Related provisions for LR 11.1.1D
481 - 500 of 1065 items.
1The FCA may use its section 122A power to require information and documents from an issuer, a person discharging managerial responsibilities or a person closely associated with a person discharging managerial responsibilities to support its supervisory and its enforcement functions, including those under the Market Abuse Regulation or any directly applicable EU regulation made under the Market Abuse Regulation.
2Under sections 176 and 122D1 of the Act, the FCA has the power to apply to a justice of the peace for a warrant to enter premises where documents or information is held. The circumstances under which the FCA may apply for a search warrant include: (1) where a person on whom an information requirement has been imposed fails (wholly or in part) to comply with it; or (2) where there are reasonable grounds for believing that if an information requirement were to be imposed, it would
2A warrant obtained pursuant to sections 176 and 122D1 of the Act authorises a police constable or an FCA investigator in the company, and under the supervision of, a police constable, to do the following, amongst other things: to enter and search the premises specified in the warrant and take possession of any documents or information appearing to be documents or information of a kind in respect of which the warrant was issued or to take, in relation to any such documents or
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
1The Act does not always require the FCA to give written notice of the appointment of investigators, for example, where investigators are appointed as a result of section 168(1) or (4) of the Act and the FCA believes that the provision of notice would be likely to result in the investigation being frustrated, or where investigators are appointed as a result of section 168(2) of the Act.
1Although the FCA is not required to give written notice of the appointment of investigators appointed as a result of section 168(2), when it becomes clear who the person under investigation is, the FCA will, nevertheless, normally notify them that they are under investigation when it exercises its statutory powers to require information from them, providing such notification will not, in the FCA's view, prejudice the FCA's ability to conduct the investigation effectively.
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
If the appropriate regulator1 gives a firm a waiver, then the relevant rule no longer applies to the firm. But:1(1) if a waiver directs that a rule is to apply to a firm with modifications, then contravention of the modified rule could lead to appropriate regulator1 enforcement action and (if applicable) a right of action under section 138D1 of the Act (Actions for damages); and11(2) if a waiver is given subject to a condition, it will not apply to activities conducted in breach
Substantive changes to the rules (this would not include simple editorial changes) in the Handbook may affect existing waivers, changing their practical effect and creating a need for a change to the original waiver. The appropriate regulator1 will consult on proposed rule changes. A firm should note proposed rule changes and discuss the impact on a waiver with its appropriate1 supervisory contact.111
2The FCA has various powers under sections 97, 122A, 122B, 122C,1 131E, 131FA, 165 to 169 and 284 of the Act and Schedule 5 to the CRA to gather information and appoint investigators, and to require the production of a report by a skilled person. In any particular case, the FCA will decide which powers, or combination of powers, are most appropriate to use having regard to all the circumstances. Further comments on the use of these powers are set out below.
2Information may also be provided to the FCA voluntarily. For example, firms may at times commission an internal investigation or a report from an external law firm or other professional adviser and decide to pass a copy of this report to the FCA. Such reports can be very helpful for the FCA in circumstances where enforcement action is anticipated or underway. The FCA's approach to using firm-commissioned reports in an enforcement context is set out at the end of this chapter.
1Where the FCA has decided that an investigation is appropriate (see chapter 2) and it appears to it that there are circumstances suggesting that contraventions or offences set out in section 168 may have happened, the FCA will normally appoint investigators pursuant to section 168. Where the circumstances do not suggest any specific breach or contravention covered by section 168, but, the FCA still has concerns about a firm, an appointed representative, a recognised investment
1In some cases involving both general and specific concerns, the FCA may consider it appropriate to appoint investigators under both section 167 and section 168 at the outset. Also, where, for example, it has appointed investigators under section 167, it may subsequently decide that it is appropriate to extend the appointment to cover matters under section 168 as well.
1When it decides whether a suspension order under section 267 is appropriate, the FCA will consider all the relevant circumstances. General factors that the FCA may consider include, but are not limited to: (1) the seriousness of the breach of financial promotionrules by the operator (the matters listed at paragraph 14.1.1 (a) to (f) may be relevant in this context); and (2) the conduct of the operator after the breach was discovered including whether the operator has compensated
1In addition to or instead of suspending the promotion of a scheme recognised under section 264, the FCA may ask the competent authorities of the EEA State in which the scheme is constituted who are responsible for the authorisation of collective investment schemes, to take such action in respect of the scheme and/or its operator as will resolve the FCA's concerns. Also, Schedule 5 to the Act states that a person who for the time being is an operator,
trustee
1As delays in the provision of information and/or documents can have a significant impact on the efficient progression of an investigation, the FCA expects persons to respond to information and document requests in a timely manner to appropriate deadlines. When an investigation is complex (and the timetable allows), the FCA may decide to issue an information or document
requirement in draft, allowing a specified period (of usually no more than three working
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.
1This chapter applies to every firm which:(1) is subject to the requirements as to the form and content of regulated agreements under the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and the Consumer Credit (Agreements) Regulations (SI 2010/1014) made under section 60(1) of the CCA that wishes to apply for a direction from the FCA waiving or varying those requirements;(2) is subject to the requirement under section 64(1)(b) of the CCA to send debtors or hirers
This chapter explains how the regime works for obtaining: (1) a direction from the FCA waiving or varying the requirements as to the form and content of regulated agreements under the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and the Consumer Credit (Agreements) Regulations (SI 2010/1014) made under section 60(1) of the CCA;(2) a determination by the FCA that the requirement under section 64(1)(b) of the CCA to send debtors or hirers a notice of their rights
The principal purpose of imposing a financial penalty or issuing a public censure is to promote high standards of regulatory and/or market conduct by deterring persons who have committed breaches from committing further breaches, helping to deter other persons from committing similar breaches, and demonstrating generally the benefits of compliant behaviour. Financial penalties and public censures are therefore tools that the FCA3 may employ to help it to achieve its statutory
In the FCA's opinion, however, such information may take on the nature of advice if the circumstances in which it is provided give it the force of a recommendation. For example:(1) a person may offer to provide information on directors’ dealings on the basis that, in his opinion, were directors to buy or sell investors would do well to follow suit;(2) a person may offer to tell a client when certain shares reach a certain value (which would be advice if the person providing the
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.
1The FCA may use its section 122B power to require information and documents from a person to support both its supervisory and its enforcement functions under the Market Abuse Regulation or any directly applicable EU regulation made under the Market Abuse Regulation, or under the auction regulation.[Note: see Regulation 6 and Schedule 1 to the RAP Regulations for application of the power in relation to functions under the auction regulation]
An investment
firm, which is authorised by the
FCA
, must promptly notify the
FCA
in writing of its status as a
systematic internaliser in respect of shares admitted to trading on a regulated
market:(1) when it gains that status; or(2) if it ceases to have that status.[Note:Article
21(4) of the MiFID Regulation]