Related provisions for PERG 8.3.4
201 - 220 of 794 items.
(1) 1This section deals with the circumstances and manner in which an ACS is to be wound up or a sub-fund of a co-ownership scheme is to be terminated otherwise than by the court as an unregistered company under the Insolvency Act 1986 or the Insolvency (Northern Ireland) Order 1989 (further rules regarding schemes of arrangement are found in COLL 7.6 (Schemes of arrangement)).(2) An ACS may be wound up under this section only if it is solvent. Under section 261W of the Act (Requests
This table belongs to COLL 7.4A.1G (5) (Explanation of COLL 7.4A)
Summary of the main steps in winding up an ACS or terminating a sub-fund of a co-ownership scheme under FCArules Notes: N = Notice to be given to the FCA under section 261Q of the Act in a section 261Q case. R = Request to wind up the scheme under section 261W of the Act in a section 261W case. E = commencement of winding up or termination W/U = winding up FAP = final accounting period |
|||
Step number |
Explanation |
When |
|
1 |
Commence preparation of solvency statement |
7.4A.5R(2) |
|
2 |
Send audited solvency statement to the FCA with copy to depositary. |
7.4A.5R(4) and (5) |
|
3 |
In a section 261Q case: - the authorised contractual scheme manager receiving FCA approval; - or one month having passed after submitting the requisite notice under section 261Q of the Act without the authorised contractual scheme manager or depositary having received from the FCA a warning notice under section 261R in respect of the proposal. In a section 261W case, the authorised contractual scheme manager or depositary receives an indication from the FCA that, subject to there being no change in any relevant factor, on the conclusion of the winding up of the ACS, the FCA will agree to the request to wind up the ACS. |
Section 261Q of the Act (in a section 261Q case) 7.4A.4R(3)(c) to (e) (in a section 261W case) |
|
4 |
Normal business ceases; notify unitholders |
E |
7.4A.4R |
5 |
Depositary to realise and distribute proceeds |
ASAP after E |
7.4A.6R(1)-(5) |
6 |
Send annual long report of authorised contractual scheme manager, depositary and auditor to the FCA |
Within 4 months of FAP |
7.4A.9R(7) |
7 |
Request FCA to revoke relevant authorisation order |
On completion of W/U |
7.4A.6R(6) |
(1) Upon the happening of any of the matters or dates referred to in (3), and subject to the requirement of (4) being satisfied, and not otherwise:(a) COLL 6.2 (Dealing), COLL 6.3(Valuation and pricing) and COLL 5 (Investment and borrowing powers) cease to apply to the ACS or to the units and scheme property in the case of a sub-fund of a co-ownership scheme; (b) the depositary must cease to issue and cancelunits, except in respect of the final cancellation under COLL 7.4A.6R
(1) Either before notice is given under section 261Q of the Act or before a request is made under section 261W of the Act in relation to the proposals referred to in COLL 7.4A.4R (4), the authorised contractual scheme manager must make a full inquiry into the ACS's (or, in the case of the termination of a sub-fund of a co-ownership scheme, the sub-fund's) affairs, business and property to establish whether the ACS or the sub-fund will be able to meet all its liabilities.(2) The
(1) Where COLL 7.4A.4R (3)(f) applies, the depositary must cancel all units in issue and wind up the ACS or terminate the sub-fund of the co-ownership scheme in accordance with the approved scheme of arrangement.(2) In any other case falling within COLL 7.4A.4 R:(a) once the ACS falls to be wound up or sub-fund terminated, the depositary must realise the scheme property;(b) after paying out or retaining adequate provision for all liabilities payable and for the costs of the winding
(1) For any annual or half-yearly accounting period which begins after commencement of the winding up or termination, the authorised contractual scheme manager is not required to prepare a short report (COLL 4.5.13R (Provision of short report)), provided that it has reasonably determined that the report is not required in the interests of the unitholders.(2) The authorised contractual scheme manager must consult the depositary before determining that a short report is not required
The articles in IFPRU 1.2.1 G do not always carry the same wording in describing what may be significant in terms of a firm's scope, nature, scale, internal organisation and complexity, but the articles have a general policy to restrict the application of those requirements to institutions which pose higher risks by virtue of broadly their size, types of business and complexity of activities. The FCA's policy is to apply an objective definition with pre-defined thresholds to determine
(1) This rule defines some of the terms used in IFPRU 1.2.3 R.(2) "Total assets" means the firm's total assets(a) set out in the most recent relevant report submitted to the FCA under SUP 16.12 (Integrated regulatory reporting); or (b) (where the firm carries out the assessment under this rule at any time after the date of its most recent report in (a)) as the firm would report to the FCA in accordance with the relevant report, as if the reporting period for that report ends on
The FCA may, on a case-by-case basis, require a firm which does not meet any of the conditions in IFPRU 1.2.3 R to comply with the rules and requirements that apply to a significant IFPRU firm if the FCA considers it appropriate to do so to meet its strategic objective or to advance one or more of its operational objectives under the Act.
