Related provisions for DEPP 1.2.4E
1 - 20 of 53 items.
In the3 case of a senior staff committee,3 the
decision will be taken by FCA3 staff who have not been directly involved in establishing the
evidence on which the decision is based
or by two or more FCA staff
who include a person not directly involved in establishing that evidence,3 except in accordance with section 395(3) of the Act.33
A senior
staff committee may operate through standing or specific sub-committees
to consider particular decisions or classes of decision, for which accountability
will lie through the committee. Each meeting of a senior
staff committee, or sub-committee, will include:(1) an individual with authority to
act as its chairman; and(2) at least two other members.
Statutory
notice decisions to be taken under executive procedures and decisions referred
to in DEPP
2.5.6A G,3 and not falling within the responsibility of a senior
staff committee, will be taken by an individual FCA3 staff member. The decision will be:3(1) made by an executive director of
the FCA3 Board
or his delegate (who will be of at least the level of associate);3(2) on the recommendation of an FCA3 staff
member of at least the level of associate; and3(3) with the benefit
An FCA3 staff member who considers that a statutory
notice decision or
a decision referred to in DEPP
2.5.6A G3 should be taken above his own
level is free to refer that decision to a more senior level. If an FCA3 staff
member consults another staff member about a decision, the decision remains
the independent decision of the FCA3 staff member who consults his colleague, unless it is agreed
that the decision should instead be taken by the colleague, and the colleague
has the delegated
If an individual responsible for
a decision under executive procedures (or
a more senior FCA3 staff
member with responsibilities in relation to the decision concerned) considers
that it warrants collective consideration, the individual may:3(1) take the decision himself, following
consultation with other FCA3 staff members, as above; or3(2) refer it to a senior
staff committee, which will take the decision itself.
The procedure for taking decisions
under executive procedures will
generally be less formal and structured than that for decisions by the RDC. Broadly, however, FCA3 staff responsible for taking statutory
notice decisions under executive
procedures will follow a procedure similar to that described
at DEPP 3.2.7 G to DEPP 3.2.27 G for
the RDC except that:3(1) in a case where the decision will
be taken by a senior staff committee: (a) the chairman or deputy chairman
of the senior
3Broadly, FCA staff
responsible for taking decisions referred to in DEPP
2.5.6A G will follow
a procedure similar to that described at DEPP 3.2.7 G to DEPP 3.2.27 G for the RDC (subject to the exceptions in DEPP 4.1.13 G (1) to DEPP 4.1.13 G (5) which also reflects that these decisions
are not statutory notice decisions.
2Section 395 of the Act also
requires the FCA to publish
a statement of its procedure for decisions which give3 rise to an obligation
for the PRA to include a statement
under section 387(1A) in a warning notice or
a statement under section 388(1A) in a decision
notice as follows:(1) Section 387(1A) provides that where
the FCA proposes to refuse
consent for the purposes of section 55F, 55I or 59 of the Act,
or to give conditional consent as mentioned in section 55F(5), 55I(8) or
Decisions on whether to give a statutory notice will be taken by a 'decision
maker'. The FCA's2 assessment
of who is the appropriate decision maker is subject to the requirements of
section 395 of the Act and will
depend upon the nature of the decision, including its complexity, importance
and urgency. References to the 'decision maker' in DEPP are
to:2(1) the Regulatory
Decisions Committee (RDC);
or(2) FCA2 staff
under executive procedures;
or2(3) FCA2 staff
under the settlement
The decision maker will also take
decisions associated with a statutory notice (a
'statutory notice associated decision'). Statutory notice associated decisions include
decisions:(1) to set or extend the period for
making representations;(2) on whether the FCA2 is required to give a copy of
the statutory notice to any
third party and, if so, the period for the third party to make representations;
and2(3) on whether to refuse access to FCA2 material,
relevant to the relevant statutory
DEPP 2 to DEPP 5 set out:(1) which decisions require the giving
of statutory notices and who takes them (DEPP 2);(2) the nature and procedures of the RDC (DEPP 3);(3) the procedure for decision making
by FCA2 staff
under executive procedures (DEPP 4);2(4) the procedure for decision making
by FCA2 staff
under the settlement decision procedure (DEPP 5).2
1When determining whether to take action to impose a penalty or to issue a public censure under the Referral Fees Regulations, the FCA's policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA's policy includes having regard to the relevant principles and factors in DEPP 6.5 to 6.5B, DEPP 6.5D and DEPP 6.7.
