Related provisions for REC 6A.2.3
1 - 20 of 386 items.
In addition to the general factors outlined in DEPP 6.2.1 G, there are some additional considerations that may be relevant when deciding whether to take action against an approved person pursuant to section 66 of the Act. This list of those considerations is non-exhaustive. Not all considerations below may be relevant in every case, and there may be other considerations, not listed, that are relevant.(1) The approved person's position and responsibilities. The FCA4 may take into
3In addition to the general factors outlined in DEPP 6.2.1 G, there are some additional considerations that the FCA4 will have regard to when deciding whether to take action against a person that performs a controlled function without approval contrary to section 63A of the Act.4(1) The conduct of the person. The FCA4 will take into consideration whether, while performing controlled functions without approval, the person committed misconduct in respect of which, if he had been
The primary responsibility for ensuring compliance with Part VI of the Act, the Part 6 rules, the prospectus rules or a provision otherwise made in accordance with the Prospectus Directive or a requirement imposed under such provision rests with the persons identified in section 91(1) and section 91(1A) (Penalties for breach of Part 6 rules) of the Act respectively. Normally therefore, any disciplinary action taken by the FCA4 for contraventions of these obligations will in the
However, in the case of a contravention by a person referred to in section 91(1)(a) or section 91(1)(b) or section 91(1A) of the Act ("P"), where the FCA4 considers that another person who was at the material time a director of P was knowingly concerned in the contravention, theFCA4 may take disciplinary action against that person. In circumstances where the FCA4 does not consider it appropriate to seek a disciplinary sanction against P (notwithstanding a breach of relevant requirements
The Principles are set out in PRIN 2.1.1 R. The Principles are a general statement of the fundamental obligations of firms under the regulatory system. The Principles derive their authority from the FCA's4 rule-making powers set out in section 137A4(General rule-making power) of the Act. A breach of a Principle will make a firm liable to disciplinary action. Where the FCA4 considers this is appropriate, it will discipline a firm on the basis of the Principles alone.444
The Listing Principles and Premium Listing Principles5 are set out in LR 7. The Listing Principles set out in LR 7.2.1 R5 are a general statement of the fundamental obligations of all5listed companies. In addition to the Listing Principles, the Premium Listing Principles set out in LR 7.2.1A R are a general statement of the fundamental obligations of all listed companies with a premium listing of equity shares. The Listing Principles and Premium Listing Principles5 derive their
In any case where the FCA4 considers that the use of its powers under any of sections 123, 129, 381, 383 or 384 of the Act may be appropriate, if that use may affect the timetable or outcome of a takeover bid or where it is appropriate in the context of any exercise by the Takeover Panel of its powers and authority, the FCA4 will consult the Takeover Panel before using any of those powers.44
FCA6 staff under executive procedures will take the decision to give a warning notice if the FCA6 proposes to:66(1) refuse an application for a Part 4A permission6 or to refuse an application to cancel a Part 4A permission6;66(2) impose a limitation or a requirement which was not applied for, or specify a narrower description of regulated activity than that applied for, on the grant of a Part 4A permission6;6(3) refuse an application to vary a Part 4A permission6, or to restrict
FCA6 staff under executive procedures will take the following statutory notice decisions:6(1) the refusal of an application for listing of securities;(2) the suspension of listing on the FCA's6 own initiative or at the request of the issuer;6(3) [deleted]22(4) the discontinuance of listing of securities at the issuer's request;(5) the exercise of any of the powers in sections 87K or 87L of the Act in respect of a breach of any applicable provision; and2(6) [deleted]22(7) the refusal
If securities have matured or otherwise ceased to exist the FCA6 will remove any reference to them from the official list. This is a purely administrative process, and not a discontinuance of listing in the sense used in Part 6 of the Act. Decisions relating to imposition of limitations or other restrictions of sponsors and primary information providers.66
6Under section 88(4)(aa) of the Act, if the FCA proposes to impose limitations or other restrictions on the services to which a sponsor's approval relates, it must give him a warning notice. If, after considering any representations made in response to the warning notice, the FCA decides to impose limitations or other restrictions on the services to which a sponsor's approval relates, it must give him a decision notice. Where the sponsor has requested or otherwise agrees to the
6If the FCA is proposing or deciding to refuse a sponsor's application for the withdrawal or variation of a limitation or other restriction on the services to which a sponsor's approval relates under section 88(8)(d) of the Act, the decision maker will be FCA staff under executive procedures where FCA staff decided to impose the limitation or other restriction. Otherwise, the RDC will take the decision to give the warning notice and decision notice.