(1) A firm may apply to the FCA under section 138A of the Act to waive any one or more of the conditions in IFPRU 1.2.3 R if it believes that one or more of the governance requirements in (2) that apply to a significant IFPRU firm may be disproportionate to it. In its application for such waiver, the FCA expects the firm to demonstrate, taking into account size, nature, scope and complexity of its activities in the context of it being a member of a group and the internal organisation
A company2 must forward to the FCA, for publication through the document viewing facility, two copies of:2(1) all circulars, notices, reports or other documents to which the listingrules apply, at the same time as any such documents are issued; and(2) all resolutions passed by the company other than resolutions concerning ordinary business at an annual general meeting, as soon as possible after the relevant general meeting.
In determining whether a UK recognised body has appropriate procedures for it to make rules, for keeping its rules under review and for amending them, the FCA3 may have regard to:3(1) the arrangements made for taking decisions about making and amending rules in the UK recognised body, including the level at which the decisions are taken and any provision for the delegation of decisions by the governing body;(2) the arrangements made for determining whether or not it is appropriate
(1) In determining whether a UK recognised body's procedures include procedures for consulting users of its facilities in appropriate cases, the FCA3 may have regard to whether those procedures include provision for consulting users of those facilities before changes are made to any rules relating to its regulatory functions. 3(2) In the FCA's3 view, a UK recognised body's procedures may not need to contain provision for consulting users of its facilities before making minor changes
(1) In determining whether a UK recognised body's procedures for consulting members and other users of its facilities are appropriate, the FCA3 may have regard to the range of persons to be consulted by the UK recognised body under those procedures. 3(2) In the FCA's3 view, consultation with a smaller range of persons may be appropriate where limited, technical changes to a UK recognised body's rules are proposed.3(3) In the FCA's3 view, a UK recognised body's procedures may include
In determining whether a UK recognised body's procedures for consulting members and other users of its facilities are appropriate, the FCA3 may have regard to the extent to which the procedures include:3(1) informal discussions at an early stage with users of its facilities or appropriate representative bodies; (2) publication to users of its facilities of a formal consultation paper which includes clearly expressed reasons for the proposed changes and an appropriately detailed
1Under
section 312B of the Act, the FCA5 may
prohibit an EEA market operator from
making or, as the case may be, continuing arrangements in the United Kingdom, to facilitate access to,
or use of, a regulated market,
or multilateral trading facility,
operated by the operator if:5(1) the FCA5 has clear and demonstrable grounds for believing that the operator
has contravened a relevant requirement, and5(2) the FCA5 has first complied with sections 312B(3) to (9) of the Act.5
The operator's right to make
arrangements in the United Kingdom,
to facilitate access to, or use of, a regulated
market, or multilateral trading
facility, operated by the operator may be reinstated (together
with its exempt person status)
if the FCA5 is
satisfied that the contravention which led the FCA5 to exercise its prohibition power has been remedied.55
Examples of goods or services that relate to the provision of research that the FCA does not regard as meeting the requirements of the rule on use of dealing commission (COBS 11.6.3 R) include price feeds or historical price data that have not been analysed or manipulated to reach meaningful conclusions.
Examples of goods or services that relate to the execution of trades or the provision of research that the FCA does not regard as meeting the requirements of either evidential provisions COBS 11.6.4 E or COBS 11.6.5 E include:(1) services relating to the valuation or performance measurement of portfolios;(2) computer hardware; (3) connectivity services such as electronic networks and dedicated telephone lines; (4) seminar fees;(5) subscriptions for publications;(6) travel, accommodation
The reference to research in the rule on use of dealing commission (COBS 11.6.3 R) is not confined to investment research as defined in the Glossary. The FCA's view is that research can include, for example, the goods or services encompassed by investment research, provided that they are directly relevant to and are used to assist in the management of investments on behalf of customers. In addition, any goods or services that relate to the provision of research that the FCA regards
In assessing the adequacy of prior and periodic disclosures made by an investment manager under this section, the FCA will have regard to the extent to which the investment manager adopts disclosure standards developed by industry associations such as the Investment Management Association, the National Association of Pension Funds and the Association for Financial Markets in Europe.