1When determining whether to take action to impose a suspension or restriction under the Referral Fees Regulations, the FCA's policy includes having regard to the relevant factors in DEPP 6A.2 and 6A.4. When determining the length of the period of suspension or restriction, the FCA's policy includes having regard to the relevant principles and factors in DEPP 6A.3. However, the FCA does not have the power to suspend an authorised person’spermission under the Referral Fees Regulations.
6FCA staff under executive procedures will take the decision where the FCA is proposing or deciding to:(1) refuse its consent to the granting by the PRA of an application for a Part 4A permission, or give its consent subject to conditions; (2) refuse its consent to the granting by the PRA of an application for the variation of a Part 4A permission, or give its consent subject to conditions; or(3) refuse its consent to the granting by the PRA of an application to perform a controlled
FCA6 staff will usually inform or discuss with the person concerned any action they contemplate before they recommend to the RDC that the FCA6 takes formal action. The FCA6 may also be invited to exercise certain powers by the persons who would be affected by the exercise of those powers. In these circumstances if the person concerned has agreed to or accepted the action proposed then the decisions referred to in DEPP 2.5.13 G will be taken by FCA6 staff under executive procedures
The decisions referred to in DEPP 2.5.12 G are:(1) the decision to give a supervisory notice pursuant to section 259(3), (8) or 9(b) (directions on authorised unit trust schemes); section 268(3), 7(a) or 9(a) (directions in respect of recognised overseas schemes); or section 282(3), (6) or (7)(b) (directions in respect of relevant recognised schemes) of the Act;(1A) the decision to give a supervisory notice pursuant to section 261Z1(3), (8) or (9)(b) (Procedure on giving directions
The FCA6 expects to adopt a procedure in respect of notices under enactments other than the Act which is similar to that for statutory notices under the Act, but which recognises any differences in the legislative framework and requirements. DEPP 2 Annex 1 and DEPP 2 Annex 2 therefore identify notices to be given pursuant to other enactments and the relevant FCA6 decision maker.66
1When the FCA is proposing to exercise its regulatory enforcement powers, the Act generally requires the FCA to give statutory notices (depending on the nature of the action, a warning notice and decision notice or supervisory notice) to the subject of the action. The person to whom a warning notice or supervisory notice is given has a right to make representations on the FCA's proposed decision.
1The procedures the FCA will follow when giving supervisory notices, warning notices and decision notices are set out in DEPP 1 to 5. Under these procedures, the decisions to issue such notices in contested enforcement cases are generally taken by the RDC, an FCA Board committee that is appointed by, and accountable to, the FCA Board for its decisions generally. Further details about the RDC can be found in DEPP 3 and on the pages of the FCA web site relating to the RDC. However,
1A person who receives a decision notice or supervisory notice has a right to refer the matter to the Tribunal within prescribed time limits. The Tribunal is independent of the FCA and members of the Tribunal are appointed by the Lord Chancellors Department. Where a matter has been referred to it, the Tribunal will determine what action, if any, it is appropriate for the FCA to take in relation to that matter. Further details about the Tribunal can be found in an item on the Tribunal
1The CCA Order does not require the FCA to publish procedures about its approach towards applications to the court for an injunction or restitution order. However, the FCA will normally follow its equivalent decision-making procedures for similar decisions under the Act as set out in EG 10 and EG 11.
When making a decision on an application
for registration under the RCB Regulations,
or in relation to material changes to the contractual terms of the regulated covered bond, or in relation to
a change of owner, or when
seeking to use direction, revocation or penalty powers, the RCB
Regulations require the FCA to give the subject of the intended
action a warning notice and
a decision notice. The recipient
of a warning notice has the
right to make representations to the decision
1The RDC is the FCA’s decision maker for some decisions which require warning notices or decision notices to be given under the MCDO as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3, and DEPP 3.4 applies for urgent notices under article 16(1)(a).
1 When determining whether to take action to impose a penalty or to issue a public censure under the MCDO, the FCA’s policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA’s policy includes having regard to the relevant principles and factors in DEPP 6.5, DEPP 6.5A, DEPP 6.5D and DEPP 6.7.
1When determining whether to take action to impose a suspension under the MCDO, the FCA’s policy includes having regard to the relevant factors in DEPP 6A.2 and 6A.4. When determining the length of the period of suspension, the FCA’s policy includes having regard to the relevant principles and factors in DEPP 6A.3.
1When determining whether to take action to impose a penalty or to issue a public censure under the Immigration Regulations, the FCA’s policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA’s policy includes having regard to the relevant principles and factors in DEPP 6.5 to DEPP 6.5B, DEPP 6.5D and DEPP 6.7.
