Related provisions for PERG 8.3.4
261 - 280 of 832 items.
Behaviour
of the type referred to in APER 4.1.3 E includes, but is not limited to, deliberately:(1) falsifying documents;(2) misleading
a client about the risks of
an investment;(3) misleading
a client about the charges or
surrender penalties of investment products;(4) misleading
a client about the likely performance
of investment products by providing
inappropriate projections of
future investment returns;(5) misleading
a client by informing him that
products require only a single
Deliberately
failing to inform, without reasonable cause:(1) a customer; or(2) his firm (or its auditors or an actuary appointed
by his firm under SUP 4 (Actuaries)1); or1(3) the FCA or
the PRA;66of the fact that their understanding
of a material issue is incorrect, despite being aware of their misunderstanding,
falls within APER 4.1.2 E.
(1) There are two specified formats for advice appearing in writing or other legible form.(2) The first is that of a newspaper, journal, magazine or other periodical publication. For these purposes it does not matter what form the periodical publication takes as long as it can be read. This will include, for example, a newspaper appearing as a hard copy or electronically on a website. It will also include any periodical published on an intranet site.(3) The second is that of a
The third specified format is for advice in any service consisting of the broadcast or transmission of television or radio programmes. This will encompass the transmission through cable of interactive television programmes. In the FCA's view, ‘service’ in this context goes beyond any particular series of programmes broadcast or transmitted through a given medium. It refers instead to the administrative system (usually aimed at a particular audience) through which a range of different
For the second disqualifying purpose, the focus switches to assessing whether the principal purpose of a publication or service is to lead a person to engage in a relevant transaction or enable him to do so. This disqualifying purpose is an alternative to the first. So it extends to material not covered by the first. In this respect:(1) material in a publication or service that invites or seeks to procure persons to engage in a relevant transaction can be said to "lead" to those
In the context of the second disqualifying purpose, whether or not the presence of a hypertext link to another website indicates that the purposes of a publication or service include leading to relevant transactions (or enabling them to be entered into) will depend on all the circumstances. It will, in particular, be necessary to consider the form of the link and the content of the destination website. In the FCA's view, the presence on a host publication or service of a hypertext
(1) A listed company must notify a RIS as soon as possible when a document has been forwarded to the FCA under LR 9.6.1 R or LR 9.6.2 R unless the full text of the document is provided to the RIS.(2) A notification made under paragraph (1) must set out where copies of the relevant document can be obtained.
A listed company which changes its name must, as soon as possible:(1) notify a RIS of the change, stating the date on which it has taken effect;(2) inform the FCA in writing of the change; and(3) where the listed company is incorporated in the United Kingdom, send the FCA a copy of the revised certificate of incorporation issued by the Registrar of Companies.
Sections 87H and 87I of the Act provide:
Prospectus approved in another EEA State |
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87H |
(1) |
A prospectus approved by the competent authority of an EEA State other than the United Kingdom is not an approved prospectus for the purposes of section 85 unless that authority has notified ESMA and provided the competent authority with -3 |
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(a) |
a certificate of approval; |
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(b) |
a copy of the prospectus as approved; and |
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(c) |
if requested by the [FCA], a translation of the summary of the prospectus. |
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(2) |
A document is not a certificate of approval unless it states that the prospectus - |
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(a) |
has been drawn up in accordance with the prospectus directive; and |
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(b) |
has been approved, in accordance with that directive, by the competent authority providing the certificate. |
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(3) |
A document is not a certificate of approval unless it states whether (and, if so, why) the competent authority providing it authorised, in accordance with the prospectus directive, the omission from the prospectus of information which would otherwise have been required to be included. |
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3(3A) |
The competent authority must publish on its website a list of certificates of approval provided to it in accordance with this section. |
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3(3B) |
The list referred to in subsection (3A) must - |
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(a) |
be kept up-to-date; |
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(b) |
retain items on it for a period of at least 12 months; and |
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(c) |
include hyperlinks to any certificate of approval and prospectus published on the website of - |
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(i) |
the competent authority of the EEA State which provided the certificate; |
