one or more of the following:9(1) financial loss (including consequential or prospective loss); or(2) pain and suffering; or(3) damage to reputation; or(4) distress or inconvenience;whether or not a court would award compensation.17
9In relation to a complaint the subject matter of which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, a money award is a payment of such amount as the Ombudsman determines that a respondent should make (or should have made) to a complainant under the scheme.
17If the Ombudsman considers that fair compensation requires payment of a larger amount, he may recommend that the respondent pays the complainant the balance. The effect of section 404B(6) of the Act is that this is also the case in relation to a complaint the subject matter of which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme.9
17
Except in relation to a complaint the subject matter of which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, an9 interest award may provide for the amount payable under the money award to bear interest at a rate and as from a date specified in the award.9
17
Except in relation to a complaint the subject matter of which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, a9 direction may require the
respondent9
to take such steps in relation to the complainant as the Ombudsman considers just and appropriate (whether or not a court could order those steps to be taken).99
9In relation to a complaint the subject matter of which falls to be dealt with (or has properly been dealt with) under a consumer redress scheme, a direction may require the respondent to take such action as the Ombudsman determines the respondent should take (or should have taken) under the scheme.
The terms of any proposed settlement:(1) will be put in writing and be agreed
by FCA4 staff
and the person concerned;4(2) may refer to a draft of the proposed statutory notices setting out the facts
of the matter and the FCA's4 conclusions; 4(3) may, depending upon the stage in
the enforcement process at which agreement is reached, include an agreement
by the person concerned to: (a) waive and not exercise any rights
under sections 387 (Warning notices) and 394 (Access to Authority
(1) DEPP 2.4 sets out the FCA's4 approach
to giving third parties copies of statutory
notices pursuant to section 393 (Third party rights) of the Act.4(2) The decision to give a warning notice or a decision
notice to a third party is a statutory
notice associated decision.(3) In cases therefore where the decision
to give a warning notice or decision notice is taken by settlement decision makers, those decision
makers will decide whether a copy of the notice should be given to
7The purpose of this chapter is to give guidance on the appropriate regulator's use of the power in section 166 (Reports by skilled persons) and section 166A (Appointment of skilled person to collect and update information) of the Act. The purpose is also to make rules requiring a firm to give assistance to a skilled person and, where a firm is required to appoint a skilled person, to include certain provisions in its contract with a skilled person. These rules are designed to
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) |
The requirement in section 395
of the Act to publish a procedure
for the giving of notices does not extend to the giving of a notice of discontinuance or a final notice. Neither of these notices is
a statutory notice for the
purposes of DEPP; nor is the
decision to give such a notice a statutory
notice associated decision.
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
Under section 294(4) of the Act, before the FCA1 may give a waiver of notification rules, it must be satisfied that:1(1) compliance by the recognised body with those notification rules, or with those rules as unmodified, would be unduly burdensome or would not achieve the purpose for which those rules were made; and(2) the waiver would not result in undue risk to persons whose interests those rules are designed to protect.
There is no application form, but applicants should make their application formally and in writing and in accordance with any direction the FCA1 may make under section 294(2) of the Act. Each application should set out at least:1(1) full particulars of the waiver which is requested; (2) the reason why the recognised body believes that the criteria set out in section 294(4) (and described in REC 3.3.3 G) would be met, if this waiver were granted; and (3) where the recognised body
Any waiver given by the FCA1 under section 294 of the Act will be made in writing, stating: 1(1) the name of the recognised body in respect of which the waiver is made;(2) the notification rules which are to be waived or modified in respect of that body;(3) where relevant, the manner in which any rule is to be modified;(4) any condition or time limit to which the waiver is subject; and(5) the date from which the waiver is to take effect.
The FCA1 will periodically review any waiver it has given. The FCA1 has the right to revoke a waiver under section 294(6) of the Act. This right is likely to be exercised in the event of a material change in the circumstances of the recognised body or in any fact on the basis of which the waiver was given.11
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 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
(1) Actuaries appointed under this chapter made by the Treasury under sections 342(5) and 343(5) of the Act (Information given by auditor or actuary to a regulator7). Section 343 and the regulations also apply to an actuary of an authorised person in his capacity as an actuary of a person with close links with the authorised person.47(2) These regulations oblige actuaries to report certain matters to the appropriate regulator.7Sections 342(3) and 343(3) of the Act provide that
An actuary2 who has ceased to be appointed under this chapter2, or who has been formally notified that he will cease to be so 2appointed, must notify the appropriate regulator without delay:222(1) of any matter connected with the cessation which he thinks ought to be drawn to the appropriate regulator's attention; or(2) that there is no such matter.