1When determining whether to take action to impose a suspension or restriction under the Immigration Regulations, the FCA's policy includes having regard to the relevant factors in DEPP 6A.2 and 6A.4. When determining the length of the period of suspension or restriction, the FCA's policy includes having regard to the relevant principles and factors in DEPP 6A.3.
4The FCA’s referral criteria are published on the Enforcement section of the FCA’s website: http://www.fca.org.uk/about/enforcement/referral-criteria. In considering whether an enforcement investigation is likely to further the FCA’s aims and objectives, the FCA will consider factors that address the following issues:(1) any available supporting evidence and the proportionality and impact of opening an investigation;(2) what purpose or goal would be served if the FCA were to end
4In relation to non-criminal market abuse investigations, the revised referral criteria will be similarly applied in deciding whether to open such an investigation. However, given the often limited alternatives to enforcement action available to address market abuse (with many of the subjects typically unauthorised), greater emphasis will be given to the egregiousness and deterrence value of a particular case when making such decisions.
4As with market abuse cases, many of the non-enforcement tools are not available for use in cases involving listing regime breaches. This is because in many cases (aside from certain areas such as sponsors and primary information providers), there will be no on-going supervisory relationship with the listed companies in question, and no similar authorisation regime as there is with authorised persons, firms and individuals. As a result, the ability to use many of the early intervention
2The RDC is the FCA's decision maker for some decisions under the AIFMD
UK regulation, as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure in DEPP 3.2 or, where appropriate, DEPP 3.3 and 3.4. For decisions made by executive procedures, the procedures to be followed are in DEPP 4.
2When determining whether to take action to impose a penalty under the AIFMD
UK regulation, the FCA's policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA's policy includes having regard to relevant principles and factors in DEPP 6.5 to 6.5A, DEPP 6.5B, DEPP 6.5D and DEPP 6.7.
2Regulation 71(2) of the AIFMD
UK regulation applies section 169 of the Act in respect of unauthorised AIFMs, which requires the FCA to have a statement of policy on the conduct of certain interviews in response to requests from overseas regulators. The FCA will follow the procedures described in DEPP 7.
The decision maker will:(1) consider whether the material on which the recommendation is based is adequate to support it; the decision maker may seek additional information about or clarification of the recommendation, which may necessitate additional work by the relevant FCA2 staff;2(2) satisfy itself that the action recommended is appropriate in all the circumstances;(3) decide whether to give the notice and the terms of any notice given.
1As described above, the FCA operates special decision-making arrangements under which members of FCA senior management take decisions on FCA settlements. This means that settlement discussions will take place without involving the RDC. The FCA would expect to hold any settlement discussions on the basis that neither FCA staff nor the person concerned would seek to rely against the other on any admissions or statements made if the matter is considered subsequently by the RDC or
1If the settlement negotiations result in a proposed settlement of the dispute, FCA staff will put the terms of the proposed settlement in writing and agree them with the person concerned. The settlement decision makers will then consider the settlement under the procedures set out in DEPP 5. A settlement is also likely to result in the giving of statutory notices (see paragraphs 2.15.1 to 2.15.3).
The RDC is the FCA’s decision maker for some decisions which require warning notices or decision notices to be given under the Small and Medium Sized Business (Finance Platforms) Regulations as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure in DEPP 3.2 or, where appropriate, DEPP 3.3 or DEPP 3.4. For decisions made by executive procedures, the procedure to be followed will be those described in DEPP 4.
When determining whether to take action to impose a penalty or to issue a public censure under the Small and Medium Sized Business (Finance Platforms) Regulations, the FCA’s policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA’s policy includes having regard to the relevant principles and factors in DEPP 6.5, DEPP 6.5A, DEPP 6.5D and DEPP 6.7.
When determining whether to take action to impose a restriction under regulation 27 of the Small and Medium Sized Business (Finance Platforms) Regulations, the FCA’s policy includes having regard to the relevant factors in DEPP 6A.2 and 6A.4. When determining the length of the period of restriction, the FCA’s policy includes having regard to the relevant principles and factors in DEPP 6A.3.
