Related provisions for SUP 10C.12.10
81 - 100 of 1059 items.
A decision to: (1) revoke a recognition order under section 297 of the Act (Revoking recognition) or (for RAPs) regulation 4 of the RAP regulations; or3(2) make a direction under section 296 (FCA's4powers to give directions) or (for RAPs) regulation 3 of the RAP regulations; or34(3) refuse to make a recognition order under section 290 (Recognition orders) or 290A (Refusal of recognition on ground of excessive regulatory provision) or (for RAPs) regulation 2 of the RAP regulations32;is
In considering whether it would be appropriate to exercise the powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations,3 the FCA4 will have regard to all relevant information and factors including:4(1) its guidance to recognised bodies;(2) the results of its routine supervision of the body concerned;(3) the extent to which the failure or likely failure to satisfy one or more of the recognised body requirements31may affect the statutory
In considering whether or not to make a recognition order, the FCA4 will have regard to all relevant information and factors, including its guidance to recognised bodies and applicants and the information provided by applicants. Details of the application processes and other guidance for applicants are set out in REC 5 and (for overseas applications) REC 6.4
Before exercising its powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations3, the FCA4 will usually discuss its intention, and the basis for this, with the key individuals or other appropriate representatives of the recognised body. It will usually discuss its intention not to make a recognition order with appropriate representatives of the applicant.4
3Key steps in the section 298 procedure4
| 4 | ||
(1) |
give written notice to theRIE4 (or applicant); 4 |
The notice will state why the FCA4 intends to take the action it proposes to take, and include an invitation to make representations, and the period within which representations should be made (unless subsequently extended by the FCA)4. 4 |
(2)4 4 |
receive representations from the RIE or applicant concerned;4 4 |
The FCA4 will not usually consider oral representations without first receiving written representations from theRIE (or applicant)4. It will normally only hear oral representations from the RIE4 on request. 444 |
(3)4 4 |
write promptly to RIE (or applicant)4 who requests the opportunity to make oral representations if it decides not to hear that person's representations; 4 |
The FCA4 will indicate why it will not hear oral representations and the FCA4 will allow the RIE (or applicant)4 further time to respond. 444 |
(4)4 4 |
have regard to representations made; |
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(5)4 4 |
(when it has reached its decision) notify the RIE4 (or applicant) concerned in writing. 4 |
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| 4 |
4For RAPs, key steps in the regulation 5 procedure
The FCA will: |
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(1) |
give written notice to the RAP (or applicant); |
The notice will state why the FCA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made. |
(2) |
take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the RAP or of the applicant, as the case may be; |
The FCA will also notify persons individually (as far as it considers it reasonably practicable to do so) if it considers that the action it proposes to take would affect them adversely in a way which would be different from its effect on other persons of the same class. |
(3) |
publish the notice so as to bring it to the attention of other persons likely to be affected; |
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(4) |
receive representations from the RAP or applicant concerned, any member of the RAP or applicant, and any other person who is likely to be affected by the action the FCA proposes to take; |
The FCA will not usually consider oral representations without first receiving written representations from the person concerned. It will normally only hear oral representations from the RAP (or applicant) itself or of a person whom it has notified individually, on request. |
(5) |
write promptly to any person who requests the opportunity to make oral representations if it decides not to hear that person's representations; |
The FCA will indicate why it will not hear oral representations and the FCA will allow the person concerned further time to respond. |
(6) |
have regard to representations made; |
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(7) |
(when it has reached its decision) notify the RAP (or applicant) concerned in writing; |
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(8) |
(if it has decided to give a direction, or revoke or refuse to make a recognition order) take such steps as it considers reasonably practicable to bring its decision to the attention of members of the RAP or applicant and to other persons likely to be affected. |
The FCA will usually give notice of its decision to the same persons and in the same manner as it gave notice of its intention to act. |
If a registered society fails to file an R by the date it is required to be filed:(1) the R used to determine the amount of the periodic fee payable by the registered society will be that shown in the R last filed with the FCA or its predecessor; and(2) the registered society must pay an administrative fee equal to the lower of the periodic fee payable by the registered society under Annex 1R for that year, and £250.
If a registered society ceases to be a registered society on or after 1 April in a particular financial year, but before an invoice for the periodic fee payable under 1.2.1 R for the financial year in which the society ceases to be a registered society has been issued by the FCA, the periodic fee payable by that registered society under 1.2.1 R is the amount of the periodic fee under Annex 1R for the immediately preceding financial year.
