Related provisions for SUP 9.2.4
61 - 80 of 811 items.
A firm must demonstrate to the FCA that any additional tier 1 instrument or tier 2 instrument issued by it that is governed by the law of a third country is by its terms capable, as part of a resolution of the firm, of being written down or converted into a common equity tier 1 instrument of the firm to the same extent as an equivalent own funds instrument issued under the law of the UK.
A firm must notify the FCA of the following:(1) its intention; or(2) the intention of another member of its group that is not a firm, but is included in the supervision on a consolidated basis of the firm;to issue a capital instrument that it believes will qualify under the EUCRR as own funds other than a common equity tier 1 capital at least one month before the intended date of issue.
A firm does not have to give notice under IFPRU 3.2.10 R if the capital instrument is: (1) an ordinary share; or(2) a debt instrument issued under a debt securities programme under which the firm or group member has previously issued and the firm has notified the FCA, in accordance with IFPRU 3.2.10 R, prior to a previous issuance under the programme.
A firm must notify the FCA of its intention, or the intention of another member of its group that is not a firm included in the supervision on a consolidated basis of the firm, to amend or otherwise vary the terms of any own funds instrument included in its own funds or the own funds of its consolidated group at least one month before the intended date of such amendment or other variation.
A decision to: (1) revoke a recognition order under section 297 of the Act (Revoking recognition) or (for RAPs) regulation 4 of the RAP regulations; or3(2) make a direction under section 296 (FCA's4powers to give directions) or (for RAPs) regulation 3 of the RAP regulations; or34(3) refuse to make a recognition order under section 290 (Recognition orders) or 290A (Refusal of recognition on ground of excessive regulatory provision) or (for RAPs) regulation 2 of the RAP regulations32;is
In considering whether it would be appropriate to exercise the powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations,3 the FCA4 will have regard to all relevant information and factors including:4(1) its guidance to recognised bodies;(2) the results of its routine supervision of the body concerned;(3) the extent to which the failure or likely failure to satisfy one or more of the recognised body requirements31may affect the statutory
In considering whether or not to make a recognition order, the FCA4 will have regard to all relevant information and factors, including its guidance to recognised bodies and applicants and the information provided by applicants. Details of the application processes and other guidance for applicants are set out in REC 5 and (for overseas applications) REC 6.4
Before exercising its powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations3, the FCA4 will usually discuss its intention, and the basis for this, with the key individuals or other appropriate representatives of the recognised body. It will usually discuss its intention not to make a recognition order with appropriate representatives of the applicant.4
3Key steps in the section 298 procedure4
| 4 | ||
(1) |
give written notice to theRIE4 (or applicant); 4 |
The notice will state why the FCA4 intends to take the action it proposes to take, and include an invitation to make representations, and the period within which representations should be made (unless subsequently extended by the FCA)4. 4 |
(2)4 4 |
receive representations from the RIE or applicant concerned;4 4 |
The FCA4 will not usually consider oral representations without first receiving written representations from theRIE (or applicant)4. It will normally only hear oral representations from the RIE4 on request. 444 |
(3)4 4 |
write promptly to RIE (or applicant)4 who requests the opportunity to make oral representations if it decides not to hear that person's representations; 4 |
The FCA4 will indicate why it will not hear oral representations and the FCA4 will allow the RIE (or applicant)4 further time to respond. 444 |
(4)4 4 |
have regard to representations made; |
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(5)4 4 |
(when it has reached its decision) notify the RIE4 (or applicant) concerned in writing. 4 |
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| 4 |
4For RAPs, key steps in the regulation 5 procedure
The FCA will: |
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(1) |
give written notice to the RAP (or applicant); |
The notice will state why the FCA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made. |
(2) |
take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the RAP or of the applicant, as the case may be; |
The FCA will also notify persons individually (as far as it considers it reasonably practicable to do so) if it considers that the action it proposes to take would affect them adversely in a way which would be different from its effect on other persons of the same class. |
(3) |
publish the notice so as to bring it to the attention of other persons likely to be affected; |
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(4) |
receive representations from the RAP or applicant concerned, any member of the RAP or applicant, and any other person who is likely to be affected by the action the FCA proposes to take; |
The FCA will not usually consider oral representations without first receiving written representations from the person concerned. It will normally only hear oral representations from the RAP (or applicant) itself or of a person whom it has notified individually, on request. |
(5) |
write promptly to any person who requests the opportunity to make oral representations if it decides not to hear that person's representations; |
The FCA will indicate why it will not hear oral representations and the FCA will allow the person concerned further time to respond. |
(6) |
have regard to representations made; |
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(7) |
(when it has reached its decision) notify the RAP (or applicant) concerned in writing; |
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(8) |
