Related provisions for PERG 9.7.1

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PR 2.4.5RRP
When information is incorporated by reference, a cross reference list must be provided in the prospectus to enable investors to identify easily specific items of information. The cross reference list must specify where the information can be accessed by investors. [Note: article 11.2 PD]
PR 2.4.6EURP

Article 28 of the PD Regulation provides examples of information that may be incorporated by reference:

Arrangements for incorporation by reference

1.

Information may be incorporated by reference in a prospectus or base prospectus, notably if it is contained in one the following documents:

(1)

annual and interim financial information;

(2)

documents prepared on the occasion of a specific transaction such as a merger or demerger;

(3)

audit reports and financial statements;

(4)

memorandum and articles of association;

(5)

earlier approved and published prospectuses and/or base prospectuses;

(6)

regulated information;

(7)

circulars to security holders.

2.

The documents containing information that may be incorporated by reference in a prospectus or base prospectus or in the documents composing it shall be drawn up following the provisions of [PR 4.1 (Use of languages)].

3.

If a document which may be incorporated by reference contains information which has undergone material changes, the prospectus or base prospectus shall clearly state such a circumstance and shall give the updated information.

4.

The issuer, the offeror or the person asking for admission to trading on a regulated market may incorporate information in a prospectus or base prospectus by making reference only to certain parts of a document, provided that it states that the non-incorporated parts are either not relevant for the investor or covered elsewhere in the prospectus.

5.

When incorporating information by reference, issuers, offerors or persons asking for admission to trading on a regulated market shall endeavour not to endanger investor protection in terms of comprehensibility and accessibility of the information.
3
LR 5.4.2RRP
The FCA may restore the listing of any securities that have been suspended if it considers that the smooth operation of the market is no longer jeopardised or if the suspension is no longer required to protect investors. The FCA may restore the listing even though the issuer does not request it.
LR 5.4.6GRP
(1) If an underlying instrument is restored, the securitised derivative'slisting will normally be restored.(2) For a securitised derivative relating to a basket of underlying instruments that has been suspended, the securitised derivative's listing may be restored by the FCA, irrespective of whether or not the underlying instrument has been restored, if:(a) the issuer of the securitised derivative confirms to the FCA that despite the relevant underlying instrument(s) suspension
DTR 2.2.5GRP
An issuer may wish to take account of the following factors when considering whether the information in question would be likely to be used by a reasonable investor as part of the basis of his investment decisions:1(1) 1the significance of the information in question will vary widely from issuer to issuer, depending on a variety of factors such as the issuer's size, recent developments and the market sentiment about the issuer and the sector in which it operates; and(2) the likelihood1
DTR 2.2.6GRP
It is not possible to prescribe how the reasonable investor test will apply in all possible situations. Any assessment may need to1 take into consideration the anticipated impact of the information in light of the totality of the issuer's activities, the reliability of the source of the information and other market variables likely to affect the relevant financial instrument in the given circumstances. However, information which is likely to be considered relevant to a reasonable
REC 4.5.4GRP

The Companies Act 1989: section 166

The FCA1 may issue a "positive" direction (to take action) under section 166(2)(a) of the Companies Act 1989:

1

Where in any case a [UK RIE] has not taken action under its default rules- if it appears to [the FCA] that it could take action, [the FCA may direct it to do so,1

1

but under section 166(3)(a) of the Companies Act 1989:

Before giving such a direction the [FCA] shall consult the [UK RIE] in question; and [the FCA] shall not give a direction unless [the FCA] is satisfied, in the light of that consultation that failure to take action would involve undue risk to investors or other participants in the market, or that the direction is necessary having regard to the public interest in the financial stability of the United Kingdom, or that the direction is necessary to facilitate a proposed or possible use of a power under Part 1 of the Banking Act 2009 or in connection with a particular exercise of a power under that Part.1

1

The FCA1 may issue a "negative" direction (not to take action) under section 166(2)(b) of the Companies Act 1989:

1

Where in any case a [UK RIE] has not taken action under its default rules - if it appears to the [FCA] that it is proposing to take or may take action, [the FCA] may direct it not to do so.1

1

but under section 166(3)(b) of the Companies Act 1989:

Before giving such a direction the [FCA] shall consult the [UK RIE] in question; and the [FCA] shall not give a direction unless [the FCA] is satisfied, in the light of that consultation that the taking of action would be premature or otherwise undesirable in the interests of investors or other participants in the market, or that the direction is necessary having regard to the public interest in the financial stability of the United Kingdom, or that the direction is necessary to facilitate a proposed or possible use of a power under Part 1 of the Banking Act 2009 or in connection with a particular exercise of a power under that Part.1