A registered society need not pay a periodic fee on the date which it is due under the relevant provision in these rules, if:(1) that date falls during a period during which circumstances of the sort set out in R(Emergencies) exist, and that registered society has reasonable grounds to believe that those circumstances impair its ability to pay the fee, in which case it must pay on or before the fifth business day after the end of that period; or(2) that date would otherwise
The FCA expects to issue invoices for periodic fees at least 30 days before the date on which they fall due. Accordingly, it will generally be the case that a registered society will have at least 30 days from the issue of the invoice before an administrative fee becomes payable, and at least 45 days before any interest becomes payable.
6(1) A firm must notify the FCA that it has become or ceased to be closely linked with any person and ensure the following:454(a) where a firm has elected to report changes in close links on a monthly basis under SUP 11.9.5A R, the notification must be made in line with SUP 11.9.3BA R; and4(b) in any other case, the notification must be made by completing the Close Links Notification Form (see SUP 11.9.3B G) and must include the information in SUP 11.9.3D G.4(2) If a group includes
6The firm must make a notification to the FCA under SUP 11.9.1A R:(1) as soon as reasonably practicable and no later than one month after it becomes aware that it has become or ceased to be closely linked with any person; or(2) where a firm has elected to report on a monthly basis, within fifteen business days of the end of each month by completing 4the Close Links Monthly Report for that month and must submit the group organisation chart on a quarterly basis unless there have
6(1) A firm elects to report changes in close links on a monthly basis by sending a written notice of election to the firm's usual supervisory contact at the FCA.(2) An election to report changes in close links on a monthly basis will stand until such time as the firm gives its usual supervisory contact at the FCA at least one month's written notice of its intention to cease reporting changes in close links on a monthly basis.
Under section 294(4) of the Act, before the FCA1 may give a waiver of notification rules, it must be satisfied that:1(1) compliance by the recognised body with those notification rules, or with those rules as unmodified, would be unduly burdensome or would not achieve the purpose for which those rules were made; and(2) the waiver would not result in undue risk to persons whose interests those rules are designed to protect.
There is no application form, but applicants should make their application formally and in writing and in accordance with any direction the FCA1 may make under section 294(2) of the Act. Each application should set out at least:1(1) full particulars of the waiver which is requested; (2) the reason why the recognised body believes that the criteria set out in section 294(4) (and described in REC 3.3.3 G) would be met, if this waiver were granted; and (3) where the recognised body
Any waiver given by the FCA1 under section 294 of the Act will be made in writing, stating: 1(1) the name of the recognised body in respect of which the waiver is made;(2) the notification rules which are to be waived or modified in respect of that body;(3) where relevant, the manner in which any rule is to be modified;(4) any condition or time limit to which the waiver is subject; and(5) the date from which the waiver is to take effect.
Where the FCA1 considers that it will not give the waiver which has been applied for, the FCA1 will give reasons to the applicant for its decision. The FCA1 will endeavour, where practicable, to inform an applicant in advance where it seems that an application is likely to fail unless it is amended or expanded, so that the applicant will have the opportunity to make any necessary amendments or additions before the application is considered.111
The FCA1 will periodically review any waiver it has given. The FCA1 has the right to revoke a waiver under section 294(6) of the Act. This right is likely to be exercised in the event of a material change in the circumstances of the recognised body or in any fact on the basis of which the waiver was given.11
If a direct payment service provider2 does not pay the total amount of its PSR fees before the end of the date on which it is due, it must pay to the FCA2: (1) an administrative fee of £250; plus(2) interest on any unpaid part of the fee at an annual rate of 5% above the Official Bank Rate from time to time in force, accruing daily from the date on which the amount concerned became due.
An auditor of a firm must submit a client assets 5report addressed to the FCA which: 5(1) 5(a) states the matters set out in SUP 3.10.5 R; and55(b) specifies the matters to which SUP 3.10.9 R and SUP 3.10.9A R refer; or (2) if the firm claims not to hold client money or custody assets, states whether anything has come to the auditor's attention that causes him to believe that the firm held client money or custody assets during the period covered by the report.
