Related provisions for PERG 6.5.2
121 - 140 of 1061 items.
(1) Regulation 15(8)(f) of the OEIC Regulations (Requirements for authorisation) requires independence between the depositary, the ICVC and the ICVC's directors, as does section 243(4) of the Act (Authorisation orders) for the trustee and manager of an AUT, and section 261D(4) of the Act (Authorisation orders) for the depositary and authorised fund manager of an ACS6. COLL 6.9.3 G to COLL 6.9.5 G give the6FCA's view of the meaning of independence of these relationships. An ICVC,
(1) Independence is likely to be lost if, by means of executive power, either relevant party could control the action of the other.(2) The board of one relevant party should not be able to exercise effective control of the board of another relevant party. Arrangements which might indicate this situation include quorum provisions and reservations of decision-making capacity of certain directors.(3) For an AUT or ACS6, the FCA would interpret the concept of directors in common to
Independence is likely to be lost if either of the relevant parties could control the actions of the other by means of shareholders' votes. The FCA considers this would happen if any shareholding by one relevant party and their respective associates in the other exceeds 15% of the voting share capital, either in a single share class or several share classes. The FCA would be willing, however, to look at cross-shareholdings exceeding 15% on a case-by-case basis to consider if there
(1) Regulation 15(9) of the OEIC Regulations, and sections 243(8) and 261D(10)6 of the Act require that an authorised fund's name must not be undesirable or misleading. This section contains guidance on some specific matters the FCA will consider in determining whether the name of an authorised fund is undesirable or misleading. It is in addition to the requirements of regulation 19 of the OEIC Regulations (Prohibition on certain names).6(2) The FCA will take into account whether
An ICVC must notify the FCA within 14 days of the occurrence of any of the following:(1) any amendment to the instrument of incorporation;(2) any change in the address of the head office of the ICVC;(3) any change of director;(4) any change of depositary;(5) in respect of any director or depositary, any change in the information mentioned in regulation 12(1)(b) or (c) of the OEIC Regulations (Applications for authorisation);(6) any change of the auditor of the ICVC;(7) any order
Examples of when the FCA may cancel the listing of securities include (but are not limited to) situations where it appears to the FCA that:(1) the securities are no longer admitted to trading as required by these rules; or(2) the issuer no longer satisfies its continuing obligations for listing, for example if the percentage of shares in public hands falls below 25% or such lower percentage as the FCA may permit (the FCA may however allow a reasonable time to restore the percentage,
Subject to 41LR 5.2.7 R, LR 5.2.10 R, LR 5.2.11A R9 and LR 5.2.12 R, 1an issuer with a premium listing4that wishes the FCA to cancel the listing of any of its 5equity shares1with a premium listing4must:1114(1) send a circular to the holders of the shares.9 The circular must:9(a) comply with the requirements of LR 13.3.1 R and LR 13.3.2 R (contents of all circulars);(b) be submitted to the FCA for approval prior to publication; and(c) include the anticipated date of cancellation
An issuer that wishes the FCA to cancel the listing of listed securities (other than equity shares1with a premium listing41) must notify a RIS, giving at least 20 business days notice of the intended cancellation but is not required to obtain the approval of the holders of those securities contemplated in LR 5.2.5 R (2).1544
6In determining whether the statutory winding up or reconstruction measures in relation to an overseasissuer under equivalent overseas legislation have a similar effect to those set out in LR 5.2.12R (1) to LR 5.2.12R (6), the FCA will in particular have regard to whether those procedures require a court order, the approval of 75% of the shareholders entitled to vote on the resolution, or a formal declaration of the overseasissuer's insolvency or inability to pay its debts.
The word ‘communicate’ is extended under section 21(13) of the Act and includes causing a communication to be made. This means that a person who causes the communication of a financial promotion by another person is also subject to the restriction in section 21. Article 6(d) of the Financial Promotion Order also states that the word ‘communicate’ has the same meaning when used in exemptions in the Order. Article 6(a) also states that the word ‘communication’ has the same meaning
Apart from the originators of a financial promotion, the FCA considers the following persons to be communicating it or causing it to be communicated:(1) publishers and broadcasters who carry advertisements (including websites carrying banner advertisements); and(2) intermediaries who redistribute another person’s communication probably with their own communications.
In the FCA's view, the following persons will not be causing or communicating:(1) advertising agencies and others when they are designing advertising material for originators;(2) persons who print or produce material for others to use as advertisements;(3) professional advisers when they are preparing material for clients or advising them on the need to communicate or the merits or consequences of their communicating a financial promotion; and(4) persons who are responsible for
The FCA considers that, to communicate, a person must take some active step to make the communication. This will be a question of fact in each case. But a person who knowingly leaves copies of a document where it is reasonable to presume that persons will pick up copies and may seek to act on them will be communicating them.
