Related provisions for PERG 8.31.1

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PERG 2.8.1GRP
Most regulated activities are subject to exclusions that are set out in the Regulated Activities Order directly following each activity.
PERG 2.8.4GRP
The regulated activity of dealing in investments as principal applies to specified transactions relating to any security or to any contractually based investment (apart from rights under funeral plan contracts or rights to or interests in such contracts). The activity is cut back by exclusions as follows.(1) Of particular significance is the exclusion in article 15 of the Regulated Activities Order (Absence of holding out etc). This applies where dealing in investments as principal
PERG 2.8.5GRP
The regulated activity of dealing in investments as agent applies to specified transactions relating to any security or to any relevant investment (apart from rights under funeral plan contracts or rights to or interests in such rights). In addition, the activity is cut back by exclusions as follows.(1) An exclusion applies to certain transactions entered into by an agent who is not an authorised person which depend on him dealing with (or through) an authorised person. It does
PERG 2.8.6GRP
The various activities that involve arranging fall into two general types. These are:33(1) those relating to arranging a particular transaction or a contract, agreement5 or plan variation (articles 25(1), 25A(1), 25B(1),5 25C(1) , and 25E(1) 5of the Regulated Activities Order); and53(2) those relating to making arrangements with a view to persons entering into certain transactions (articles 25(2), 25A(2), 25B(2),5 25C(2) , and 25E(2) 5of the Regulated Activities Order).53The exclusions
PERG 2.8.6AGRP
3The exclusions in the Regulated Activities Order that relate to the various arranging activities are as follows.(-1) 8Under Article 24A(2), an activity that would otherwise be both arranging and bidding in emissions auctions is specifically excluded from arranging because the activity of bidding in emissions auctions does not form part of any other regulated activity (see PERG 2.7.6D G).(1) Under article 26, arrangements that do not or would not bring about the transaction to
PERG 2.8.6DGRP
(1) 9An activity of a kind specified below is excluded from the regulated activity of operating an electronic system in relation to lending.(a) dealing in investments as principal;(b) arranging (bringing about) deals in investments;(c) making arrangements with a view to transactions in investments;(d) managing investments; (e) advising on investments.(2) The exclusion for electronic commerce activities by an incoming ECA provider (see PERG 2.9.18 G) also applies to the regulated
PERG 2.8.7GRP
The activities of persons appointed under a power of attorney are excluded under article 38 of the Regulated Activities Order, from the regulated activity of managing investments, if specified conditions are satisfied. The exclusion only applies where a person is not carrying on insurance mediation or reinsurance mediation and is subject to further limitations discussed below2. In addition, the following exclusions (outlined in PERG 2.9) apply in specified circumstances where
PERG 2.8.8GRP
The exclusions from the regulated activity of safeguarding and administering investments are as follows.(1) Safeguarding and administration activities carried on by one person are excluded if a specified third party undertakes a responsibility for the assets which is no less onerous than it would have been if he were doing the safeguarding and administration himself. The effect of this is that an authorised person with permission to carry on this regulated activity (or in certain
PERG 2.8.10GRP
10(1) The exclusion for incoming ECA providers (see PERG 2.9.18 G) applies to the range of activities specified as being regulated in relation to AIFs and collective investment schemes (see PERG 2.7.13A G). The exclusion for business angel-led capital funds (see PERG 2.9.20 G) applies to the activities of managing an AIF, managing a UCITS and establishing, operating and winding up a collective investment scheme.10There is a third exclusion for insolvency practitioners (see PERG
PERG 2.8.16GRP
To the extent that an exclusion applies in relation to a regulated activity, then 'agreeing' to carry on an activity falling within the exclusion will not be a regulated activity. This is the effect of article 4(3) of the Regulated Activities Order.
PERG 8.31.3GRP
It is also possible for advice to be excluded if it is given by a person in the course of carrying on a profession or business (other than a regulated activity). This is if it is reasonably to be regarded as necessary for him to give the advice to provide his professional or other services and he is not separately paid for giving the advice (article 67: Activities carried on in the course of a profession or non-investment business). This could arise in the context of advice given
PERG 8.31.5GRP
Certain of the exclusions in the Regulated Activities Order that apply to the regulated activity of advising on investments are not available where the advice either relates to a contract of insurance or amounts to insurance mediation or reinsurance mediation. This results from the requirements of the Insurance Mediation Directive and is explained in more detail in PERG 5 (Insurance mediation activities).
PERG 5.6.10GRP
Article 27 of the Regulated Activities Order (Enabling parties to communicate) contains an exclusion that applies to arrangements which might otherwise bring within article 25(2) those who merely provide the means by which one party to a transaction (or potential transaction) is able to communicate with other parties. Simply providing the means by which parties to a transaction (or potential transaction) are able to communicate with each other is excluded from article 25(2) only.
PERG 5.6.12GRP
Article 28 of the Regulated Activities Order (Arranging transactions to which the arranger is a party) excludes from the regulated activities in article 25(1) and 25(2) arrangements made for or with a view to contracts of insurance when:(1) the person (P) making the arrangements is the only policyholder; or(2) P, as a result of the transaction, would become the only policyholder.
PERG 7.3.8GRP
If a person is carrying on the business of advising on investments or advising on a home finance transaction1in the United Kingdom, he will not require authorisation if:(1) he is able to rely on an exclusion; in addition to the exclusions already mentioned (in articles 54 and 72 of the Regulated Activities Order), other exclusions that may be relevant are in Chapter XVII of Part II of the Regulated Activities Order; or(2) he is an exempt person (see PERG 2.11 (What to do now?1));
PERG 7.2.1GRP
Advice is excluded by article 54 of the Regulated Activities Order from the regulated activities of advising on investments and advising on a home finance transaction1if:1(1) the advice is given in a publication or service that is in one of three formats (see PERG 7.4.3 G and PERG 7.4.4 G); and(2) the principal purpose of the particular format is neither to give certain advice nor to lead to (or enable) certain transactions to be carried out (see PERG 7.4.5 G and PERG 7.4.10
PERG 7.2.2GRP
If a person would, but for the exclusion, be carrying on the regulated activities of advising on investments or advising on a home finance transaction1, or any or each of them1, and will be doing so as a business in the United Kingdom (see PERG 7.3), he may wish to apply to the FCA for a certificate that the exclusion applies (see PERG 7.6). However, a person does not need a certificate to get the benefit of the exclusion. In many cases it will be clear that the exclusion in article
PERG 7.4.2GRP
But the exclusion applies only if the principal purpose of the publication or service is not:(1) to advise on securities or relevant investments or home finance transactions1: or1(2) to lead or enable persons:(a) to buy, sell, subscribe for or underwrite securities or relevant investments; or1(b) to enter as borrower into regulated mortgage contracts, or vary the terms of regulated mortgage contracts entered into by them 1as borrower on or after 31 October 2004; or111(c) 1to
PERG 4.7.2GRP
The Regulated Activities Order contains an exclusion which has the effect of preventing certain activities of trustees, nominees and personal representatives from amounting to entering into a regulated mortgage contract. There is also an exclusion for local authorities.1 These are1 referred to in PERG 4.10 (Exclusions applying to more than one regulated activity).In addition, there1 is an exclusion where both the lender and borrower are overseas, which is referred to in PERG 4.11
PERG 4.9.2GRP
To the extent that an exclusion applies in relation to a regulated activity, then 'agreeing' to carry on an activity within the exclusion will not be a regulated activity. This is the effect of article 4(3) of the Regulated Activities Order.
PERG 7.6.11GRP
If the FCA decides to grant the application it will issue a certificate. The certificate will normally be granted for an indefinite period. It will state what it is that the FCA considers constitutes the periodical or service in relation to which the FCA is satisfied that the exclusion in article 54 of the Regulated Activities Order applies. In many cases this will be self-evident. But it may sometimes be necessary to include further details in the certificate indicating what
TC App 1.1.1RRP