SUP 3.10.4 R provides that an auditor must ensure that a client assets report is prepared in accordance with the terms of, as the case may be, a reasonable assurance engagement or a limited assurance engagement. However, the FCA also expects an auditor to have regard, where relevant, to material published by the Financial Reporting Council 11that deals specifically with the client assets report which the auditor is required to submit to the FCA. In the FCA's view, a client assets
335(1) 5If an auditor expects that it will fail to comply with SUP 3.10.7 R, it must no later than the end of the four month period in question:(a) notify the FCA that it expects that it will be unable to deliver a client assets report by the end of that period; and(b) ensure that the notification in (a) is accompanied by a full account of the reasons for its expected failure to comply with SUP 3.10.7 R.(2) If an auditor fails to comply with SUP 3.10.7 R, it must promptly:(a)
1The rights and duties of auditors are set out in SUP 3.8 (Rights and duties of all auditors) and SUP 3.10 (Duties of auditors: notification and report on client assets). SUP 3.8.10 G also refers to the auditor's statutory duty to report certain matters to the FCA imposed by regulations made by the Treasury under sections 342(5) and 343(5) of the Act (information given by auditor or actuary to a regulator). An auditor should bear these rights and duties in mind when carrying out
1It is the responsibility of an insurance intermediary's senior management to determine, on a continuing basis, whether the firm is an exempt insurance intermediary for the purposes of this requirement and to appoint an auditor if management determines the firm is no longer exempt. SUP 3.7 (amplified by SUP 15) sets out what a firm should consider when deciding whether it should notify the FCA of matters raised by its auditor.
5An auditor must:(1) deliver to a firm a draft of its client assets report such that the firm has an adequate period of time to consider the auditor’s findings and to provide the auditor with comments of the kind to which SUP 3.11.1 G refers; and(2) unless it is the auditor of a firm falling within category (10) of SUP 3.1.2 R, deliver to the firm a copy of the final report at the same time as it delivers that report to the FCA in accordance with SUP 3.10.7 R.
(1) 5The FCA expects that the list of breaches will include every breach of a rule in CASS insofar as that rule is within the scope of the client assets report and is identified in the course of the auditor’s review of the period covered by the report, whether identified by the auditor or disclosed to it by the firm, or by any third party.(2) 5For the purpose of determining whether to qualify its opinion or express an adverse opinion, the FCA would expect an auditor to exercise
2The AIFMD
UK regulation includes information gathering and sanctioning powers that enable the FCA to investigate and take action for breaches of the regulations and directly applicable EU regulations. Specific standalone powers are in the AIFMD
UK regulation for unauthorised AIFMs, by applying relevant sections of the Act. Amendments to the Act, including those made under the Financial Services and Markets Act (Qualifying EU
2The FCA has decided that its approach to enforcing the AIFMD
UK regulation requirements will mirror its general approach to enforcing the Act in EG 2. Therefore, the FCA will apply the same procedures and policies under the Act for appointing investigators and requiring information for breaches of the AIFMD UK regulation.
2The FCA will respect the principle of proportionality when taking action against EuSEF or EuVECA
managers for breaches identified in articles 22 and 21 of the directly applicable EuSEF regulation and EuVECA regulation, respectively. The FCA may take action to ensure compliance with the regulations or prohibit the use of the designation of EuSEF
manager or EuVECA manager and revoke registration of such managers. The prohibition route is more
2The RDC is the FCA's decision maker for some decisions under the AIFMD
UK regulation, as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure in DEPP 3.2 or, where appropriate, DEPP 3.3 and 3.4. For decisions made by executive procedures, the procedures to be followed are in DEPP 4.
2The AIFMD
UK regulation applies the procedural provisions of Part and Part 26 of the Act for matters that can be referred to the Tribunal and to warning and decision notices under the regulations as it applies to referrals and notices under the Act. The AIFMD
UK regulation also applies sections 205 and 206 of the Act to unauthorised AIFMs and, accordingly, the FCA will give third party rights (section 393 of the Act) and access to material
2When determining whether to take action to impose a penalty under the AIFMD
UK regulation, the FCA's policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA's policy includes having regard to relevant principles and factors in DEPP 6.5 to 6.5A, DEPP 6.5B, DEPP 6.5D and DEPP 6.7.
2Regulation 71(2) of the AIFMD
UK regulation applies section 169 of the Act in respect of unauthorised AIFMs, which requires the FCA to have a statement of policy on the conduct of certain interviews in response to requests from overseas regulators. The FCA will follow the procedures described in DEPP 7.
1Where the FCA interviews a person, it will allow the person to be accompanied by a legal adviser, if they wish. The FCA will also, where appropriate, explain what use can be made of the answers in proceedings against them. Where the interview is tape-recorded, the person will be given a copy of the audio tape of the interview and, where a transcript is made, a copy of the transcript.