6Under section 89P(5)(b) of the Act, if the FCA proposes to impose limitations or other restrictions on the dissemination of regulated information to which a primary information provider's approval relates, it must give him a warning notice. If, after considering any representations made in response to the warning notice, the FCA decides to impose limitations or other restrictions on the dissemination of regulated information to which a primary information provider's approval
6Under section 89P(9)(d) of the Act, if the FCA is proposing or deciding to refuse a primary information provider's application for the withdrawal or variation of a limitation or other restriction on the dissemination of regulated information to which a primary information provider's approval relates, the decision maker will be FCA staff under executive procedures where FCA staff decided to impose the limitation or other restriction. Otherwise, the RDC will take the decision to
The decisions referred to in DEPP 2.5.12 G are:(1) the decision to give a supervisory notice pursuant to section 259(3), (8) or 9(b) (directions on authorised unit trust schemes); section 268(3), 7(a) or 9(a) (directions in respect of recognised overseas schemes); or section 282(3), (6) or (7)(b) (directions in respect of relevant recognised schemes) of the Act;(1A) the decision to give a supervisory notice pursuant to section 261Z1(3), (8) or (9)(b) (Procedure on giving directions
The FCA6 expects to adopt a procedure in respect of notices under enactments other than the Act which is similar to that for statutory notices under the Act, but which recognises any differences in the legislative framework and requirements. DEPP 2 Annex 1 and DEPP 2 Annex 2 therefore identify notices to be given pursuant to other enactments and the relevant FCA6 decision maker.66
Some of the distinguishing features of notices given under enactments other than the Act are as follows: (1) [deleted]66(2) [deleted]66(3) Friendly Societies Act 1992, section 58A1: The warning notice and decision notice must set out the terms of the direction which the FCA6 proposes or has decided to give and any specification of when the friendly society is to comply with it. A decision notice given under section 58A(3) must give an indication of the society's right, given by
The terms of any proposed settlement:(1) will be put in writing and be agreed
by FCA4 staff
and the person concerned;4(2) may refer to a draft of the proposed statutory notices setting out the facts
of the matter and the FCA's4 conclusions; 4(3) may, depending upon the stage in
the enforcement process at which agreement is reached, include an agreement
by the person concerned to: (a) waive and not exercise any rights
under sections 387 (Warning notices) and 394 (Access to Authority
(1) DEPP 2.4 sets out the FCA's4 approach
to giving third parties copies of statutory
notices pursuant to section 393 (Third party rights) of the Act.4(2) The decision to give a warning notice or a decision
notice to a third party is a statutory
notice associated decision.(3) In cases therefore where the decision
to give a warning notice or decision notice is taken by settlement decision makers, those decision
makers will decide whether a copy of the notice should be given to
If the RDC considers it relevant to its consideration, it may ask FCA1 staff to explain or provide any or all of the following:1(1) additional information about the matter (which FCA1 staff may seek by further investigation); or1(2) further explanation of any aspect of the FCA1 staff recommendation or accompanying papers; or1(3) information about FCA1 priorities and policies (including as to the FCA's view on the law or on the correct legal interpretation of provisions of the
If the RDC decides that the FCA1 should give a warning noticeor a first supervisory notice:1(1) the RDC will settle the wording of the warning notice or first supervisory notice, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions;(3) the RDC staff will make appropriate arrangements for the notice to be given; and(4) the RDC staff will make appropriate arrangements for the disclosure
1If the RDC proposes that the FCA should publish information about the matter to which a warning notice falling within section 391(1ZB) of the Act relates:(1) the RDC will settle the wording of the statement it proposes the FCA should publish (warning notice statement);(2) the RDC staff will make appropriate arrangements for the warning notice statement it proposes the FCA should publish to be given to the persons to whom the warning notice was given or copied;(3) the proposed
(1) A warning notice or a first supervisory notice will (as required by the Act) specify the time allowed for making representations. This will not be less than 141 days.1(2) The FCA1 will also, when giving a warning notice or a first supervisory notice, specify a time within which the recipient is required to indicate whether he wishes to make oral representations.1