A general point arises about causing and communicating on whether a particular exemption that applies to a communication made by a specified person also applies to a person who is causing that communication to be made. For example, article 551 of the Financial Promotion Order (Communications by members of professions)1 applies only to a communication by an exempt professional firm.1 This exemption may apply where a person ('P') requests an exempt professional firm ('E') to1communicate
Another general point arises about the scope of exemptions that apply only to financial promotions by a particular person. This is whether the exemption applies to the communication of a financial promotion by an unauthorised person on behalf of the person to whom the exemption applies. In the FCA's view, this will not be the case unless the exemption specifically states that it applies to a communication made on behalf of the person identified in the exemption. For example, article
In the FCA's opinion, the matters in PERG 8.6.9 G have the following effects.(1) Any one particular communication will either be real time or non-real time but not both. This is because:(a) a real time communication is one made in the course of an interactive dialogue (see PERG 8.10.2 G for guidance on the meaning of real time);(b) those exemptions which concern real time communications apply only to communications which are made to persons and not those which are directed at
A firm authorised under Part 4A8 of the Act (Permission to carry on regulated activity) has a single Part 4A permission8 granted by the FCA or the PRA. A firm'sPart 4A permission8 specifies all or some of the following elements (see PERG 2 Annex 2 (Regulated activities and the permission regime) and the information online at the FCA and PRA websites):8888338(1) a description of the activities the firm may carry on, including any limitations;(2) the specified investments involved;
8If an FCA-authorised person wishes to change its Part 4A permission to:(1) add a regulated activity, other than a PRA-regulated activity; or(2) remove a regulated activity from those to which the permission relates; or(3) vary the description of a regulated activity to which the permission relates; or(4) cancel the permission;it can apply to the FCA under section 55H of the Act (Variation by FCA at request of authorised person).
8If an FCA-authorised person wishes to change its Part 4A permission, by adding to the regulated activities to which the permission relates one or more regulated activities, which include a PRA-regulated activity, it can apply to the PRA under section 55I of the Act (Variation by PRA at request of authorised person). The PRA can determine such an application only with the consent of the FCA.
Variation and cancellation of Part 4A permission and imposition, variation and cancellation of requirements. See SUP 6.2.3A G to SUP 6.2.3E G8
8Question |
Variation of Part 4A permission |
Cancellation of Part 4A permission |
Imposition, variation and cancellation of requirements |
What does the application apply to? |
Individual elements of a firm'sPart 4A permission. Variations may involve adding or removing categories of regulated activity or specified investments or varying or removing any limitations in the firm'sPart 4A permission. |
A firm's entire Part 4A permission and not individual elements within it. |
Any requirement imposed on a firm with a Part 4A permission. Requirements may involve requiring the firm concerned to take or refrain from taking a specified action. |
In what circumstances is it usually appropriate to make an application? |
If a firm: 1. wishes to change the regulated activities it carries on in the United Kingdom under a Part 4A permission (SUP 6.3); or 2. has the ultimate intention of ceasing carrying on regulated activities but due to the nature of those regulated activities (for example, accepting deposits, or insurance business) it will require a long term (normally over six months) to wind down (run off) its business (see SUP 6.2.8 G to SUP 6.2.11 G and SUP 6 Annex 4). |
If a firm: 1. has ceased to carry on all of the regulated activities for which it has Part 4A permission (SUP 6.4); or 2. wishes or expects to cease carrying on all of the regulated activities for which it has Part 4A permission in the short term (normally not more than six months). In this case, the firm may apply to cancel its Part 4A permission prior to ceasing the regulated activities (see SUP 6.4.3 G). |
If a firm: 1. wishes to have a new requirement imposed on it; or 2. wishes to vary or cancel an existing requirement imposed by the FCA or PRA (for example, if anything relating to the firm's individual circumstances change and any existing requirement should be varied or cancelled). |
2In certain cases, despite concerns about a person’s behaviour or evidence of a rule
breach, the FCA may decide that it is not appropriate, having regard to all the circumstances of the case, to bring formal action for a financial penalty or public censure. This is consistent with the FCA's risk-based approach to enforcement. In such cases, the FCA may give a private warning to make the person aware that they came close to being subject to formal action.
