Related provisions for GEN 1.1.2
81 - 100 of 486 items.
Section 21(2) of the Act sets out two circumstances in which a financial promotion will not be caught by the restriction in section 21(1). These are where the communicator is an authorised person or where the content of the financial promotion has been approved for the purposes of section 21 by an authorised person. Where approval is concerned it must be specifically for the purposes of enabling the financial promotion to be communicated by unauthorised persons free of the restriction
Where an authorised person makes a financial promotion, he is not subject to the restriction in section 21. So, the communication of the financial promotion by the authorised person will not be a criminal offence under the provisions of section 25 of the Act (Contravention of section 21) and any resulting contract will not be unenforceable under section 30 of the Act (Enforceability of agreement resulting from unlawful communications). However, the appropriate financial promotion
An unauthorised person may wish to pass on a financial promotion made to him by an authorised person. In this case, the fact that the financial promotion was made to him by an authorised person will not be enough for the restriction in section 21 not to apply to him. The authorised person must also both have approved its content and have done so for the purpose of section 21 of the Act. If an authorised person wishes to ensure that an unauthorised person can communicate a financial
The guidance in COND 2 explains each FCA1threshold condition in Schedule 6 (threshold conditions) to the Act and indicates1 how the FCA1 will interpret it in practice. This guidance is not, however, exhaustive and is written in very general terms. A firm will need to have regard to the obligation placed upon the FCA1 under section 55B (The threshold conditions) of the Act; that is, the FCA1 must ensure that the firm will satisfy, and continue to satisfy, the FCA1threshold conditions
1When assessing the FCAthreshold conditions, the FCA may have regard to any person appearing to be, or likely to be, in a relevant relationship with the firm, in accordance with section 55R of the Act (Persons connected with an applicant). For example, a firm'scontrollers, its directors or partners, other persons with close links to the firm (see COND 2.3), and other persons that exert influence on the firm which might pose a risk to the firm's satisfaction of the FCAthreshold
(1) For ease of reference, the FCA1threshold conditions in or under Schedule 6 to the Act have been quoted in full in COND 2. (1A) 1Paragraphs 2A and 3A of Schedule 6 of the Act have not been quoted. These set out the application of the FCAthreshold conditions to firms which do not carry on, or are not seeking to carry on, a PRAregulated activity and firms which carry on, or are seeking to carry on, a PRAregulated activity respectively. This application is summarised in COND
1Paragraph 1A of Schedule 6 to the Act(1) "assets" includes contingent assets;"consolidated supervision" has the same meaning as in section 3M(a);"consumer" has the meaning given by section 425A(b);"financial crime" is to be read with section 1H(3)(c);"functions", in relation to either the FCA or the PRA, means the functions conferred on that regulator by or under this Act;"liabilities" includes contingent liabilities; "relevant directives" has the same meaning as in section 3M;
Under section 33(2) of the Act (Withdrawal of authorisation), if the appropriate regulator cancels a firm'sPart 4A permission,1 and as a result there is no regulated activity for which the firm has permission, the regulator authorising that firm1 is required to give a direction withdrawing the firm's status as an authorised person.111
1If the FCA concludes that it should grant an FCA-authorised person's application for cancellation of permission and end its authorisation, the FCA will:(1) cancel the firm'sPart 4A permission under section 55H(3) of the Act;(2) withdraw the firm'sauthorised status under section 33(2) of the Act by giving the firm a direction in writing; and(3) update the firm's entry in the Financial Services Register to show it has ceased to be authorised.