If the RDC decides that the FCA1 should give a decision notice or a second supervisory notice:1(1) the RDC will settle the wording of the notice which will include a brief summary of the key representations made and how they have been dealt with, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions, including whether the FCA1 is required to give a copy of the notice to a third
Section 395 of the Act (The FCA's and PRA's procedures) requires the FCA2 to
publish a statement of its procedure for the giving of statutory
notices. The procedure must be designed to secure, among other
things, that the decision which gives rise to the obligation to give a statutory notice is taken by a person not
directly involved in establishing the evidence on which that decision is based or by two or more persons who include
a person not directly involved in establishing
Table: Summary of statutory and related notices
Notice |
Description |
Act reference |
Further information |
Gives the recipient details about action that the FCA2 proposes to take and about the right to make representations. 2 |
Section 387 |
||
Gives the recipient details about action that the FCA2 has decided to take. The FCA2 may also give a further decision notice if the recipient of the original decision notice consents. 22 |
Section 388 |
||
Identifies proceedings set out in a warning notice or decision notice and which are not being taken or are being discontinued. |
Section 389 |
||
Sets out the terms of the action that the FCA2 is taking. 2 |
Section 390 |
||
Gives the recipient details about action that the FCA2 has taken or proposes to take, for example to vary a Part 4A permission.2 22 |
Section 395(13) |
2Section 395 of the Act also
requires the FCA to publish
a statement of its procedure for decisions which gives rise to an obligation
for the PRA to include a statement
under section 387(1A) in a warning notice or
a statement under section 388(1A) in a decision
notice as follows:(1) Section 387(1A) provides that where
the FCA proposes to refuse
consent for the purposes of section 55F, 55I or 59 of the Act,
or to give conditional consent as mentioned in section 55F(5) or 55I(8),
2Where an application for Part
4A permission is made to the PRA as
the appropriate regulator (section 55A(2)(a) of the Act),
the PRA may only give permission
with the consent of the FCA (section
55F of the Act). FCA consent can be conditional on the PRA imposing limitations or specifying the
permission is for certain regulated activities only.
2Where an application to vary a Part
4A permission is made to the PRA as
the appropriate regulator (section 55A(2)(a) of the Act),
the PRA may only give permission
with the consent of the FCA (section
55I of the Act). The FCA may withhold its consent to a proposed
variation if it appears to it that it is desirable to do so in order to advance
one or more of its operational objectives. FCA consent
can be conditional on the PRA imposing
limitations, or the PRA specifying
the permission
Decisions on whether to give a statutory notice will be taken by a 'decision
maker'. The FCA's2 assessment
of who is the appropriate decision maker is subject to the requirements of
section 395 of the Act and will
depend upon the nature of the decision, including its complexity, importance
and urgency. References to the 'decision maker' in DEPP are
to:2(1) the Regulatory
Decisions Committee (RDC);
or(2) FCA2 staff
under executive procedures;
or2(3) FCA2 staff
under the settlement
The decision maker will also take
decisions associated with a statutory notice (a
'statutory notice associated decision'). Statutory notice associated decisions include
decisions:(1) to set or extend the period for
making representations;(2) on whether the FCA2 is required to give a copy of
the statutory notice to any
third party and, if so, the period for the third party to make representations;
and2(3) on whether to refuse access to FCA2 material,
relevant to the relevant statutory
The appointment of a skilled person to produce a report under section 166 of the Act (Reports by skilled persons) is one of the appropriate regulator's6 regulatory tools. The tool may be used:6(1) for diagnostic purposes, to identify, assess and measure risks; (2) for monitoring purposes, to track the development of identified risks, wherever these arise;(3) in the context of preventative action, to limit or reduce identified risks and so prevent them from crystallising or increasing;
The decision by the appropriate regulator6 to require a report by a skilled person under section 166 of the Act (Reports by skilled persons) 6will normally be prompted by a specific requirement for information, analysis of information, assessment of a situation,4 expert advice or recommendations or by a decision to seek assurance in relation to a regulatory return4. It may4 be part of the risk mitigation programme applicable to a firm, or the result of an event or development
6The decision by the appropriate regulator to require the collection or updating of information by a skilled person under section 166A of the Act (Appointment of skilled person to collect and update information) will be prompted where the appropriate regulator considers there has been a breach of a requirement by a firm to collect, and keep up to date, information of a description specified in the appropriate regulator'srules.