2Private warnings are a non-statutory tool. Fundamentally they are no different to any other FCA communication which criticises or expresses concern about a person’s conduct. But private warnings are a more serious form of reprimand than would usually be made in the course of ongoing supervisory correspondence. A private warning requires that the FCA identifies and explains its concerns about a person's conduct and/or procedures, and tells the subject of the warning that the FCA
2Typically, the FCA might give a private warning rather than take formal action where the matter giving cause for concern is minor in nature or degree, or where the person has taken full and immediate remedial action. But there can be no exhaustive list of the conduct or the circumstances which are likely to lead to a private warning rather than more serious action. The FCA will take into account all the circumstances of the case before deciding whether a private warning is appropriate.
2Generally, the FCA would expect to use private warnings in the context of firms, approved persons and conduct rules staff1. However, the FCA may also issue private warnings in circumstances where the persons involved may not necessarily be authorised or approved. For example, private warnings may be issued in potential cases of market abuse; cases where the FCA has considered making a prohibition order or a disapplication order; or cases involving breaches of provisions imposed
2In each case, the FCA will consider the likely impact of a private warning on the recipient and whether any risk that person poses to the statutory objectives requires the FCA to take more serious action. Equally, where the FCA gives a private warning to an approved person or conduct rules staff1, the FCA will consider whether it would be desirable and appropriate to inform the person's1firm (or employer, if different) of the conduct giving rise to the warning and the FCA's
2A private warning is not intended to be a determination by the FCA as to whether the recipient has breached the FCA'srules. However, private warnings, together with any comments received in response, will form part of the person's compliance history. In this sense they are no different to other FCA correspondence, but the weight the FCA attaches to a private warning is likely to be greater. They may therefore influence the FCA's decision whether to commence action for a penalty
2When the FCA has concerns about the fitness and propriety of an approved person, it may consider whether it should prohibit that person from performing functions in relation to regulated activities, withdraw its approval, or both. In deciding whether to withdraw its approval and/or make a prohibition order, the FCA will consider in each case whether its statutory objectives can be achieved adequately by imposing disciplinary sanctions, for example, public censures or financial
2When the FCA1 decides whether to make a prohibition order against an approved person and/or withdraw their1 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
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.
2Due to the diverse nature of the activities and functions which the FCA regulates, it is not possible to produce a definitive list of matters which the FCA might take into account when considering whether an individual is not a fit and proper person to perform a particular, or any, function in relation to a particular, or any, firm.
2The following are examples of types of behaviour which have previously resulted in FCA the deciding to issue a prohibition order or withdraw the approval of an approved person:(1) Providing false or misleading information to the FCA; including information relating to identity, ability to work in the United Kingdom, and business arrangements;
(2)
Failure to disclose material considerations on application forms, such as details of County
7Under section 60A(1) of the Act, before a relevant authorised person may make an application for the FCA's approval of a designated senior management function, the relevant authorised person8 must be satisfied that the person for whom the application is made is a fit and proper person to perform that function.8
7Under section 60A of the Act, in assessing whether a person is a fit and proper person to perform an FCA designated senior management function, a relevant authorised person must have particular regard to whether that person:(1) has obtained a qualification; or(2) has undergone, or is undergoing, training; or(3) possesses a level of competence; or(4) has the personal characteristics;required by general rules made by the FCA.
The Act does not prescribe the matters which the FCA7 should take into account when determining fitness and propriety. However, section 61(2) states that the FCA7 may have regard (among other things) to whether the candidate or approved person:777(1) has obtained a qualification; or(2) has undergone, or is undergoing, training; or(3) possesses a level of competence; or(4) has the personal characteristics;required by general rules made by the FCA.7
6 Where the application relates to a function within a Solvency II firm and is for an FCA controlled function which is also a Solvency II Directive ‘key function’ as defined in the PRA Rulebook: Glossary, then the FCA will also have regard to the assessment made by the firm as required in article 273 of the Solvency II Regulation (EU) 2015/35 of 10 October 2014; Rules 2.1 and 2.2 of the PRA Rulebook: Solvency II Firms: Insurance - Fitness and Propriety, and other factors, as set
In the FCA's view, the circumstances in which a person is giving advice on the borrower varying the terms of a regulated mortgage contract so as to vary his obligations under the contract include (but are not limited to) where the advice is about:(1) the borrower obtaining a further advance secured on the same land as the original loan; or(2) a rate switch or a product switch (that is, where the borrower does not change lender but changes the terms for repayment from, say, a variable
In the FCA's view, guiding a person through scripted questions or a decision tree should not, of itself, involve advice within the meaning of article 53A (it should be generic advice). But the combination of advice, which in isolation may properly be considered generic, with the identification of a particular or several particular regulated mortgage contracts may well, in the FCA's view, cause the person to be advising on regulated mortgage contracts; the FCA considers that it
In the FCA's view, advice requires an element of opinion on the part of the adviser which steers or is intended to steer a borrower or potential borrower in the direction of one or more particular mortgages. In effect, it is a recommendation as to a course of action. Information on the other hand, involves objective statements of facts and figures.