The FCA uses mystery shopping to help it protect consumers. This may be by seeking information about a particular practice across a range of firms (SUP 2.4.3 G (1)) or the practices of a particular firm (SUP 2.4.3 G (2)). One of the risks consumers face is that they may be sold financial products which are inappropriate to them. A problem in protecting consumers from this risk is that it is very difficult to establish after the event what a firm has said to a 'genuine' consumer
The FCA may carry out mystery shopping:(1) together with a programme of visits to obtain information about a particular practice, looking at a particular issue across a range of firms, when the FCA may advise the firms of the issues beforehand; the practice being scrutinised may be that of firms or a class of firms in carrying on regulated activities or ancillary activities or in communicating or approving financial promotions; (2) together with focused visits (concentrating on
1A CASS medium firm and a CASS large firm must allocate to a director or senior manager the function of:(1) oversight of the operational effectiveness of that firm’s systems and controls that are designed to achieve compliance with CASS;(2) reporting to the firm’sgoverning body in respect of that oversight; and(3) completing and submitting a CMAR to the FCA in accordance with SUP 16.14.
2If, at the time a firm becomes a CASS medium firm or a CASS large firm in accordance with CASS 1A.2.12 R (1) or CASS 1A.2.12 R (2), the firm is not able to comply with CASS 1A.3.1A R because it has no director or senior manager who is an approved person in respect of the CASS operational oversight function, the firm must:(1) take the necessary steps to ensure that it complies with CASS 1A.3.1A R as soon as practicable, which must at least include submitting an application for
2The FCA will make its assessment of whether the accounting and other standards applicable to an investment exchange or multilateral trading facility as a result of securities being admitted to trading are appropriate for the purpose of LR 13.5.27R (1)(b) having regard to at least the following matters in relation to the legal and regulatory framework applying to the target by virtue of its admission to that market:(1) the quality of auditing standards compared with International
2Where a listed company proposes to rely on LR 13.5.27R (1)(b), its sponsor must submit to the FCA an assessment of the appropriateness of the standards applicable to an investment exchange or multilateral trading facility against the factors set out in LR 13.5.27AG (1) to (7) and any other matters that it considers should be noted. The assessment must be submitted before or at the time the listed company submits the draft class 1 circular.
2The FCA may modify LR 13.5.30BR (1)(b) and (c) where it is not possible for the listed company to provide a meaningful allocation of its costs in the target's audited consolidated income statements. The class 1 circular should contain a statement to this effect where this modification has been granted. The FCA would not normally expect to grant such modifications except in respect of non-operating costs such as finance costs and tax.
2For the purposes of LR 13.5.33R (1) a significant part of the listed company or target is any part that represents over 75% of the listed company's group or the target respectively. For these purposes the FCA will take into account factors such as the assets, profitability and market capitalisation of the business.
(1) An issuer that has the listing of any of its securities suspended may request the FCA to have them restored.(2) The request should be made sufficiently in advance of the time and date the issuer wishes the securities to be restored.(3) Requests received for when the market opens should allow sufficient time for the FCA to deal with the request.(4) The request may be an oral request. The FCA may require documentary evidence that the events that lead to the suspension are no
(1) If an issuer has requested the FCA to restore the listing of any securities, it may withdraw its request at any time while the securities are still suspended. The withdrawal request should initially be made by telephone and then confirmed in writing as soon as possible.(2) Even if a request to restore has been withdrawn, the FCA may restore the listing of securities if it believes the circumstances justify it.
(1) If an underlying instrument is restored, the securitised derivative'slisting will normally be restored.(2) For a securitised derivative relating to a basket of underlying instruments that has been suspended, the securitised derivative's listing may be restored by the FCA, irrespective of whether or not the underlying instrument has been restored, if:(a) the issuer of the securitised derivative confirms to the FCA that despite the relevant underlying instrument(s) suspension
(1) The FCA may dispense with, or modify, the transparency rules in such cases and by reference to such circumstances as it considers appropriate (subject to the terms of directives and the Act).(2) A dispensation or modification may be either unconditional or subject to specified conditions.(3) If an issuer, or other person has applied for, or been granted, a dispensation or modification, it must notify the FCA immediately it becomes aware of any matter which is material to the
(1) An application to the FCA to dispense with or modify, a transparency rule must be in writing.(2) The application must:(a) contain a clear explanation of why the dispensation or modification is requested;(b) include details of any special requirements, for example, the date by which the dispensation or modification is required;(c) contain all relevant information that should reasonably be brought to the FCA's attention;(d) contain any statement or information that is required
An issuer or other person should consult with the FCA at the earliest possible stage if they:
- (1)
are in doubt about how the transparency rules apply in a particular situation; or
- (2)
consider that it may be necessary for the FCA to dispense with or modify a transparency rule.