When making the decision to require a report by a skilled person under section 166 (Reports by skilled persons) or the collection or updating of information by a skilled person under section 166A (Appointment of skilled person to collect and update information) of the Act, the appropriate regulator6 will have regard, on a case-by-case basis, to all relevant factors. Those are likely to include:6(1) circumstances relating to the firm;(2) alternative tools available, including other
The appropriate regulator6 will have regard to alternative tools that may be available, including for example:6(1) obtaining what is required without using specific statutory powers (for example, by a visit bystaff of the appropriate regulator6or a request for information on an informal basis); 6(2) requiring information from firms and others, including authorising an agent to require information, under section 165 of the Act (Power6 to require information);6(3) appointing investigators
The appropriate regulator6 will have regard to legal and procedural considerations including:6(1) statutory powers: whether one of the other available statutory powers is more appropriate for the purpose than the power in section 166 (Reports by skilled persons) or section 166A (Appointment of skilled person to collect and update information) of the Act;66(2) subsequent proceedings: whether it is desirable to obtain an authoritative and independent report for use in any subsequent
The appropriate regulator6 will have regard to the objectives of its enquiries, and the relative effectiveness of its available powers to achieve those objectives. For example:6(1) historic information or evidence: if the objectives are limited to gathering historic information, or evidence for determining whether enforcement action may be appropriate, the appropriate regulator's information gathering and investigation powers under sections 165 (Power to require information),
In accordance with its general policy the appropriate regulator6 will have regard to the question of cost, which is particularly pertinent in relation to skilled persons because:6(1) if the appropriate regulator6 uses the section 166 power (Reports by skilled persons) or the section 166A power (Appointment of skilled person to collect and update information), either 6the firm will appoint, and will have to pay for the services of, the skilled person, or the appropriate regulator
In having regard to the cost implications of using the section 166 power (Reports by skilled persons) or the section 166A power (Appointment of skilled person to collect and update information) 6alternative options (such as visits) or other powers, the appropriate regulator6will take into account relevant factors, including:6(1) whether the firm may derive some benefit from the work carried out and recommendations made by the skilled person, for instance a better understanding
Under section 138A(4) of the Act, the appropriate regulator10 may not give a waiver unless it is satisfied that:1010(1) compliance by the firm with the rules, or with the rules as unmodified, would be unduly burdensome, or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of, in the case of the PRA, any of its objectives and, in the case of the FCA, any of its operational objectives.1010
10The 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.
Under section 138A(1) of the Act the appropriate regulator10 may give a waiver with the consent of a firm. This power may be used by the appropriate regulator10 in exceptional circumstances where the appropriate regulator10 considers that a waiver should apply to a number of firms (for example, where a rule unmodified may not meet the particular circumstances of a particular category of firm). In such cases the appropriate regulator10 will inform the firms concerned that the waiver
For an application for a waiver of the presumption of contravention of a binding rule, which is actionable under section 138D10 of the Act, the appropriate regulator10 would normally wish to be satisfied that the evidential rule is itself unduly burdensome or does not achieve the purpose of the rule.21010
If a person performs an FCA controlled function without approval it is not only the firm that is accountable. Under section 63A of the Act (Power to impose penalties), if the FCA is satisfied that:(1) a person (“P”) has at any time performed an FCA controlled function without approval; and(2) at that time P knew, or could reasonably be expected to have known, that P was performing an FCA controlled function without approval;it may impose a penalty on P of such amount as it considers
(1) In accordance with section 60 of the Act (Applications for approval), applications must be submitted by, or on behalf of, the firm itself, not by:(a) the FCAcandidate; or(b) (where the FCAcandidate works for the firm'sparent undertaking or holding company) by the firm'sparent undertaking or holding company.(2) Usually this will be the firm that is employing the FCAcandidate to perform the FCA controlled function. Where a firm has outsourced the performance of an FCA controlled
In any case where the application for approval is made by a person applying for permission under Part 4A of the Act, the FCA has until the end of whichever of the following periods ends last: (1) the period within which an application for that permission must be determined; and(2) the period of three months from the time it receives a properly completed application.
Application forms must always be completed fully and honestly. Further notes on how to complete the form are contained in each form. If forms are not completed fully and honestly, applications will be subject to investigation and the FCAcandidate's suitability to be approved to undertake an FCA controlled function will be called into question. A person who provides information to the FCA that is false or misleading may commit a criminal offence, and could face prosecution under
27Under section 55H of the Act, an FCA-authorised person may apply to the FCA to vary its Part 4A permission to:(1) allow it to carry on further regulated activities, other than a PRA-regulated activity; or(2) reduce the number of regulated activities it is permitted to carry on; or (3) vary the description of its regulated activities (including by the removal or variation of any limitations).
