Related provisions for PERG 8.3.4
181 - 200 of 1060 items.
1The FCA will consider all the relevant circumstances of each case. The general factors which the FCA may consider include, but are not limited to, those set out in paragraph 14.1.1 (1) to (9) (the conduct of the operator of the scheme and of the trustee or depositary will also, of course, be taken into account in relation to each of these factors).
1Decisions about whether to apply to the civil courts for collective investment scheme related orders under the Act will be made by the RDC Chairman or, in an urgent case and if the Chairman is not available, by an RDC Deputy Chairman. In an exceptionally urgent case the matter will be decided by the director of Enforcement or, in his or her absence, another member of the FCA's executive of at least director of division level.
1An exceptionally urgent case in these circumstances is one where the FCA staff believe that a decision to begin proceedings (1) should be taken before it is possible to follow the procedure described in paragraph 14.4.3; and (2) it is necessary to protect the interests of consumers or potential consumers.
1Under section 312C of the Act, if a UK RIE wishes to make arrangements in an EEA State other than the UK to facilitate access to or use of a regulated market,2multilateral trading facility or auction platform2 operated by it, it must give the FCA3written notice of its intention to do so. The notice must:3(1) describe the arrangements; and(2) identify the EEA State in which the UK RIE intends to make them.
1The FCA considers that in general, the earlier settlement discussions can take place the better this is likely to be from a public interest perspective. However, the FCA will only engage in such discussions once it has a sufficient understanding of the nature and gravity of the suspected misconduct or issue to make a reasonable assessment of the appropriate outcome. At the other end of the spectrum, the FCA expects that settlement discussions following a decision notice or second
1In the interests of efficiency and effectiveness, the FCA will set clear and challenging timetables for settlement discussions to ensure that they result in a prompt outcome and do not divert resources unnecessarily from progressing a case through the formal process. To this end, the FCA will aim to organise its resources so that the preparation for the formal process continues in parallel with any settlement discussions. The FCA will expect firms and others to give it all reasonable
The decision maker will:(1) consider whether the material on which the recommendation is based is adequate to support it; the decision maker may seek additional information about or clarification of the recommendation, which may necessitate additional work by the relevant FCA2 staff;2(2) satisfy itself that the action recommended is appropriate in all the circumstances;(3) decide whether to give the notice and the terms of any notice given.
The FCA will try to notify the applicant
of its decision on an application for approval of listing
particulars or supplementary
listing particulars within the same time limits as are specified
in section 87C of the Act (consideration
of application for approval) for an application for approval of a prospectus or supplementary
prospectus.
An issuer must
ensure that after listing particulars or supplementary listing particulars are approved
by the FCA, the listing
particulars or supplementary
listing particulars are filed and published as if the relevant
requirements in PR 3.2, 1the PD Regulation and Commission Delegated Regulation (EU) 2016/301 1applied
to them.
1DEPP 7 applies when the FCA3:3(1) has appointed an investigator at
the request of an overseas regulator,
under section 169(1)(b) (Assistance to overseas regulators) or of an EEA regulator under
section 131FA2 of the Act;
and(2) has directed, or is considering
directing, the investigator, under section 169(7) or section 131FA2 of the Act,
to permit a representative of the overseas
regulator or
of the EEA regulator2 to attend, and take part in, any interview conducted for the
purposes
The purpose of DEPP 7 is to set out the FCA's3 statement of policy on the conduct of interviews to which a direction
under section 169(7) or
section 131FA2 has been given or the FCA3 is considering giving. The FCA3 is required to prepare and publish this statement of policy by
section 169(9) and (11) and
section 131FA2 of the Act.
As required by section 169(10) and
section 131FA2 of the Act, the Treasury has approved
the statement of policy.333
1The FCA wishes to encourage firms to exercise judgement about, and take responsibility for, what the Principles mean for them in terms of how they conduct their business. But we also recognise the importance of an environment in which firms understand what is expected of them. So we have indicated that firms must be able reasonably to predict, at the time of the action concerned, whether the conduct would breach the Principles. This has sometimes been described as the “reasonable
1To determine whether there has been a failure to comply with a Principle, the standards we will apply are those required by the Principles at the time the conduct took place. The FCA will not apply later, higher standards to behaviour when deciding whether to take enforcement action for a breach of the Principles. Importantly, however, where conduct falls below expected standards the FCA considers that it is legitimate for consequences to follow, even if the conduct is widespread
1The FCA's power to conduct investigations to assist overseas authorities is contained in section 169 of the Act. The section provides that at the request of an overseas regulator, the FCA may use its power under section 165 to require the production of documents or the provision of information under section 165 or to appoint a person to investigate any matter.