(if it has decided to give a direction, or revoke or refuse to make a recognition order) take such steps as it considers reasonably practicable to bring its decision to the attention of members of the RAP or applicant and to other persons likely to be affected. |
The FCA will usually give notice of its decision to the same persons and in the same manner as it gave notice of its intention to act. |
Achieving the regulatory objectives involves the FCA informing itself of developments in firms and in markets. The Act requires the FCA to maintain arrangements for supervising authorised persons (section 1L(1)). 5 The Act also requires the FCA to take certain steps to cooperate with other relevant bodies and 3regulators (section 354A). For these purposes, the FCA needs to have access to a broad range of information about a firm's business.5
The FCA receives the information in SUP 2.1.3 G through a variety of means, including notifications by firms (see SUP 15) and regular reporting by firms (see SUP 16). This chapter is concerned with the methods of information gathering that the FCA may use on its own initiative in the discharge of its functions under the Act. This chapter does not deal with the information gathering powers that the FCA has under the Unfair Terms Regulations. These are dealt with in UNFCOG2.12
Part XI of the Act (Information Gathering and Investigations) gives the FCA10 statutory powers, including: 10(1) to require the provision of information (see sections 165 and 103EG 32);31032310(2) to require reports from skilled persons (see section 166 and SUP 5);(3) to appoint investigators (see sections 167, 168 and 169 of the Act and EG 32); and2(4) to apply for a warrant to enter premises (see section 176 of the Act and EG 42).2
The FCA prefers to discharge its functions by working in an open and cooperative relationship with firms. The FCA will look to obtain information in the context of that relationship unless it appears that obtaining information in that way will not achieve the necessary results, in which case it will use its statutory powers. The FCA has exercised its rule-making powers to make Principle 11 which requires that a firm must deal with its regulators in an open and cooperative way,
The purpose of SUP 2.3 is to amplify Principle 11 in the context of information gathering by the FCA on its own initiative in the discharge of its functions under the Act. SUP 2.3 therefore sets out, in guidance on Principle 11 and in rules, how the FCA expects firms to deal with the FCA in that context, including the steps that a firm should take with a view to ensuring that certain connected persons should also cooperate with the FCA.
The purpose of SUP 2.4 is to explain a particular method of information gathering used by the FCA, known as "mystery shopping". Information about how a firm sells financial products can be very difficult to obtain, and the purpose of this method is to obtain such information from individuals who approach a firm in the role of potential retail consumers on the FCA's initiative. The FCA may seek information about particular issues or the activities of individual firms by means
If a registered society fails to file an R by the date it is required to be filed:(1) the R used to determine the amount of the periodic fee payable by the registered society will be that shown in the R last filed with the FCA or its predecessor; and(2) the registered society must pay an administrative fee equal to the lower of the periodic fee payable by the registered society under Annex 1R for that year, and £250.
If a registered society ceases to be a registered society on or after 1 April in a particular financial year, but before an invoice for the periodic fee payable under 1.2.1 R for the financial year in which the society ceases to be a registered society has been issued by the FCA, the periodic fee payable by that registered society under 1.2.1 R is the amount of the periodic fee under Annex 1R for the immediately preceding financial year.
A registered society need not pay a periodic fee on the date which it is due under the relevant provision in these rules, if:(1) that date falls during a period during which circumstances of the sort set out in R(Emergencies) exist, and that registered society has reasonable grounds to believe that those circumstances impair its ability to pay the fee, in which case it must pay on or before the fifth business day after the end of that period; or(2) that date would otherwise
The FCA expects to issue invoices for periodic fees at least 30 days before the date on which they fall due. Accordingly, it will generally be the case that a registered society will have at least 30 days from the issue of the invoice before an administrative fee becomes payable, and at least 45 days before any interest becomes payable.
6(1) A firm must notify the FCA that it has become or ceased to be closely linked with any person and ensure the following:454(a) where a firm has elected to report changes in close links on a monthly basis under SUP 11.9.5A R, the notification must be made in line with SUP 11.9.3BA R; and4(b) in any other case, the notification must be made by completing the Close Links Notification Form (see SUP 11.9.3B G) and must include the information in SUP 11.9.3D G.4(2) If a group includes
6The firm must make a notification to the FCA under SUP 11.9.1A R:(1) as soon as reasonably practicable and no later than one month after it becomes aware that it has become or ceased to be closely linked with any person; or(2) where a firm has elected to report on a monthly basis, within fifteen business days of the end of each month by completing 4the Close Links Monthly Report for that month and must submit the group organisation chart on a quarterly basis unless there have
6(1) A firm elects to report changes in close links on a monthly basis by sending a written notice of election to the firm's usual supervisory contact at the FCA.(2) An election to report changes in close links on a monthly basis will stand until such time as the firm gives its usual supervisory contact at the FCA at least one month's written notice of its intention to cease reporting changes in close links on a monthly basis.