In the FCA's opinion, however, such information is likely take on the nature of advice if the circumstances in which it is provided give it the force of a recommendation as described in PERG 4.6.10 G. Examples of situations where information provided by a person ('P') are likely to take the form of advice are given below.(1) P provides information on a selected, rather than balanced and neutral, basis that would tend to influence the decision of the borrower. This may arise where
Undertaking the process of scripted questioning gives rise to particular issues concerning advice. These mainly involve two aspects of this regulated activity. These are that advice must relate to a particular regulated mortgage contract (see PERG 4.6.5 G) and the distinction between information and advice (see PERG 4.6.13 G). Whether or not scripted questioning in any particular case is advising on regulated mortgage contracts will depend on all the circumstances. If the process
The potential for variation in the form, content and manner of scripted questioning is considerable, but there are two broad types. The first type involves providing questions and answers which are confined to factual matters (for example, whether a borrower wishes to pay a fixed or variable rate of interest or the size of deposit available). In the FCA's view, this does not of itself amount to advising on regulated mortgage contracts, as it involves the provision of information
In the scenarios identified inPERG 4.6.23G (3)1 andPERG 4.6.24G (2)1, the FCA considers that it is necessary to look at the process and outcome of scripted questioning as a whole. It may be that the element of advice incorporated in the questioning may properly be viewed as generic advice if it were considered in isolation. But, although the actual advice may be generic, the process has ended in identifying one or more particular regulated mortgage contracts. The combination of
2Further examples of what is and is not regulated advice
This table belongs to PERG 4.6.33 G.
Example of what the firm3 says and does 3 |
Regulated or not? |
(1) The firm says “We have a wide range of mortgages, including fixed and variable rates. Here are some leaflets which set out the main features.” |
No. Leaflets that just explain the terms and conditions of a lender’s products are not advice (see PERG 4.6.15G (1)). Even if the leaflet contains promotional material, merely handing over the leaflet does not mean that the firm is giving advice. |
(2) The firm says “We have a wide range of mortgages, our best rates are two-year fixed rates, you might want to look at those.” |
Yes. The firm has identified specific products that it offers and is steering the customer to those products. Identifying which products have the lowest rates is not advice on its own, only facts. However, “best” involves a value judgment, particularly when a comparison is made with other products that have different periods for which interest is fixed or that have variable interest rates. |
(3) The firm says “In order to provide you with an illustration, I need to know how much you want to borrow, the term and the property value. Which product or products would you like an illustration for?” |
No. The firm is collecting factual information to provide the customer with an illustration of costs. |
(4) The firm says “Based on what you’ve told me I think you would be best to look at two-year fixed rates. Here is some information about our products.” |
Yes. The firm has made a judgment on what type of product is best for the customer and has identified specific products of that type that it offers. |
(5) The firm says “Our fixed rates start at 4.99% for two years with a £900 fee. Our variable rates start at 4.50% with a £800 fee. Depending on how much you want to borrow and your circumstances, this may affect the rate available to you.” |
No. The firm is comparing two products without recommending either, nor is the firm steering the customer to one over the other. |
(6) A lender with just one mortgage product advises a customer to take out that mortgage. The lender makes it clear that it does not give advice about products other than its own. |
Yes. The lender may argue that this is not regulated advice because it is not recommending one product over another as it only has one product itself and does not give advice about the products of other lenders. However, in the FCA's view this is still regulated advice. For advice to be regulated it must be advice on the merits of entering into a particular regulated mortgage contract (or varying one). It is possible to give advice about the merits of a product without comparing that product with another. |
Note: Unless otherwise specified, the firm might be the lender or an advisory or intermediary firm. |
|