2Section 341 of the Act (Access to books etc.) provides that an actuary appointed under or as a result of the Act:(1) has a right of access at all times to the firm's books, accounts and vouchers; and(2) is entitled to require from the firm's officers such information and explanation as he reasonably considers necessary to perform his duties as actuary.
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
(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
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
(1) 8Part VII of the Act prescribes certain statutory functions in relation to insurance business transfer schemes for both the PRA and the FCA. In accordance with the Act, the PRA and the FCA maintain a Memorandum of Understanding, which describes each regulator’s role in relation to the exercise of its functions under the Act relating to matters of common regulatory interest and how each regulator intends to ensure the coordinated exercise of such functions. Under the Memorandum
Under section 107(2) of the Act, the application to the court may be made by the transferor or the transferee or both. As soon as reasonably practical, the intended applicant should choose their nominee for independent expert in the light of any criteria advised by the appropriate regulator. The intended applicant(s) should then advise the appropriate regulator of their choice, unless the appropriate regulator8 wishes them to defer nomination or to make its own nomination. The
Under section 109 of the Act, a scheme report must accompany an application to the court to approve an insurance business transfer scheme. This report must be made in a form approved by the appropriate regulator. The appropriate regulator would generally expect a scheme report to contain at least the information specified in SUP 18.2.33 G before giving its approval.88
A transfer may provide for benefits to be reduced for some or all of the policies being transferred. This might happen if the transferor is in financial difficulties. If there is such a proposal, the independent expert should report on what reductions he considers ought to be made, unless either:(1) the information required is not available and will not become available in time for his report, for instance it might depend on future events; or(2) otherwise, he is unable to report
8When assessing a proposed scheme under Part VII of the Act each regulator will, taking into account all relevant matters in each case, consider whether it should provide a report to the court. As it will lead the Part VII process for insurance business transfers, the PRA will usually provide such a report.
8The parties to the proposed transfer should, in each case, consider whether it would facilitate the effective running of the process to give copies to any other person, including any person who alleges that he would be adversely affected by the carrying out of the scheme and intends to be heard in accordance with section 110 of the Act. Where any such provision is to be made, any necessary consents should first be obtained in respect of confidential information.
8Where either regulator has indicated to the parties to the proposed transfer that it intends to appear at any hearing before the court in relation to a proposed scheme under Part VII of the Act a copy set of the bundle of documents filed with the court should be provided to it as soon as practicable.
8Under section 114 of the Act the court must direct that notice of the transfer be published by the transferee in any EEA State other than the United Kingdom which is the state of the commitment or the state of the risk as regards any policy included in the transfer which evidences a contract of insurance (other than a contract of reinsurance). The regulators would expect the transferee to publish notice in at least one national newspaper in each relevant EEA State. Such publication
27Under section 55H of the Act, an FCA-authorised person may apply to the FCA to vary its Part 4A permission to:(1) allow it to carry on further regulated activities, other than a PRA-regulated activity; or(2) reduce the number of regulated activities it is permitted to carry on; or (3) vary the description of its regulated activities (including by the removal or variation of any limitations).
(1) Section 55(U)(2)27 of the Act (Applications under this Part) requires that the application for variation of Part 4A permission27 must contain a statement:2727(a) of the desired variation; and(b) of the regulated activity or regulated activities which the firm proposes to carry on if its permission is varied.(1A) Section 55(U)(3) of the Act requires that an application for variation of a requirement imposed under section 55L or 55M or the imposition of a new requirement must
(1) The relevant regulator27 is required by section 55B(3) of the Act to ensure that a firm applying to gain or vary a Part 4A permission or to impose or vary a requirement27 satisfies and will continue to satisfy the threshold conditions in relation to all the regulated activities for which the firm has or will have a Part 4A permission.2727271527(2) [deleted]27151527
27Where a firm applies to the PRA for the variation of its Part 4A permission, the FCA, in giving consent to such an application or imposing any requirements on the firm, is required by section 55B(3) of the Act to ensure that the firm satisfies and will continue to satisfy the threshold conditions for which the FCA is responsible in relation to all the regulated activities for which the firm has or will have Part 4A permission after the variation.
