Related provisions for COBS 3.6.3
61 - 80 of 118 items.
(1) If a firm has carried out an order in the course of its designated investment business on behalf of a client, it must:(a) promptly provide the client, in a durable medium, with the essential information concerning the execution of the order;(b) in the case of a retail client, send the client a notice in a durable medium confirming the execution of the order and such of the trade confirmation information (COBS 16 Annex 1R) 2as is applicable: (i) as soon as possible and no later
For the purposes of calculating the unit price in the trade confirmation information, where the order is executed in tranches, the firm may supply the client with information about the price of each tranche or the average price. If the average price is provided, the firm must supply the retail client with information about the price of each tranche upon request. [Note: article 40(4) of the MiFID implementing Directive]
1In determining what is essential information, a firm should consider including:(1) for transactions in a derivative:(a) the maturity, delivery or expiry date of the derivative;(b) in the case of an option, a reference to the last exercise date, whether it can be exercised before maturity and the strike price;(c) if the transaction closes out an open futures position, all essential details required in respect of each contract comprised in the open position and each contract by
Where a firm executes an order in tranches, the firm may, where appropriate, indicate the trading time and the execution venue in a way that is consistent with this, such as, "multiple". In accordance with the client's best interests rule, a firm should provide additional information at the client's request.
A firm must retain a copy of any confirmation despatched to a client under this section:(1) for MiFID or equivalent third country business, for a period of at least five years; or(2) for business that is not MiFID or equivalent third country business, for a period of at least three years;from the date of despatch. [Note: see article 51(3) of the MiFID implementing Directive]
The provisions of COBS in the table do not apply to a trustee firm to which this section applies:
COBS |
Description |
26.1A |
Adviser charging and remuneration |
26.1B |
Retail investment product provider requirements relating to adviser charging and remuneration |
26.2A |
Describing advice services |
6.3 |
Disclosing information about services, fees and commission - packaged products |
6.4 |
Disclosure of charges, remuneration and commission |
9.4 |
Suitability reports |
9.6 |
Special rules for providing basic advice on a stakeholder product |
16.3.9 |
Guidance on contingent liability transaction |
16.5 |
Quotations for surrender values |
16.6 |
Life insurance contracts - communications to clients |
16 Annex 1 R (1) 14 |
Information to be provided in accordance with COBS 16.2.1 R and 16.3 |
The provisions of COBS in the table are unlikely to be relevant in relation to a trustee firm to which this section applies:
COBS |
Description |
5 |
Distance communications |
13 |
Preparing product information |
14.2 |
Providing product information |
15 |
Cancellation |
17 |
Claims handling for long-term care insurance |
18.2 |
Energy market activity and oil market activity |
18.3 |
Corporate finance business |
18.4 |
Stock lending activity |
19 |
Pensions - supplementary provisions |
20 |
With-profits |
To the extent a rule in COBS applies to a trustee firm, that rule:(1) applies in addition to any duties or powers imposed or conferred upon a trustee by the general law; and(2) does not qualify or restrict the duties or powers that the general law imposes or confers upon a trustee; trustee firms will be under a duty to observe the provisions of their trust instrument; if its provisions conflict with any applicable rule, trustee firms will need to take advice in resolving the
Where an applicable rule in COBS requires the doing of any thing in relation to a client, the trustee firm should consider who, in the context of that rule and having regard to the particular trust arrangement, is the most appropriate person to treat as its client. This might, for example, be the beneficiary, another trustee or the trust, depending on the particular circumstances.
(1) 1The requirements in this section apply to a firm when dealing in or arranging a deal in a mutual society share with or for a retail client in the EEA where the retail client is to enter into the deal as buyer.(2) The requirements in this section do not apply if:(a) the firm has taken reasonable steps to ensure that one (or more) of the exemptions in COBS 22.2.4R applies; or(b) the deal relates to the trading of a mutual society share in the secondary market.(3) In this section,
1The firm must give the retail client the following risk warning on paper or another durable medium and obtain confirmation in writing from the retail client that he has read it, in good time before the retail client has committed to buy the mutual society share:“The investment to which this communication relates is a share. Direct investment in shares can be high risk and is very different to investment in deposit accounts or other savings products. In particular, you should
(1) 1The requirements in (2) and (3) must be met if:(a) the firm is not providing an investment service in the course of MiFID or equivalent third country business; and(b) the retail client is not otherwise receiving advice on the mutual society share from the firm or another person.(2) The firm must give the retail client the following statement on paper or another durable medium and obtain confirmation in writing from the retail client that he has signed it, in good time before
1Each of the exemptions listed below applies only if the retail client is of the type described for the exemption and provided any additional conditions for the exemption are met.
