Related provisions for CONC 11.2.4
1 - 20 of 55 items.
(1) A firm must not hold itself out to a retail client as acting independently unless the only personal recommendations in relation to retail investment products it offers to that retail client are:(a) based on a comprehensive and fair analysis of the relevant market; and(b) unbiased and unrestricted.(2) Paragraph (1) does not apply to group personal pension schemes if a firm discloses information to a client in accordance with the rule on group personal pension schemes (COBS
(1) A firm that provides both independent advice and restricted advice should not hold itself out as acting independently for its business as a whole. However, a firm may hold itself out as acting independently in respect of its services for which it provides independent advice or advice which meets other independence requirements for particular investments. For example, a firm that provides independent advice on regulated mortgage contracts in accordance with MCOB but restricted
5In complying with COBS 6.2A.3 R, a firm which: (1) holds itself out to a retail client as acting independently; and(2) relies upon a single platform service to facilitate the majority of its personal recommendations in relation to retail investment products;must take reasonable steps to ensure that, as appropriate, the platform service provider bases its selection of retail investment products on a comprehensive, fair and unbiased analysis of the relevant market.
5When a firm considers whether a platform service provider's selection of retail investment products is based on an unbiased analysis of the relevant market, a firm should take into account any fees, commission or non-monetary benefits the platform service provider receives in relation to those retail investment products.
(1) A firm must include the term “independent advice” or “restricted advice” or both, as relevant, in the disclosure.(2) If a firm provides independent advice in respect of a relevant market that does not include all retail investment products, a firm must include in the disclosure an explanation of that market, including the types of retail investment products which constitute that market.(3) If a firm provides restricted advice, its disclosure must explain the nature of the
A firm may meet the disclosure requirements in the rule on describing the breadth of a firm's advice service (COBS 6.2A.5 R) and the rule on content and wording of disclosure (COBS 6.2A.6R) by using a services and costs disclosure document or a combined initial disclosure document (COBS 6.3 and COBS 6 Annex 1G or COBS 6 Annex 2).
A relevant market can be limited by the investment needs and objectives of the retail client. For example, ethical and socially responsible investments or Islamic financial products could both be relevant markets. However, a firm would be expected to consider all retail investment products within those investment parameters.
In order to satisfy the rule on firms holding themselves out as independent (COBS 6.2A.3 R) a firm should ensure that it is not bound by any form of agreement with a retail investment product provider that restricts the personal recommendation the firm can provide or imposes any obligation that may limit the firm's ability to provide a personal recommendation which is unbiased and unrestricted.
A firm may be owned by, or own in whole or part, or be financed by or provide finance to, a retail investment product provider without contravening the ‘unbiased, unrestricted’ requirement provided the firm ensures that that ownership or finance does not prevent the firm from providing a personal recommendation which is unbiased and unrestricted.
In providing unrestricted advice a firm should consider relevant financial products other than retail investment products which are capable of meeting the investment needs and objectives of a retail client, examples of which could include national savings and investments products and cash deposit ISAs.
A firm may provide a personal recommendation on a comprehensive and fair analysis basis required by the rule on firms holding themselves out as independent (COBS 6.2A.3 R) by using ‘panels’. A firm would need to ensure that any panel is sufficiently broad in its composition to enable the firm to make personal recommendations based on a comprehensive and fair analysis, is reviewed regularly, and that the use of the panel does not materially disadvantage any retail client.