(1) 27The FCA's duty under section 55B(3) of the Act does not prevent it, having regard to that duty, from taking such steps as it considers necessary in relation to a particular firm, to meet any of its operational objectives. This may include granting or consenting to (as the case may be) a firm's application for variation of Part 4A permission when it wishes to wind down (run off) its business activities and cease to carry on new business as a result of no longer being able
In considering whether to grant (or consent to, as the case may be)27 a firm's application to vary its Part 4A permission or impose or vary a requirement, the regulator concerned will also have regard, under section 55R(1)27 of the Act (Persons connected with an applicant), to any person6 appearing to be, or likely to be, in a relationship with the firm which is relevant. The Financial Groups Directive Regulations make special consultation provisions where the regulator is exercising
27The FCA's power to vary a Part 4A permission after it receives an application from a firm extends to including in the Part 4A permission as varied any provision that could be included as though a fresh permission was being given in response to an application under section 55A of the Act (Application for permission). Under section 55E of the Act (Giving permission: the FCA) the FCA may:(1) incorporate in the description of a regulated activity such limitations (for example, as
If the relevant regulator27 receives an application which is incomplete (that is, if information or a document required as part of the application is not provided), section 55V(2)27 of the Act requires the relevant regulator27 to determine that incomplete application within 12 months of the initial receipt of the application.272727
(1) Firms should be aware that the appropriate regulator may exercise its own-initiative variation power to vary or cancel their Part 4A permission if they do not (see section 55J of the Act (Variation or cancellation on initiative of regulator)):2727(a) commence a regulated activity for which they have Part 4A permission27 within a period of at least 12 months from the date of being given; or27(b) carry on a regulated activity for which they have Part 4A permission27 for a period
Section 191A deals with the procedure the appropriate regulator6 must follow where the appropriate regulator reasonably believes that:6446(1) there has been a failure to give notice under section 178(1) of the Act in circumstances where notice was required;6(2) there has been a breach of a condition imposed under section 187 of the Act; or6(3) there are grounds for objecting to control on the basis of the matters in section 186 of the Act.6
Before making a determination under section 185 or4 giving a4warning notice under section 191A4, the appropriate regulator6 must comply with the 4 requirements as to consultation with EC41competent authorities set out in section 188 of the Act4and with the other regulator set out in sections 187A, 187B and 191A of the Act, as applicable.646144
(1) 15A must be a fit and proper person having regard to all the circumstances, including-(a) A’s connection with any person;(b) the nature (including the complexity) of any regulated activity that A carries on or seeks to carry on;(c) the need to ensure that A’s affairs are conducted in an appropriate manner, having regard in particular to the interests of consumers and the integrity of the UK financial system;(d) whether A has complied and is complying with requirements imposed
15The guidance in COND 2.5 should be read as applying to both paragraph 2E of Schedule 6 to the Act and, as far as relevant to the discharge by the FCA of its functions under the Act in respect of firms carrying on, or seeking to carry on, a PRA-regulated activity, paragraph 3D of Schedule 6 of the Act.