The FCA3 will usually consider revoking a recognition order if:3(1) the recognised body is failing or has failed to satisfy 2one or more of the recognised body requirements1and that failure has or will have serious consequences; or2(2) it would not be possible for the recognised body to comply with a direction under section 296 of the Act (FCA's3 power to give directions) or (for RAPs) regulation 3 of the RAP regulations;2 or 3(3) for some other reason, it would not be appropriate
The FCA3 would be likely to consider the conditions in REC 4.7.3 G (2) or REC 4.7.3 G (3) to be triggered1in the following circumstances:31(1) the recognised body appears not to have the resources or management to be able to organise its affairs so as to satisfy one or more of the recognised body requirements; or212(2) the recognised body does not appear to be willing to satisfy one or more of the recognised body requirements; or212(3) the recognised body is failing or has failed
In addition to the relevant 1factors set out in REC 4.7.4 G, the FCA3 will usually consider that it would not be able to secure an ROIE's3 compliance with the recognition requirements or other obligations in or under the Act by means of a direction under section 296 of the Act, if it appears to the FCA3 that the ROIE3 is prevented by any change in the legal framework or supervisory arrangements to which it is subject in its home territory from complying with the recognition requirements
(1) A firm carrying out contracts of insurance, or a managing agent managing insurance business, including in either case business accepted under reinsurance to close, which includes United Kingdom commercial lines employers' liability insurance, must:(a) produce an employers’ liability register complying with the requirements in (2) and ICOBS 8 Annex 1;(b) obtain and submit to the FCA2 a written statement, by a director of the firm responsible for the production of the employers’
(1) For the purposes of ICOBS 8.4.4R (2)(c) and ICOBS 8.4.4R (2)(d), a firm may put in place appropriate screening on its employers’ liability register to monitor:(a) requests for information and searches to ensure that they are being made for a legitimate purpose by persons falling into one of the categories in ICOBS 8.4.4R (2)(c); and(b) requests from tracing offices to ensure that the information is necessary, and will only be used by the tracing office, for the purposes of
A firm must:(1) notify the FCA, within one month of falling within ICOBS 8.4.1R (2), as to whether or not it, or, if relevant, a member of the syndicates it manages, carries on business falling within ICOBS 8.4.4R (1) and, if it does, include in that notification: (a) details of the internet address of the firm or tracing office at which the employers’ liability register is made available;(b) the name of a contact person at the firm and their telephone number or postal address,
2A firm with potential liability under an excess policy and which satisfies the requirements in ICOBS 8 Annex 1 1.1B R must notify the FCA before the date upon which it first seeks to rely upon that rule and ensure that the requirements of ICOBS 8.4.6R (2) are satisfied in respect of this notification.
(1) A firm must make available:(a) the information on the employers’ liability register either:(i) on the firm's website at the address notified to the FCA in ICOBS 8.4.6R (1); or(ii) by arranging for a tracing office which meets the conditions in ICOBS 8.4.9 R to make the information available on the tracing office’s website; and(b) the latest director's certificate and the latest report prepared by an auditor for the purposes of ICOBS 8.4.4R (1)(c), to a tracing office which
(1) ICOBS 8.4.4R (2)(b) and ICOBS 8.4.9R (1) require a firm, or a tracing office used by a firm, to have an effective search function in relation to the employers’ liability register database. In the FCA's view an effective search function is one which finds all matches in the register to any specified whole word.(2) For the purposes of ICOBS 8.4.9R (5) the term ‘without delay’ should have the same meaning as in ICOBS 8.4.5G (2). (3) In order to assist firms with their obligations
(1) A firm must notify the FCA:(a) of any information provided to the FCA under ICOBS 8.4.6 R or ICOBS 8.4.6A R2 which ceases to be true or accurate; and(b) of the new position, in accordance with the notification requirements in ICOBS 8.4.6 R;within one month of the change.(2) A firm producing an employers’ liability register must:(a) update the register with any new or more accurate information falling within ICOBS 8 Annex 1:(i) by virtue of the entry into or renewal of, or
(1) 3Where a firm has established that a historical policy does exist, the response should confirm what cover was provided and set out any available information that is relevant to the request received.(2) Where there is evidence to suggest that a historical policy does exist, but the firm is unable to confirm what cover was provided, the response should set out any information relevant to the request and describe the next steps (if any) the firm will take to continue the search.