Title |
Type of retail client |
Additional conditions |
(a) An individual who meets the requirements set out in COBS 4.12.6R; or (b) an individual in an EEA State other than the UK who meets requirements which are broadly equivalent to those set out in COBS 4.12.6R; or (c) a person (or persons) legally empowered to make investment decisions on behalf of an individual who meets the earnings or net asset requirements in (a) or (b) above. |
The firm must consider that the mutual society share is likely to be suitable for that individual, based on a preliminary assessment of that individual’s profile and objectives (see COBS 4.12.5G(2)). |
|
(a) An individual who meets the requirements set out in COBS 4.12.7R; or (b) an individual in an EEA State other than the UK who meets requirements which are broadly equivalent to those set out in COBS 4.12.7R; or (c) an individual who meets the requirements for either (a) or (b) above and who is legally empowered (solely or jointly with others) to make investment decisions on behalf of another person who is the firm's client. |
Not applicable. |
|
(a) An individual who meets the requirements set out in COBS 4.12.8R; or (b) an individual in an EEA State other than the UK who meets requirements which are broadly equivalent to those set out in COBS 4.12.8R; or (c) an individual who meets the requirements for either (a) or (b) above and who is legally empowered (solely or jointly with others) to make investment decisions on behalf of another person who is the firm's client. |
Not applicable. |
(1) 1For the purposes of any assessments or certifications required by the exemptions in COBS 22.2.4R, any references in COBS 4.12 provisions to non-mainstream pooled investments must be read as though they are references to mutual society shares.(2) If the firm is relying on the exemptions for certified high net worth investors, certified sophisticated investors or self-certified sophisticated investors to comply with this section, the statement the investor must sign should
1A firm which carries on an activity which is subject to this section must comply with the following record-keeping requirements:(1) the person allocated the compliance oversight function in the firm must make a record at or near the time of the activity certifying it complies with the requirements set out in this section;(2) the making of the record required in (1) may be delegated to one or more employees of the firm who report to and are supervised by the person allocated the
1 A key features illustration must include appropriate charges information, information about any interest that will be paid to clients on money held within a personal pension scheme bank account5 and, if it is a packaged product which is not a financial instrument:(1) must include a standardised deterministic projection;(2) the projection and charges information must be consistent with each other so that:66(a) the same intermediate growth rate and assumptions about regular contributions
When the rules in this chapter require a key features illustration to be prepared, it must not take the form of a generic key features illustration:33(1) unless 3there are reasonable grounds for believing that it3 will be sufficient to enable a retail client to make an informed decision about whether to invest; or3(2) if it is part of a3direct offer financial promotion which contains a personal recommendation; or33(3) if a personal pension scheme or a stakeholder pension scheme
There is no requirement under COBS 13.4.1 R5 to include a projection in a key features illustration:(1) for a single premiumlife policy bought as a pure investment product, a product with benefits that do not depend on future investment returns or any other product if it is reasonable to believe that a retail client will not need one to be able to make an informed decision about whether to invest; or(2) if the product is a life policy that will be held in a CTF or sold with basic
(1) A firm that holds clientdesignated investments or client money for a client must send that client at least once a year a statement in a durable medium of those designated investments or that client money unless such a statement has been provided in a periodic statement.(2) A credit institution need not send a statement in respect of deposits held by it.(3) This rule does not apply in relation to a firm holding clientdesignated investments or client money under a personal pension
A firm must include in a statement of client assets referred to under this section the following information:(1) details of all the designated investments or client money held by the firm for the client at the end of the period covered by the statement;(2) the extent to which any clientdesignated investments or client money have been the subject of securities financing transactions; and(3) the extent of any benefit that has accrued to the client by virtue of participation in any