1If the overseas regulator is a competent authority and makes a request in pursuance of any Community obligation, section 169(3) states that the FCA must, in deciding whether or not to exercise its investigative power, consider whether the exercise of that power is necessary to comply with that obligation.
1When it considers whether to use its investigative power, and whether section 169(4) applies, the FCA will first consider whether it is able to assist without using its formal powers, for example by obtaining the information voluntarily. Where that is not possible, the FCA may take into account all of the factors in section 169(4), but may give particular weight to the seriousness of the case and its importance to persons in the United Kingdom, and to the public interest.
1In cases where the FCA proposes to submit an investigation report to the RDC with a recommendation for regulatory action, the FCA's usual practice is to send a preliminary findings letter to the subject of an investigation before the matter is referred to the RDC. The letter will normally annex the investigators' preliminary investigation report. Comment will be invited on the contents of the preliminary findings letter and the preliminary investigation report.
1The FCA recognises that preliminary findings letters serve a very useful purpose in focussing decision making on the contentious issues in the case. This in turn makes for better quality and more efficient decision making. However, there are exceptional circumstances in which the FCA may decide it is not appropriate to send out a preliminary findings letter. This includes: (1) where the subject consents to not receiving a preliminary findings letter; or (2) where it is not practicable
1In cases where it is sent, the preliminary findings letter will set out the facts which the investigators consider relevant to the matters under investigation (normally, as indicated above, by means of an annexed preliminary investigation report). And it will invite the person concerned to confirm that those facts are complete and accurate, or to provide further comment. FCA staff will allow a reasonable period (normally 28 days) for a response to this letter, and will take into
1The FCA's power to conduct investigations to assist EEA regulators in respect of the short selling regulation is contained in section 131FA of the Act. The section provides that at the request of an EEA regulator or ESMA, the FCA may either use its power under section 131E to require the production of information, or appoint a person to investigate any matter.
1In using its powers to seek insolvency orders the FCA takes full account of: the principle adopted by the courts that recourse to insolvency regimes is a step to be taken for the benefit of creditors as a whole; and the fact that the court will have regard to the public interest when considering whether to wind up a body on the grounds that it is just and equitable to do so.
1The FCA will consider the facts of each particular case when it decides whether to use its powers and exercise its rights. The FCA will also consider the other powers available to it under the Act and to consumers under the Act and other legislation, and the extent to which the use of those other powers meets the needs of consumers as a whole and the FCA'sstatutory objectives. The FCA may use its powers to seek insolvency orders in conjunction with its other powers, including
1Decisions about whether to apply to the civil courts for insolvency orders under the Act will be made by the RDC Chairman or, in an urgent case and if the Chairman is not available, by an RDC Deputy Chairman. In an exceptionally urgent case the matter will be decided by the director of Enforcement or, in his or her absence, another member of the FCA's executive of at least director of division level.
1An exceptionally urgent case in these circumstances is one where the FCA staff believe that a decision to begin proceedings (1) should be taken before it is possible to follow the procedure described in paragraph 13.2.3; and (2) it is necessary to protect the interests of consumers or potential consumers.
If a certificate is granted then, until it is revoked, it is conclusive evidence that the exclusion under article 54 of the Regulated Activities Order applies. A person to whom a certificate is given should notify the FCA of any significant changes to the purpose or nature of the content of the relevant publication or service. The FCA will need to keep the content of the publication or service in question under review.
The FCA may revoke a certificate at the request of its holder or on the FCA's own initiative if the FCA considers that it is no longer justified. If the FCA revokes a certificate on its own initiative, it would normally expect to give advance notice to the holder of the certificate together with a statement of the reasons for the proposed revocation, and give the holder of the certificate an opportunity to make representations. Where a certificate is revoked, the holder of the
The fact of a person holding a certificate granted under article 54(3) is information which may be of relevance to other persons (including investors or potential investors). For this reason, the FCA considers it appropriate that details of certificates granted under article 54(3) should be included in a list on the public record which the FCA is required to maintain under section 347 of the Act (The record of authorised persons, etc).
Unless otherwise stated, the issuer or the owner, as the case may be, must send the relevant forms and information to the FCA's address marked for the attention of the "Covered Bonds Team, Capital Markets Sector" by any of the following methods:(1) post; or(2) leaving it at the FCA's address and obtaining a time-stamped receipt; or(3) email to rcb@fca.org.uk.