27Where a firm applies to the PRA for the variation of its Part 4A permission, the FCA, in giving consent to such an application or imposing any requirements on the firm, is required by section 55B(3) of the Act to ensure that the firm satisfies and will continue to satisfy the threshold conditions for which the FCA is responsible in relation to all the regulated activities for which the firm has or will have Part 4A permission after the variation.
(1) 27The FCA's duty under section 55B(3) of the Act does not prevent it, having regard to that duty, from taking such steps as it considers necessary in relation to a particular firm, to meet any of its operational objectives. This may include granting or consenting to (as the case may be) a firm's application for variation of Part 4A permission when it wishes to wind down (run off) its business activities and cease to carry on new business as a result of no longer being able
27The FCA's power to vary a Part 4A permission after it receives an application from a firm extends to including in the Part 4A permission as varied any provision that could be included as though a fresh permission was being given in response to an application under section 55A of the Act (Application for permission). Under section 55E of the Act (Giving permission: the FCA) the FCA may:(1) incorporate in the description of a regulated activity such limitations (for example, as
(1) Firms should be aware that the appropriate regulator may exercise its own-initiative variation power to vary or cancel their Part 4A permission if they do not (see section 55J of the Act (Variation or cancellation on initiative of regulator)):2727(a) commence a regulated activity for which they have Part 4A permission27 within a period of at least 12 months from the date of being given; or27(b) carry on a regulated activity for which they have Part 4A permission27 for a period
(1) A firm must notify the appropriate regulator35 of:35(a) a significant breach of a rule (which includes a Principle, or a Statement of Principle ; or(aa) a significant breach of any requirement imposed by the CCA or by regulations or an order made under the CCA (except if the breach is an offence, in which case (c) applies), but any notification under (aa) is required to be made only to the FCA; or 14(b) a breach of any requirement imposed by the Act or by regulations or an
A firm must notify the appropriate regulator35 immediately if:(1) civil proceedings are brought against the firm and the amount of the claim is significant in relation to the firm's financial resources or its reputation; or(2) any action is brought against the firm under section 71 of the Act (Actions for damages) or section 150 (Actions for damages); or(3) disciplinary measures or sanctions have been imposed on the firm by any statutory or regulatory authority, professional organisation
3SUP 15.3.23 D to SUP 15.3.25 D are given in relation to the exercise of the powers of the Society and of the Council generally, with a view to achieving the objective of enabling the appropriate regulator35to:35(1) comply with its general duty under section 314 of the Act (Regulators’35 general duty);35(2) determine whether underwriting agents, or approved persons acting for them or on their behalf, are complying with the requirements imposed on them by or under the Act;(3) enforce
3The Society must inform the appropriate regulator35 if it commences investigations or disciplinary proceedings relating to apparent breaches:35(1) of the Act or requirements made under the Act, including the threshold conditions or the Principles or other rules, by an underwriting agent; or(2) of the Statements of Principle by an individual or other person who carries out controlled functions for or on behalf of an underwriting agent.
15Changes that the FCA would expect to be notified of under SUP 15.3.26 R include:(1) an AIFM being appointed to manage another AIF;(2) the appointment of a different depositary for an AIF the AIFM manages; and(3) the appointment of any new senior personnel if the AIFM is not required to apply for the FCA's approval for that appointment under section 59 of the Act.
19A full-scope UK AIFM must notify the FCA of material changes under SUP 15.3.26 R in the following manner:(1) for the management of a new AIF or a new investment compartment of an AIF, by using the form in SUP 15 Annex 6A R; (2) for changes of senior personnel whose appointment is not required to be approved by the FCA under section 59 of the Act, by using the form in SUP 15 Annex 6B R; and(3) for all other material changes, by using the form in SUP 15 Annex 6C R .
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.
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
Under section 169(1)(b) and section 131FA2 of the Act,
the FCA3 may
appoint an investigator to investigate any matter at the request of an overseas regulator or EEA regulator2. The powers of the investigator appointed by the FCA3 (referred to here as the 'FCA's3 investigator') include the power to require persons to
attend at a specified time and place and answer questions (the compulsory
interview power).333
Where the FCA3 appoints an investigator in response to a request from an overseas regulator or EEA regulator2 it may, under section 169(7) or section 131FA2 of the Act,
direct him to permit a representative of that regulator to attend and take
part in any interviews conducted for the purposes of the investigation. The FCA3 may
only give a direction under section 169(7) or section 131FA2 if it is satisfied that any information
obtained by an overseas regulator or EEA
regulator2
Before making a direction under
section 169(7) or section
131FA2 the FCA3 will discuss and determine with the overseas
regulator or EEA regulator2 how this statement of policy will
apply to the conduct of the interview, taking into account all the circumstances
of the case. Amongst other matters, the FCA3 will at this stage determine the extent to which the representative
of the overseas regulator or EEA
regulator2 will be able to participate in
the interview. The overseas regulator
1Under section 300B(2) of the Act, the FCA4may, by rules under section 293 (Notification requirements):4(1) 1specify descriptions of regulatory provision in relation to which, or circumstances in which, the duty in section 300B(1) does not apply, or(2) 1provide that the duty applies only to specified descriptions of regulatory provision or in specified circumstances.