If a firm chooses to use a third party to conduct a fair and comprehensive analysis of its relevant market, the firm is responsible for ensuring the criteria used by the third party are sufficient to meet the requirement. For example, criteria which selected retail investment product providers on the basis of payment of a fee (or facilitation of adviser charges), whilst excluding those not paying a fee (or such a facilitation) would not meet the comprehensive and fair analysis
(1) Firms are reminded of the systems and controls requirements in SYSC.(2) A firm providing restricted advice should take reasonable care to establish and maintain appropriate systems and controls to ensure that if there is no retail investment product in the firm's range of products which meets the investment needs and objectives of the retail client, no personal recommendation should be made.(3) A firm specialising in a relevant market should take reasonable care to establish
(1) 1This section applies to:24(a) a firm which is a retail investment product provider; and4(b) in relation to COBS 6.1B.9 R, COBS 6.1B.10 G and COBS 6.1B.11 G, a platform service provider;4in circumstances where a retail client receives a personal recommendation in relation to a retail investment product .4(2) This section does not apply to a retail investment product provider in circumstances where a firm gives advice or provides services to an employer in connection with a
5A firm and its associates may:(1) offer and pay a commission, remuneration or benefit of any kind in the circumstances set out in COBS 6.1B.5 R if:(a) the personal recommendation was made on or before 30 December 2012;(b) the offer and payment was permitted by the rules in force on 30 December 2012;(c) the contract under which the right to receive the commission, remuneration or benefit of any kind was entered into on or before 30 December 2012; (d) the terms of that contract
6A firm may facilitate the payment of adviser charges for the purposes of COBS 6.1B.9 R by:(1) selling all or part of the retail client'sretail investment product to pay the adviser charge; or(2) disposing of or reducing all or part of the retail client's rights under the retail investment product (for example, by way of a part disposal which creates benefits under a life policy) to pay the adviser charge; or(3) separating out an amount or amounts for the payment of the adviser
COBS 6.1B.9R(3) does not prevent a firm, if this is in the retail client's best interests, from entering into an agreement with another firm which is providing a personal recommendation to a retail client, or with a retail client of such a firm, to provide it with credit separately in accordance with the rules on providing credit and other benefits to firms that advise on retail investment products (COBS 2.3.12 E and COBS 2.3.12A G).
(1) 1This section applies to a firm which makes a personal recommendation to a retail client in relation to a retail investment product.personal recommendations to retail clients in relation to retail investment products.(2) This section does not apply to a firm giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme.2
8Guidance on the regulated activity of advising in relation to a new or existing investment can be found in PERG 8.24 to PERG 8.29. Although the guidance in PERG 8.29.7 G relates to advising on investments under article 53 of the Regulated Activities Order, exactly the same answers apply to a personal recommendation because the examples given relate to the relationship between a firm and a particular client and advice given to that specific client. A firm wishing to know when
7‘Related service(s)’ for the purposes of COBS 6.1A includes:(1) arranging or executing a transaction which has been recommended to a retail client by the firm, an associate or another firm in the same group or conducting administrative tasks associated with that transaction; or(2) managing a relationship between a retail client (to whom the firm provides personal recommendations on retail investment products) and a discretionary investment manager or providing a service to such
Examples of payments and benefits that should not be accepted under the requirement to be paid through adviser charges include:(1) a share of the retail investment product charges or platform service provider's charges, or5retail investment product provider’s or platform service provider's5 revenues or profits; and5(2) a commission set and payable by a retail investment product provider in any jurisdiction.
A firm is likely to be viewed as operating a charging structure that conceals the amount or purpose of its adviser charges if, for example:(1) it makes arrangements for amounts in excess of its adviser charges to be deducted from a retail client's investments from the outset, in order to be able to provide a cash refund to the retail client later; or(2) it provides other services to a retail client (for example, advising on a home finance transaction or advising on an equity release
(1) Subject to (2), this section does not apply where the P2P agreement provides for credit of less than £50.(2) Paragraph (1) does not apply where two or more P2P agreements in relation to the same borrower (but whether or not with the same lender) are entered into at or about the same time.(3) Where (2) applies, the firm's obligation in CONC 7.19.4 R applies as if all of the P2P agreements made with a borrower at or about the same time were a single agreement.
(1) In this section "default sum" means in relation to the borrower under a P2P agreement, a sum (other than a sum of interest) which is payable by the borrower under the agreement in connection with a breach of the agreement by the borrower.(2) But a sum is not a default sum in relation to the borrower simply because as a consequence of the breach of the agreement the borrower is required to pay the sum earlier than would otherwise have been the case.