Where, in relation to an offer in the United Kingdom, no prospectus is required under the Act, the issuer and offeror must ensure that material information they provide to qualified investors or special categories of investors, including information disclosed in the context of meetings relating to offers, is disclosed to all qualified investors or special categories of investors to whom the offer is exclusively addressed. [Note: article 15.5 PD]
An ROIE1 is required to notify the FCA1 of certain events and give information to it on a regular basis and when certain specified events occur. Section 295 of the Act (Notification: overseas investment exchanges and overseas clearing houses) requires each ROIE1 to provide the FCA1 with a report (at least once a year) which contains:111(1) a statement as to whether any events have occurred which are likely to affect the FCA's assessment of whether it is satisfied that the ROIE
The period covered by a report submitted under section 295(1) of the Act starts on the day after the period covered by its last report or, if there is no such report, after the making of the recognition order recognising theROIE1 as such, and ends on the date specified in the report or, if no date is specified, on the date of the report. 1
The appropriate regulator is concerned to ensure that every actuary appointed by a firm under this section1 has the necessary skill and experience to provide the firm with appropriate actuarial advice. SUP 4.3.9 R to SUP 4.3.10 G set out the appropriate regulator's rules and guidance aimed at achieving this.1
Before a firm applies for approval of the person it proposes to appoint as an actuary under SUP 4.3.1 R1, it must take reasonable steps to ensure that the actuary:1(1) has the required skill and experience to perform his functions under the regulatory system; and(2) is a Fellow of the Institute of Actuaries or of the Faculty of Actuaries.
A firm must not appoint under SUP 4.3.1 R1 or an actuary who is disqualified by the FCA10 under section 345 of the Act (Disciplinary measures: FCA) or the PRA under section 345A of the Act (Disciplinary measures: PRA10) from acting as an actuary either for that firm or for a relevant class of firm. 11010
If it appears to the FCA or PRA10 that an actuary1 has failed to comply with a duty imposed on him under the Act, it have the power to and10 may disqualify him under section 345 or 345A respectively10 of the Act. A list of actuaries who are disqualified may be found on the FCA10 website (http://www.fca.org.uk10).10155110101010
1A firm must take reasonable steps to ensure that an actuary who is to be, or has been, appointed under SUP 4.3.1 R:(1) does not perform the function of chairman or chief executive of the firm, or does not, if he is to perform the with-profits actuary function, become a member of the firm's governing body; and(2) does not perform any other function on behalf of the firm which could give rise to a significant conflict of interest.
A firm should satisfy itself that the terms of the contract with its appointed representative (including an introducer appointed representative):(1) are designed to enable the firm to comply properly with any limitations or requirements on its own permission;(2) require the appointed representative to cooperate with the FCA as described in SUP 2.3.4 G (Information gathering by the FCA on its own initiative: cooperation by firms) and give access to its premises, as described in
A firm must ensure that its written contract with each of its appointed representatives:4(1) complies with the requirements prescribed in regulation 3 of the Appointed Representatives Regulations (see SUP 12.5.2 G);4(2) requires the appointed representative to comply, and to ensure that any persons who provide services to the appointed representative under a contract of services or a contract for service comply, with the relevant requirements in or under the Act (including the
1Section 87A(2A) of the Act provides that information about certain guarantors may be omitted from a prospectus:
87A |
(2A) |
If, in the case of transferable securities to which section 87 applies, the prospectus states that the guarantor is a specified EEA State, the prospectus is not required to include other information about the guarantor. |
Section 87B(1) of the Act sets out when the FCA may authorise the omission of information from a prospectus:
(1) |
The [FCA] may authorise the omission from a prospectus of any information, the inclusion of which would otherwise be required, on the ground – |
|
(a) |
that its disclosure would be contrary to the public interest; |
|
(b) |
that its disclosure would be seriously detrimental to the issuer, provided that the omission would be unlikely to mislead the public with regard to any facts or circumstances which are essential for an informed assessment of the kind mentioned in section 87A(2); or |
|
(c) |
that the information is only of minor importance for a specific offer to the public or admission to trading on a regulated market and unlikely to influence an informed assessment of the kind mentioned in section 87A(2). |
|
A request to the FCA to authorise the omission of specific information must:(1) be in writing from the applicant;(2) identify the specific information concerned and the specific reasons for its omission; and(3) state why in the applicant's opinion one or more of the grounds in section 87B(1) of the Act applies.