1
Individuals suspected of a criminal offence may be interviewed under caution. These interviews will be subject to all the safeguards of the relevant Police and Criminal Evidence Act Codes and are voluntary on the part of the suspect. The FCA will warn the suspect at the start of the interview of their right to remain silent (and the consequences of remaining silent) and will inform the suspect that they are entitled to have a legal adviser present. The FCA
1If a suspect has been interviewed by the FCA using statutory powers, before they are re-interviewed on a voluntary basis (under caution or otherwise), the FCA will explain the difference between the two types of interview. The FCA will also tell the individual about the limited use that can be made of their previous answers in criminal proceedings or in proceedings in which the FCA seeks a penalty for market abuse under Part VIII of the Act.
1Conversely, where a suspect has been interviewed under caution, and the FCA later wishes to conduct a compulsory interview with them, the FCA will explain the difference between the two types of interview, and will notify the individual of the limited use that can be made of his answers in the compulsory interview.
1On occasion, where the police have a power of arrest, the FCA may make a request to the police for assistance to arrest the individual for questioning by the FCA (FCA investigators do not have powers of arrest), for example: (1) where it appears likely that inviting an individual to attend on a voluntary basis would prejudice an ongoing investigation or risk the destruction of evidence or the dissipation of assets; or (2) where a suspect declines an invitation to attend a voluntary
1Where the FCA has appointed an investigator in response to a request from an overseas regulator or EEA regulator, it may, under sections 169(7) or 131FA of the Act respectively, direct the investigator to allow a representative of that regulator to attend, and take part in, any interview conducted for the purposes of the investigation. However, the FCA may only use this power if it is satisfied that any information obtained by an overseas regulator or EEA regulator as a result
1The factors that the FCA may take into account when deciding whether to make a direction under section 169(7) include the following: (1) the complexity of the case; (2) the nature and sensitivity of the information sought; (3) the FCA's own interest in the case; (4) costs, where no Community obligation is involved, and the availability of resources; and (5) the availability of similar assistance to UK authorities in similar circumstances.
Where a UK RIE proposes to operate a new regulated market or close an existing regulated market it must give the FCA3notice of that event and the information specified for the purposes of this rule in REC 3.14A.3 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them). 3
Where a UK RIE proposes to operate a new MTF or close an existing MTF it must give the FCA3notice of that event and the information specified for the purposes of this rule in REC 3.14A.5 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them).3
The following information is specified for the purposes of REC 3.14A.4 R:(1) where the UK RIE proposes to operate a new MTF:(a) a description of the MTF; and(b) a description of the specified investments which will be admitted to trading on that MTF.(2) where the UK RIE proposes to close a MTF, the name of that MTF.
The appropriate regulator4 is required by sections 138B(1) and (2)4 of the Act to publish a waiver unless it is satisfied that it is inappropriate or unnecessary to do so. If the appropriate regulator4 publishes a waiver, it will not publish details of why a waiver was required or any of the supporting information given in a waiver application.444
4The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
When considering whether it is satisfied under section 138B(2)4, the appropriate regulator4 is required by section 138B(3)4 of the Act:444(1) to take into account whether the waiver relates to a rule contravention of which is actionable under section 138D4 of the Act (Actions for damages); Schedule 5 identifies such rules;4(2) to consider whether its publication would prejudice, to an unreasonable degree, the commercial interests of the firm concerned, or any other member of its
Waivers can affect the legal rights of third parties, including consumers. In the appropriate regulator's4 view it is important that the fact and effect of such waivers should be transparent. So the fact that a waiver relates to a rule that is actionable under section 138D4 of the Act (see SUP 8.6.2 G (1)) will tend to argue in favour of publication.44
In considering whether commercial interests would be prejudiced to an unreasonable degree (see SUP 8.6.2 G (2)), the appropriate regulator4 will weigh the prejudice to firms' commercial interests against the interests of consumers, markets and other third parties in disclosure. In doing so the appropriate regulator4 will consider factors such as the extent to which publication of the waiver would involve the premature release of proprietary information to commercial rivals, for
If, after taking into account the matters in SUP 8.3.3 D to SUP 8.6.6 G, a firm believes there are good grounds for the appropriate regulator4 either to withhold publication or to publish the waiver without disclosing the identity of the firm, it should make this clear in its application. If the appropriate regulator4proposes to publish a waiver against the wishes of the firm, the appropriate regulator4 will give the firm the opportunity to withdraw its application before the
A decision to withhold a waiver or identity of a firm from publication may be for a limited period only, usually as long as the duration of the relevant grounds for non-publication. If the appropriate regulator4 proposes to publish information about a waiver that had previously been withheld, it will first give the firm an opportunity to make representations.4
Paragraph 23 of Schedule 1ZA18 of2 the Act,7regulation 92 of the Payment Services Regulations, 22 regulation 59 of the Electronic Money Regulations7and article 25(a) of the MCD Order22 enable the FCA18 to charge fees to cover its costs and expenses in carrying out its functions. The corresponding provisions for the FSCS levy ,5FOS levies and CFEB levies5 are set out in FEES 6.1,5FEES 5.2 and FEES 7.1.4 G5 respectively. Case fees payable to the FOS Ltd are set out in FEES 5.5B.