15Firms carrying on, or seeking to carry on, a PRA-regulated activity, should note that the PRA is also responsible for assessing suitability under its own threshold conditions. Paragraphs 4E and 5E of Schedule 6 to the Act set out the suitability threshold conditions which are relevant to the discharge by the PRA of its functions under the Act in relation to firms carrying on, or seeking to carry on, a PRA-regulated activity. For the avoidance of doubt, this guidance does not
(1) [deleted]1515(2) The FCA15 will also take into consideration anything that could influence a firm's continuing ability to satisfy the threshold conditions set out in paragraphs 2E and 3D of Schedule 6 to the Act15. Examples include the firm's position within a UK or international group, information provided by overseas regulators about the firm, and the firm's plans to seek to vary its Part 4A permission15 to carry on additional regulated activities once it has been granted
(1) The emphasis of the threshold conditions set out in paragraphs 2E and 3D of Schedule 6 of the Act15 is on the suitability of the firm itself. The suitability of each person who performs a controlled function will be assessed by the FCA and/or the PRA, as appropriate,15 under the approved persons regime (see SUP 10 (Approved persons) and FIT). In certain circumstances, however, the FCA15 may consider that the firm is not suitable because of doubts over the individual or collective
(1) [deleted]1515(2) Examples of the kind of general considerations to which the FCA may have regard when assessing whether a firm will satisfy, and continue to satisfy, the threshold conditions set out in paragraphs 2E and 3D of Schedule 6 to the Act include, but are not limited to, whether the firm:1515(a) conducts, or will conduct, its business with integrity and in compliance with proper standards;(b) has, or will have, a competent and prudent management; and(c) can demonstrate
Examples of the kind of particular considerations to which the FCA may have regard when assessing whether a firm will satisfy, and continue to satisfy, this threshold condition include, but are not limited to, whether:1515(1) the firm has been open and co-operative in all its dealings with the FCA15and any other regulatory body (see Principle 11 (Relations with regulators)) and is ready, willing and organised to comply with the requirements and standards under the regulatory system
However, the appropriate regulator recognises that there may be circumstances in which it would be appropriate for a firm to rely on liquidity resources which can be made available to it by other members of its group, or for a firm to rely on liquidity resources elsewhere in the firm for the purposes of ensuring that its UKbranch has adequate liquidity resources in respect of the activities carried on from the branch. Where the appropriate regulator is satisfied that the statutory
In considering whether the statutory tests in section 138A of the Act have been met, the appropriate regulator will, amongst others, have regard to the factors detailed below in relation to an intra-group liquidity modification (of the kind permitting the inclusion in a firm's liquidity resources of parent undertaking liquidity support) and a whole-firm liquidity modification. In practice it is likely that the appropriate regulator will view these as preconditions to the grant
This section represents merely an indication of the matters to which the appropriate regulator will have regard in considering an application for a whole-firm liquidity modification or an intra-group liquidity modification. In considering such an application, the appropriate regulator will always take into account anything that it reasonably considers to be relevant for the purposes of assessing whether the statutory tests in section 138A of the Act are met. In doing so, it will
The appropriate regulator recognises that a firm may be part of a wider group which manages its liquidity on a group-wide basis. A firm which considers that the statutory tests in section 138A of the Act are met may apply for an intra-group liquidity modification permitting it to rely on liquidity support from elsewhere in its group. Until a firm has such a modification it will need to meet the overall liquidity adequacy rule from its own liquidity resources. The effect of an
The appropriate regulator also recognises that a firm incorporated in the United Kingdom and to which BIPRU 12 applies may wish to rely on liquidity support from a subsidiary undertaking of that firm which is incorporated in a country or territory outside the United Kingdom. The appropriate regulator is, however, likely to consider that an application for an intra-group liquidity modification that contemplates reliance for liquidity support on only, or mostly, an applicant firm's
In each application for an intra-group liquidity modification, the appropriate regulator will consider the extent to which it is appropriate to modify the overall liquidity adequacy rule to allow reliance by an applicant firm on liquidity resources elsewhere in a firm'sgroup. However, it is unlikely that the appropriate regulator would consider the conditions in section 138A of the Act to be met in circumstances in which the overall liquidity adequacy rule was modified to allow
It will not always be the case that an applicant firm wishes to rely on a parent undertaking, or other group entity, that is itself subject to a regime of liquidity regulation, whether or not equivalent to the appropriate regulator's. In assessing a firm's application for an intra-group liquidity modification, the appropriate regulator will always have regard to the regulatory framework to which the entity on which it is proposed to rely for liquidity support is subject. Other
In relation to an incoming EEA firm or third country BIPRU firm, the overall liquidity adequacy rule provides that, for the purpose of complying with that rule, a firm may not, in relation to its UKbranch, include liquidity resources other than those which satisfy the conditions in BIPRU 12.2.3 R. Those conditions seek to ensure that a firm of this kind has a reserve of liquidity for operational purposes that is under the control of, and available for use by, that firm'sUKbranch.
