Related provisions for GEN 1.1.2
121 - 140 of 625 items.
1Under
section 312B of the Act, the FCA5 may
prohibit an EEA market operator from
making or, as the case may be, continuing arrangements in the United Kingdom, to facilitate access to,
or use of, a regulated market,
or multilateral trading facility,
operated by the operator if:5(1) the FCA5 has clear and demonstrable grounds for believing that the operator
has contravened a relevant requirement, and5(2) the FCA5 has first complied with sections 312B(3) to (9) of the Act.5
A UK firm17 or an AIFM exercising an EEA right to market an AIF under AIFMD13,9 cannot start providing cross border services into another EEA State under an EEA right unless it satisfies the conditions in paragraphs 20(1) of Part III of Schedule 3 to the Act and, if it derives its EEA right from17AIFMD, MiFID or the UCITS Directive,13paragraph 20(4B) of Part III of Schedule 3 to the Act. If a UK firm derives its EEA right from the MCD, it cannot start providing cross border services
8A MiFID investment firm that wishes to obtain a passport for the activity of operating an MTF should follow the procedures described in this chapter. A UK market operator that operates a recognised investment exchange, a recognised auction platform (pursuant to the RAP regulations, the definition of regulated market in the Act is read for these purposes as including a recognised auction platform)11 or an MTF and wishes to provide cross border services into another EEA State should
8(2) [deleted]17(2A) 8(a) If the UK firm'sEEA right derives from the Insurance Mediation Directive, and the EEA State in which the UK firm is seeking to provide services has notified the European Commission of its wish to be informed of the intention of persons to provide cross border services in its territory in accordance with article 6(2) of that directive, paragraph 20(3B)(a) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to send a copy of the
(1) 14If the UKfirm'sEEA right derives from AIFMD (other than the EEA right to market an AIF (referred to in (3)) and the condition in (2) is met, paragraph 20(3D) of Part III of Schedule 3 to the Act requires the FCA to:(a) send a copy of the notice of intention to the Host State regulator within one month of receipt; (b) include confirmation that the UKfirm has been authorised by the FCA under AIFMD; and(c) immediately inform the UKfirm that the notice of intention and confirmation
This guidance is issued under section 139A of the Act (Guidance). It is designed to throw light on particular aspects of regulatory requirements, not to be an exhaustive description of a person's obligations. If a person acts in line with the guidance in the circumstances it contemplates, the FCA will proceed on the footing that the person has complied with aspects of the requirement to which the guidance relates. Rights conferred on third parties cannot be affected by guidance
Open-ended investment companies constituted in other EEA States which are seeking to exercise rights conferred by the UCITS Directive should refer to COLL 9 (Recognised schemes) for guidance on the requirements of section 264 of the Act (Schemes constituted in other EEA States). Those seeking to exercise rights under AIFMD should refer to FUND 10 (Operating on a cross-border basis).42
The Secretary of State’s2 pensions guidance costs are defined in subsection 10 of section 333R (Funding of the Secretary of State’s2 pensions guidance costs) of the Act as the expenses incurred, or expected to be incurred, by the Secretary of State2: (1) in giving pensions guidance or arranging for it to be given by designated guidance providers;(2) in meeting the expenses of designated guidance providers incurred in connection with the giving of the guidance (whether by means
(1) Section 333R(1) of the Act requires the Secretary of State2 to notify the FCA of the amount of the Secretary of State’s2 pensions guidance costs.(2) Section 333R(2) requires the FCA to make rules requiring authorised persons to pay amounts, or amounts calculated in a specified way, to the FCA with a view to recovering the amounts notified by the Secretary of State2.(3) Under subsection 3 such amounts may include a component to cover the expenses of the FCA in collecting the
Section 213(3)(b) of the Act requires the appropriate regulator to make rules to enable the FSCS to impose levies on authorised persons in order to meet its expenses. These expenses include in particular expenses incurred, or expected to be incurred, in paying compensation, borrowing or insuring risks.