Guidance on what constitutes a branch is given in SUP App 36. Note that if a UK MiFID investment firm is seeking to use a tied agent established in another EEA State, the rules in SUP 13 will apply as if that firm were seeking to establish a branch in that EEA State unless the firm has already established a branch in that EEA State (paragraph 20A of Schedule 3 to the Act).846
A UK firm other than a UK pure reinsurer9cannot establish a branch in another EEA State for the first time under an EEA right unless the relevant13 conditions in paragraphs 19(2), (4) and (5)12 of Part III of Schedule 3 to the Act are satisfied. It is an offence for a UK firm which is not an authorised person to contravene this prohibition (paragraph 21 of Part III of Schedule 3 to the Act). These conditions are that:13121213(1) the UKfirm has given the appropriate UK regulator,20
20Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give a consent notice, except where paragraph 19(7A) of Part III of Schedule 3 to the Act applies. Where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give a consent notice in relation to a UK firm whose immediate group includes a PRA-authorised person.
(1) If the appropriate UK regulator20 proposes to refuse to give a consent notice, then paragraph 19(8) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to give the UK firm a warning notice.2020(2) If the appropriate UK regulator20 decides to refuse to give a consent notice, then paragraph 19(12) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to give the UK firm a decision notice within three months8 of the date on which
This guidance is issued under section 139A of the Act (Guidance). It is designed to throw light on particular aspects of regulatory requirements, not to be an exhaustive description of a person's obligations. If a person acts in line with the guidance and the circumstances contemplated by it, then the FCA will proceed on the footing that the person has complied with aspects of the requirement to which the guidance relates.
Rights conferred on third parties cannot be affected by guidance given by the FCA. This guidance represents the FCA's view, and does not bind the courts, for example, in relation to the enforceability of a contract where there has been a breach of the general prohibition on carrying on a regulated activity in the United Kingdom without authorisation (see sections 26 to 29 of the Act (Enforceability of Agreements)).
The Act (section
1L) requires the FCA to "maintain
arrangements for supervising authorised persons". Section 1K of the Act also requires the FCA to
provide general guidance about
how it intends to advance its operational objectives in discharging its general
functions in relation to different categories of authorised
person or regulated activity.
One purpose of this guidance is
to discharge the duties of the FCA set
out in sections 1L and 1K of the Act.
The FCA's approach to
The design of these arrangements
is shaped by the FCA'sstatutory objectives in relation to the
conduct supervision of financial services firms as
well as the prudential supervision of firms not
supervised by the PRA. These
objectives are set out in Chapter 1 of the Act.
The FCA has one strategic objective: ensuring that the relevant
markets function well. In discharging its general functions, the FCA must, so far as is reasonably possible,
act in a way which is compatible with
(1) In designing its approach to supervision,
the FCA has regard to the regulatory
principles set out in section 3B of the Act.
In particular, the FCA's regulatory
approach aims to focus and reinforce the responsibility of the senior management
of each firm (section 3B(1)(d)
of the Act) to ensure that it
takes reasonable care to organise and control the affairs of the firm responsibly and effectively, and develops
and maintains adequate risk management systems. It is the responsibility
1Sections 87A(2), (2A), 2(3) and (4) of the Act provide for the general contents of a prospectus:
(2) |
The necessary information is the information necessary to enable investors to make an informed assessment of – |
|
(a) |
the assets and liabilities, financial position, profits and losses, and prospects of the issuer of the transferable securities and of any guarantor; and |
|
(b) |
the rights attaching to the transferable securities.2 |
|
2(2A) |
If, in the case of transferable securities to which section 87 applies, the prospectus states that the guarantor is a specified EEA State, the prospectus is not required to include other information about the guarantor. |
|
(3) |
The necessary information must be presented in a form which is comprehensible and easy to analyse. |
|
(4) |
The necessary information must be prepared having regard to the particular nature of the transferable securities and their issuer and any delegated acts adopted by the Commission under article 7(1) of the prospectus directive2. |