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(ii) |
the issuer; or |
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(iii) |
the regulated market where admission to trading is sought. |
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(4) |
"Prospectus" includes a supplementary prospectus. |
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Provision of information to host Member State |
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87I |
(1) |
The [FCA] must, if requested to do so, supply the competent authority of a specified EEA State with – |
|
(a) |
a certificate of approval; |
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(b) |
a copy of the specified prospectus (as approved by the [FCA]); and |
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(c) |
a translation of the summary of the specified prospectus (if the request states that one has been requested by the other competent authority).2 |
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(1A)2 |
If the competent authority supplies a certificate of approval to the competent authority of the specified EEA State, it must also supply a copy of that certificate to - |
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(a) |
the person who made the request under this section; and |
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(b) |
ESMA. |
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(2) |
Only the following may make a request under this section – |
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(a) |
the issuer of the transferable securities to which the specified prospectus relates; |
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(b) |
a person who wishes to offer the transferable securities to which the specified prospectus relates to the public in an EEA State other than (or as well as) the United Kingdom; |
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(c) |
a person requesting the admission of the transferable securities to which the specified prospectus relates to a regulated market situated or operating in an EEA State other than (or as well as) the United Kingdom. |
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(3) |
A certificate of approval must state that the prospectus – |
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(a) |
has been drawn up in accordance with this Part and the prospectus directive; and |
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(b) |
has been approved, in accordance with those provisions, by the [FCA]. |
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(4) |
A certificate of approval must state whether (and, if so, why) the [FCA] authorised, in accordance with section 87B, the omission from the prospectus of information which would otherwise have been required to be included. |
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(5) |
The [FCA] must comply with a request under this section – |
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(a) |
if the prospectus has been approved before the request is made, within 3 working days beginning with the date the request is received2; or 2 |
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(b) |
if the request is submitted with an application for the approval of the prospectus, on the first working day after the date on which it approves the prospectus. |
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(6) |
“Prospectus” includes a supplementary prospectus. |
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(7) |
“Specified” means specified in a request made for the purposes of this section. |
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(1) This rule applies to a request by a person to the FCA to supply information referred to in section 87I of the Act to the competent authority of a relevant Host State.(2) The request must be in writing and must include:(a) the relevant prospectus as approved (if it has already been approved); and(b) a translation of the summary if required by the competent authority of a relevant host State.
The power to impose a suspension
or a restriction is a disciplinary measure which the FCA2 may use in addition to, or instead of, imposing a financial penalty
or issuing a public censure.
The principal purpose of imposing a suspension or a restriction is to promote
high standards of regulatory and/or market conduct by deterring persons who have committed breaches from
committing further breaches,
helping to deter other persons from
committing similar breaches,
and demonstrating
The powers to impose a suspension or a restriction in relation
to authorised persons and approved persons are disciplinary measures;2 where the FCA2 considers it necessary to take action, for example, to protect consumers from an authorised
person, the FCA2 will seek to cancel or vary the authorised
person'spermissions.
If the FCA2 has
concerns with a person's fitness
to be approved, and considers it necessary to take action, the FCA2 will
seek to prohibit the approved person
In respect of banking services, the European Commission believes that "...to determine where the activity was carried on, the place of provision of what may be termed the 'characteristic performance' of the service i.e. the essential supply for which payment is due, must be determined" (Commission interpretative communication: Freedom to provide services and the interests of the general good in the Second Banking Directive (97/C 209/04)). In the view of the FCA and PRA6, this
The FCA and PRA are6 of the opinion that UK firms that are credit institutions and MiFID investment firms2 should apply the 'characteristic performance' test (as referred to in SUP App 3.6.7 G) when considering whether prior notification is required for services business. Firms should note that other EEA States may take a different view. Some EEA States may apply a solicitation test. This is a test as to whether it is the consumer or the provider that initiates the business r