In cases where the portfolio of a client includes the proceeds of one or more unsettled transactions, the information in a statement provided under this section may be based either on the trade date or the settlement date, provided that the same basis is applied consistently to all such information in the statement. [Note: article 43(2) of the MiFID implementing Directive]
1In reporting to a client in accordance with this section, a firm should consider whether to provide details of any assets loaned or charged including:(1) which investments (if any) were at the end of the relevant period loaned to any third party and which investments (if any) were at that date charged to secure borrowings made on behalf of the portfolio; and(2) the aggregate of any interest payments made and income received during the period in respect of loans or borrowings
(1) Subject to (3) and (4), a firm must ensure that a direct offer financial promotion that is addressed to, or disseminated in such a way that it is likely to be received by, a retail client contains:(a) such of the information referred to in the rules on information disclosure (COBS 6.1.4 R, COBS 6.1.6 R, COBS 6.1.7 R, COBS 6.1.9 R, COBS 14.3.2 R, COBS 14.3.3 R, COBS 14.3.4 R and COBS 14.3.5 R) as is relevant to that offer or invitation; and[Note: article 29(8) of the MiFID
In order to enable a client to make an informed assessment of a relevant investment or relevant business, a firm may wish to include in a direct offer financial promotion:(1) a summary of the taxation of any investment to which it relates and the taxation consequences for the average member of the group to whom it is directed or by whom it is likely to be received;1(2) a statement that the recipient should seek a personal recommendation if he has any doubt about the suitability
4COBS 4.13.2 R (Marketing communications relating to UCITS schemes or EEA UCITS schemes) and COBS 4.13.3 R (Marketing communications relating to feeder UCITS) contain additional disclosure requirements for firms in relation to marketing communications (other than key investor information) that concern particular investment strategies of a UCITS scheme or EEA UCITS scheme.
(1) 2A firm must not communicate or approve a direct offer financial promotion:(a) relating to a warrant or derivative;(b) to or for communication to a retail client; and(c) where the firm will not itself be required to comply with the rules on appropriateness (see COBS 10);unless the firm has adequate evidence that the condition in (2) is satisfied.(2) The condition is that the person who will arrange or deal in relation to the derivative or warrant will comply with the rules
(1) 5Unless permitted by COBS 4.7.8 R, a firm must not communicate or approve a direct-offer financial promotion relating to a non-readily realisable security to or for communication to a retail client without the conditions in (2) and (3) being satisfied.(2) The first condition is that the retail client recipient of the direct-offer financial promotion is one of the following:(a) certified as a ‘high net worth investor’ in accordance with COBS 4.7.9 R;(b) certified as a ‘sophisticated
5A firm may communicate or approve a direct-offer financial promotion relating to a non-readily realisable security to or for communication to a retail client if:(1) the firm itself will comply with the suitability rules (COBS 9) in relation to the investment promoted; or(2) the retail client has confirmed before the promotion is made that they are a retail client of another firm that will comply with the suitability rules (COBS 9) in relation to the investment promoted; or(3)
5A certified high net worth investor, a certified sophisticated investor or a self-certified sophisticated investor is an individual who has signed, within the period of twelve months ending with the day on which the communication is made, a statement in the terms set out in the applicable rule listed below, substituting “non-readily realisable securities” for “non-mainstream pooled investments”:(1) certified high net worth investor: COBS 4.12.6 R;(2) certified sophisticated investor:
5A certified restricted investor is an individual who has signed, within the period of twelve months ending with the day on which the communication is made, a statement in the following terms:
“RESTRICTED INVESTOR STATEMENT I make this statement so that I can receive promotional communications relating to non-readily realisable securities as a restricted investor. I declare that I qualify as a restricted investor because: |
|
(a) |
in the twelve months preceding the date below, I have not invested more than 10% of my net assets in non-readily realisable securities; and |
(b) |
I undertake that in the twelve months following the date below, I will not invest more than 10% of my net assets in non-readily realisable securities. |
Net assets for these purposes do not include: |
|
(a) |
the property which is my primary residence or any money raised through a loan secured on that property; |
(b) |
any rights of mine under a qualifying contract of insurance; or |
(c) |