In determining the appropriate duration of a whole-firm liquidity modification, the appropriate regulator will have regard to the role and importance of the UKbranch in question in the UK1financial system. In some cases, the appropriate regulator may take the view that a whole-firm liquidity modification, covering a UKbranch whose role and importance in the UK1financial system are significant, ought to be reviewed more regularly than one granted in respect of a less systemically
(1) Under section 19 of the Act (The general prohibition), no person may carry on a regulated activity in the United Kingdom, or purport to do so, unless he is an authorised person, or he is an exempt person in relation to that activity.(2) A person will be an exempt person if he satisfies the conditions in section 39(1) of the Act, guidance on which is given in SUP 12.2.2 G. A person who is exempt as a result of satisfying these conditions is referred to in the Act as an appointed
(1) A person must satisfy the conditions in section 39(1) of the Act to become an appointed representative. These are that:(a) the person must not be an authorised person, that is, he must not have permission under the Act to carry on any regulated activity in his own right (section 39(1) of the Act); (b) the person must have entered into a contract with an authorised person, referred to in the Act as the 'principal', which:(i) permits or requires him to carry on business of
As long as the conditions in section 39 of the Act are satisfied, any person, other than an authorised person, may become an appointed representative, including a body corporate, a partnership or an individual in business on his own account. However, an appointed representative cannot be an authorised person under the Act; that is, it cannot be exempt for some regulated activities and authorised for others.
(1) The Appointed Representatives Regulations are made by the Treasury under section 39(1) of the Act. These regulations describe, among other things, the business for which an appointed representative may be exempt, which is business which comprises any of:(a) dealing in investments as agent (article 21 of the Regulated Activities Order) where the transaction relates to a pure protection contract (but only where the contract is not a long-term care insurance contract) or general
(1) An introducer is an individual appointed by a firm or by an appointed representative of such a firm to carry out, in the course of designated investment business, either or both of the following activities:4(a) effecting introductions; (b) distributing non-real time financial promotions.(2) An introducer is not an exempt person under section 39 of the Act (unless he is also an introducer appointed representative) and hence cannot benefit from the exemption to carry on regulated
(1) 1A’s business model (that is, A’s strategy for doing business) must be suitable for a person carrying on the regulated activities that A carries on or seeks to carry on.(2) The matters which are relevant in determining whether A satisfies the condition in sub-paragraph (1) include-(a) whether the business model is compatible with A’s affairs being conducted, and continuing to be conducted, in a sound and prudent manner;(b) the interests of consumers;(c) the integrity of the
1The guidance in COND 2.7 should be read as applying to both paragraph 2F of Schedule 6 to the Act and, as far as relevant to the discharge by the FCA of its functions under the Act in respect of firms carrying on, or seeking to carry on, a PRA-regulated activity, paragraph 3E of Schedule 6 of the Act.
1In deciding how they will satisfy and continue to satisfy the threshold conditions set out in paragraphs 2F and 3E of Schedule 6 to the Act, firms should consider matters including (but not limited to) the following:(1) the assumptions underlying the firm's business model and justification for it;(2) the rationale for the business the firm proposes to do or continues to do, its competitive advantage, viability and the longer-term profitability of the business;(3) the needs of
1The FCA's assessment of a firm's satisfaction of this threshold conditions set out in paragraphs 2F and 3E of Schedule 6 to the Act will not necessarily be limited to a firm'sregulated activities if the FCA believes the firm's other business activities, if any, may impact on a firm'sregulated activities.
Under section 138A(4) of the Act, the appropriate regulator10 may not give a waiver unless it is satisfied that:1010(1) compliance by the firm with the rules, or with the rules as unmodified, would be unduly burdensome, or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of, in the case of the PRA, any of its objectives and, in the case of the FCA, any of its operational objectives.1010
10The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
Under section 138A(1) of the Act the appropriate regulator10 may give a waiver with the consent of a firm. This power may be used by the appropriate regulator10 in exceptional circumstances where the appropriate regulator10 considers that a waiver should apply to a number of firms (for example, where a rule unmodified may not meet the particular circumstances of a particular category of firm). In such cases the appropriate regulator10 will inform the firms concerned that the waiver
An application for a waiver of an evidential provision will normally be granted only if a breach of the underlying binding rule is actionable under section 138D10 of the Act. Individual guidance would normally be a more appropriate response (see SUP 9 (Individual Guidance)) if there is no right of action.210
For an application for a waiver of the presumption of contravention of a binding rule, which is actionable under section 138D10 of the Act, the appropriate regulator10 would normally wish to be satisfied that the evidential rule is itself unduly burdensome or does not achieve the purpose of the rule.21010