A1sponsor must in relation to a sponsor service:11(1) referred to in 3LR 8.2.1R (1) to (4), LR 8.2.1R (11), LR 8.2.1A R and, where relevant LR 8.2.1R (5)3, 1provide assurance to the FCA when required that the responsibilities of the company with or applying for a premium listing of its equity shares3 under the listing rules have been met;3(1A) 3provide to the FCA any explanation or confirmation in such form and within such time limit as the FCA reasonably requires for the purposes
3A sponsor must, for so long as it provides a sponsor service:(1) take such reasonable steps as are sufficient to ensure that any communication or information it provides to the FCA in carrying out the sponsor service is, to the best of its knowledge and belief, accurate and complete in all material respects; and(2) as soon as possible provide to the FCA any information of which it becomes aware that materially affects the accuracy or completeness of information it has previously
3Where a sponsor provides information to the FCA which is or is based on information it has received from a third party, in assessing whether a sponsor has complied with its obligations in LR 8.3.1AR (1) the FCA will have regard, amongst other things, to whether a sponsor has appropriately used its own knowledge, judgment and expertise to review and challenge the information provided by the third party.
The1sponsor will be the main point of contact with the FCA for any matter referred to in LR 8.2.1 The FCA expects to discuss all issues relating to a transaction and any draft or final document directly with the sponsor. However, in appropriate circumstances, the FCA will communicate directly with the company with or applying for a premium listing of its equity shares, or its advisers3.113
1If, in connection with the provision of a3sponsor service, a sponsor becomes aware that it, or a company with or applying for a premium listing of its equity shares is failing or has failed to comply with its obligations under3 the listing rules3, the3disclosure rules or the transparency rules, the sponsor must promptly notify the FCA2.323
1In identifying conflicts of interest, sponsors should also take into account3 circumstances that could:333(1) 3create a perception in the market that a sponsor may not be able to perform its functions properly; or4(2) 3compromise the ability of a sponsor to fulfil its obligations to the FCA in relation to the provision of a sponsor service.
1LR 8.3.11 R recognises that there will be some conflicts of interest that cannot be effectively managed. Providing sponsor services in those cases could adversely affect both a sponsor's ability to perform its functions and market confidence in the sponsor regime. If in doubt about whether a conflict can be effectively managed a sponsor should discuss the issue with the FCA before it decides if it can provide a sponsor service.
Under section 294(4) of the Act, before the FCA1 may give a waiver of notification rules, it must be satisfied that:1(1) compliance by the recognised body with those notification rules, or with those rules as unmodified, would be unduly burdensome or would not achieve the purpose for which those rules were made; and(2) the waiver would not result in undue risk to persons whose interests those rules are designed to protect.
There is no application form, but applicants should make their application formally and in writing and in accordance with any direction the FCA1 may make under section 294(2) of the Act. Each application should set out at least:1(1) full particulars of the waiver which is requested; (2) the reason why the recognised body believes that the criteria set out in section 294(4) (and described in REC 3.3.3 G) would be met, if this waiver were granted; and (3) where the recognised body
Any waiver given by the FCA1 under section 294 of the Act will be made in writing, stating: 1(1) the name of the recognised body in respect of which the waiver is made;(2) the notification rules which are to be waived or modified in respect of that body;(3) where relevant, the manner in which any rule is to be modified;(4) any condition or time limit to which the waiver is subject; and(5) the date from which the waiver is to take effect.
Where the FCA1 considers that it will not give the waiver which has been applied for, the FCA1 will give reasons to the applicant for its decision. The FCA1 will endeavour, where practicable, to inform an applicant in advance where it seems that an application is likely to fail unless it is amended or expanded, so that the applicant will have the opportunity to make any necessary amendments or additions before the application is considered.111
The FCA1 will periodically review any waiver it has given. The FCA1 has the right to revoke a waiver under section 294(6) of the Act. This right is likely to be exercised in the event of a material change in the circumstances of the recognised body or in any fact on the basis of which the waiver was given.11
Every firm will have one or more persons responsible for directing its affairs. These persons will be performing the FCA governing functions and will be required to be FCA-approved persons unless the application provisions in SUP 10A.1, or the particular description of an FCA controlled function, provide otherwise. For example, each director of a company incorporated under the Companies Acts will perform an FCA governing functions. However, if the firm is a PRA-authorised person,
(1) This paragraph explains the basis on which the director function and the non-executive director function are applied to persons who have a position with the firm'sparent undertaking or holding company under SUP 10A.6.8 R or SUP 10A.6.13 R.(2) The basic position is set out in SUP 10A.3.4 G. As is the case with all controlled functions, SUP 10A.6.8 R and SUP 10A.6.13 R are subject to the overriding provisions in SUP 10A.3.1 R, which sets out the requirements of section 59(1)
For a branch in the United Kingdom of an overseas firm, the FCA would not normally expect the overseas chief executive of the firm as a whole to be FCA-approved for this function where there is a senior manager under him with specific responsibility for those activities of the branch which are subject to the UKregulatory system. In some circumstances, the person within the firm responsible for UK operations may, if the function is likely to enable him to exercise significant influence
The effect of SUP 10A.1.17 R is that regulated activity in SUP 10A.6.23 R (and elsewhere) is to be taken as not including an activity that is a non-mainstream regulated activity. Therefore, a partner whose only regulated activities are incidental to his professional services, in a partnership whose principal purpose is to carry on other than regulated activities, need not be an FCA-approved person. What amounts to the principal purpose of the firm is a matter of fact in each case
Typically a non-directive friendly Society will appoint a “committee of management” to direct its affairs. However, the governing arrangements may be informal and flexible. If this is the case, the FCA would expect the society to resolve to give responsibility for the carrying on of regulated activities to one individual who is appropriate in all the circumstances. That individual may, for example, have the title of chief executive or similar. The individual would have to be an
A firm must give the appropriate regulator10 reasonable advance notice of a change in:10(1) the firm's name (which is the registered name if the firm is a body corporate); (2) any business name under which the firm carries on a regulated activity or ancillary activity either from an establishment in the United Kingdom or with or for clients in the United Kingdom.