any benefits (in the form of pensions or otherwise) which are payable on the termination of my service or on my death or retirement and to which I am (or my dependants are), or may be entitled. |
I accept that the investments to which the promotions will relate may expose me to a significant risk of losing all of the money or other property invested. I am aware that it is open to me to seek advice from an authorised person who specialises in advising on non-readily realisable securities. Signature: Date:” |
|
1A firm must, in relation to each with-profits fund it operates:(1) appoint:(a) a with-profits committee; or(b) a with-profits advisory arrangement (referred to in this section as an ‘advisory arrangement’), but only if appropriate, in the opinion of the firm'sgoverning body, having regard to the size, nature and complexity of the fund in question;(2) ensure that the with-profits committee or advisory arrangement operates in accordance with its terms of reference; and(3) make
(1) Ultimate responsibility for managing a with-profits fund rests with the firm through its governing body. The role of the with-profits committee or advisory arrangement is, in part, to act in an advisory capacity to inform the decision-making of a firm'sgoverning body. The with-profits committee or advisory arrangement also acts as a means by which the interests of with-profits policyholders are appropriately considered within a firm's governance structures. The with-profits
A firm must ensure that the terms of reference contain, as a minimum, terms having the following effect:(1) the role of the with-profits committee or advisory arrangement is, as relevant, to assess, report on, and provide clear advice and, where appropriate, recommendations to the firm'sgoverning body on:(a) the way in which each with-profits fund is managed by the firm and, if a PPFM is required, whether this is properly reflected in the PPFM;(b) if applicable, whether the firm
A firm must: (1) ensure that its governing body, in the context of its consideration of issues referred to in COBS 20.5.3R (1)(a) to (d) and (2)(b)(i) to (x):(a) obtains, as relevant, assessments, reports, advice and/or recommendations of the with-profits committee or advisory arrangement, if the governing body, the with-profits committee or advisory arrangement considers that significant issues concerning the interests of with-profits policyholders need to be considered by the
(1) COBS 20.5.5R (2) requires that a firm provides a with-profits committee or advisory arrangement with sufficient resources. A with-profits committee or advisory arrangement should be able to obtain external professional, including actuarial, advice, at the expense of the firm, if the with-profits committee or advisory arrangement considers the advice to be necessary to perform its role effectively. In a proprietary firm the with-profits committee or advisory arrangement should
(1) The FCA expects the governing body of the firm to decide whether a member of the with-profits committee or a person (other than a non-executive director) carrying out the advisory arrangement is independent. The FCA expects a firm'sgoverning body to adopt the following approach and have regard to the following factors when making this assessment:(a) the governing body should determine whether the person is independent in character and judgment and whether there are relationships
In complying with the rule on systems and controls in relation to compliance, financial crime and money laundering (SYSC 3.2.6 R), a firm should maintain governance arrangements designed to ensure that it complies with, maintains and records, any applicable PPFM. These arrangements should:(1) be appropriate to the scale, nature and complexity of the firm'swith-profits business; and(2) include the approval of the firm'sPPFM by its governing body.
For example:(1) the Child Trust Fund Regulations contain provisions relevant to cancellation rights; in particular they provide that any uninvested sums held in connection with a CTF should be held in a designated bank account; and the effect of conditions 4(a) and (b) in regulation 5 of the Child Trust Fund Regulations (applicable to non-HMRC allocated CTF) is that a CTF opened by way of distance contract has a cancellable management agreement in all cases and the CTF cannot
When a consumer cancels a distance contract under this chapter, his notice may also operate to cancel any attached contract which is also a distance financial services contract unless the consumer gives notice that cancellation of the main contract is not to operate to cancel the attached contract (see regulation 12 of the Distance Marketing Regulations). Where relevant, this should be disclosed to the consumer along with other information on cancellation.
This chapter does not act to cancel distance contracts entered into by an appointed representative or where applicable, by a tied agent,1 as principal such as a distance contract to provide advisory services, but the Distance Marketing Regulations (regulations 9 to 13, see regulation 4(3)) may have this effect.