Section 224F of the Act enables the appropriate regulator to make rules to enable the FSCS to impose levies on authorised persons (or any class of authorised persons) in order to meet its management expenses incurred if, under Part 15A of the Act, it is required by HM Treasury to act in relation to relevant schemes. But those rules must provide that the FSCS can impose a levy only if the FSCS has tried its best to obtain reimbursement of those expenses from the manager of the
The9 provisions on the allocation of levies to classes9 up to their levy limits2 meet9 a requirement of section 213(5) of the Act that the appropriate regulator , in making rules to enable the FSCS to impose levies, must take account of the desirability of ensuring that the amount of the levies imposed on a particular class of authorised person reflects, so far as practicable, the amount of claims made, or likely to be made, in respect of that class of person.22229999
Section 223 of the Act (Management expenses) prevents the FSCS from recovering, through a levy, any management expenses attributable to a particular period in excess of the limit set in COMP as applicable to that period. 'Management expenses' are defined in section 223(3) to mean expenses incurred or expected to be incurred by the FSCS in connection with its functions under the Act, except:(1) expenses incurred in paying compensation;5(2) expenses incurred as a result of the FSCS
(1) 1PR 2, PR 3, PR 4.2, PR 5.1, PR 5.3.1 UK to PR 5.3.3 G and PR 5.5 only apply (subject to paragraph (2)) in relation to:(a) an offer, or a request for admission to trading of transferable securities, in respect of which section 85 of the Act applies (other than an exempt offer under section 86 of the Act) and in relation to which the United Kingdom is the Home State;(b) an offer, or a request for admission to trading of transferable securities, where under section 87 of the
The FCA considers that the 4following documents together 4determine the effect of the prospectus directive:4(1) Part 6 of the Act;(2) the PD Regulation;(3) these rules; 4(4) the ESMA Prospectus Recommendations434(5) the ESMA Prospectus Questions and Answers;4(6) the ESMA Prospectus Opinion; and4(7) the Prospectus RTS Regulations5. 4
In determining whether Part 6 of the Act, these rules ,4the PD Regulation and the Prospectus RTS Regulations5have2 been complied with, the FCA will consider whether a person has acted in accordance with the4ESMA Prospectus Recommendations, the ESMA Prospectus Questions and Answers and the ESMA Prospectus Opinion.4442424
In order to make an unsolicited real time financial promotion, an overseas communicator must rely on either article 32 or article 33. Article 32 provides an exemption for unsolicited real time financial promotions made by an overseas communicator to persons who were previously overseas and were a customer of his then. This is subject to certain conditions, including that, in broad terms, the customer would reasonably expect to be contacted about the subject matter of the financial
11A local authority (in the United Kingdom or elsewhere) is exempt from the financial promotion restriction (that is, the restriction in section 21 of the Act) for a communication which is a non-real time financial promotion or a solicited real time financial promotion. However, this exemption does not apply to a communication which relates to a regulated credit agreement, where entering into the agreement or exercising, or having the right to exercise, the lender’s rights and
This exemption disapplies the restriction in section 21 of the Act from non-real time financial promotions or solicited real time financial promotions which are made to a person who the communicator believes on reasonable grounds to be a certified high net worth individual and which relate to certain investments. These investments must be either:7(1) shares in or debentures or alternative debentures7 of an unlisted company; or(2) warrants,certificates representing certain securities,
The second exemption in article 50A disapplies the restriction in section 21 of the Act from any financial promotions4 which are made to a person who the communicator believes on reasonable grounds to be a self-certified sophisticated investor and which relate to one or more of the specified investments in PERG 8.14.21G (1) to (3) (Certified high net worth individuals (article 484)).44
11The financial promotion restriction (that is, the restriction in section 21 of the Act) does not apply to a communication which is a non-real time financial promotion or a solicited real time financial promotion by an insolvency practitioner who acts in that capacity (see the definition of “acting as an insolvency practitioner” in article 3 of the Regulated Activities Order). The exemption only applies where the communication is made in the course of carrying on an activity
