Related provisions for APER 1.1A.3
21 - 40 of 69 items.
The
significance of conduct identified in the Code
of Practice for Approved Persons as tending to establish compliance
with or a breach of a Statement of Principle will
be assessed only after all the circumstances of a particular case have been
considered. Account will be taken of the context in which a course of conduct
was undertaken, including the precise circumstances of the individual case,
the characteristics of the particular accountable
function12 and the behaviour to
12Statements of Principle 1 to 4 apply to
all approved persons. A person performing an accountable
significant-influence function is also subject to the additional
requirements set out in Statements of Principle 5
to 7 in performing that accountable function.
Those responsible under SYSC
2.1.3 R or SYSC 4.4.5 R (Apportionment of responsibilities) for the firm's apportionment obligation will be specifically
subject to Statement of Principle 5
(and see, in particular, APER 4.5.6
12In
applying Statements of Principle 5
to 7, the nature, scale and complexity of the business under management and
the role and responsibility of the individual performing an accountable higher management function within the firm will
be relevant in assessing whether an approved
person's conduct was reasonable. For example, the smaller and
less complex the business, the less detailed and extensive the systems of
control need to be. The FCA will
be of the opinion that an individual
Therefore, if a person's job for a firm involves:(1) an FCA controlled function, the firm should apply to the FCA for approval;(2) a PRA controlled function, the firm should apply to the PRA for approval;(3) both an FCA controlled function and a PRA controlled function, the firm should apply to both the FCA and the PRA for approval (the purpose of SUP 10A.11 is to cut down the need for this sort of dual approval).
2When it decides whether to make a prohibition order against an approved person and/or withdraw its approval, the FCA will consider all the relevant circumstances of the case. These may include, but are not limited to those set out below. (1) The matters set out in section 61(2) of the Act.
(2) Whether the individual is fit and proper to perform functions in relation to regulated activities. The criteria for assessing the fitness and propriety of approved persons
2The FCA may have regard to the cumulative effect of a number of factors which, when considered in isolation, may not be sufficient to show that the individual is not fit and proper to continue to perform a controlled function or other function in relation to regulated activities. It may also take account of the particular controlled function which an approved person is performing for a firm, the nature and activities of the firm concerned and the markets within which it operates.
2Where it considers it is appropriate to withdraw an individual's approval to perform a controlled function within a particular firm, it will also consider, at the very least, whether it should prohibit the individual from performing that function more generally. Depending on the circumstances, it may consider that the individual should also be prohibited from performing other functions.
Generally, in relation to a branch of a firm, or a firm which is part of an overseas group, where an overseas manager is responsible for strategy, he will not need to be approved for the significant management function. However, where he is responsible for implementing that strategy in the United Kingdom, and has not delegated that responsibility to a senior manager in the United Kingdom, he is likely to be performing that FCA controlled function.
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
SUP 10A.5.6 R enables cover to be given for, as an example, holidays and emergencies and avoids the need for the precautionary approval of, for example, a deputy. However, as soon as it becomes apparent that a person will be performing an FCA controlled function for more than 12 weeks, the firm should apply for approval.
4The Statement of Principle 6 (see APER 2.1A.3 P) is in the following
terms: "An approved person performing
an accountable significant-influence function must
exercise due skill, care and diligence in managing the business of the firm for which he is responsible in his accountable function." References in APER 4.6 to a significant-influence function are
to an accountable significant-influence function to
which Statement of Principle 6
applies.
CASS 11.3.4 R describes the FCA controlled function known as the CASS operational oversight function (CF10a) in relation to CASS large debt management firms, including not-for-profit debt advice bodies. As a consequence of CASS 11.3.4 R (in conjunction with SUP 10A.4.1 R and SUP 10A.7.10 R), in a CASS large debt management firm (including a not-for-profit debt advice body fitting into that category) the function described in CASS 11.3.4 R is required to be discharged by a director
3The FCA's statement of policy in relation to the imposition of financial penalties is set out in (Deciding whether to take action), DEPP 6.3 (Penalties for market abuse) and DEPP 6.4 (Financial penalty or public censure). The FCA's statement of policy in relation to the amount of a financial penalty is set out in to . The FCA's statement of policy in relation to financial penalties for late submission of reports is set out in . The FCA’s statement of policy in relation to the
1The FCA's effective use of the power under section 63 of the Act to withdraw approval from an approved person will also help ensure high standards of regulatory conduct by preventing an approved person from continuing to perform the controlled function to which the approval relates if he is not a fit and proper person to perform that function. Where it considers this is appropriate, the FCA may prohibit an approved person, in addition to withdrawing their approval.
2Where the FCA decides to administer a formal caution, a record of the caution will be kept by the FCA and on the Police National Computer. The FCA will not publish the caution, but it will be available to parties with access to the Police National Computer. The issue of a caution may influence the FCA and other prosecutors in their decision whether or not to prosecute the offender if he offends again. If the offender is a firm or an approved person, a caution given by the FCA
In
determining whether or not the particular conduct of an approved
person within his accountable
function3 complies with the Statements of Principle, the following are
factors which, in the opinion of the appropriate
regulator,3 are to be taken into account:33(1) whether
that conduct relates to activities that are subject to other provisions of
the Handbook;(2) whether
that conduct is consistent with the requirements and standards of the regulatory system relevant to his fir
(1) The emphasis of the threshold conditions set out in paragraphs 2E and 3D of Schedule 6 of the Act15 is on the suitability of the firm itself. The suitability of each person who performs a controlled function will be assessed by the FCA and/or the PRA, as appropriate,15 under the approved persons regime (see SUP 10 (Approved persons) and FIT). In certain circumstances, however, the FCA15 may consider that the firm is not suitable because of doubts over the individual or collective
Examples of the kind of particular considerations to which the FCA may have regard when assessing whether a firm will satisfy, and continue to satisfy, this threshold condition include, but are not limited to, whether:1515(1) the firm has been open and co-operative in all its dealings with the FCA15and any other regulatory body (see Principle 11 (Relations with regulators)) and is ready, willing and organised to comply with the requirements and standards under the regulatory system