Where a life policy or unit bought on opening or transferring an ISA is cancellable, the right to cancel, or substitute right to withdraw, applies to the entire arrangement. For example, a maxi-ISA comprising a life policy in the stocks and shares component and a cash component would be cancellable as a whole with a cancellation period of 30 calendar days. However, a firm is free to give the consumer the option of cancelling individual components separately with the same cancellation
(1) 4Subject to (2) and (3), this section applies to a firm in relation to the communication or approval of a financial promotion that relates to the business of an overseas person.4(2) This section does not apply to a firm in relation to its MiFID or equivalent third country business.(3) 4If a communication relates to a firm's business that is not MiFID or equivalent third country business, this section does not apply:4(a) to the extent that it is an excluded communication;(b)
A firm must not communicate or approve a financial promotion which relates to a particular relevant investment or relevant business of an overseas person, unless:(1) the financial promotion makes clear which firm has approved or communicated it and, where relevant, explains:(a) that the rules made under the Act for the protection of retail clients do not apply;(b) the extent and level to which the compensation scheme will be available, or if the scheme will not be available, a
A firm may only2communicate or approve a financial promotion to enter into a life policy with a person who is:22(1) an authorised person; or(2) an exempt person who is exempt in relation to effecting or carrying out contracts of insurance of the class to which the financial promotion relates; or(3) an overseas long-term insurer that is entitled under the law of its home country or territory to carry on there insurance business of the class to which the financial promotion rel
A financial promotion for an overseas long-term insurer, which has no establishment in the United Kingdom, must include:(1) the full name of the overseas long-term insurer, the country where it is registered, and, if different, the country where its head office is situated;(2) a prominent statement that 'holders of policies issued by the company will not be protected by the Financial Services Compensation Scheme if the company becomes unable to meet its liabilities to them'; and(3)
A financial promotion for an overseas long-term insurer which is authorised to carry on long-term insurance business in any country or territory listed in paragraph (c) of the Glossary definition of overseas long-term insurer must also include:(1) the full name of any trustee of property of any description which is retained by the overseas long-term insurer in respect of the promoted contracts;(2) an indication whether the investment of such property (or any part of it) is managed
If a financial promotion relates to a life policy with an overseas long-term insurer but does not name the overseas long-term insurer by giving its full name or its business name:(1) it must include the following prominent statement: "This financial promotion relates to an insurance company which does not, and is not authorised to, carry on in any part of the United Kingdom the class of insurance business to which this promotion relates. This means that the management and solvency
This section applies to a firm in relation to the communication of 3a financial promotion that is not in writing, but it does not apply:(1) to the extent that the financial promotion is an excluded communication;(2) if the financial promotion is image advertising;(3) if the financial promotion is a non-retail communication;1(4) [deleted]22(5) to the extent that the financial promotion relates to a pure protection contract that is a long-term care insurance contract.1
A firm must not make a cold call unless:(1) the recipient has an established existing client relationship with the firm and the relationship is such that the recipient envisages receiving cold calls; or(2) the cold call relates to a generally marketable packaged product which is not:(a) a higher volatility fund; or(b) a life policy with a link (including a potential link) to a higher volatility fund; or(3) the cold call relates to a controlled activity to be carried on by an authorised
A firm must not communicate a solicited or unsolicited financial promotion that is not in writing, to a client3 outside the firm's premises, unless the personcommunicating it:(1) only does so at an appropriate time of the day;(2) identifies himself and the firm he represents at the outset and makes clear the purpose of the communication;(3) clarifies if the client would like to continue with or terminate the communication, and terminates the communication at any time that the
If a consumer exercises his right to cancel he must, before the expiry of the relevant deadline, notify this following the practical instructions given to him. The deadline shall be deemed to have been observed if the notification, if in a durable medium available and accessible to the recipient, is dispatched before the deadline expires. [Note: article 6 (6) of the Distance Marketing Directive]
The firm should accept any indication that the consumer wishes to cancel as long as it satisfies the conditions for notification. In the event of any dispute, unless there is clear written evidence to the contrary, the firm should treat the date cited by the consumer as the date when the notification was dispatched.