6The exemptions described in PERG 8.14.40A G to PERG 8.14.40AEA G9 should enable employers (and their contracted service providers) to promote employee benefits packages that include any pension schemes, work-related insurance schemes,9staff mortgages and certain staff loans9 to employees without undue concern that they may be breaching the restriction in section 21 of the Act. PERG 8.14.34 G (Communications by employers and contracted service providers to employees) has further
The arrangements which grant rights under alternative debentures are similar to the tax definition of arrangements relating to alternative finance investment bonds at section 48A of the Finance Act 2005 (see www.opsi.gov.uk/acts/acts2007/ukpga_20070011_en_5#pt3-pb9-l1g53). However the purposes of the two provisions are not the same. One of the objectives of the FCA under the Act is consumer protection. Accordingly, secondary legislation made under the Act, like article 77A
As these arrangements might amount to a collective investment scheme (see PERG 9.4.2 GG for a broad description) a consequential amendment to the Financial Services and Markets Act 2000 (Collective Investment Scheme) Order 2001 (SI 2001/1062) has been made so that, like conventional bonds, alternative debentures are excluded from the definition of collective investment scheme.
The specified investment category of units in a collective investment scheme includes units in a unit trust scheme or authorised contractual scheme10, shares in open-ended investment companies and rights in respect of most limited partnerships and all limited partnership schemes10. Shares in or securities of an open-ended investment company are treated differently from shares in other companies. They are excluded from the specified investment category of shares. This does not
There are no exclusions in the Regulated Activities Order for this specified investment category. This is because 'collective investment scheme' is defined in section 235 of the Act (Collective investment schemes) for the purposes of the Act generally. But there is a separate power to provide for exemptions from that definition and the Treasury have exercised it (see the Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001 (SI 2001/1062). The result
4All contracts in this category are cash-settled instruments (as opposed to being settled by way of delivering something other than cash). Many would be unenforceable as gaming contracts were it not for section 412 of the Act (Gaming contracts). Examples of instruments that count as specified investments under this category are spread bets and interest rate swaps.
1When it decides whether to make an application for an order against debt avoidance pursuant to section 375 of the Act, the FCA will consider all relevant factors, including the following: (1) the extent to which the relevant transactions involved dealings in consumers' funds;
(2) whether it would be appropriate to petition for a winding up order, bankruptcy order, or sequestration award, in relation to the debtor and the extent to which the transaction could
1Paragraphs 13.12.2 to 13.13.1 contain information for insolvency practitioners and others about sending copies of petitions, notices and other documents to the FCA, and about making reports to the FCA. Insolvency practitioners and others have duties to give that information and those documents to the FCA under various sections in Part XXIV of the Act (Insolvency). Paragraphs 13.12.2 identifies the relevant sections of the Act that explain some of the duties.
The FCA’s pensions guidance costs are defined in section 333Q(4) (Funding of FCA’s pensions guidance costs) of the Act as the expenses incurred, or expected to be incurred, by the FCA in connection with carrying out the functions conferred on it in Part 20A of the Act (other than the functions specified in 333R of the Act).
(1) Section 333Q(1) of the Act requires the FCA to make rules requiring designated guidance providers, or any specified class of designated guidance provider to pay to the FCA specified amounts or amounts calculated in a specified way.(2) Section 333Q(3) of the Act sets out that such amounts may include a component to cover the expenses of the FCA in collecting the payments and to enable the FCA to maintain an adequate reserve.
1The FCA will notify the subject of the investigation that it has appointed investigators to carry out an investigation under the CCA Order and the reasons for the appointment, unless notification is likely to result in the investigation 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 under the CCA Order is to use powers to compel information in the same
1This chapter describes many of the powers that the FCA has to enforce requirements imposed under legislation other than the Act. The chapter is ordered chronologically, ending with the most recent legislation. Where powers under different pieces of legislation are broadly the same, or apply to the same class of person, we have set out the relevant statements of policy in one section to avoid duplication.