3Key steps in the section 298 procedure4
| 4 | ||
(1) |
give written notice to theRIE4 (or applicant); 4 |
The notice will state why the FCA4 intends to take the action it proposes to take, and include an invitation to make representations, and the period within which representations should be made (unless subsequently extended by the FCA)4. 4 |
(2)4 4 |
receive representations from the RIE or applicant concerned;4 4 |
The FCA4 will not usually consider oral representations without first receiving written representations from theRIE (or applicant)4. It will normally only hear oral representations from the RIE4 on request. 444 |
(3)4 4 |
write promptly to RIE (or applicant)4 who requests the opportunity to make oral representations if it decides not to hear that person's representations; 4 |
The FCA4 will indicate why it will not hear oral representations and the FCA4 will allow the RIE (or applicant)4 further time to respond. 444 |
(4)4 4 |
have regard to representations made; |
|
(5)4 4 |
(when it has reached its decision) notify the RIE4 (or applicant) concerned in writing. 4 |
|
| 4 |
4For RAPs, key steps in the regulation 5 procedure
The FCA will: |
||
(1) |
give written notice to the RAP (or applicant); |
The notice will state why the FCA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made. |
(2) |
take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the RAP or of the applicant, as the case may be; |
The FCA will also notify persons individually (as far as it considers it reasonably practicable to do so) if it considers that the action it proposes to take would affect them adversely in a way which would be different from its effect on other persons of the same class. |
(3) |
publish the notice so as to bring it to the attention of other persons likely to be affected; |
|
(4) |
receive representations from the RAP or applicant concerned, any member of the RAP or applicant, and any other person who is likely to be affected by the action the FCA proposes to take; |
The FCA will not usually consider oral representations without first receiving written representations from the person concerned. It will normally only hear oral representations from the RAP (or applicant) itself or of a person whom it has notified individually, on request. |
(5) |
write promptly to any person who requests the opportunity to make oral representations if it decides not to hear that person's representations; |
The FCA will indicate why it will not hear oral representations and the FCA will allow the person concerned further time to respond. |
(6) |
have regard to representations made; |
|
(7) |
(when it has reached its decision) notify the RAP (or applicant) concerned in writing; |
|
(8) |
(if it has decided to give a direction, or revoke or refuse to make a recognition order) take such steps as it considers reasonably practicable to bring its decision to the attention of members of the RAP or applicant and to other persons likely to be affected. |
The FCA will usually give notice of its decision to the same persons and in the same manner as it gave notice of its intention to act. |
If the RDC decides that the FCA1 should give a warning noticeor a first supervisory notice:1(1) the RDC will settle the wording of the warning notice or first supervisory notice, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions;(3) the RDC staff will make appropriate arrangements for the notice to be given; and(4) the RDC staff will make appropriate arrangements for the disclosure
If the RDC decides that the FCA1 should give a decision notice or a second supervisory notice:1(1) the RDC will settle the wording of the notice which will include a brief summary of the key representations made and how they have been dealt with, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions, including whether the FCA1 is required to give a copy of the notice to a third
1The RDC is the FCA’s decision maker for some decisions which require warning notices or decision notices to be given under the Small and Medium Sized Business (Credit Information) Regulations, as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure in DEPP 3.2 or, where appropriate, DEPP 3.3 or DEPP 3.4. For decisions made by executive procedures, the procedure to be followed will be those described in DEPP 4.
1When determining whether to take action to impose a penalty or to issue a public censure under the Small and Medium Sized Business (Credit Information) Regulations, the FCA’s policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA’s policy includes having regard to the relevant principles and factors in DEPP 6.5, DEPP 6.5A, DEPP 6.5D and DEPP 6.7.
1When determining whether to take action to impose a restriction under regulation 30 of the Small and Medium Sized Business (Credit Information) Regulations, the FCA’s policy includes having regard to the relevant factors in DEPP 6A.2 and DEPP 6A.4. When determining the length of the period of restriction, the FCA’s policy includes having regard to the relevant principles and factors in DEPP 6A.3.
The RDC is the FCA’s decision maker for some decisions which require warning notices, decision notices or other written notices to be given under the PARs as set out in DEPP 2 Annex 1 and DEPP 2 Annex 2. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3 or DEPP 3.4.
When determining whether to take action to impose a penalty or to issue a public censure under the PARs, the FCA’s policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA’s policy includes having regard to the relevant principles and factors in DEPP 6.5, DEPP 6.5A, DEPP 6.5D and DEPP 6.7.
3The decisions on whether to exercise the power to publish information about a warning notice, and if so what information to publish, will be taken by the RDC after it has consulted with the persons to whom the warning notice has been given or copied. The procedure the FCA will follow when making these decisions is set out in DEPP 3.
3Publishing notices is important to ensure the transparency of FCA decision-making; it informs the public and helps to maximise the deterrent effect of enforcement action. The FCA will upon request review warning notice statements, decision notices, final notices and related press releases that are published on the FCA's website. The FCA will determine at that time whether continued publication is appropriate, or whether notices and publicity should be removed or amended.
1The RDC is the FCA's decision maker for some of the decisions under the Electronic Money Regulations as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3 and 3.4. DEPP 3.4 applies for urgent notices under regulation 11(6), (9) and (10)(b) (including as applied by regulation 15).