The firm must make adequate records concerning the exercise of a right to cancel or withdraw and retain them:(1) indefinitely in relation to a pension transfer, pension opt-out or FSAVC;(2) for at least five years in relation to a life policy, pension contract, personal pension scheme or stakeholder pension scheme; and(3) for at least three years in any other case.
A service should be considered to be provided at the initiative of a client (see COBS 10.4.1 R (1)(a)1) unless the client demands it in response to a personalised communication from or on behalf of the firm to that particular client which contains an invitation or is intended to influence the client in respect of a specific financial instrument or specific transaction. [Note: recital 30 to MiFID]
A service can be considered to be provided at the initiative of a client notwithstanding that the client demands it on the basis of any communication containing a promotion or offer of financial instruments made by any means that by its very nature is general and addressed to the public or a larger group or category of clients. [Note: recital 30 to MiFID]
(1) Communications to the world at large, such as those in newspapers or on billboards, are likely to be by their very nature general and therefore not personalised communications.(2) Communications addressed to a client (such as, for example, an email, a telephone call or a letter), may or may not be personalised depending on the content.(3) A communication is not personalised solely because it contains the name and address of the client or because a mailing list has been filtered.(4)
A firm which
produces or disseminates non-independent
research must ensure that it:(1) is clearly identified as a marketing
communication; and(2) contains a clear and prominent
statement that (or, in the case of an oral recommendation, to the effect that)
it:(a) has not been prepared in accordance
with legal requirements designed to promote the independence of investment research; and(b) is not subject to any prohibition
on dealing ahead of the dissemination of investment
research.
In accordance with SYSC 10, a firm will
be expected to take reasonable steps to identify and manage conflicts of interest
which may arise in the production of non-independent
research. Situations where conflicts of interest can arise include:(1) relevant
persons trading in financial
instruments that are the subject of non-independent
research which they know the firm has
published or intends to publish before clients have
had a reasonable opportunity to act on it (other than when
This chapter relates to parts of the Handbook whose application depends on whether a person is a client, a retail client, a professional client or an eligible counterparty. However, it does not apply to the extent that another part of the Handbook provides for a different approach to client categorisation. For example, a separate approach to client categorisation is set out in the definition of a retail client for a firm that gives basic advice2.
The sections in this chapter on general notifications (COBS 3.3) and policies, procedures and records (COBS 3.8) do not apply in relation to a firm that is neither:(1) conducting designated investment business; nor(2) in the case of MiFID or equivalent third country business providing an ancillary service that does not constitute designated investment business.
If a firm conducts business for a client involving both:(1) MiFID or equivalent third country business; and(2) other regulated activities subject to this chapter;it must categorise that client for such business in accordance with the provisions in this chapter that apply to MiFID or equivalent third country business.
(1) For example, the requirement concerning mixed business will apply if a MiFID investment firm advises a client on whether to invest in a scheme or a life policy. This is because the former is within the scope of MiFID and the latter is not. In such a case, the MiFIDclient categorisation requirements prevail.(2) The requirement does not apply where the MiFID or equivalent third country business is provided separately from the other regulated activities. Where this is the case,
A firm that is carrying on a regulated activity on a non-advised basis, whether or not the rules in this chapter apply to its activities, should also consider whether other rules in COBS apply. For example, a firm carrying on insurance mediation activity in relation to a life policy that does not involve the provision of advice, should have regard to COBS 7 (Insurance mediation).
(1) A transaction may be unsuitable for a client because of the risks of the designated investments involved, the type of transaction, the characteristics of the order or the frequency of the trading.(2) In the case of managing investments, a transaction might also be unsuitable if it would result in an unsuitable portfolio. [Note: recital 57 to the MiFID implementing Directive]
(1) A series of transactions that are each suitable when viewed in isolation may be unsuitable if the recommendation or the decisions to trade are made with a frequency that is not in the best interests of the client.(2) A firm should have regard to the client's agreed investment strategy in determining the frequency of transactions. This would include, for example, the need to switch a client within or between packaged products. [Note: recital 57 to the MiFID implementing Di
When a firm is making a personal recommendation to a retail client about income withdrawals or purchase of short-term annuities, it should consider all the relevant circumstances including:(1) the client's investment objectives, need for tax-free cash and state of health;(2) current and future income requirements, existing pension assets and the relative importance of the plan, given the client’s financial circumstances;(3) the client’s attitude to risk, ensuring that any discrepancy
When considering the suitability of a particular investment product which is linked directly or indirectly to any form of loan, mortgage or home reversion plan, a firm should take account of the suitability of the overall transaction. The firm should also have regard to any applicable suitability rules in MCOB.