1Under section 300B(3) of the Act, the FCA4may also by rules under section 293: 4(1) 1make provision as to the form and contents of the notice required, and(2) 1require the UK recognised body to provide such information relating to the proposal as may be specified in the rules or as the FCA4may reasonably require.4
1A notice under section 300B(1) of the Act of a proposal to make a regulatory provision must be in writing and state expressly that it is a notice for the purpose of that section. To be effective, a notice must: (1) 1contain full particulars of the proposal to make a regulatory provision which is the subject of that notice; and(2) 1either be accompanied by sufficient supporting information to enable the FCA4to assess the purpose and effect of the proposed regulatory provision
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 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 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
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
(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 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
The appropriate regulator uses various methods of information gathering on its own initiative which require the cooperation of firms:55(1) Visits may be made by representatives or appointees of the appropriate regulator. These visits may be made on a regular basis, on a sample basis, for special purposes such as theme visits (looking at a particular issue across a range of firms), or when the appropriate regulator has a particular reason for visiting a firm. Appointees of the
In complying with Principle 11, the appropriate regulator considers that a firm should, in relation to the discharge by the appropriate regulator of its functions under the Act:(1) make itself readily available for meetings with representatives or appointees of the appropriate regulator as reasonably requested;(2) give representatives or appointees of the appropriate regulator reasonable access to any records, files, tapes or computer systems, which are within the firm's possession
(1) A firm must permit representatives of the appropriate regulator, or persons appointed for the purpose by the appropriate regulator, to have access, with or without notice, during reasonable business hours to any of its business premises in relation to the discharge of the appropriate regulator's functions under the Act or its obligations under the short selling regulation3.(2) A firm must take reasonable steps to ensure that its agents, suppliers under material outsourcing
7In complying with Principle 11, the FCA considers that a firm should cooperate with it in providing information for other regulators. Sections 169 (Investigations etc. in support of overseas regulator) of the Act gives the FCA certain statutory powers to obtain information and appoint investigators for overseas regulators if required (see DEPP 7 and EG 3).
In addition, under section 290A
of the Act (Refusal of recognition
on ground of excessive regulatory provision), the FCA5 must refuse to make a recognition
order in relation to a body applying for recognition as a UK RIE if it appears to the FCA5 that an existing or proposed regulatory
provision of the applicant in connection with the applicant's
business as an investment exchange or the provision by the applicant of clearing facilitation services5 imposes, or will impose, an
An application should:(1) be
made in accordance with any directions the FCA5 may make under section 287 (Application by an investment exchange) of the Act or (for RAPs)
regulation 2 of the RAP regulations;353355(2) in
the case of an application under section5 287 of the Act, 3be accompanied by the applicant's regulatory
provisions and
in the case of an application under section 287 of the Act information
required pursuant to sub-sections 287(3)(c), (d) and (e) of the Act (see
Under section 289 of the Act (Applications: supplementary) or (for an RAP applicant)
regulation 2 of the RAP regulations,3 the FCA5 may
require the applicant to provide additional information, and may require the
applicant to verify any information in any manner. In view of their likely
importance for any application, the FCA5 will normally wish to arrange for its own inspection of an applicant's
information technology systems.55
1In
the case of an application to become a UK
RIE or an RAP3, under subsection 290(1B) of the Act and
(for an RAP applicant) regulation
2(8) of the RAP regulations3, the application must be determined by the FCA5 before the end of the period of six months beginning
with the date on which it receives the completed application.5
Where the FCA5 considers that it is unlikely to make a recognition
order it will discuss its concerns with
the applicant as early as possible with a view to enabling the applicant to
make changes to its rules or guidance, or other parts of the application (see REC 5.2.7 G).
If the FCA5 decides
that it will not make a recognition order,
it will follow the procedure set out in section 298 of the Act (Directions
and revocation: procedure) or
(in the case of an RAP) regulation
5 of