1Where conduct may amount to a breach of more than one enactment, the FCA may need to consider which enforcement powers to use and whether to use powers from one or more of the Acts. Which power or powers are appropriate will vary according to the circumstances of the case. However, where appropriate, we have tried to adopt procedures in respect of our use of powers under legislation other than the Act which are akin to those used under the Act. We expect, for example, to provide
1Auditors and actuaries fulfil a vital role in the management and conduct of firms,
AUTs and ACSs. Provisions of the Act,
rules made under the Act and the OEIC Regulations 2000 impose various duties on auditors and actuaries. These duties and the FCA's power to disqualify auditors and actuaries if they breach them assist the FCA in pursuing its statutory objectives. The FCA's power to disqualify auditors in breach of duties imposed by trust
1The FCA also has the power under section 345 to impose a financial penalty and a public censure on an auditor or actuary in respect of a failure to comply with a duty imposed on the auditor or actuary by rules made by the FCA, or a failure to comply with a duty imposed under the Act to communicate information to the FCA. The FCA has the power under section 249 to impose a financial penalty and a public censure on an auditor in respect of a failure to comply with a duty imposed
Energy market participants should bear in mind that3sections 138A and 138B of the Act requires that in order to give a waiver of particular rules, the FCA4 must be satisfied that:4344(1) compliance with the rules, or with the rules as unmodified, would be unduly burdensome or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of any of the FCA's operational objectives.44
1The FCA's power under section 56 of the Act to prohibit individuals who are not fit and proper from carrying out functions in relation to regulated activities helps the FCA to work towards achieving its statutory objectives. The FCA may exercise this power to make a prohibition order where it considers that, to achieve any of those objectives, it is appropriate either to prevent an individual from performing any function in relation to regulated activities, or to restrict the
1The FCA's effective use of the power under section 63 of the Act to withdraw approval from an approved person will also help ensure high standards of regulatory conduct by preventing an approved person from continuing to perform the controlled function to which the approval relates if he is not a fit and proper person to perform that function. Where it considers this is appropriate, the FCA may prohibit an approved person, in addition to withdrawing their approval.
1Where the FCA applies to the court under section 380(3) or sections 381(3) and (4) of the Act, the FCA may ask the court to exercise its inherent jurisdiction to make orders on an interim basis, restraining a person from disposing of, or otherwise dealing with, assets. To succeed in an application for such interim relief, the FCA will have to show a good arguable case for the granting of the injunction. The FCA will not have to show that a contravention has already occurred or
1The FCA may request the court to exercise its inherent jurisdiction in cases, for example, where it has evidence showing that there is a reasonable likelihood that a person will contravene a requirement of the Act and that the contravention will result in the dissipation of assets belonging to investors.
Where the FCA1 considers that it is unlikely to make a recognition order, it will discuss its concerns with the applicant with a view to enabling the applicant to make changes to its rules or guidance, or other parts of the application. If the FCA1 decides to refuse to make a recognition order, it will follow the procedure set out in section 298 of the Act (Directions and revocation: procedure) (which applies in consequence of section 290(5) of the Act (Recognition orders)) which
1Section 59(1) is relevant where the firm directly employs the person concerned. Under the provision, a firm ('A') must take reasonable care to ensure that no person performs a controlled function under an arrangement entered into by A in relation to the carrying on by it of a regulated activity, unless the appropriate regulator (as defined in section 59(4) of the Act)
approves the performance by that person of the controlled function to which the approval relates.
1Section 59(2) is relevant where the person is employed by a contractor of the firm. It requires a firm ('A') to take reasonable care to ensure that no person performs a controlled function under an arrangement entered into by a contractor of A in relation to the carrying on by A of a regulated activity, unless the appropriate regulator (as defined in section 59(4) of the Act)
approves the performance by that person of the controlled function to which the approval