1
REC 4.5.8GRP
Under section 166(7) of the Companies Act 1989, where a UK RIE has taken action either of its own accord or in response to a direction, the FCA may direct it to do or not to do specific things subject to these being within the powers of the UK RIE under its default rules. However,11(1) 1where the UK RIE is acting in accordance with a direction given by the FCA to take action under section 166(2)(a) of the Act on the basis that failure to take action would involve undue risk to
COLL 6.4.3GRP
(1) (a) 3This section deals with matters relating to the register of unitholders of units in an AUT or ACS including its establishment and contents.(b) 3The authorised fund manager or depositary may be responsible for the register.(c) 3In any event, the person responsible for the register must be stated in the trust deed or contractual scheme deed and this section details what his duties are.(d) 3The provisions relating to documents evidencing title to units3are dependent on the
COLL 6.4.6ARRP
(1) 1Where transfer of units in an ACS is allowed by its contractual scheme deed and prospectus in accordance with the conditions specified by FCArules, the authorised contractual scheme manager of the ACS must take reasonable care to ensure that units are only transferred if the conditions specified by the FCA under (2) are met.(2) The FCA specifies that for the purposes of (1), and for the purposes of COLL 3.2.6 R(27G) (ACSs: UCITS and NURS transfer of units) and COLL 4.2.5
IFPRU 2.2.24RRP
A firm must evaluate and address through appropriate policies and procedures the risks arising from securitisation transactions in relation to which a firm is investor, originator or sponsor, including reputational risks, to ensure, in particular, that the economic substance of the transaction is fully reflected in risk assessment and management decisions.[Note: article 82(1) of CRD]
IFPRU 2.2.73GRP
(1) In identifying an appropriate range of adverse circumstances and events in accordance with IFPRU 2.2.37 R (2):(a) a firm will need to consider the cycles it is most exposed to and whether these are general economic cycles or specific to particular markets, sectors or industries;(b) for the purposes of IFPRU 2.2.37 R (2)(a), the amplitude and duration of the relevant cycle should include a severe downturn scenario based on forward-looking hypothetical events, calibrated against
DTR 1A.3.1RRP
(1) The FCA may, at any time, require an issuer to publish such information in such form and within such time limits as it considers appropriate to protect investors or to ensure the smooth operation of the market.(2) If an issuer fails to comply with a requirement under paragraph (1) the FCA may itself publish the information (after giving the issuer an opportunity to make representations as to why it should not be published).
EG 10.3.2RP
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.
COLL 4.1.2GRP
This chapter helps in achieving the statutory objective of protecting consumers by ensuring consumers have access to up-to-date detailed information about an authorised fund particularly before buying units and thereafter an appropriate level of investor involvement exists by providing a framework for them to:(1) participate in the decisions on key issues concerning the authorised fund; and(2) be sent regular and relevant information about the authorised fund.
COLL 3.1.2GRP
This chapter assists in achieving the statutory objective of protecting consumers. In particular:(1) COLL 3.2 (The instrument constituting the fund2) contains requirements about provisions which must be included in the instrument constituting the fund2 to give a similar degree of protection for investors in an ICVC, AUT or ACS;1 and221(2) COLL 3.3 (Units) provides rules and guidance which deal with the classes of units to ensure that investors in each class are treated equall
EG 15.3.1RP
1When it decides whether to exercise its power to disqualify an auditor or actuary under section 345(1), and what the scope of any disqualification will be, the FCA will take into account all the circumstances of the case. These may include, but are not limited to, the following factors: (1) the nature and seriousness of any breach of rules and the effect of that breach: the rules are set out in SUP 3 (Auditors) and SUP 4 (Actuaries), and in the case of firms which are ICVCs,
EG 15.4.1RP
1When deciding whether or not to disqualify an auditor under section 249(1) or section 261K(1) of the Act (concerning the power to disqualify an auditor for breach of trust scheme rules or contractual scheme rules), and in setting the disqualification, the FCA will take into account all the circumstances of the case. These may include, but are not limited to, the following circumstances: (1) the effect of the auditor's breach of a duty imposed by trust scheme
LR 4.4.3RRP
1If final terms of the offer are not included in the listing particulars:(1) the final terms must be provided to investors and filed with the FCA, and made available to the public, as if the relevant requirements in PR 3.2 and the PD Regulation applied to them; and(2) the listing particulars must disclose the criteria and/or the conditions in accordance with which the above elements will be determined or, in the case of price, the maximum price.
LR 19.1.3RRP
The FCA will not admit to listing, under this chapter, other derivative products that are likely to be bought and traded by investors who are not specialist investors, unless the derivative product falls within the scope of specified investments in Part III of the Regulated Activities Order.
PERG 7.7.4GRP
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).
COLL 4.7.2RRP
(1) An authorised fund manager must, for each UCITS scheme which it manages, draw up a short document in English containing key investor information (a "key investor information document") for investors.(2) The words "key investor information" must be clearly stated in this document. (3) Key investor information must include appropriate information about the essential characteristics of the UCITS scheme which is to be provided to investors so that they are reasonably able to understand
COLL 4.7.6GRP
(1) Section 90ZA of the Act (Liability for key investor information) provides that a person will not incur civil liability solely on the basis of the key investor information document, including any translation of it, unless it is misleading, inaccurate or inconsistent with the relevant parts of the prospectus.(2) Article 20 of the KII Regulation prescribes the wording of a warning to investors that must be included in the "practical information" section of the key investor information
SUP App 3.9.5GRP

3Table 2: MiFIDinvestment services and activities

Part II RAO Investments

Part III RAO Investments

A MiFIDinvestment services and activities

1.