A firm must give the appropriate regulator10 reasonable advance notice of a change in any of the following addresses, and give details of the new address and the date of the change:10(1) the firm's principal place of business in the United Kingdom; (2) in the case of an overseas firm, its registered office (or head office) address.
A firm must give the appropriate regulator10 reasonable advance notice of a change in any of the following telephone numbers, and give details of the new telephone number and the date of the change:1310(1) the number of the firm's principal place of business in the United Kingdom;(2) in the case of an overseas firm, the number of its head office.3
(1) 2A firm other than:55(a) a credit union; or5(b) an FCA-authorised person with permission to carry on only credit-related regulated activity;5must submit any notice under6SUP 15.5.1R, SUP 15.5.4Rand10SUP 15.5.5 R3 by submitting the form in SUP 15 Ann 3R online at the appropriate regulator's website.101010(2) A credit union or an FCA-authorised person with permission to carry on only credit-related regulated activity (other than a firm with only an interim permission to which
(1) If the appropriate regulator's10 information technology systems fail and online submission is unavailable for 24 hours or more, the appropriate regulator10 will endeavour to publish a notice on its website confirming that online submission is unavailable and that the alternative methods of submission set out in SUP 15.5.9R(3) and SUP 15.7.4R to SUP 15.7.9G (Form and method of notification) should be used.1010(2) Where 10SUP 15.5.9R (2)10 applies to a firm, GEN 1.3.2 R (Emergency)
Where a UK RIE proposes to operate a new regulated market or close an existing regulated market it must give the FCA3notice of that event and the information specified for the purposes of this rule in REC 3.14A.3 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them). 3
Where a UK RIE proposes to operate a new MTF or close an existing MTF it must give the FCA3notice of that event and the information specified for the purposes of this rule in REC 3.14A.5 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them).3
The following information is specified for the purposes of REC 3.14A.4 R:(1) where the UK RIE proposes to operate a new MTF:(a) a description of the MTF; and(b) a description of the specified investments which will be admitted to trading on that MTF.(2) where the UK RIE proposes to close a MTF, the name of that MTF.
The appropriate regulator4 is required by sections 138B(1) and (2)4 of the Act to publish a waiver unless it is satisfied that it is inappropriate or unnecessary to do so. If the appropriate regulator4 publishes a waiver, it will not publish details of why a waiver was required or any of the supporting information given in a waiver application.444
4The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
When considering whether it is satisfied under section 138B(2)4, the appropriate regulator4 is required by section 138B(3)4 of the Act:444(1) to take into account whether the waiver relates to a rule contravention of which is actionable under section 138D4 of the Act (Actions for damages); Schedule 5 identifies such rules;4(2) to consider whether its publication would prejudice, to an unreasonable degree, the commercial interests of the firm concerned, or any other member of its
Waivers can affect the legal rights of third parties, including consumers. In the appropriate regulator's4 view it is important that the fact and effect of such waivers should be transparent. So the fact that a waiver relates to a rule that is actionable under section 138D4 of the Act (see SUP 8.6.2 G (1)) will tend to argue in favour of publication.44
In considering whether commercial interests would be prejudiced to an unreasonable degree (see SUP 8.6.2 G (2)), the appropriate regulator4 will weigh the prejudice to firms' commercial interests against the interests of consumers, markets and other third parties in disclosure. In doing so the appropriate regulator4 will consider factors such as the extent to which publication of the waiver would involve the premature release of proprietary information to commercial rivals, for
If, after taking into account the matters in SUP 8.3.3 D to SUP 8.6.6 G, a firm believes there are good grounds for the appropriate regulator4 either to withhold publication or to publish the waiver without disclosing the identity of the firm, it should make this clear in its application. If the appropriate regulator4proposes to publish a waiver against the wishes of the firm, the appropriate regulator4 will give the firm the opportunity to withdraw its application before the
A decision to withhold a waiver or identity of a firm from publication may be for a limited period only, usually as long as the duration of the relevant grounds for non-publication. If the appropriate regulator4 proposes to publish information about a waiver that had previously been withheld, it will first give the firm an opportunity to make representations.4
The first activity (article 25A(1)) is referred to in this guidance as arranging (bringing about) regulated mortgage contracts. Various points arise:(1) It is not necessary for the potential borrower himself to be involved in making the arrangements.(2) This activity is carried on only if the arrangements bring about, or would bring about a regulated mortgage contract. This is because of the exclusion in article 26 (see PERG 4.5.4 G).(3) This activity therefore includes the activities
Article 26 of the Regulated Activities Order (Arrangements not causing a deal) excludes from article 25A(1) arrangements which do not bring about or would not bring about the regulated mortgage contract in question. In the FCA's view, a person brings about or would bring about a regulated mortgage contract if his involvement in the chain of events leading to the transaction is of enough importance that without that involvement it would not take place.