(1) Firms should note that restrictions and specific requirements apply to the retail distribution of certain investments:212(a) non-mainstream pooled investments are subject to a restriction on financial promotions (see section 238 of the Act and COBS 4.12);(b) non-readily realisable securities are subject to a restriction on direct offer financial promotions (see COBS 4.7);(c) contingent convertible instruments and CoCo funds are subject to a restriction on sales and on promotions
(1) 1A firm must act honestly, fairly and professionally in accordance with the best interests of its client (the client's best interests rule).(2) This rule applies in relation to designated investment business carried on:(a) for a retail client; and(b) in relation to MiFID or equivalent third country business, for any other client.(3) For a management company, this rule applies in relation to any UCITS scheme or EEA UCITS scheme the firm manages.23[Note: article 19(1) of MiFID
(1) In order to comply with the client's best interests rule, a firm should not, in any communication to a retail client relating to designated investment business:(a) seek to exclude or restrict; or(b) rely on any exclusion or restriction of;any duty or liability it may have to a client other than under the regulatory system, unless it is honest, fair and professional for it to do so.(2) The general law, including the Unfair Terms Regulations (for contracts entered into before
3A full-scope UK AIFM and an incoming EEA AIFM branch must, for all AIFs it manages: (1) act honestly, fairly and with due skill care and diligence in conducting their activities;(2) act in the best interests of the AIF it manages or the investors of the AIF it manages and the integrity of the market;(3) treat all investors fairly; and(4) not allow any investor in an AIF to obtain preferential treatment, unless such preferential treatment is disclosed in the relevant AIF'sinstrument
A firm must prepare the Solvency II Directive information6 for each life policy it effects:6(1) in a clear and accurate manner and in writing; and6(2) in an official language of the State of the commitment, or in another language if the policyholder so requests and the law of the State of the commitment so permits or the policyholder is free to choose the law applicable;6in good time before that information has to be provided. [Note: article 185(1) and (6) of the Solvency II
A firm is not required to prepare:(1) a document, if another firm has agreed to prepare it; or(2) a key features document for:(a) a unit in a UCITS scheme or3 a simplified prospectus scheme; or(b) a unit in an EEA UCITS scheme which is a recognised scheme; or33(c) a unit in a key features scheme, if it prepares a simplified prospectus, or the information appears with due prominence in another document, instead; or(d) a stakeholder pension scheme, or personal pension scheme that
A single document prepared for more than one key features scheme or3simplified prospectus scheme may combine more than one key features document, simplified prospectus or EEA simplified prospectus or any combination of them, if the schemes are offered through a platform service4 and the document clearly describes the difference between the schemes.34
(1) 1The restrictions in this section apply in relation to the following investments:(a) a contingent convertible instrument; or(b) a security issued by a CoCo fund; or(c) a beneficial interest in either of (a) or (b).(2) A firm must not:(a) sell an investment to a retail client in the EEA; or(b) communicate or approve an invitation or inducement to participate in, acquire or underwrite an investment where that invitation or inducement is addressed to or disseminated in such a
1Each of the exemptions listed below applies only if the retail client is of the type described for the exemption and provided any additional conditions for the exemption are met.