The purpose of this section is to give directions to authorised payment institutions and small payment institutions under regulation 82 (Reporting requirements) of the Payment Services Regulations in relation to:(1) the information in respect of their provision of payment services and their compliance with requirements imposed by or under Parts 2 to 6 of the Payment Services Regulations that they must provide to the FCA12; and12(2) the time at which and the form in which they
(1) An authorised payment institution or a small payment institution must submit to the FCA12 the duly completed return applicable to it as set out in column (2) of the table in SUP 16.13.4D.2212(2) An authorised payment institution or a small payment institution must submit the return referred to in (1):(a) in the format specified as applicable in column (3) of the table in SUP 16.13.4D;(b) at the frequency and in respect of the periods specified in column (4) of that table;(c)
The following documents must be submitted, in final form, to the FCA by midday two business days before the FCA is to consider the application:(1) a completed Application for Admission of Securities to the Official List;(2) one of:(a) the prospectus, or listing particulars, that has been approved by the FCA; or(b) a copy of the prospectus, a certificate of approval and (if applicable) a translation of the summary of the prospectus, if another EEA State is the home Member State
The1 following documents signed by a sponsor (if a sponsor is required under LR 8) or by a duly authorised officer of the applicant (if a sponsor is not required under LR 8) 1must be submitted, in final form, to the FCA before 9 a.m. on the day the FCA is to consider the 1application:1(1) a completed Shareholder Statement, in the case of an applicant that is applying for a listing of a class of 1shares4 for the first time; or [Note: see LR 8.4.3 R and LR 8.4.9 R1];414(2) a completed
If written confirmation of the number of shares 4to be allotted pursuant to a board resolution1 cannot be submitted to the FCA by the deadline set out in LR 3.3.2 R or the number of shares4to be admitted is lower than the number notified under LR 3.3.2 R,1 written confirmation of the number of shares4to be allotted or admitted must be provided to the FCA by 1the applicant or its sponsor at least one hour before the admission to listing is to become effective.14144141
1If the FCA has considered an application for listing and the shares4the subject of the application are not all allotted and admitted following the initial allotment of the shares4(for example, under an offer for subscription), further allotments of shares4may be admitted if before 4pm on the day before admission is sought the FCA has been provided with:444(1) written confirmation of the number of shares4allotted pursuant to a board resolution; and4(2) a copy of the RIS announcement
If a firm is not a significant IFPRU firm its recovery plan must include:(1) a summary of the key elements of the recovery plan;(2) information on the governance of the firm, including: (a) how the recovery plan is integrated into the corporate governance of the firm; and (b) the firm's overall risk management framework;(3) a description of the legal and financial structures of the firm, including:(a) the core business lines; and(b) critical functions;(4) recovery options, including:(a)
A firm must demonstrate to the FCA that:(1) carrying out its recovery plan is reasonably likely to maintain or restore the viability and financial position of the firm, taking into account the preparatory measures that the firm has taken, or plans to take; and(2) its recovery plan: (a) is reasonably likely to be carried out quickly and effectively in situations of financial stress; and(b) avoids, to the maximum extent possible, any significant adverse effect on the financial system,
Requests for individual guidance may be made in writing or orally. Requests for individual guidance in relation to the Part 6 rules should be made in writing other than in circumstances of exceptional urgency or in the case of a request from a sponsor in relation to the provision of a sponsor service. 2If oral queries raise complex or significant issues, the FCA will normally expect the details of the request to be confirmed in writing. Simple requests for guidance may often be
A firm and its professional advisers should address requests for individual guidance to the firm's usual supervisory contact at the FCA4, with the exception of requests for guidance on the Code of Market Conduct (MAR 1) which should be addressed to the specialist team within the Markets Division. A firm may wish to discuss a request for guidance with the relevant contact before making a written request. 44
The FCA will aim to respond quickly and fully to reasonable requests. The FCA will give high priority to enquiries about areas of genuine uncertainty or about difficulties in relating established requirements to innovative practices or products. What constitutes a 'reasonable request' is a matter for the FCA. It will depend on the nature of the request and on the resources of the firm or other person making it. The FCA will expect the person to have taken reasonable steps to research
The FCA will always need sufficient information and time before it can properly evaluate the situation and respond to a request. If a request is time-critical, the person or its professional adviser should make this clear. The more notice a person can give the FCA, the more likely it is that the FCA will be able to meet the person's timetable. However, the time taken to respond will necessarily depend upon the complexity and novelty of the issues involved. In making a request,
24Under section 55H(3) of the Act (Variation by FCA at request of authorised person), if an FCA-authorised person applies to the FCA, the FCA may cancel its Part 4A permission. Cancellation applies to a firm's entire Part 4A permission, that is to every activity and every specified investment and not to the individual elements such as specified investments. Changes to the individual elements of a permission would require a variation.