In the FCA's view, the crucial element of the exclusion in article 27 is the inclusion of the word "merely". When a publisher, broadcaster or Internet website operator goes beyond what is necessary for him to provide his service of publishing, broadcasting or otherwise facilitating the issue of promotions, he may well bring himself within the scope of article 25A(2). Further detailed guidance relating to the scope of the exclusion in article 27 is contained in PERG 8.32.6 G to
Arranging a regulated mortgage contract (or contract variation) to which the arranger is to be a party is excluded from both article 25A(1) and (2) by article 28A of the Regulated Activities Order (Arranging contracts to which the arranger is a party). As a result, a person cannot both be entering into a regulated mortgage contract and arranging a regulated mortgage contract under article 25A as regards a particular regulated mortgage contract. This means that a direct sale by
An unauthorised person who makes arrangements for or with a view to a regulated mortgage contract between a borrower and an authorised person, is excluded from article 25A(1) and (2) by article 29 of the Regulated Activities Order (Arranging deals with or through authorised persons) if specified conditions as to advice and remuneration are satisfied. For example, the exclusion is dependent on the borrower not receiving any advice on the regulated mortgage contract from the unauthorised
The exclusion applies for introductions to:(1) an authorised person who has permission to carry on a regulated activity specified in article 25A (Arranging regulated mortgage contracts) or article 53A (Advising on regulated mortgage contracts) or article 61(1) (Entering into a regulated mortgage contract as lender); introducers can check the status of an authorised person and its permission by visiting the Financial Services Register1 at http://www.fsa.gov.uk/register/;11(2) an
In the FCA's view, money payable to an introducer on his own account includes money legitimately due to him for services rendered to the borrower, whether in connection with the introduction or otherwise. It also includes sums payable to an introducer (for example, a housebuilder) by a buyer in connection with a transfer of property. For example, article 33A allows a housebuilder to receive the purchase price on a property that he sells to a borrower, whom he previously introduced
In the FCA's view, details of fees or commission referred to in PERG 4.5.14G (2) does not require an introducer to provide an actual sum to the borrower, where it is not possible to calculate the full amount due prior to the introduction. This may arise in cases where the fee or commission is a percentage of the eventual loan taken out and the amount of the required loan is not known at the time of the introduction. In these cases, it would be sufficient for the introducer to
In the FCA's view, the information condition in PERG 4.5.14G (3) requires the introducer to indicate to the borrower any other advantages accruing to him as a result of ongoing arrangements with N relating to the introduction of borrowers. This may include, for example, indirect benefits such as office space, travel expenses, subscription fees and this and other relevant information may be provided on a standard form basis to the borrower, as appropriate.
1This chapter contains:2(1) guidance for firms, authorised payment institutions and authorised electronic money institutions8 and their 7appointed representatives, agents7or tied agents5on the circumstances in which the FCA12 permits them 7to reproduce the FSA and FCA logos12;28812712(2) rules on the use by firms of the Key facts logo.2
The FSA logo is a registered UK service mark, with number 2150560. The FCA logo is a registered UK service mark, with number 2629534.12 The Key facts logo is a registered Community trade mark, with the number EU386668812. All12 are3 the property of the FCA12. They are 3also subject to copyright and may be used or reproduced with permission of the FCA12 only. If the FSA, FCA,12 or Key facts logos are 3reproduced or otherwise used by any person without such permission the FCA may
GEN 5 Annex 1 G is a general licence, which sets out the circumstances in which the FCA12 permits 5a person to whom this chapter applies 7to reproduce the FSA and Key facts logos3. Such a person7need not apply for an individual licence if it uses or reproduces the logos 3in accordance with the general licence.12735753
The FCA12 has no policy to allow use of the FSA or Key facts12 logos3 by a person to whom this chapter applies 7other than as set out in GEN 5 Annex 1 G. If, however, such a person7 wishes to use or reproduce either of3 the logos3 other than in accordance with the general licence, it may apply to the FCA12 for an individual licence, giving full reasons why it considers the FCA12 should grant the licence.1235755751212
6A firm must not use the FSA logo (and must take all reasonable steps to ensure that its representatives do not use the FSA logo) in any communication with a client other than in accordance with the general licence in GEN 5 Annex 1 G or any individual licence granted by the FCA12 to the firm or its representatives. 12
When a firm appoints a skilled person4 to provide a report under section 166 (Reports by skilled persons) or collect or update information under section 166A (Appointment of skilled person to collect and update information) of the Act,4 the firm must, in a contract with the skilled person:44(1) require and permit the skilled person during and after the course of his appointment:(a) to cooperate with the appropriate regulator4 in the discharge of its functions under the Act in
In complying with the contractual duty in SUP 5.5.1 R (1) the appropriate regulator4 expects that a skilled person appointed by a firm4 under section 166 (Reports by skilled persons) or section 166A (Appointment of skilled person to collect and update information) of the Act4 will cooperate with the appropriate regulator4 by, amongst other things, providing information or documentation about the planning and progress of the report and its findings and conclusions, if requested