1Where a transparency rule refers to consultation with the FCA, submissions should be made in writing other than in circumstances of exceptional urgency.
Address for correspondence
Note: The FCA's address for correspondence in relation to the disclosure rules is:
Primary Market Monitoring |
Markets Division |
The Financial Conduct Authority |
25 The North Colonnade |
Canary Wharf |
London E14 5HS |
Each of these aspects of the definition is considered in greater detail in PERG 9.4 (Collective investment scheme (section 235 of the Act)) to PERG 9.9 (The investment condition: the 'satisfaction test' (section 236(3)(b) of the Act)). Although the definition has a number of elements, the FCA considers that it requires an overall view to be taken of the body corporate. This is of particular importance in relation to the investment condition (see PERG 9.6.3 G and PERG 9.6.4 G (The
The FCA understands that the aim of the definition in section 236 of the Act is to include any body corporate which, looked at as a whole, functions as an open-ended investment vehicle. The definition operates against a background that there is a wide range of different circumstances in which any particular body corporate can be established and operated. For example, the definition applies to bodies corporate wherever they are formed. So, in the application of the definition to
For a body corporate formed outside the United Kingdom, there is an additional issue as to how the applicable corporate law and the definition of open-ended investment company in the Act relate to one another. The FCA understands this to operate as follows. The term 'body corporate' is defined in section 417(1) of the Act (Interpretation) as including 'a body corporate constituted under the law of a country or territory outside the United Kingdom'. So, whether or not any particular
GEN 6.1.4A R,2GEN 6.1.5 R and GEN 6.1.6 R do not prevent a firm or member from entering into, arranging, claiming on or making any payment under a contract of insurance which indemnifies any person against all or part of the costs of defending appropriate regulator5 enforcement action or any costs they may be ordered to pay to the appropriate regulator5.55
(1) Neither an incoming EEA firm nor an incoming Treaty firm is authorised by the FCA or PRA4 when acting as such.4(2) It is likely to be misleading for a firm that is not authorised by the FCA or PRA4 to state or imply that it is so authorised. It is also likely to be misleading for a firm to state or imply that a client will have recourse to the Financial Ombudsman Service or the FSCS where this is not the case.4(3) [deleted]44
4As well as potentially breaching the requirements in this section, misleading statements by a firm may involve a breach of Principle 7 (Communications with clients) or section Part 7 (Offences relating to financial services) of the Financial Services Act 2012, as well as giving rise to private law actions for misrepresentation.
36Unless a contrary intention appears, to the extent that a provision made by the appropriate regulator ('the referring provision') contains a cross-reference to another provision that is not made by that regulator ('the referred provision'), the referred provision is to be taken to have been made by the appropriate regulator to the extent necessary to make the referring provision function with the full effect indicated by the reference.
A general rule (that is a rule made by the appropriate regulator under36 the general rule making powers36) is to be interpreted as:36(1) applying to a firm with respect to the carrying on of all regulated activities, except to the extent that a contrary intention appears; and(2) not applying to a firm with respect to the carrying on of unregulated activities, unless and then only to the extent that a contrary intention appears.
(1) 36This rule applies to Handbook provisions made by both the FCA and the PRA. It may affect their application by the FCA to PRA-authorised persons and PRAapproved persons, and may affect their application by the PRA to any authorised person or approved person.(2) Where a Handbook provision (or part of one) goes beyond the FCA's or PRA's powers or regulatory responsibilities, it is to be interpreted as applied by that regulator to the extent of that regulator's powers and regulatory
36Examples of rules being interpreted as cut back by GEN 2.2.23 R include the following:(1) [deleted]1212(2) SYSC 6.1.1 R requires a firm to maintain adequate policies and procedures to ensure compliance with its obligations under the regulatory system; SYSC 6.1.1 R should be interpreted:(a) as applied by the FCA in respect of a PRA-authorised person's compliance with regulatory obligations that are the responsibility of the FCA (for example, in respect of a bank maintaining policies
The appropriate regulator9 recognises that there may be occasions when, because of a particular emergency, a person (generally a firm, but in certain circumstances, for example in relation to price stabilising rules, an unauthorised person) may be unable to comply with a particular rule in the Handbook. The purpose of GEN 1.3.2 R is to provide appropriate relief from the consequences of contravention of such a rule in those circumstances.193
(1) If any emergency arises which:(a) makes it impracticable for a person to comply with a particular rule in the Handbook; (b) could not have been avoided by the person taking all reasonable steps; and(c) is outside the control of the person, its associates and agents (and of its and their employees);the person will not be in contravention of that rule to the extent that, in consequence of the emergency, compliance with that rule is impracticable. (2) Paragraph (1) applies only