The FCA and PRA consider6 that, in order to comply with Principle 3:Management and control (see PRIN 2.1.1 R), a firm should have appropriate procedures to monitor the nature of the services provided to its customers. Where a UK firm has non-resident customers but has not notified the EEA State in which the customers are resident that it wishes to exercise its freedom to provide services, the FCA and PRA6 would expect the firm's systems to include appropriate controls. Such controls
The FCA1 would not normally seek to gather information using the methods described in SUP 2.3 or SUP 2.4 in a situation where the FCA1 could not have obtained it under the powers in Part XI of the Act (Information Gathering and Investigations). In particular, the limitations in the following sections of the Act are relevant to this chapter:11(1) section 175(5) (Information and documents: supplementary powers) under which no person may be required under Part XI of the Act (Information
When the FCA1 obtains confidential information using the methods of information gathering described in SUP 2.3 or SUP 2.4, it is obliged under Part XXIII of the Act (Public Record, Disclosure of Information and Co-operation) to treat that information as confidential. The FCA1 will not disclose confidential information without lawful authority, for example if an exception applies under the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations
6The purpose of this chapter is to give guidance on the appropriate regulator's use of the power in section 166 (Reports by skilled persons) and section 166A (Appointment of skilled person to collect and update information) of the Act. The purpose is also to make rules requiring a firm to give assistance to a skilled person and, where a firm is required to appoint a skilled person, to include certain provisions in its contract with a skilled person. These rules are designed to
1The purpose of the rules and guidance in this section is to ensure that, in addition to the notifications made under SUP 12.7 (Appointed representatives; notification requirements), the FCA6 receives regular and comprehensive information about the appointed representatives engaged by a firm, so that the FCA6 is in a better position to pursue the statutory objective6 of the protection of consumers.3666
(1) 1A firm must:(a) submit a report to the FCA6 annually, in the form of an amended copy of the relevant extract from the Financial Services Register,6 containing the information in (2);366(b) submit the report in (1) to the FCA6 within four months of the firm'saccounting reference date.666(2) The report in (1) must contain a list of all the current appointed representatives of the firm as at the firm'saccounting reference date6.6(3) The report in (1) is not required if:(a) the
A domestic UCITS merger between two or more UCITS schemes, or a cross-border UCITS merger between one or more UCITS schemes which is or are the merging UCITS and one or more EEA UCITS schemes, is permissible provided:(1) it is effected in accordance with the requirements of:(a) the UCITS Regulations 2011, which include the need for the FCA to have made a prior order approving the proposed merger (which may be made subject to (2)); and(b) this chapter; and (2) in the case of a
(1) The requirements and the process which must be followed to give effect to a proposal for a UCITS merger as specified by Chapter VI of the UCITS Directive (see articles 37 to 48) have been implemented in the United Kingdom by the provisions of Part 4 of the UCITS Regulations 2011. The main features of the regime as set out in those provisions include:(a) the different types of merger operation that will be recognised for a UCITS merger;(b) the need for the FCA to give prior
(1) The authorised fund manager of a UCITS scheme that is a merging UCITS or a receiving UCITS in a proposed UCITS merger must ensure that a document containing appropriate and accurate information on the merger is provided to the unitholders of that scheme so as to enable them to:(a) make an informed judgment about the impact of the proposal on their investment;(b) exercise their rights under regulation 12 (Right of redemption) of the UCITS Regulations 2011; and(c) where applicable,
(1) In a domestic UCITS merger, the effective date of the merger will be the date specified by the FCA in its order authorising the proposed merger in accordance with regulation 9 of the UCITS Regulations 2011.(2) For a UCITS scheme which is the receiving UCITS in a cross-border UCITS merger, the effective date of the merger will be the date agreed by the FCA and the merging UCITS'Home State regulator.(3) For a UCITS scheme which is the receiving UCITS in a domestic UCITS merger
1A common
platform firm must:(1) when relying on a third party for
the performance of operational functions which are critical for the performance
of regulated activities, listed activities or ancillary
services (in this chapter "relevant services and activities")
on a continuous and satisfactory basis, ensure that it takes reasonable steps
to avoid undue additional operational risk; (2) not undertake the outsourcing of important operational functions
in such a way as to impair
A common platform firm must in particular
take the necessary steps to ensure that the following conditions are satisfied:(1) the service provider must have
the ability, capacity, and any authorisation required
by law to perform the outsourced functions,
services or activities reliably and professionally;(2) the service provider must carry
out the outsourced services