If the appropriate regulator4 is considering asking for the information specified in SUP 5.5.2 G it will take into consideration the cost of the skilled person complying with the request, and the benefit that the appropriate regulator4 may derive from the information. For example, in most cases, the appropriate regulator4 will not need to request a skilled person to give it source data, documents and working papers. However, the appropriate regulator4 may do so when it reasonably
In complying with the contractual duty in SUP 5.5.1 R, the appropriate regulator4 expects that, in the case of substantial or complex reports, the skilled person will give a periodic update on progress and issues to allow for a re-focusing of the report if necessary. The channel of communication would normally be directly between the skilled person and the appropriate regulator4. However, the appropriate regulator4 would also expect firms normally to be informed about the passage
A firm must ensure that the contract required by SUP 5.5.1 R:(1) is governed by the laws of a part of the United Kingdom; (2) expressly(a) provides that the appropriate regulator.4 has a right to enforce the provisions included in the contract under SUP 5.5.1 R and SUP 5.5.5 R (2);4(b) provides that, in proceedings brought by the appropriate regulator4 for the enforcement of those provisions, the skilled person is not to have available by way of defence, set-off or counterclaim
If the appropriate regulator4 considers it appropriate, it may request the firm to give it a copy of the draft contract required by SUP 5.5.1 R4 before it is made with the skilled person. The appropriate regulator4 will inform the firm of any matters that it considers require further clarification or discussion before the contract is finalised.44
The appropriate regulator4 expects the firm, including where applicable4 in complying with Principle 11, to give the appropriate regulator4 information about the cost of the skilled persons report. This may include both an initial estimate of the cost as well as the cost of the completed report. This information is required to help inform the appropriate regulator's4 decision making in the choice of regulatory tools. Information about the number and cost of reports by skilled
The purpose of REC 3.14 is to ensure that the FCA3is informed of planned changes to the services a UK recognised body intends to provide and of the normal hours of operation of those services. Unplanned suspensions of those services, unplanned changes in hours of operation and events causing a UK recognised body to be unable to provide those services should be notified to the FCA3under the rules in REC 3.15.33
Where a UK RIE proposes to admit to trading (or to cease to admit to trading) by means of its facilities:(1) a specified investment (other than a security or an option in relation to a security); or(2) a type of security or a type of option in relation to a security; it must give the FCA3notice of that event, and the information specified for the purposes of this rule in REC 3.14.6 R to the FCA3, at the same time as that proposal is first formally communicated to its members or
Where a UK recognised body proposes to provide (or to cease to provide) clearing facilitation services3 in respect of:3(1) a specified investment (other than a security or an option in relation to a security); or (2) a type of security or a type of option in relation to a security;it must give the FCA3notice of that event and the information specified for the purposes of this rule in REC 3.14.6 R, at the same time as that proposal is first formally communicated to its members
Where:(1) a UK RIE proposes to amend the standard terms of any derivative admitted to trading by means of its facilities; or (2) a UK RIE3 proposes to amend the standard terms relating to any derivative in respect of which it provides clearing facilitation services;3333it must give the FCA3notice of that event, and written particulars of those proposed amendments, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class
Where a UK recognised body proposes to make (or to cease to make) arrangements for the safeguarding and administration of assets belonging to any other person (other than an undertaking in the same group), that recognised body must give the FCA3notice of that event, and the information specified for the purposes of this rule in REC 3.14.9 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them).3
The FCA3does not need to be notified of proposals to offer (or to withdraw offers of) safeguarding and administration services for individual assets of the same type. Specified investments (other than securities) falling within the same article in Part III of the Regulated Activities Order will normally be regarded as being of the same type. Securities falling within the same article in Part III of the Regulated Activities Order which may be given the same generic description
Where a UK recognised body proposes to change its normal hours of operation or (for RAPs) the timing, frequency or duration of its bidding windows,2 it must give the FCA3 notice of that proposal, and particulars of, and the reasons for, the actions proposed, at the same time as the proposal is first formally communicated to its members or shareholders, or any group or class of them.3
(1) If an issuer wishes to transfer its category of equity shares2listing it must notify the FCA of the proposal.(2) The notification must be made as early as possible and in any event not less than 20 business days before it sends the circular required under LR 5.4A.4 R (2)(a) or publishes the announcement required under LR 5.4A.5 R (2).(3) The notification must include:(a) an explanation of why the issuer is seeking the transfer;(b) if a sponsor's letter is not required under
The circular referred to in LR 5.4A.4 R must:(1) comply with the requirements of LR 13.1, LR 13.2 and LR 13.3;(2) be approved by the FCA before it is circulated or published; and(3) include the anticipated transfer date (which must be not less than 20 business days after the passing of the resolution under LR 5.4A.4 R).