Reception and transmission of orders in relation to one or more financial instruments

Article 252

Article 76-81, 83-85, 89

2.

Execution of orders on behalf of clients

Article 14, 21

A Article 76-81, 83-85, 89

3.

Dealing on own account

Article 14

Article 76-81, 83-85, 89

4.

Portfolio management

Article 37 (14, 21, 25 - see Note 1) 2

Article 76-81, 83-85, 89

5.

Investment advice

Article 53(1)10

Article 76-81, 83-85, 89

6.

Underwriting of financial instruments and/or placing of financial instruments on a firm commitment basis

Article 14, 21

Article 76-81, 83-85, 89

7.

Placing of financial instruments without a firm commitment basis

Article 21, 25

Article 76-81, 83-85, 89

8.

Operation of Multilateral Trading Facilities

Article 25D5 (see Note 2)

5

Article 76-81, 83-85, 89

Ancillary services

Part II RAO Activities

Part III RAO Investments

1.

Safekeeping and administration of financial instruments for the account of clients, including custodianship and related services such as cash/collateral management

Article 40, 45, 64

Article 76-81, 83-85, 89

2.

Granting credits or loans to an investor to allow him to carry out a transaction in one or more of the relevant instruments where the firm granting the credit or loan is involved

3.

Advice to undertakings on capital structure, industrial strategy and related matters and advice and services relating to mergers and the purchase of undertakings

Article 14, 21, 25, 53(1)10, 64

Article 76-80, 83-85, 89

4.

Foreign exchange services where these are connected with the provision of investment services

Article 14, 21, 25, 53(1)10, 64

Article 83-85, 89

5.

Investment research and financial analysis or other forms of general recommendation relating to transactions in financial instruments

Article 53(1)10, 64

Article 76-81, 83-85, 89

6.

Services related to underwriting

Article 25, 53(1)10, 64

Article 76-81, 83-85, 89

7.

Investment services and activities as well as ancillary services of the type included under Section A or B of Annex I related to the underlying of the derivatives included under Section C 5, 6, 7 and 10-where these are connected to the provision of investment or ancillary services.

Article 14, 21, 25, 25D,5 37, 53(1)10, 64

5

Article 83 and 84

Note 1. A firm may also carry on these other activities when it is managing investments.2

Note 2. A firm operating an MTF under article 25D5 does not need to have a permission covering other regulated activities, unless it performs other regulated activities in addition to operating an MTF.

5
SUP App 3.9.5AGRP

Table 2ZA: AIFMD activities

Part II RAO Activities

Part III RAO Investments

1.

AIFM management functions.

Article 51ZC

N/A (activity relates to property of any kind)

2.

Management of portfolios of investments, including those owned by pension funds and institutions for occupational retirement in accordance with article 19(1) of Directive 2003/41/EC, in accordance with mandates given by investors on a discretionary client-by-client basis (Note 2).

Articles 14, 21, 25, 37, 40 (arranging only), 64

Articles 76 to 81, 83 to 85, 89

3.

Investment advice (Note 2).

Articles 53(1)10, 64

Articles 76 to 81, 83 to 85, 89

4.

Safe-keeping and administration in relation to shares or units of collective investment undertakings.

Articles 40, 45, 64

Articles 76 to 81, 83 to 85, 89

5.

Reception and transmission or orders in relation to financial instruments.

Articles 25(1), 64

Articles 76 to 81, 83 to 85, 89

Note 1. See FUND 1.4.2 R to FUND 1.4.4 R for further information in relation to the activities that full-scope UK AIFMs are able to perform.

Note 2. See FUND 1.4.5 G for the position with respect to assets which are not financial instruments.
PERG 7.3.1GRP
Under article 53(1)6 of the Regulated Activities Order (Advising on investments), advising a person is a specified kind of activity if:(1) the advice is given to the person in his capacity as an investor or potential investor, or in his capacity as agent for an investor or a potential investor; and(2) it is advice on the merits of his doing any of the following (whether as principal or agent):(a) buying, selling, subscribing for or underwriting a particular investment which is
PERG 7.3.4GRP
In the FCA's view, for a person to be carrying on the business of advising on investments or advising on a home finance transaction1 he will usually need to be doing so with a degree of regularity and for commercial purposes – that is to say, he will normally be expecting to gain some kind of a direct or indirect financial benefit. But, in the FCA's view it is not necessarily the case that advice provided free of charge will not amount to a business. Advice is often given 'free'