3Regulation 92 of the Payment Services Regulations and regulation 59 of the Electronic Money Regulations each provide7 that the functions of the FCA18 under the respective7 regulations are treated for the purposes of paragraph 23 of Schedule 1ZA18 to the Act as functions conferred on the FCA18 under the Act. Paragraph 23(7) 22 however, has not been included 22.7This is 22the FCA's187 obligation to ensure that the amount of penalties received or expected to be received are not
The FCA’s12fees payable will vary from one fee year18 to another, and will reflect the FCA’s12funding requirement for that period and the other key components, as described in FEES 2.1.7G. Periodic fees, which will normally be payable on an annual basis, will provide the majority of the funding required to enable the FCA12to undertake its statutory functions.18181818181818
The key components of the FCA12fee mechanism (excluding the FSCS5levy, the FOS5 levy and case fees, and the CFEB levy5which are dealt with in FEES 5,5FEES 6 and FEES 7)5 are:555(1) a funding requirement derived from:(a) the FCA’s12financial management and reporting framework;(b) the FCA’s12budget; and(c) adjustments for audited variances between budgeted and actual expenditure in the previous accounting year, and reserves movements (in accordance with the FCA’s12reserves policy);(2)
18PRA-authorised persons and persons seeking to become PRA-authorised persons should note that the FCA and the PRA have agreed for the FCA to act as the PRA's collection 12agent for 12PRA fees. Where applicable, both PRA and FCA fees should be paid as a single payment to the FCA, which will receive the payment in its own capacity in respect of FCA fees and in its capacity as collection 12agent for the PRA in respect of the PRA fees. References to this arrangement will be referred
The FCA would normally consider the dissolution of a sub-pool, such that the firm no longer operates the sub-pool or no longer uses the relevant net margined omnibus client account or transfers the business to another authorised central counterparty, to be examples of material changes to a sub-pool.
The records maintained under this section, including the sub-pool disclosure documents, are a record of the firm that must be kept in a durable medium for at least five years following the date on which client money was last held by the firm for a sub-pool to which those records or the sub-pool disclosure document applied.
1This chapter contains:2(1) guidance for firms, authorised payment institutions and authorised electronic money institutions8 and their 7appointed representatives, agents7or tied agents5on the circumstances in which the FCA12 permits them 7to reproduce the FSA and FCA logos12;28812712(2) rules on the use by firms of the Key facts logo.2
The FSA logo is a registered UK service mark, with number 2150560. The FCA logo is a registered UK service mark, with number 2629534.12 The Key facts logo is a registered Community trade mark, with the number EU386668812. All12 are3 the property of the FCA12. They are 3also subject to copyright and may be used or reproduced with permission of the FCA12 only. If the FSA, FCA,12 or Key facts logos are 3reproduced or otherwise used by any person without such permission the FCA may
GEN 5 Annex 1 G is a general licence, which sets out the circumstances in which the FCA12 permits 5a person to whom this chapter applies 7to reproduce the FSA and Key facts logos3. Such a person7need not apply for an individual licence if it uses or reproduces the logos 3in accordance with the general licence.12735753
The FCA12 has no policy to allow use of the FSA or Key facts12 logos3 by a person to whom this chapter applies 7other than as set out in GEN 5 Annex 1 G. If, however, such a person7 wishes to use or reproduce either of3 the logos3 other than in accordance with the general licence, it may apply to the FCA12 for an individual licence, giving full reasons why it considers the FCA12 should grant the licence.1235755751212
6A firm must not use the FSA logo (and must take all reasonable steps to ensure that its representatives do not use the FSA logo) in any communication with a client other than in accordance with the general licence in GEN 5 Annex 1 G or any individual licence granted by the FCA12 to the firm or its representatives. 12
1The RDC is the FCA's decision maker for some of the decisions under the Payment Services Regulations as set out in DEPP 2 Annex 1G. This builds a layer of separation into the process to help ensure not only that decisions are fair but that they are seen to be fair. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3 and 3.4. DEPP 3.4 applies for urgent notices under Regulations 11(6), (9), and (10)(b) (including as applied
1As with cases under the Act, the FCA may settle or mediate appropriate cases involving civil breaches of the Payment Services Regulations to assist it to exercise its functions under the Regulations in the most efficient and economic way. See DEPP 5, DEPP 6.7 and EG 5 for further information on the settlement process and the settlement discount scheme.