effectively, and to this end the firm must
establish methods for assessing the standard of performance of the service
provider;(3)
A common platform firm must make available
on request to the appropriate
regulator and
any other relevant competent authority all
information necessary to enable the appropriate
regulator and
any other relevant competent authority to
supervise the compliance of the performance of the outsourced activities
with the requirements of the regulatory system.[Note: article
14(5) of the MiFID implementing Directive]
As SUP
15.3.8 G explains,
a firm should notify the appropriate
regulator when
it intends to rely on a third party for the performance of operational functions
which are critical or important for the performance of relevant services and
activities on a continuous and satisfactory basis.[Note: recital 20 of theMiFID implementing Directive]2
The FCA22, (for FCA and PRA22periodic fees, FOS and FSCS levies and CFEB levies), expects11 to issue invoices at least 30 days before the date on which the relevant amounts fall due. Accordingly it will generally be the case that a person will have at least 30 days from the issue of the invoice before an administrative fee becomes payable.226723117232
Paragraphs 23(8) of Schedule 1ZA and paragraphs 31(7) of Schedule 1ZB of the Act permit the FCA and PRA respectively to recover fees (including in respect of the FCA,11 fees relating to payment services,5 the issuance of electronic money, fees relating to CBTL firms24 and, where relevant, FOS levies and CFEB levies6), and section 213(6) permits the FSCS to recover shares of the FSCS levy payable, as a debt owed to the FCAPRA and FSCS respectively, and the FCA , PRA and FSCS, as
In addition, the appropriate regulator may be entitled to take regulatory action in relation to the non-payment of fees,6FOS levies and CFEB levies. The appropriate regulator6 may also take regulatory action in relation to the non-payment of FOS case fees or 723 a723 share of the FSCS levy, after reference of the matter to the6appropriate regulator by the6FSCS. What action (if any) that is taken by the appropriate regulator will be decided upon in the light of the particular
The firm may allocate the responsibility for its insurance mediation activity to an approved person (or persons) performing:(1) a governing function (other than the non-executive director function); or(2) the apportionment and oversight function; or(3) the significant management function in so far as it relates to dealing in investments as principal, disregarding article 15 of the Regulated Activities Order (Absence of holding out etc) (or agreeing to do so) or an activity which
(1) Typically a firm3 will appoint a person performing a governing function (other than the non-executive director function) to direct its insurance mediation activity. Where this responsibility is allocated to a person performing another function, the person performing the apportionment and oversight function with responsibility for the apportionment of responsibilities must ensure that the firm'sinsurance mediation activity is appropriately allocated.3(2) The descriptions of
The FCA will specify in the Financial Services Register the name of the persons to whom the responsibility for the firm'sinsurance mediation activity has been allocated. by inserting after the relevant controlled function the words "(insurance mediation)". In the case of a sole trader, the FCA will specify in the Financial Services Register the name of the sole trader as the 'contact person' in the firm.
Unless required sooner under another rule in this chapter, in complying with CASS 7.15.5 R (1) a firm should ensure it is able to determine the total amount of client money it should be holding for each client within two business days of having taken a decision to do so or at the request of the FCA.
(1) Before using a non-standard method of internal client money reconciliation, a firm must:(a) establish and document in writing its reasons for concluding that the method of internal client money reconciliation it proposes to use will:(i) (for the normal approach to segregating client money) check whether the amount of client money recorded in the firm's records as being segregated in client bank accounts meets the firm's obligation to its clients under the client money rules
A firm must inform the FCA in writing without delay if: (1) its internal records and accounts of client money are materially out of date, inaccurate or invalid so that the firm is no longer able to comply with the requirements in CASS 7.15.2 R, CASS 7.15.3 R or CASS 7.15.5 R (1);(2) it will be unable to, or materially fails to, pay any shortfall into a client bank account or withdraw any excess from a client bank account so that the firm is unable to comply with CASS 7.15.29 R
So-called 'mortgage clubs' or 'wholesalers' essentially act as a distribution function for lenders, providing information to intermediaries about current deals available from a range of lenders. They provide information (often through an electronic sourcing system) in a way that helps intermediaries search the market effectively and, as such, do not deal directly with individual borrowers. If only engaged in these activities and without direct contact with individual borrowers,
So-called 'mortgage packaging companies' may undertake certain parts of the mortgage process for lenders on an outsourced basis, ensuring that a complete set of documentation is collated and sent to the lender. This might include receiving application forms from intermediaries, undertaking credit reference checks and instructing a valuer. Other activities might include a product placement service for other intermediaries who provide product advice or recommendations to their clients.