(1) Subject to (1A), a 11firm other than a credit union wishing to cancel its Part 4A permission, must apply online at the appropriate regulator website using the form specified on the ONA12 system.99112412(1A) An FCA-authorised person wishing to cancel its Part 4A permission which covers only credit-related regulated activities must submit any form, notice or application by using the form in SUP 6 Annex 6 and submitting it in the way set out in SUP 15.7.4 R to SUP 15.7.9 G
(1) In addition to applying for cancellation of Part 4A permission24 in accordance with SUP 6.4.5 D, a firm may discuss prospective cancellations with its supervisory contact at the appropriate regulator.244 Alternatively a firm can contact the Contact Centre on 0300 500 0597.1424424241414(2) To contact the Cancellations Team: 424(a) write to: Cancellations Team, The Financial Conduct24Authority, 25 The North Colonnade, Canary Wharf, London, E14 5HS; or24; or2424(b) email cancellation.team@fca.org.uk24(3)
(1) If a firm is subject to the complaints rules in DISP, the FCA24 may request confirmation from the firm that there are no unresolved, unsatisfied or undischarged complaints against the firm from a customer of the firm.24(2) If there are unresolved or undischarged complaints against a firm from a customer of the firm, the FCA24 may request confirmation, as appropriate, of the steps (if any) which have been taken under the firm's complaints procedures and the amount of compensation
Consequently, the relevant regulator24 considers that it will have good reason not to grant a firm's application for cancellation of permission where:24(1) the FCA and/or the PRA24 proposes to exercise any of the powers described in SUP 6.4.24 G; or24(2) the FCA and/or the PRA24 has already begun disciplinary and/or24 restitution proceedings against the firm by exercising either or both of these powers against the firm.24
1The FCA will notify the subject of the investigation that it has appointed officers to carry out an investigation under the Money Laundering Regulations and the reasons for the appointment, unless notification is likely to prejudice the investigation or otherwise result in it being frustrated. The FCA expects to carry out a scoping visit early on in the enforcement process in most cases. The FCA's
policy in civil investigations is to use powers to compel information
1When the FCA proposes or decides to impose a penalty under the Money Laundering Regulations, it must give the person on whom the penalty is to be imposed a notice. These notices are akin to warning notices and decision notices given under the Act, although Part XXVI (Notices) of the Act does not apply to notices given under the Regulations.
1When imposing or determining the level of a financial penalty under the Regulations, the FCA's
policy includes having regard, where relevant, to relevant factors in DEPP 6.2.1G and DEPP 6.5 to DEPP 6.5D. The FCA may not impose a penalty where there are reasonable grounds for it to be satisfied that the subject of the proposed action took all reasonable steps and exercised all due diligence to ensure that the relevant requirement of the Money Laundering Regulations
1As with cases under the Act, the FCA may settle or mediate appropriate cases involving civil breaches of the Money Laundering Regulations to assist it to exercise its functions under the Regulations in the most efficient and economic way. The settlement discount scheme set out in DEPP 6.7 applies to penalties imposed under the Money Laundering Regulations.
1The FCA will apply the approach to publicity that it has outlined in EG 6. However, as the Money Laundering Regulations do not require the FCA to issue final notices, the FCA will publish such information about the matter to which the decision notice relates as it considers appropriate. This will generally involve publishing the decision notice on the FCA's website, with or without an accompanying press release, and updating the Public Register.
3For
the purpose of this Statement of Principle,
regulators in addition to the FCA and
the PRA are those which have
recognised jurisdiction in relation to regulated
activities and a power to call for information from the approved person in connection with their 1accountable function or (in the case of
an individual performing an accountable higher management function)1 in connection with the business for which they are1 responsible.
This may include an exchange or an oversea
1Failing
to report promptly in accordance with his firm's internal
procedures (or if none exist direct to the regulator concerned), information which it would be
reasonable to assume would be of material significance to the regulator concerned), whether in response to questions
or otherwise, falls within APER 4.4.3 G. The
regulator concerned is:(1) the FCA if
it would be reasonable to assume that it would be of material significance
to it;3(2) the PRA if
it would be reasonable
There
is no duty on an approved person to
report such information directly to the regulator concerned3 unless he is one of the approved persons responsible within the firm for reporting matters to the regulator concerned.3However, if an approved person takes steps to influence the decision so as not to report to the regulator concerned or acts in a way that is intended to obstruct the reporting of the information to the regulator concerned, then the FCA1 will, in respect of that
1In
determining whether or not an approved person's conduct
under APER 4.4.4 G complies with Statement of Principle 4,
the following are factors which, in the opinion of the FCA, are to be taken into account:3(1) the
likely significance to the regulator concerned (as defined in APER 4.4.4 G1) of the information which it was
reasonable for the individual to assume;31(2) whether
the information related to the individual himself or to his firm;(3) whether
any decision not to report
1In determining whether or not an approved person's conduct under APER 4.4.7G complies with Statement of Principle 4, the following are factors which, in the opinion of the FCA, are to be taken into account:(1) the likely significance of the information to the regulator concerned (as defined in APER 4.4.4G) which it was reasonable for the approved person to assume;(2) whether any decision not to inform the regulator concerned (as defined in APER 4.4.4G) was taken after reasonable