1The Payment Services Regulations apply section 169 of the Act which requires the FCA to publish a statement of policy on the conduct of certain interviews in response to requests from overseas regulators. For the purposes of the Payment Services Regulations the FCA will follow the procedures described in DEPP 7.
1For a consumer contract term, if the FCA decides, after notifying the Competition and Markets Authority (the CMA), to the extent required by Schedule 3 to the CRA, to address issues using its powers under Schedule 3, if the contract term is within the CRA's scope, it will, unless the case is urgent, generally first write to a person using or proposing or recommending the use of that term.
1When writing, the FCA will express its concerns about whether the term is or would be unfair within the meaning of sections 62 to 64 of the CRA, or non-transparent within the meaning of section 68 of the CRA, or purports or would purport to exclude or restrict any liability described in the sections of the CRA specified in paragraph 3(2) of Schedule 3 and will invite the person's comments on those concerns.
1If the FCA, having considered those comments, remains of the view that the term is or would be unfair or non-transparent or purports, or would purport, to be exclusionary or restrictive, as described above, it will normally ask the person to undertake to stop using, relying on or recommending it or proposing its use. It should be noted that, under paragraphs 2(3), 6(3) and 7(1) of Schedule 3 to the CRA, such an undertaking must be notified by the FCA to the CMA and any relevant
1In relation to a notice to consumers within the CRA's scope, the FCA will generally, after notifying the CMA, request such an undertaking from the relevant person, if the notice causes the FCA relevant concerns, without first seeking comments. Although the FCA will, unless the case is an urgent one and time does not permit, then have regard to any representations responsive to that request.
1If, whether in relation to such a notice or such a term, the person either declines to give such an undertaking, or gives such an undertaking and fails to follow it, the FCA will consider the need to apply to court for an injunction under Schedule 3 to the CRA. The FCA will, again, notify the CMA appropriately at this stage, as required by Schedule 3.
1In determining whether to seek an injunction under Schedule 3 to the CRA against a person, after or, in an urgent case, instead of requesting such an undertaking, the FCA will consider the full circumstances of each case. A number of factors may be relevant for this purpose. The following list is not exhaustive; not all of the factors may be relevant in a particular case, and there may be other factors that are relevant such as: (1) whether the FCA is satisfied that the contract
1In an urgent case, the FCA may seek a temporary injunction, to prevent the continued or potential use of the term or notice until it can be fully considered by the court. An urgent case is one in which the FCA considers that the actual or potential detriment is so serious that urgent action is necessary. In deciding whether to apply for a temporary injunction, the FCA may take into account a number of factors, including one or more of the factors set out in paragraph 10.6.7.