The term 'broker packagers' is typically used to describe intermediaries who either market their services directly to borrowers or who offer other intermediaries a complete mortgage outsourcing service. They are often involved in the sales and advice process, including helping the borrower complete application forms. In the FCA's view, broker packagers carrying on these types of activity in direct contact with the borrower are likely to be carrying on the regulated activities
For the purpose of article 282(6) of the EU CRR (Hedging sets), a firm must apply the CCR Mark-to-market method as set out in Part Three, Title II, Chapter 6, Section 3 (Mark-to-market method) of the EU CRR to:(1) transactions with non-linear risk profile; or(2) payment legs and transactions with debt instruments as underlying;for which it cannot determine the delta or the modified duration, as the case may be, using an internal model approved by the FCA under Part Three Title
(1) This guidance sets out the FCA's expectations for granting permission to a firm to use its own one-sided credit valuation adjustment internal models (an "internal CVA model") for the purpose of estimating the maturity factor "M", as proposed under article 162(2)(h) of the EU CRR (Maturity).(2) In the context of counterparty credit risk, the maturity factor "M" is intended to increase the own funds requirements to reflect potential higher risks associated with medium and long-term
(1) This guidance sets out the FCA's expectations for permitting a firm with the permission to use the Internal Model Method set out in Part Three, Title II, Chapter 6, Section 6 (Internal model method) and the permission to use an internal VaR model for specific risk set out in Part Three, Title IV, Chapter 5 (Use of internal models) associated with traded debt instruments to set to 1 the maturity factor "M" defined in article 162 of the EU CRR.(2) In the context of counterparty
10The relevant requirements in regulation 7B(4) are that: (1) the incoming EEA firm has given a notice to the FCA and its home state regulator stating the details of the proposed changes; and (2) either: (a) the FCA has informed the incoming EEA firm that it may make the change; or(b) a period of one month has elapsed beginning with the day on which the incoming EEA firm gave the notice under (1).
10The FCA believes that, for a change to arise from circumstances beyond the control of an incoming EEA firm, the circumstances should be outside the control of the incoming EEA firm as a whole and not just its UKbranch. For example, the FCA considers that this provision would be unlikely to apply to circumstances in which lack of planning at the incoming EEA firm's head office resulted in a problem arising in a UKbranch. In practice, therefore, use of this provision is likely
4The FCA may authorise the omission of information required by LR 13.3 to LR 13.6, LR 13.8 and LR 13 Annex 1, if it considers that disclosure of that information would be contrary to the public interest or seriously detrimental to the listed company, provided that that omission would not be likely to mislead the public with regard to facts and circumstances, knowledge of which is essential for the assessment of the matter covered by the circular.
4A request to the FCA to authorise the omission of specific information in a particular case must:(1) be made in writing by the listed company;(2) identify the specific information concerned and the specific reasons for the omission; and(3) state why in the listed company's opinion one or more grounds in LR 13.1.7 G apply.
1This
chapter applies to:(1) a MiFID
investment firm;(2) a third country investment firm; and to(3) a person who
is the operator of an approved reporting
mechanism or of a regulated
market or MTF that
is used by a firm to report transactions to the FCA; and(4) a firm acting in its capacity as
a manager or operator of:(a) a collective investment undertaking;
or(b) a pension
scheme; or(c) an occupational
pension scheme; or(d) a personal
pension scheme; or(e) a stakeholder
pension
2In
line with guidance from CESR, the FCA acknowledges that, from a practical
point of view, it would be burdensome for branches of investment firms to be obliged to report
their transactions to two competent authorities. Therefore, all transactions executed by branches may
be reported to the competent authority of
the Host State, if the investment firm elects to do so. In these
cases transaction reports should
follow the rules of the competent authority to
which the report is
(1) The figure for the "return before operating charges" shown in the comparative table required by COLL 4.5.10R (1A) should include all costs and charges actually borne by the class of units it describes.(2) The indication of actual costs and charges borne by a class of units should cover pro-rata allocations of the operating charges borne by the scheme (e.g. annual management fee, fees and expenses payable to the depositary, auditors and FCA, costs of buying and selling units
(1) The authorised fund manager must, within four months after the end of each annual accounting period and two months after the end of each half-yearly accounting period respectively, make available and publish the long reports2 prepared in accordance with COLL 4.5.7R (1) to (3)2 (Contents of the annual long report) and COLL 4.5.8R (1) to (2)2 (Contents of the half-yearly long report).22(2) The reports referred to in (1) must:(a) be supplied free of charge to any person on request2;2(b)
(1) 4The authorised fund manager of a UCITS scheme which is a feeder UCITS must:(a) where requested by an investor, provide copies of the annual and half-yearly long reports of its master UCITS free of charge; and(b) file copies of the annual and half-yearly long reports of its master UCITS with the
FCA
.(2) Except where an investor requests paper copies or the use of electronic communications is not appropriate, the annual and half-yearly long reports of its master UCITS may
(1) 7The authorised fund manager of a feeder NURS must, where requested by an investor or the
FCA
, provide to such person copies of the annual and half-yearly long reports (or nearest equivalent documents for a qualifying master scheme that is a recognised scheme) of its qualifying master scheme free of charge.(2) Except where an investor requests paper copies or the use of electronic communications is not appropriate, the annual and half-yearly long reports (or nearest equivalent