A firm must ensure that a P2P agreement that the firm makes available to a borrower and a lender provides for the following contractual rights and obligations and procedure for and effect of the exercise of those rights and obligations:(1) a right for the borrower: (a) to withdraw from the agreement (“the right of withdrawal”);(b) without giving any reason; and(c) by giving oral or written notice of the withdrawal to the firm (on behalf of the lender) before the end of the period
Firms should ensure that those supervising employees carrying on an activity in TC Appendix 1 have the necessary coaching and assessment skills as well as technical knowledge and experience17 to act as a competent supervisor and assessor. In particular firms should consider whether it is appropriate to require those supervising employees not assessed as competent to attain 16an appropriate qualification 16as well except where the employee is giving advice on retail investment products,17 see TC 2.1.5 R.
161617(1) If a firm is satisfied that an employee meets the conditions in this rule then the requirements to have attained 16each module of an appropriate qualification 16will only apply if that employee is carrying on one of the activities specified in this rule.1616(2) The conditions are that a firm should be satisfied that an employee:(a) has at least three years' up-to-date relevant experience in the activity in question obtained while employed outside the United Kingdom;(b) has
(1) Before entering into a regulated credit agreement or regulated consumer hire agreement, or before a P2P agreement is entered into, under which the customer may grant a continuous payment authority, the firm must provide the customer with an adequate explanation of the matters in (2).(2) The matters referred to in (1) are:(a) what a continuous payment authority is and how it works;(b) how the continuous payment authority will be applied by the firm, including where the firm
(1) This section contains rules that apply to the person operating the electronic system that facilitates persons becoming lenders and borrowers under P2P agreements, in contrast to CONC 5.2 which applies to the lender.(2) A P2P agreement may also be a credit agreement or a regulated credit agreement in which case applicable provisions of the CCA or CONC will apply to such agreements. The extent to which CCA provisions apply to a lender will depend largely on whether the lender
(1) Before a P2P agreement is made, a firm must undertake an assessment of the creditworthiness of the prospective borrower.(2) A firm carrying out the assessment in (1) must consider: (a) the potential for the commitments under the P2P agreement to adversely impact the prospective borrower's financial situation, taking into account the information of which the firm is aware at the time the P2P agreement is to be made; and (b) the ability of the prospective borrower to make repayments
Before a P2P agreement is entered into under which a person takes an article in pawn, the firm must:(1) undertake the assessment referred to in CONC 5.2.2R (1) of the prospective borrower; and (2) comply with CONC 5.3.2 R, CONC 5.3.4 R, CONC 5.3.5 R, CONC 5.3.6 R and CONC 5.3.7 R to the same extent as if it were the lender under an agreement to which those rules apply, and should also take into account the guidance in CONC 5.2.3 G and CONC 5.2.4 G and CONC 5.3 to the same extent.
In addition, certain other activities carried on in relation to rights under contracts of insurance are regulated activities. These are where the activity is carried on in relation to:(1) life policies, where the regulated activities concerned are:(a) dealing in investments as principal (see PERG 2.7.5 G);(b) managing investments (see PERG 2.7.8 G);(c) safeguarding and administering investments (see PERG 2.7.9 G); and(d) agreeing to carry on any of those activities (see PERG 2.7.21
(1) 15This activity is aimed at what are sometimes referred to as peer-to-peer lending platforms. A person ("A") will be operating an electronic system in relation to lending if he operates an electronic system which enables him to facilitate persons ("B" and "C") becoming the lender and borrower under an article 36H agreement. (2) To be caught, all of the following conditions must be met:(a) the electronic system operated by A must be capable of determining which agreements should
This activity covers advice in the form of a recommendation given to a retail consumer. The recommendation must relate to a stakeholder product and certain conditions must be met. These conditions are based on the need for the adviser to make an assessment of the consumer's needs based on the answers that the consumer provides to a series of pre-scripted questions. A fuller description of the activity is given in PERG 2.7.14B G and explains what is meant by "retail customer".