The activity in article 25(1) is carried on only if the arrangements bring about, or would bring about, the transaction to which the arrangement relates. This is because of the exclusion in article 26 of the Regulated Activities Order (Arrangements not causing a deal). Article 26 excludes from article 25(1) arrangements which do not bring about or would not bring about the transaction to which the arrangements relate. In the FCA's view, a person would bring about a contract of
Article 25(2) may, for instance, include activities of persons who help potential policyholders fill in or check application forms in the context of ongoing arrangements between these persons and insurance undertakings. A further example of this activity would be a person introducing customers to an intermediary either for advice or to help arrange an insurance policy. The introduction might be oral or written. By contrast, the FCA considers that a mere passive display of literature
In the FCA's view, 'incidental' in this context means that the activity must arise out of, be complementary to or otherwise be sufficiently closely connected with the profession or business. In other words, there must be an inherent link between the activity and the firm's main business. For example, introducing dental insurance may be incidental to a dentist's activities; introducing pet insurance would not be incidental to his activities. In addition, to be considered 'incidental',
This exclusion applies to a person whose profession or business does not otherwise consist of regulated activities. In the FCA's view, the fact that a person may carry on regulated activities in the course of the carrying on of a profession or business does not, of itself, mean that the profession or business consists of regulated activities. This is provided that the main focus of the profession or business does not involve regulated activities and that the regulated activities
In the FCA's view, the crucial element of the exclusion in article 27 is the inclusion of the word 'merely'. When a publisher, broadcaster or internet website operator goes beyond what is necessary for him to provide his service of publishing, broadcasting or otherwise facilitating the issue of promotions, he may well bring himself within the scope of article 25(2). Further detailed guidance relating to the scope of the exclusion in article 27 is contained in PERG 2.8.6G (2) (Arranging
The restriction in the scope of article 28 raises an issue where there is a trust with co-trustees, where each trustee will be a policyholder with equal rights and obligations. If the activities of one of the trustees include arranging in respect of contracts of insurance, that trustee could be viewed as arranging on behalf of his co-trustees who will also be policyholders. Similar issues also arise in respect of trustees assisting in the administration and performance of a contract
The effect of PERG 5.6.17G (4) is that some persons who, in making introductions, are making arrangements with a view to transactions in investments under article 25(2) of the Regulated Activities Order, cannot use the introducing exclusion. This is if, in general terms, the arrangements for making introductions relate to contracts of insurance (PERG 5.6.19 G has further guidance on when arrangements for introductions may be regarded as relating to contracts of insurance). However,
Where a person is making arrangements with a view to transactions in investments by way of making introductions, and he is not completely indifferent to whether or not transactions may result, it may still be the case that the exclusion in article 33 will apply. In the FCA's view, this is where:(1) the introduction is for independent advice on investments generally; and(2) the introducer is indifferent as to whether or not a contract of insurance may ultimately be bought (or
3The FCA does not have a set of enforcement priorities that are distinct from the priorities of the FCA as a whole. Rather, the FCA consciously uses the enforcement tool to deliver its overall strategic priorities. The areas and issues which the FCA as an organisation regards as priorities at any particular time are therefore key in determining at a strategic level how enforcement resource should be allocated. FCA priorities will influence the use of resources in its supervisory
3One way in which the FCA focuses on priority areas is through its thematic work. This work involves the FCA looking at a particular issue or set of issues across a sample of firms. Themes are, in general, selected to enable the FCA to improve its understanding of particular industry areas or to assess the validity of concerns the FCA has about risks those areas may present to the statutory objectives. Thematic work does not start with the presumption that it will ultimately lead
3This does not mean that the FCA will only take enforcement action in priority strategic areas. There will always be particularly serious cases where enforcement action is necessary, ad hoc cases of particular significance in a markets, consumer protection or financial crime context, or cases that the FCA thinks are necessary to achieve effective deterrence.
3The combination of the priority given to certain types of misconduct over others and the FCA's risk-based approach to enforcement means that certain cases will be subject to enforcement action and others not, even where they may be similar in nature or impact. The FCA's choice as to the use of the enforcement tool is therefore a question of how the FCA uses its resources effectively and efficiently and how it ensures that it is an effective regulator.
3Before it proceeds with an investigation, the FCA will satisfy itself that there are grounds to investigate under the statutory provisions that give the FCA powers to appoint investigators. If the statutory test is met, it will decide whether to carry out an investigation after considering all the relevant circumstances. To assist its consideration of cases, the FCA has developed a set of assessment criteria. The current criteria (which are published on the Enforcement section