Information required under LR 13.3.1R(1) (Contents of all circulars) to be included in the circular or announcement should include an explanation of:(1) the background and reasons for the proposed transfer;(2) any changes to the issuer's business that have been made or are proposed to be made in connection with the proposal;(3) the effect of the transfer on the issuer's obligations under the listing rules;(4) how the issuer will meet any new eligibility requirements, for example
If an issuer has initially notified the FCA under LR 5.4A.3 R it may apply to the FCA to transfer the listing of its equity shares2 from one category to another. The application must include:(1) the issuer's name;(2) details of the equity shares2 to which the transfer relates;(3) the date on which the issuer wishes the transfer to take effect;(4) a copy of any circular, announcement or other document on which the issuer is relying;(5) if relevant, evidence of any resolution required
If an issuer applies under LR 5.4A.10 R, the FCA may approve the transfer if it is satisfied that:(1) the issuer has complied with LR 5.4A.4 R or LR 5.4A.5 R (whichever is relevant);(2) the 20 business day period referred to in LR 5.4A.6 R or LR 5.4A.7 R (whichever is relevant) has elapsed; and(3) the issuer and the equity shares2 will comply with all eligibility requirements that would apply if the issuer was seeking admission to listing of the equity shares2 to the category
(1) If the FCA approves a transfer of a listing then it must announce its decision on a RIS.(2) The transfer becomes effective when the FCA's decision to approve is announced on the RIS.(3) The issuer must continue to comply with the requirements of its existing category of listing until the decision is announced on the RIS.(4) After the decision is announced the issuer must comply with the requirements of the category of listing to which it has transferred.
There may be situations in which an issuer's business has changed over a period of time so that it no longer meets the requirements of the applicable listing category against which it was initially assessed for listing. In those situations, the FCA may consider cancelling the listing of the equity shares2 or suggest to the issuer that, as an alternative, it applies for a transfer of its listing category.
The circumstances in which the FCA5 may vary a firm'sPart 4A permission5 on
its own initiative or impose
a requirement on a firm5 under sections 55J or 55L5 of the Act include
where it appears to the FCA5 that:5555(1) one
or more of the threshold conditions for which the FCA is
responsible5 is or is likely to be no longer
satisfied; or(2) it
is desirable to vary a firm's permission in order to meet any of the FCA's5 statutory objectives under the Act; or5335(3) a firm has
not
The FCA5 may also use its own-initiative powers5 for
enforcement purposes. EG 82 sets out in detail the FCA's5 powers under sections 55J and 55L of the Act5 and
the circumstances under which the FCA5 may use its own-initiative powers5 in this way, whether for enforcement purposes or as part of its
day to day supervision of firms.
This chapter provides additional guidance on when the FCA5 will use these powers for supervision purposes.55255555
The FCA5 may use its own-initiative powers5 only in respect of a firm's5Part 4A permission5; that is, a permission granted
to a firm under sections 55E or 55F5 of the Act (Giving
permission) or having effect as if so given. In respect of an incoming EEA firm, an incoming
Treaty firm, or a UCITS qualifier,
this power applies only in relation to any top-up
permission that it has. There are similar but more limited powers
under Part XIII of the Act in
relation to the permission
5In the case of a dual-regulatedPRA-authorised person, the FCA may exercise its own-initiative
variation power to add a new regulated
activity other than a PRA-regulated
activity to those activities already included in the firm'sPart
4A permission, or to widen the description of a regulated activity, only after consulting
with the PRA.