The regulated activity of advising on investments under article 53 of the Regulated Activities Order applies to advice on securities or relevant investments. It does not, for example, include giving advice about deposits, or about things that are not specified investments for the purposes of the Regulated Activities Order (such as interests under the trusts of an occupational pension scheme). Giving advice on certain other specified investments is, however, regulated under other
1This chapter applies, unless otherwise stated in or in relation to a rule, to:(1) a firm with respect to consumer credit lending;(2) a firm with respect to consumer hiring;(3) a firm with respect to operating an electronic system in relation to lending, in relation to a borrower under a P2P agreement;(4) a firm with respect to debt collecting.
The following sections provide otherwise for application:(1) CONC 7.12 (lenders' responsibilities in relation to debt) applies only to firms in respect of consumer credit lending;(2) CONC 7.17 to CONC 7.19 apply only to firms operating electronic systems in relation to lending in relation to borrowers under P2P agreements as set out in those sections.
(1) Before a P2P agreement is made, the firm must:(a) provide the prospective borrower with an adequate explanation of the matters referred to in (2) in order to place the borrower in a position to assess whether the agreement is adapted to the borrower's needs and financial situation;(b) where the P2P agreement is not a non-commercial agreement, advise the prospective borrower:(i) to consider the information which is required to be disclosed under section 55(1) of the CCA; and(ii)
(1) A firm must not exercise its rights under a continuous payment authority (or purport to do so):(a) unless it has been explained to the customer that the continuous payment authority would be used in the way in question; and(b) other than in accordance with the terms specified in the credit agreement or the P2P agreement.(2) If a firm wishes a customer to change the terms of a continuous payment authority it must contact the customer and:(a) provide the customer with an adequate
A firm should not:(1) request a payment service provider to make a payment from the customer's payment account1 unless:(a) (i) the amount of the payment (or the basis on which payments may be taken) is specified in or permitted by the credit agreement or P2P agreement; and(ii) the amount of the payment (or the basis on which payments may be taken) was referred to in the adequate explanation required by CONC 4.6.2 R; or(b) the firm has complied in relation to such a request with
16An operator of an electronic system in relation to lending must take reasonable steps to ensure that arrangements are in place to ensure that P2P agreements facilitated by it will continue to be managed and administered, in accordance with the contract terms, if at any time it ceases to carry on the activity of operating an electronic system in relation to lending.
16Any arrangements made under SYSC 4.1.8A R must be notified to lenders under P2P agreements:(1) when such arrangements are made; or(2) if later, when the lender first becomes a lender under a P2P agreement with that operator; or(3) if the arrangements are changed, when that change is made; and(4) if the arrangement involves another firm taking over the management and administration of P2P agreements if the operator ceases to operate the electronic system in relation to lending,
16Arrangements to ensure P2P agreements facilitated by the firm continue to be managed and administered may include:(1) entering into an arrangement with another firm to take over the management and administration of P2P agreements if the operator ceases to operate the electronic system in relation to lending; or(2) holding sufficient collateral in a segregated account to cover the cost of management and administration while the loan book is wound down; or(3) entering into an
A firm must not pay or accept any fee or commission, or provide or receive any non-monetary benefit, in relation to designated investment business or, in the case of its MiFID or equivalent third country business, another ancillary service, carried on for a client other than:(1) a fee, commission or non-monetary benefit paid or provided to or by the client or a person on behalf of the client; or(2) a fee, commission or non-monetary benefit paid or provided to or by a third party
5COBS 6.1A (Adviser charging and remuneration), COBS 6.1B (Retail investment product provider requirements relating to adviser charging and remuneration), COBS 6.1C (Consultancy charging and remuneration) and COBS 6.1D (Product provider requirements relating to consultancy charging and remuneration) set out specific requirements as to when it is acceptable for a firm to pay or receive commissions, fees or other benefits:6(1) relating to the provision of a personal recommendation
(1) 1This evidential provision applies in relation to a holding in, or the provision of credit to, a firm which holds itself out as making personal recommendations to retail clients on retail investment products,5 except where the relevant transaction is between persons who are in the same immediate group.5(2) A retail investment product provider5 should not take any step which would result in it:5(a) having a direct or indirect holding of the capital or voting power of a firm
5Where a retail investment product provider, or its associate, provides credit to a retail client of a firm making personal recommendations in relation to retail investment products or giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme6, this may create an indirect benefit for the firm and, to the extent that this is relevant, the provider of retail investment products may need to consider
(1) This section applies to a firm with respect to consumer credit lending.(2) CONC 6.7.17 R to CONC 6.7.26 R also apply to a firm with respect to operating an electronic system in relation to lending in relation to a borrower under a P2P agreement and references in those provisions to a firm refinancing an agreement refer to any action taken by an operator of an electronic system in relation to lending which has the result that a P2P agreement is refinanced.