The purpose of REC 3.14 is to ensure that the FCA3is informed of planned changes to the services a UK recognised body intends to provide and of the normal hours of operation of those services. Unplanned suspensions of those services, unplanned changes in hours of operation and events causing a UK recognised body to be unable to provide those services should be notified to the FCA3under the rules in REC 3.15.33
Where a UK RIE proposes to admit to trading (or to cease to admit to trading) by means of its facilities:(1) a specified investment (other than a security or an option in relation to a security); or(2) a type of security or a type of option in relation to a security; it must give the FCA3notice of that event, and the information specified for the purposes of this rule in REC 3.14.6 R to the FCA3, at the same time as that proposal is first formally communicated to its members or
Where a UK recognised body proposes to provide (or to cease to provide) clearing facilitation services3 in respect of:3(1) a specified investment (other than a security or an option in relation to a security); or (2) a type of security or a type of option in relation to a security;it must give the FCA3notice of that event and the information specified for the purposes of this rule in REC 3.14.6 R, at the same time as that proposal is first formally communicated to its members
Where:(1) a UK RIE proposes to amend the standard terms of any derivative admitted to trading by means of its facilities; or (2) a UK RIE3 proposes to amend the standard terms relating to any derivative in respect of which it provides clearing facilitation services;3333it must give the FCA3notice of that event, and written particulars of those proposed amendments, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class
Where a UK recognised body proposes to make (or to cease to make) arrangements for the safeguarding and administration of assets belonging to any other person (other than an undertaking in the same group), that recognised body must give the FCA3notice of that event, and the information specified for the purposes of this rule in REC 3.14.9 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them).3
The FCA3does not need to be notified of proposals to offer (or to withdraw offers of) safeguarding and administration services for individual assets of the same type. Specified investments (other than securities) falling within the same article in Part III of the Regulated Activities Order will normally be regarded as being of the same type. Securities falling within the same article in Part III of the Regulated Activities Order which may be given the same generic description
Where a UK recognised body proposes to change its normal hours of operation or (for RAPs) the timing, frequency or duration of its bidding windows,2 it must give the FCA3 notice of that proposal, and particulars of, and the reasons for, the actions proposed, at the same time as the proposal is first formally communicated to its members or shareholders, or any group or class of them.3
(1) If an issuer wishes to transfer its category of equity shares2listing it must notify the FCA of the proposal.(2) The notification must be made as early as possible and in any event not less than 20 business days before it sends the circular required under LR 5.4A.4 R (2)(a) or publishes the announcement required under LR 5.4A.5 R (2).(3) The notification must include:(a) an explanation of why the issuer is seeking the transfer;(b) if a sponsor's letter is not required under
The circular referred to in LR 5.4A.4 R must:(1) comply with the requirements of LR 13.1, LR 13.2 and LR 13.3;(2) be approved by the FCA before it is circulated or published; and(3) include the anticipated transfer date (which must be not less than 20 business days after the passing of the resolution under LR 5.4A.4 R).
Information required under LR 13.3.1R(1) (Contents of all circulars) to be included in the circular or announcement should include an explanation of:(1) the background and reasons for the proposed transfer;(2) any changes to the issuer's business that have been made or are proposed to be made in connection with the proposal;(3) the effect of the transfer on the issuer's obligations under the listing rules;(4) how the issuer will meet any new eligibility requirements, for example
If an issuer has initially notified the FCA under LR 5.4A.3 R it may apply to the FCA to transfer the listing of its equity shares2 from one category to another. The application must include:(1) the issuer's name;(2) details of the equity shares2 to which the transfer relates;(3) the date on which the issuer wishes the transfer to take effect;(4) a copy of any circular, announcement or other document on which the issuer is relying;(5) if relevant, evidence of any resolution required
If an issuer applies under LR 5.4A.10 R, the FCA may approve the transfer if it is satisfied that:(1) the issuer has complied with LR 5.4A.4 R or LR 5.4A.5 R (whichever is relevant);(2) the 20 business day period referred to in LR 5.4A.6 R or LR 5.4A.7 R (whichever is relevant) has elapsed; and(3) the issuer and the equity shares2 will comply with all eligibility requirements that would apply if the issuer was seeking admission to listing of the equity shares2 to the category
(1) If the FCA approves a transfer of a listing then it must announce its decision on a RIS.(2) The transfer becomes effective when the FCA's decision to approve is announced on the RIS.(3) The issuer must continue to comply with the requirements of its existing category of listing until the decision is announced on the RIS.(4) After the decision is announced the issuer must comply with the requirements of the category of listing to which it has transferred.
There may be situations in which an issuer's business has changed over a period of time so that it no longer meets the requirements of the applicable listing category against which it was initially assessed for listing. In those situations, the FCA may consider cancelling the listing of the equity shares2 or suggest to the issuer that, as an alternative, it applies for a transfer of its listing category.
1On obtaining information concerning possible financial crime facilitated through or involving an incoming ECA provider, or detriment to UK markets or UK ECA recipients caused by the activities of an incoming ECA provider, the FCA will contact the relevant EEA regulator of the incoming ECA provider. The FCA would expect the relevant EEA regulator to consider the matter, investigate it where appropriate and keep the FCA informed about what action, if any, was being taken. The FCA
1However, there are likely to be circumstances in which the FCA will need to use the electronic commerce activity direction power. Examples could include where it was necessary to stop the behaviour complained of, or to make the continued provision of services by the incoming ECA provider conditional upon compliance with specified requirements. Overall, the FCA may use the direction power: (1) where: (a) the behaviour complained of was causing, or had the potential to cause,
1The question of whether the FCA decides to prevent or prohibit the incoming electronic commerce activity, or to make it subject to certain requirements (for example, compliance with specified rules), will depend on the overall circumstance of the case. A relevant consideration will be whether the FCA is satisfied that its concerns over the incoming electronic commerce activity can be adequately addressed through the imposition of a requirement, rather than a complete prohibition
1The FCA may consider that a case is urgent, in particular, where: (1) the information available to it indicates serious concerns about the incoming electronic commerce activity that need to be addressed immediately; and (2) circumstances indicate that it is appropriate to use the direction power immediately to prohibit the incoming electronic commerce activity, or to make the carrying on of the activity subject to specified requirements.