Title |
Type of retail client |
Additional conditions |
(a) An individual who meets the requirements set out in COBS 4.12.6R; or (b) an individual in an EEA State other than the UK who meets requirements which are broadly equivalent to those set out in COBS 4.12.6R; or (c) a person (or persons) legally empowered to make investment decisions on behalf of an individual who meets the earnings or net asset requirements in (a) or (b) above |
The firm must consider that the investment is likely to be suitable for that individual, based on a preliminary assessment of that individual’s profile and objectives (see COBS 4.12.5G(2)). |
|
(a) An individual who meets the requirements set out in COBS 4.12.7R; or (b) an individual in an EEA State other than the UK who meets requirements which are broadly equivalent to those set out in COBS 4.12.7R; or (c) an individual who meets the requirements for either (a) or (b) above and who is legally empowered (solely or jointly with others) to make investment decisions on behalf of another person who is the firm's client. |
Not applicable. |
|
(a) An individual who meets the requirements set out in COBS 4.12.8R; or (b) an individual in an EEA State other than the UK who meets requirements which are broadly equivalent to those set out in COBS 4.12.8R; or (c) an individual who meets the requirements for either (a) or (b) above and who is legally empowered (solely or jointly with others) to make investment decisions on behalf of another person who is the firm's client. |
The firm must consider that the investment is likely to be suitable for that individual, based on a preliminary assessment of that individual’s profile and objectives (see COBS 4.12.5G(2)). |
|
Solicited advice |
Any retail client. |
The restrictions do not apply provided all of the following requirements are met: (a) there is no invitation or inducement to participate in, acquire or underwrite the investment other than a personal recommendation on the investment; (b) the personal recommendation is made following a specific request by that client for advice on the investment; and (c) the client has not previously received any other communication (whether or not a financial promotion) from the firm or from a person connected to the firm which is intended to influence the client in relation to the investment. (See Note 1) |
MiFID or equivalent third country business other than financial promotions |
Any retail client. |
COBS 22.3.1R(2)(a) does not apply to MiFID or equivalent third country business (see COBS 9.3.5G). |
Prospectus |
Any retail client. |
The restrictions do not apply to the distribution of a prospectus required under the Prospectus Directive. |
Issuers |
Any retail client |
To the extent that the firm is acting as issuer of a contingent convertible instrument, the restrictions only apply to the original issuance of the contingent convertible instrument and not to subsequent trading in the secondary market. |
Indirect investment |
Any retail client |
The restrictions do not apply in relation to a beneficial interest in a contingent convertible instrument acquired through participation in a regulated collective investment scheme, investment in a non-mainstream pooled investment (provided it is not a CoCo fund), or membership of an occupational pension scheme. |
Note 1 |
A person is connected with a firm if it acts as an introducer or appointed representative for that firm or if it is any other person, regardless of authorisation status, who has a relevant business relationship with the firm. |
|
Note 2 |
See COBS 2.4 for rules and guidance on agent as client and reliance on others. |
|
(1) For the purposes of any assessments or certifications required by the exemptions in COBS 22.3.2R, any references in COBS 4.12 provisions to non-mainstream pooled investments must be read as though they are references to contingent convertible instruments or CoCo funds, as relevant.(2) If the firm is relying on the high net worth investor, the sophisticated investor or the self-certified sophisticated investor exemption to comply with this section, the statement the investor
A firm wishing to certify a retail client as a sophisticated investor for the purposes of this section should note that, in the FCA’s view, it is likely that the only retail clients with the requisite sophistication in relation to contingent convertible instruments or CoCo funds are those with significant experience with investment in multiple types of complex financial instruments and who have sufficient understanding of how credit institutions are run, including risks to the
A firm which carries on an activity which is subject to this section must comply with the following record-keeping requirements:(1) the person allocated the compliance oversight function in the firm must make a record at or near the time of the activity certifying it complies with the restrictions set out in this section;(2) the making of the record required in (1) may be delegated to one or more employees of the firm who report to, and are supervised by, the person allocated
COBS does not apply to an authorised professional firm with respect to its non-mainstream regulated activities, except that:(1) the fair, clear and not misleading rule applies;(2) the financial promotion rules apply as modified below;(3) COBS 7 (Insurance mediation) applies but only if the designated professional body of the firm does not have rules approved by the FCA under section 332(5) of the Act that implement articles 12 and 13 of the Insurance Mediation Directive and that
The financial promotion rules do not apply to an authorised professional firm in relation to the communication of a financial promotion if:(1) the firm's main business is the practice of its profession (see IPRU(INV) 2.1.2R(3));(2) the financial promotion is made for the purposes of and incidental to the promotion or provision by the firm of its professional services or its non-mainstream regulated activities; and(3) the financial promotion is not communicated on behalf of another