Before a firm agrees to refinance high-cost short-term credit, it must: (1) give or send an information sheet to the customer; and(2) where reasonably practicable to do so, bring the sheet to the attention of the customer before the refinance;in the form of the arrears information sheet issued by the FCA referred to in section 86A of the CCA with the following modifications:(3) for the title and first sentence of the information sheet substitute:“High-cost short-term loansFailing
In the FCA's view, for a person to be carrying on the business of advising on investments or advising on a home finance transaction1 he will usually need to be doing so with a degree of regularity and for commercial purposes – that is to say, he will normally be expecting to gain some kind of a direct or indirect financial benefit. But, in the FCA's view it is not necessarily the case that advice provided free of charge will not amount to a business. Advice is often given 'free'
But even if advice is given in the United Kingdom, the general prohibition will not be contravened if the giving of advice does not amount to the carrying on, in the United Kingdom, of the business of advising on investments or advising on a home finance transaction1. Also, the general prohibition will not be contravened if the exclusion for overseas persons in article 72 of the Regulated Activities Order (Overseas persons) applies. That exclusion applies in relation to the giving
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
The exclusion applies only if the principal purpose of the publication or service is not:(1) to give advice on securities, relevant investments or home finance transactions1(see PERG 7.3.1 G); or1(2) to lead or enable persons to:(a) buy, sell, subscribe for or underwrite securities or relevant investments; or(b) to enter as borrower into regulated mortgage contracts, or vary the terms of regulated mortgage contracts entered into by them 1 as borrower on or after 31 October 2004;
For the second disqualifying purpose, the focus switches to assessing whether the principal purpose of a publication or service is to lead a person to engage in a relevant transaction or enable him to do so. This disqualifying purpose is an alternative to the first. So it extends to material not covered by the first. In this respect:(1) material in a publication or service that invites or seeks to procure persons to engage in a relevant transaction can be said to "lead" to those
(1) Subject to (2), this section does not apply where the P2P agreement provides for credit of less than £50.(2) Paragraph (1) does not apply where two or more P2P agreements in relation to the same borrower (whether or not with the same lender) are entered into at or about the same time.(3) Where (2) applies, the firm's obligations in CONC 7.17 apply as if all of the P2P agreements made with a borrower at or about the same time were a single agreement.
(1) The duty of the firm to give the borrower notices under CONC 7.17.4 R will cease when either of the conditions mentioned in (2) is satisfied but, if either of those conditions is satisfied before the notice required by CONC 7.17.4R (1) is given, the duty will not cease until that notice is given.(2) The conditions referred to in (1) are:(a) that the borrower ceases to be in arrears;(b) that a judgment is given in relation to the agreement under which a sum is required to be
(1) The firm must, when the firm next sends a statement to the borrower, give or send the borrower a notice including the information set out in CONC 7.18.5 R.(2) A firm must accompany the notice required by (1) with a copy of the current arrears information sheet under section 86A of the CCA with the following modifications:(a) for the bullet point headed “Work out how much money you owe” substitute:“Work out how much money you owe. To do this, you will need to make a list of