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Sections 87A(5) and (6) of the Act set out the requirement for a summary to be included in a prospectus:
(5) |
The prospectus must include a summary (unless the transferable securities in question are ones in relation to which prospectus rules provide that a summary is not required). |
(6) |
The summary must convey concisely, in non-technical language and in an appropriate structure, the key information relevant to the securities which are the subject of the prospectus and, when read with the rest of the prospectus, must be an aid to investors considering whether to invest in the securities2. 2 |
The summary must also contain a warning to the effect that:(1) it should be read as an introduction to the prospectus;(2) any decision to invest in the transferable securities should be based on consideration of the prospectus as a whole by the investor; (3) where a claim relating to the information contained in a prospectus is brought before a court, the plaintiff investor might, under the national legislation of the EEA States, have to bear the costs of translating the prospectus
A UK firm, other than a UK pure reinsurer or an AIFM exercising an EEA right to market an AIF under AIFMD13,9 cannot start providing cross border services into another EEA State under an EEA right unless it satisfies the conditions in paragraphs 20(1) of Part III of Schedule 3 to the Act and, if it derives its EEA right from the Insurance Directives, AIFMD, MiFID or the UCITS Directive,13paragraph 20(4B) of Part III of Schedule 3 to the Act. It is an offence for a UK firm which
8A MiFID investment firm that wishes to obtain a passport for the activity of operating an MTF should follow the procedures described in this chapter. A UK market operator that operates a recognised investment exchange, a recognised auction platform (pursuant to the RAP regulations, the definition of regulated market in the Act is read for these purposes as including a recognised auction platform)11 or an MTF and wishes to provide cross border services into another EEA State should
8(1) If8 the UK firm'sEEA right derives from MiFID8, theCRD12 or the UCITS Directive, paragraph 20(3) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to send a copy of the notice of intention8 to the Host State Regulator within one month8 of receipt.8A UK firm passporting under the CRD10 may start providing cross border services as soon as it satisfies the relevant conditions (see SUP 13.4.2 G).88812208881012(2) (a) If8 the UK firm'sEEA right derives
(1) 14If the UKfirm'sEEA right derives from AIFMD (other than the EEA right to market an AIF (referred to in (3)) and the condition in (2) is met, paragraph 20(3D) of Part III of Schedule 3 to the Act requires the FCA to:(a) send a copy of the notice of intention to the Host State regulator within one month of receipt; (b) include confirmation that the UKfirm has been authorised by the FCA under AIFMD; and(c) immediately inform the UKfirm that the notice of intention and confirmation
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
(1) 1PR 2, PR 3, PR 4.2, PR 5.1, PR 5.3.1 UK to PR 5.3.3 G and PR 5.5 only apply (subject to paragraph (2)) in relation to:(a) an offer, or a request for admission to trading of transferable securities, in respect of which section 85 of the Act applies (other than an exempt offer under section 86 of the Act) and in relation to which the United Kingdom is the Home State;(b) an offer, or a request for admission to trading of transferable securities, where under section 87 of the
This guidance is issued under section 139A of the Act (Guidance). It is designed to throw light on particular aspects of regulatory requirements, not to be an exhaustive description of a person's obligations. If a person acts in line with the guidance in the circumstances it contemplates, the FCA will proceed on the footing that the person has complied with aspects of the requirement to which the guidance relates. Rights conferred on third parties cannot be affected by guidance
Open-ended investment companies constituted in other EEA States which are seeking to exercise rights conferred by the UCITS Directive should refer to COLL 9 (Recognised schemes) for guidance on the requirements of section 264 of the Act (Schemes constituted in other EEA States). Those seeking to exercise rights under AIFMD should refer to FUND 10 (Operating on a cross-border basis).42
Section 213(3)(b) of the Act requires the appropriate regulator to make rules to enable the FSCS to impose levies on authorised persons in order to meet its expenses. These expenses include in particular expenses incurred, or expected to be incurred, in paying compensation, borrowing or insuring risks.