GEN 1.3.2 R operates on the appropriate regulator's9rules. It does not affect the appropriate regulator's9 powers to take action against a firm in an emergency, based on contravention of other requirements and standards under the regulatory system. For example, the appropriate regulator9 may exercise its own-initiative power in appropriate cases to vary a firm'sPart 4A permission9 based on a failure or potential failure to satisfy the threshold conditions (see SUP 7 (Individual9
(1) Overseas investment exchanges which are considering whether to seek authorisation or recognition should first consider whether they will be carrying on regulated activities in the United Kingdom. Overseas investment exchanges which do not carry on regulated activities in the United Kingdom need take no action.33(2) Prospective applicants should discuss authorisation and recognition with the FCA3 before deciding whether to seek authorisation or recognition.3
Applicants for authorised person status should refer to the FCA3 website "How do I get authorised":http://www.fca.org.uk/firms/about-authorisation 31. Applications for recognition as an overseas recognised body should be addressed to:The Financial Conduct Authority3 (Markets Division)25 The North ColonnadeCanary WharfLondon E14 5HS133
There is no standard application form for application for recognition as an ROIE2. An application should be made in accordance with any direction the FCA3 may make under section 287 (Application by an investment exchange) of the Act and should include:333(1) the information, evidence and explanatory material necessary to demonstrate to the FCA3 that the recognition requirements (set out in REC 6.3) will be met;(2) the application fee (see REC 7);(3) the address of the applicant's
The FCA3 may require further information from the applicant and may need to have discussions with the appropriate authorities in the applicant's home territory. To allow sufficient time for applications to be processed and for the necessary contacts to be made with the appropriate home territory authorities, applications should be made not later than six months before the applicant wishes the recognition order to take effect. No guarantee can be given that a decision will be reached
A firm is required to provide the appropriate regulator9 with a wide range of information to enable the appropriate regulator9 to meet its responsibilities for monitoring the firm's compliance with requirements imposed by or under the Act. Some of this information is provided through regular reports, including those set out in SUP 16 (Reporting requirements) and SUP 17 (Transaction reporting). In addition, other chapters in the Handbook set out specific notification and reporting
(1) 2The aim of the discussions in COBS 20.2.41A R is to:(a) allow the FCA to comment on the adequacy of the firm's planning; and(b) seek agreement with the firm on any other appropriate actions to ensure with-profits policyholders are treated fairly.(2) If the firm is no longer effecting a material volume of new with-profits policies (other than by reinsurance) into a with-profits fund; or if it is ceding by way of reinsurance most or all of the new with-profits policies which
A firm that is seeking to make a reattribution of its inherited estate must:(1) first discuss with the FCA7 (as part of its determination under COBS 20.2.21 R):227(a) its projections for capital required to support existing business, which must include an assessment of:2(i) the firm's future risk appetite for the with-profits fund and other relevant business; and2(ii) how much of the margin for prudence can be identified as excessive and removed from the projected capital requirements;
The firm should include an independent element in the policyholder advocate selection process, which may include consulting representative groups of policyholders or using the services of a recruitment consultant. When considering an application for approval of a nominee to perform the policyholder advocate role, the FCA will have regard to the extent to which the firm has involved others in the selection process.
The precise role of the policyholder advocate in any particular case will depend on the nature of the firm and the reattribution proposed. A firm will need to discuss, with a view to agreeing,2 with the FCA the precise role of the policyholder advocate in a particular case (COBS 20.2.45 R). However, the role of the policyholder advocate should include:(1) negotiating with the firm, on behalf of the relevant with-profits policyholders, the benefits to be offered to them in exchange
A firm must:(1) notify the FCA of the terms on which it proposes to appoint a policyholder advocate (whether or not the candidate was nominated by the FCA); and(2) ensure that the terms of appointment for the policyholder advocate:(a) include a description of the role of the policyholder advocate as agreed with the FCA under COBS 20.2.44 G;2(aA) stress the independent nature of the policyholder advocate's appointment and function, and are consistent with it;2(b) define the relationship
(1) 4A mutual operating a common fund may seek to undertake an exercise to identify that part of the fund to which the mutual considers it would be fair for relevant provisions in COBS 20 not to apply. (2) To give regulatory effect to the identification exercise, the FCA expects that a mutual will need to apply to the FCA to modify the relevant provisions in COBS 20 and elsewhere which are dependent on the definition of the with-profits fund. (3) A mutual will need to demonstrate