The FCA1 will consider the full circumstances of each case and determine
whether it is appropriate to impose a suspension, restriction, condition or limitation.2 The FCA1 will
usually make this decision at the same time as it determines whether or not
to impose a financial penalty or a public
censure.11
The FCA1 will consider it appropriate to impose a suspension, restriction, condition or limitation.2 where it believes that such action will be a more effective and persuasive
deterrent than the imposition of a financial penalty alone. This is likely
to be the case where the FCA1 considers that direct and visible action in relation to a particular breach is necessary. Examples of circumstances
where the FCA1 may
consider it appropriate to take such action2 include:111(1) where
The FCA1 expects usually to impose a suspension, restriction, condition or limitation in relation to4 activities directly linked to the breach.
However, in certain circumstances the FCA1 may also impose a suspension, restriction, condition or limitation in relation to4 activities that are not directly linked to the breach,
for example, where an authorised person's relevant
business area no longer exists or has been restructured.11
There is a general concern that the practice of companies issuing statements and giving briefings may involve a financial promotion. These arise sometimes as a result of requirements imposed by a listing authority or an exchange or market, PERG 8.4.14 G offers guidance on when such statements or briefings may amount to or involve an inducement to engage in investment activity. It indicates that whilst statements of fact alone will not be inducements, there may be circumstances
PERG 8.21.4 G to PERG 8.21.21 G set out the FCA's views on the potential relevance of certain exemptions to company statements and briefings. The exemptions are referred to in the same order as the Financial Promotion Order. In the FCA's view, these exemptions (whether alone or, where applicable, in combination) should enable most statements and briefings which involve financial promotions to be made by the company concerned without the need for approval. In particular, the FCA
Article 59 is capable of applying to financial promotions in company statements and briefings where they are accompanied by:(1) the whole or any part of the annual accounts of the company (provided it is not an open-ended investment company); or(2) any report prepared and approved by the directors of such a company under sections 414A and 414D of the Companies Act 2006 (strategic reports) or sections 415 and 419 of that Act (directors’ reports), or4 corresponding legislation4
The reference to financial promotions which are permitted to be communicated relates, in the FCA's opinion, to something which is expressly permitted rather than simply not expressly prohibited. Article 67 itself does not specify any particular medium for communicating required or permitted material. So, it will be enough for the financial promotion to be part of a document which is itself required or permitted to be communicated (such as reports or financial statements). Market
Article 67 refers to an investment which is permitted to be traded or dealt in on a relevant market. In the FCA's opinion, this includes a situation where a class of securities is traded on a relevant market but the financial promotion relates to new securities of that class which have not yet themselves been issued or started trading. Where securities of that class have not yet been admitted to trading on a relevant market, article 68 may apply – see PERG 8.21.16 G.
In the FCA's opinion, companies whose securities are permitted to be traded or dealt in on a relevant market should be able to make good use of the article 69 exemption. But such companies will need to ensure that they meet the specific requirements in article 69(3). In very general terms, a financial promotion will comply with these requirements if:1(1) the only reason it is a financial promotion is that it contains or is accompanied by1 an inducement about certain investments
A requirement common to the exemptions in articles 59, 67 and 69 is that the financial promotions must not relate to investments other than those issued, or to be issued,1 by the company or a member of its group. The FCA is aware that there is concern about comments made in company statements or briefings. This is that they may be held to be inducements to acquire or dispose of, or exercise rights conferred by, an investment issued by a third party. For example, traded options
1The purpose of this section is to ensure that the FCA4 receives regular and comprehensive information about remuneration in a standard format to assist it to benchmark remuneration trends and practices and to collect remuneration information on high earners. It also takes account of the Capital Requirements Regulations 2013 (SI 2013/3115) together with the European Banking Authority's Guidelines to article 75(1) and (3) of the CRD4.1044
(1) 4A firm to which this rule applies must submit a Remuneration Benchmarking Information Report to the FCA annually.(2) The firm must complete the Remuneration Benchmarking Information Report in the format set out in SUP 16 Annex 33A.(3) The firm must submit the Remuneration Benchmarking Information Report to the FCA within four months of the firm'saccounting reference date.(4) A firm that:(a) is not part of a UK lead regulated group must complete that report on an unconsolidated
(1) A firm to which this rule applies must submit a High Earners Report to the FCA4 annually.104(2) The firm must submit that report to the FCA4 within four months of the end of the firm'saccounting reference date.104(3) A firm that is not part of a UK lead regulated group must complete that report on an unconsolidated basis in respect of remuneration awarded in the last completed financial year to all high earners of the firm who mainly undertook their professional activities
The FCA will determine, following consultation, the amount to be raised from each industry block. This will be based on the budgeted costs and numbers of Financial Ombudsman Service staff required to deal with the volume of complaints which the Financial Ombudsman Service expects to receive about the firms in each industry block. Modified arrangements have been made for certain types of small firms (see FEES 5.5.3 R to FEES 5.5.5 G).