Related provisions for APER 1.1A.3
21 - 40 of 57 items.
Generally, in relation to a branch of a firm, or a firm which is part of an overseas group, where an overseas manager is responsible for strategy, he will not need to be approved for the significant management function. However, where he is responsible for implementing that strategy in the United Kingdom, and has not delegated that responsibility to a senior manager in the United Kingdom, he is likely to be performing that FCA controlled function.
The
significance of conduct identified in the Code
of Practice for Approved Persons as tending to establish compliance
with or a breach of a Statement of Principle will
be assessed only after all the circumstances of a particular case have been
considered. Account will be taken of the context in which a course of conduct
was undertaken, including the precise circumstances of the individual case,
the characteristics of the particular accountable
function12 and the behaviour to
12Statements of Principle 1 to 4 apply to
all approved persons. A person performing an accountable
significant-influence function is also subject to the additional
requirements set out in Statements of Principle 5
to 7 in performing that accountable function.
Those responsible under SYSC
2.1.3 R or SYSC 4.4.5 R (Apportionment of responsibilities) for the firm's apportionment obligation will be specifically
subject to Statement of Principle 5
(and see, in particular, APER 4.5.6
12In
applying Statements of Principle 5
to 7, the nature, scale and complexity of the business under management and
the role and responsibility of the individual performing an accountable higher management function within the firm will
be relevant in assessing whether an approved
person's conduct was reasonable. For example, the smaller and
less complex the business, the less detailed and extensive the systems of
control need to be. The FCA will
be of the opinion that an individual
The power to impose a suspension
or a restriction is a disciplinary measure which the FCA2 may use in addition to, or instead of, imposing a financial penalty
or issuing a public censure.
The principal purpose of imposing a suspension or a restriction is to promote
high standards of regulatory and/or market conduct by deterring persons who have committed breaches from
committing further breaches,
helping to deter other persons from
committing similar breaches,
and demonstrating
The powers to impose a suspension or a restriction in relation
to authorised persons and approved persons are disciplinary measures;2 where the FCA2 considers it necessary to take action, for example, to protect consumers from an authorised
person, the FCA2 will seek to cancel or vary the authorised
person'spermissions.
If the FCA2 has
concerns with a person's fitness
to be approved, and considers it necessary to take action, the FCA2 will
seek to prohibit the approved person
SUP 10A.5.6 R enables cover to be given for, as an example, holidays and emergencies and avoids the need for the precautionary approval of, for example, a deputy. However, as soon as it becomes apparent that a person will be performing an FCA controlled function for more than 12 weeks, the firm should apply for approval.
4The Statement of Principle 6 (see APER 2.1A.3 P) is in the following
terms: "An approved person performing
an accountable significant-influence function must
exercise due skill, care and diligence in managing the business of the firm for which he is responsible in his accountable function." References in APER 4.6 to a significant-influence function are
to an accountable significant-influence function to
which Statement of Principle 6
applies.
CASS 11.3.4 R describes the FCA controlled function known as the CASS operational oversight function (CF10a) in relation to CASS large debt management firms, including not-for-profit debt advice bodies. As a consequence of CASS 11.3.4 R (in conjunction with SUP 10A.4.1 R and SUP 10A.7.10 R), in a CASS large debt management firm (including a not-for-profit debt advice body fitting into that category) the function described in CASS 11.3.4 R is required to be discharged by a director
In
determining whether or not the particular conduct of an approved
person within his accountable
function3 complies with the Statements of Principle, the following are
factors which, in the opinion of the appropriate
regulator,3 are to be taken into account:33(1) whether
that conduct relates to activities that are subject to other provisions of
the Handbook;(2) whether
that conduct is consistent with the requirements and standards of the regulatory system relevant to his fir
(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
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
3The Society must inform the appropriate regulator35 if it commences investigations or disciplinary proceedings relating to apparent breaches:35(1) of the Act or requirements made under the Act, including the threshold conditions or the Principles or other rules, by an underwriting agent; or(2) of the Statements of Principle by an individual or other person who carries out controlled functions for or on behalf of an underwriting agent.
3The Society must inform the appropriate regulator35 if it commences investigations or disciplinary proceedings which do not fall within the scope of SUP 15.3.24 D but which:35(1) involve an underwriting agent, or an approved person who carries out controlled functions for it or on its behalf; or (2) may indicate that an individual acting for or on behalf of an underwriting agent may not be a fit and proper person to perform functions in relation to regulated activities.
(1) Some of the controlled functions, as set out in SUP 10A.4.1 R22, apply to an appointed representative of a firm, other than an introducer appointed representative, just as they apply to a firm (see SUP 10A.1.15 R22). These are the governing functions and the customer function5. In the case of an appointed representative that also has a limited permission, an FCA required function may apply to it.9 As explained in SUP 10A.1.16 R22 and SUP 10A.3.2 G22 respectively:22222522522(a)
Firms should be aware that, under the approved persons regime, the firm is responsible for submitting applications to the FCA for the approval as an approved person of:(1) any individual who performs a controlled function and who is an appointed representative; and(2) any person who performs a controlled function under an arrangement entered into by any of the firm'sappointed representatives.Applications for approval should be submitted as early as possible since a person may
(1) If a firm (A):(a) is considering appointing a person to perform any FCA controlled function;(b) requests another firm (B), as a current or former employer of that person, for a reference or other information in connection with that appointment; and(c) indicates to B the purpose of the request;B must, as soon as reasonably practicable, give to A all relevant information of which it is aware.(2) When giving the information to A under (1), B must have regard to the purpose of
A firm which is applying for cancellation ofPart 4A permission24 and which is not otherwise authorised by, or under, the Act should, at the same time, comply with SUP 10.13.6 R and notify the appropriate regulator24 of persons ceasing to perform controlled functions specified by that regulator.24 These forms should give the effective date of withdrawal, if known (see SUP 10 (Approved persons)).2424