Section 224F of the Act enables the appropriate regulator to make rules to enable the FSCS to impose levies on authorised persons (or any class of authorised persons) in order to meet its management expenses incurred if, under Part 15A of the Act, it is required by HM Treasury to act in relation to relevant schemes. But those rules must provide that the FSCS can impose a levy only if the FSCS has tried its best to obtain reimbursement of those expenses from the manager of the
The9 provisions on the allocation of levies to classes9 up to their levy limits2 meet9 a requirement of section 213(5) of the Act that the appropriate regulator , in making rules to enable the FSCS to impose levies, must take account of the desirability of ensuring that the amount of the levies imposed on a particular class of authorised person reflects, so far as practicable, the amount of claims made, or likely to be made, in respect of that class of person.22229999
Section 223 of the Act (Management expenses) prevents the FSCS from recovering, through a levy, any management expenses attributable to a particular period in excess of the limit set in COMP as applicable to that period. 'Management expenses' are defined in section 223(3) to mean expenses incurred or expected to be incurred by the FSCS in connection with its functions under the Act, except:(1) expenses incurred in paying compensation;5(2) expenses incurred as a result of the FSCS
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
This chapter sets out:(1) guidance on the type of event or change in condition which a firm should consider notifying in accordance with Principle 11; the purpose of this guidance is to set out examples and not to give comprehensive advice to firms on what they should notify in order to be in compliance with Principle 11;(2) rules on events and changes in condition that a firm must notify; these are the types of event that the appropriate regulator9 must be informed about, usually
The arrangements which grant rights under alternative debentures are similar to the tax definition of arrangements relating to alternative finance investment bonds at section 48A of the Finance Act 2005 (see www.opsi.gov.uk/acts/acts2007/ukpga_20070011_en_5#pt3-pb9-l1g53). However the purposes of the two provisions are not the same. One of the objectives of the FCA under the Act is consumer protection. Accordingly, secondary legislation made under the Act, like article 77A
As these arrangements might amount to a collective investment scheme (see PERG 9.4.2 GG for a broad description) a consequential amendment to the Financial Services and Markets Act 2000 (Collective Investment Scheme) Order 2001 (SI 2001/1062) has been made so that, like conventional bonds, alternative debentures are excluded from the definition of collective investment scheme.
The specified investment category of units in a collective investment scheme includes units in a unit trust scheme or authorised contractual scheme10, shares in open-ended investment companies and rights in respect of most limited partnerships and all limited partnership schemes10. Shares in or securities of an open-ended investment company are treated differently from shares in other companies. They are excluded from the specified investment category of shares. This does not
There are no exclusions in the Regulated Activities Order for this specified investment category. This is because 'collective investment scheme' is defined in section 235 of the Act (Collective investment schemes) for the purposes of the Act generally. But there is a separate power to provide for exemptions from that definition and the Treasury have exercised it (see the Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001 (SI 2001/1062). The result
4All contracts in this category are cash-settled instruments (as opposed to being settled by way of delivering something other than cash). Many would be unenforceable as gaming contracts were it not for section 412 of the Act (Gaming contracts). Examples of instruments that count as specified investments under this category are spread bets and interest rate swaps.
In order to make an unsolicited real time financial promotion, an overseas communicator must rely on either article 32 or article 33. Article 32 provides an exemption for unsolicited real time financial promotions made by an overseas communicator to persons who were previously overseas and were a customer of his then. This is subject to certain conditions, including that, in broad terms, the customer would reasonably expect to be contacted about the subject matter of the financial
This exemption disapplies the restriction in section 21 of the Act from non-real time financial promotions or solicited real time financial promotions which are made to a person who the communicator believes on reasonable grounds to be a certified high net worth individual and which relate to certain investments. These investments must be either:7(1) shares in or debentures or alternative debentures7 of an unlisted company; or(2) warrants,certificates representing certain securities,
The second exemption in article 50A disapplies the restriction in section 21 of the Act from any financial promotions4 which are made to a person who the communicator believes on reasonable grounds to be a self-certified sophisticated investor and which relate to one or more of the specified investments in PERG 8.14.21G (1) to (3) (Certified high net worth individuals (article 484)).44
6The exemptions described in PERG 8.14.40A G to PERG 8.14.40AEA G9 should enable employers (and their contracted service providers) to promote employee benefits packages that include any pension schemes, work-related insurance schemes,9staff mortgages and certain staff loans9 to employees without undue concern that they may be breaching the restriction in section 21 of the Act. PERG 8.14.34 G (Communications by employers and contracted service providers to employees) has further