(1) 1Under section 313A of the Act, the FCA5 may for the purpose of protecting:5(a) the interests of investors; or (b) the orderly functioning of the financial markets; require a UK RIE to suspend or remove a financial instrument from trading.(2) If the FCA5 exercises this power, the UK RIE concerned may refer the matter to the Tribunal.5
The procedure the FCA5 will follow if it exercises its power to require a UK RIE to suspend or remove a financial instrument3 from trading is set out in sections 313B to 313BE of the Act.3 The FCA's internal arrangements provide for decisions to exercise this power to be taken at an appropriately senior level. If the FCA5 exercises this power, the UK RIE concerned and the issuer (if any) of the relevant financial instrument may refer the matter to the Tribunal(see EG 2.39)2.2
Section 19 of the Act (The general prohibition) provides that the requirement to be authorised under the Act only applies in relation to regulated activities which are carried on 'in the United Kingdom'. In many cases, it will be quite straightforward to identify where an activity is carried on. But when there is a cross-border element, for example because a borrower is outside the United Kingdom or because some other element of the activity happens outside the United Kingdom,
The exclusions in article 72(5A) to (5F) of the Regulated Activities Order (Overseas persons) provide that an overseas person does not carry on the regulated activities of:(1) arranging (bringing about) or making arrangements with view to a regulated mortgage contract;(2) entering into a regulated mortgage contract; or(3) administering a regulated mortgage contract;of the borrower (and each of them, if more than one) is an individual and is normally resident overseas. In the case
The FCA's view of the effect of the Act and Regulated Activities Order in various territorial scenarios is set out in the remainder of this section. In those scenarios:(1) the term "service provider" is used to describe a person carrying on any of the regulated mortgage activities;(2) the term "borrower" refers to a borrower who is an individual and not a trustee; the position of a borrower acting as a trustee is not considered; and(3) it is assumed that the activity is not an
When a person is arranging (bringing about) regulated mortgage contracts or making arrangements with a view to regulated mortgage contracts from overseas, the question of whether he will be carrying on regulated activities in the United Kingdom will depend on the relevant circumstances. In the FCA's view, factors to consider include:(1) the territorial limitation in the definition of regulated mortgage contract so that regulation only applies if the land is in the United Kingdom;(2)
In the FCA's view:(1) if the borrower is normally resident in the United Kingdom, the clear territorial limitation in the definition of regulated mortgage contract carries most weight in determining where regulation should apply; it is likely that the arranger will be carrying on regulated activities in the United Kingdom;(2) if the borrower is normally resident overseas, the arrangements are excluded by the overseas persons exclusion.In the case of arranging (bringing about)
In the FCA's view, advising on regulated mortgage contracts is carried on where the borrower receives the advice. Accordingly:(1) if the borrower is located in the United Kingdom, a person advising that borrower on regulated mortgage contracts is carrying on a regulated activity in the United Kingdom; but(2) if the service provider and borrower are both located overseas, the regulated activity is not carried on in the United Kingdom.
In the FCA's view, in circumstances other than those excluded by article 72(5D) of the Regulated Activities Order, an overseas lender is likely to carry on the regulated activity of entering into regulated mortgage contracts in the United Kingdom. This is because of:(1) the territorial limitation in the definition of regulated mortgage contract so that regulation applies only if the land is in the United Kingdom;(2) the general principle and practice that contracts relating to
In the FCA's view, in circumstances other than those excluded by article 72(5E) of the Regulated Activities Order, an overseas administrator is likely to carry on the regulated activity of administering a regulated mortgage contract in the United Kingdom. This is because:(1) the territorial limitation in the definition of regulated mortgage contract means that regulation applies only if the land is in the United Kingdom;(2) when administrators notify borrowers resident in the
In most cases, there will be no preliminary agreement to enter into a regulated mortgage contract in advance of entering into the contract itself. Moreover, the exclusions relevant to a regulated activity are taken into account to determine whether a person is agreeing to carry on that regulated activity. So, for example, agreeing to arrange regulated mortgage contracts in cases where borrower and service provider are overseas, would not be regulated activities because the activities
The FCA will be responsible for implementing the Distance Marketing Directive for those firms and activities it regulates. The FCA and the Treasury agree that the Distance Marketing Directive is intended to operate on a country of origin basis, except where a firm is marketing into the UK from an establishment in an EEA State which has not implemented the Directive.
(1) An application should be made by the proprietor of the relevant publication or service using the appropriate form, accessible from our website (see Forms/ Perimeter Guidance manual forms). The form asks for general information about the applicant and gives guidance notes on completion and other details of how the FCA can help.(2) An applicant will be asked to state his own view of the principal purpose of the publication or service. This should include an explanation why the
The Act does not specify a time limit for processing the application but the FCA intends to deal with an application as quickly as possible. The more complete and relevant the information provided by an applicant, the more quickly a decision can be expected. But on occasion it may be necessary to allow time in which the FCA can monitor the content of the service. This might happen where, for example, a service is in a form that makes record keeping difficult (such as a large website
The FCA will form an overall view as to the purpose (or purposes) underlying the publication or service. It will then determine whether the principal purpose is neither of those referred to in article 54 of the Regulated Activities Order. Because the possible range of subject matter covered by different publications or services is very wide it is not possible to apply standard tests. The FCA will form a judgment as to the overall impression created by the publication or service.
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
An application may be refused on the grounds that the FCA is not satisfied that the principal purpose of the publication or service is neither of those mentioned in article 54(1)(a) or (b) of the Regulated Activities Order (see PERG 7.4.5 G). An application may also be refused on the grounds that the FCA considers that the vehicle through which advice is to be given is not a newspaper, journal, magazine or other periodical publication, a regularly updated news or information service