1Activity

Products/Sectors

Is there an appropriate qualification4requirement?

4

Designated investment business carried on for a retail client

Providing basic advice

1.

Stakeholder products excluding a deposit-based stakeholder product

No

Advising

2.

Securities which are not stakeholder pension schemes, personal pension schemes7 or broker funds

Yes

3.

Derivatives

Yes2

4.

Packaged products6Retail investment products6 which are not broker funds

Yes2

5.

Friendly Societylife policies where the employee is not reasonably expected to receive a remuneration of greater than £1000 a year in respect of such sales

No2

6.

Friendly Society tax-exempt policies (other than Holloway sickness policies where the Holloway policy special application conditions are met)5

Yes2

7.

Long-term care insurance contracts

Yes2

8.

Investments in the course of corporate finance business

Yes2

9.

Advising on syndicate participation at Lloyd's

Yes2

Undertaking the activity in column 2

10.

Broker fund adviser

Yes

11.

Pension transfer specialist

Yes2

Advising and dealing

12.

Securities which are not stakeholder pension schemes, personal pension schemes7 or broker funds

Yes

13.

Derivatives

Yes2

4Dealing

13A.8

Securities which are not stakeholder pension schemes, personal pension schemes7 or broker funds

No

413B.8

Derivatives

No

8MiFID business bidding

13C.

Emissions auction products that are financial instruments

No

Managing

14.

Investments

Yes

Overseeing on a day-to-day basis

15.

Operating a collective investment scheme or undertaking the activities of a trustee or depositary of a collective investment scheme

Yes

16.

Safeguarding and administering investments or holding client money

Yes2

17.

Administrative functions in relation to managing investments

Yes2

18.

Administrative functions in relation to effecting or carrying out contracts of insurance which are life policies

Yes2

19.

Administrative functions in relation to the operation of stakeholder pension schemes

Yes2

Regulated mortgage activity and reversion activity carried on for a customer

Advising

20.

Regulated mortgage contracts for a non-business purpose

Yes

21.

Equity release transactions

Yes2

Designing scripted questions for non-advised sales

22.

Equity release transactions

Yes

Overseeing non-advised sales on a day-to-day basis

23.

Equity release transactions

Yes

Non-investment insurance business carried on for a consumer

Advising

24.

Non-investment insurance contracts

No

3Regulated sale and rent back activity carried on for a customer

Advising

25.

Regulated sale and rent back agreements

No

Overseeing non-advised saleson a day-to-day basis

26.

Regulated sale and rent back agreements

No

Notes:

1.

In the Appendix the heading and types of business specified in the headings are to be read in conjunction with the paragraphs appearing beneath them.

2.

Thus, for example, paragraph 24consistent with the heading above it3, refers only to advice on non-investment insurance contracts given to a consumer.

3