1The FCA will consider the full circumstances of the case when deciding whether exercising the direction power, without first taking the procedural steps set out in regulation 6, is an appropriate response to such concerns. The factors the FCA may consider include those listed in paragraph 19.9.4 of this guide. There may be other relevant factors.
1The FCA's decision to make, revoke or vary an electronic commerce activity direction will generally be taken by the RDC Chairman. However, this is subject to two exceptions. (1) In an urgent case and if the Chairman is not available, the decision will be taken by an RDC Deputy Chairman and where possible, but subject to the need to act swiftly, one other RDC
member.
(2) If a provider who has been notified of the FCA's intention to make
1Where a provider must be given the opportunity to make representations in relation to a proposed direction or variation of a direction, the RDC Chairman will determine in each case the manner and the period within which those representations should be made. If the FCA decides to issue a direction or vary it at its own initiative, or if the FCA refuses an application to vary or revoke a direction, the person to whom the direction applies may refer the matter to the Tribunal.
1Regulation 10(8) of the ECD Regulations provides that if the FCA makes a direction, it may publish, in such manner as it considers appropriate, such information about the matter to which the direction relates as it considers appropriate in furtherance of any of the objectives referred to in paragraph 19.9.3(1) of this guide. However, under Regulation 10(9), the FCA may not publish information relating to a direction if publication would, in the FCA's
opinion, be unfair
1When deciding what information, if any, to publish and the appropriate manner of publication, the FCA will consider the full circumstances of each case. The FCA anticipates that it will generally be appropriate to publish relevant details of a direction, in order to protect and inform consumers. However, in accordance with the Regulation 10(9) prohibition, it will not publish information if it considers that publication would be unfair to the provider or prejudicial to the interests
The circumstances in which the FCA5 may vary a firm'sPart 4A permission5 on
its own initiative or impose
a requirement on a firm5 under sections 55J or 55L5 of the Act include
where it appears to the FCA5 that:5555(1) one
or more of the threshold conditions for which the FCA is
responsible5 is or is likely to be no longer
satisfied; or(2) it
is desirable to vary a firm's permission in order to meet any of the FCA's5 statutory objectives under the Act; or5335(3) a firm has
not
The FCA5 may also use its own-initiative powers5 for
enforcement purposes. EG 82 sets out in detail the FCA's5 powers under sections 55J and 55L of the Act5 and
the circumstances under which the FCA5 may use its own-initiative powers5 in this way, whether for enforcement purposes or as part of its
day to day supervision of firms.
This chapter provides additional guidance on when the FCA5 will use these powers for supervision purposes.55255555
The FCA5 may use its own-initiative powers5 only in respect of a firm's5Part 4A permission5; that is, a permission granted
to a firm under sections 55E or 55F5 of the Act (Giving
permission) or having effect as if so given. In respect of an incoming EEA firm, an incoming
Treaty firm, or a UCITS qualifier,
this power applies only in relation to any top-up
permission that it has. There are similar but more limited powers
under Part XIII of the Act in
relation to the permission
5In the case of a dual-regulatedPRA-authorised person, the FCA may exercise its own-initiative
variation power to add a new regulated
activity other than a PRA-regulated
activity to those activities already included in the firm'sPart
4A permission, or to widen the description of a regulated activity, only after consulting
with the PRA.
(1) 1Under section 313A of the Act, the FCA5 may for the purpose of protecting:5(a) the interests of investors; or (b) the orderly functioning of the financial markets; require a UK RIE to suspend or remove a financial instrument from trading.(2) If the FCA5 exercises this power, the UK RIE concerned may refer the matter to the Tribunal.5
The procedure the FCA5 will follow if it exercises its power to require a UK RIE to suspend or remove a financial instrument3 from trading is set out in sections 313B to 313BE of the Act.3 The FCA's internal arrangements provide for decisions to exercise this power to be taken at an appropriately senior level. If the FCA5 exercises this power, the UK RIE concerned and the issuer (if any) of the relevant financial instrument may refer the matter to the Tribunal(see EG 2.39)2.2