Related provisions for LR 11.1.7B

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PERG 5.6.2GRP
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
PERG 5.6.4GRP
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
PERG 5.6.7GRP
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',
PERG 5.6.8GRP
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
PERG 5.6.11GRP
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
PERG 5.6.16GRP
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
PERG 5.6.18GRP
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,
PERG 5.6.19GRP
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
PERG 8.10.3GRP
In the FCA's view, the matters identified in PERG 8.10.2 G mean that:(1) for a communication to be real time it must be made in course of an interactive dialogue; but that(2) if the interactive dialogue takes place by means of the exchange of letters or e-mails or in a publication, the communication will be deemed to be non-real time. In this case, publications include newspapers, journals, magazines or other periodical publications, websites or similar systems for the electronic
PERG 8.10.4GRP
The words ‘personal visit, telephone conversation or other interactive dialogue’ clearly imply that the first two are types of the third. In the FCA's view, it is difficult to envisage circumstances in which a personal visit or telephone conversation would not be interactive. The very fact of a conversation taking place would mean two or more persons were interacting with each other. A telephone call is not the same thing as a conversation. It may be made to, or even by, an intelligent
PERG 8.10.5GRP
In the FCA's view, the fact that scope for interaction is essential if a financial promotion is to be real time leads to the following conclusions.(1) Most communications made in written or pictorial form will not offer scope for interaction. The most likely exception to this is where persons are expected to respond immediately. This situation may arise, for example, where the equivalent of a telephone conversation is conducted by e-mail. This is the basis of the exemption in
PERG 8.10.7GRP
In the FCA's view, a communication which may exist in enduring form will be a non-real time communication. Examples of this include videos, audio cassettes, bulletin boards, websites and recorded telephone messages. Messages placed on Internet chat-rooms will also be non-real time. Radio or television programmes or teletext services may contain communications that involve an interactive dialogue. For example, a communication made by the broadcaster and addressed to an interviewee
PERG 8.10.11GRP
PERG 8.6.9 G explains that article 6 of the Financial Promotion Order has the broad effect that a communication is made to another person where it is addressed to a particular person or persons. It also states that a ‘recipient’ of a communication is the person or persons to who it is made (that is to whom it is addressed). This takes on importance where certain exemptions which apply to real time financial promotions made to a person are concerned. It appears to the FCA that,
PERG 8.10.12GRP
In the FCA's view, persons who may be engaging in investment activity jointly include:(1) a married couple;(2) two or more persons, who will invest jointly in a product (for example, a cohabiting couple who are not married or members of a family);(3) the directors of a company or partners in a firm;(4) members of a group of companies;(5) the participants in a joint commercial enterprise;(6) the members of an investment club; and(7) the managers or prospective managers of a company
PERG 8.10.14GRP
In the FCA's view, the mere fact of a person accepting an invitation to attend a meeting does not automatically mean that he has initiated any dialogue which may take place during the meeting and which may amount to a financial promotion. This will depend on the facts of each case and such matters as the manner in which the invitations are made, the arrangements for acceptance and how the meeting is conducted. For example, the fact that investments or investment services will
LR 3.4.4RRP
An applicant must submit, in final form, to the FCA by midday two business days before the FCA is to consider the application:1(1) a completed Application for Admission of Securities to the Official List;(2) either:(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 for the securities;1(3)
LR 3.4.5RRP
11If confirmation of the number of securities to be issued pursuant to a board resolution cannot be submitted to the FCA by the deadline set out in LR 3.4.4 R or, the number of securities to be admitted is lower than the number notified under LR 3.4.4 R, written confirmation of the number of securities to be issued or admitted must be provided to the FCA by the applicant at least one hour before the admission to listing is to become effective.
LR 3.4.6RRP
An applicant must keep, for six years after the admission to listing, a copy of the items set out in LR 3.3.6 R (1) to (6) and LR 3.3.6 R (9)1and must provide any of those documents to the FCA if requested to do so.1
LR 3.4.7RRP
An applicant must comply with LR 3.4.4 R to LR 3.4.6 R with the following modifications:1(1) [deleted]11(2) if the FCA approves the application it will admit to listing all debt securities which may be issued under the programme within 12 months after the publication of the base prospectus or listing particulars subject to the FCA:(a) being advised of the final terms of each issue for which a listing is sought; and1(b) receiving and approving for publication any supplementary
LR 3.4.8RRP
(1) The final terms must be submitted in writing to the FCA as soon as possible after they have been agreed and no later than 2 p.m. on the day before listing is to become effective.(2) The final terms may be submitted by:(a) the applicant; or(b) a duly authorised officer of the applicant.11(3) [deleted]11Note: For further details on final terms, see PR 2.2.9 R.1
LR 3.4.9RRP
A public sector issuer that seeks admission of debt securities referred to in paragraphs 2 and 4 of Schedule 11A of the Act must submit to the FCA in final form a completed Application for Admission of Securities to the Official List.Note: The Application for Admission of Securities to the Official List form can be found on the UKLA section of the FCA's website.1
LR 3.4.11RRP
An applicant referred to in LR 3.4.10 R must submit the items set out in LR 3.4.4 R1to the FCA in final form by midday two business days before the FCA is to consider the application.111
DISP 1.11.5RRP
(1) A notification claiming exemption under DISP 1.1.12 R from the complaints reporting rules and the rules relating to the funding of the Financial Ombudsman Service must be given to the FCA by the Society on behalf of any member eligible for an exemption. (2) The Society must notify the FCA if the conditions relating to such an exemption no longer apply to a member who is exempt.
DISP 1.11.6RRP
The report to be sent to the FCA under the complaints reporting rules must be provided by the Society and must cover all complaints by policyholders against members falling within the scope of the complaints reporting rules.
DISP 1.11.6ARRP
1Where, in accordance with DISP 1.11.6 R, the Society submits a report to the FCA reporting 500 or more complaints, it must publish a summary of the complaints data contained in that report (the complaints data summary).
DISP 1.11.6DRRP
1The Society must immediately confirm to the FCA, in an email submitted to complaintsdatasummary@fca.org.uk, that the complaints data summary accurately reflects the report submitted to the FCA, that the summary has been published and where it has been published.
DISP 1.11.6EGRP
1The Society may choose how it publishes the complaints data summary. However, the complaints data summary should be readily available. For this reason, the FCA recommends that the Society publishes the summary on its website. The Society may publish further information with the complaints data summary to aid understanding.
DISP 1.11.9GRP
Members will individually comply with this chapter if and only if all complaints by policyholders against members are dealt with under the Lloyd's complaints procedures. Accordingly, certain of the obligations under this chapter, for example the obligation to report on complaints received and the obligation to pay fees under the rules relating to the funding of the Financial Ombudsman Service (FEES 5), must be complied with by the Society on behalf of members. Managing agents
DISP 1.11.19GRP
The Society should give the FCA adequate notice of all proposed changes to the byelaws relating to the schemes referred to in DISP 1.11.13 R.
FIT 1.2.-1GRP
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
FIT 1.2.1GRP
Under section 61(1) of the Act (Determination of applications), the FCA7 may grant an application for approval made under section 60 (Applications for approval) only if it is satisfied that the candidate is fit and proper to perform the controlled function to which the application relates.7
FIT 1.2.1BGRP
7Under sections 60A and 63F 7of the Act, in assessing whether a person is a fit and proper person to perform an FCA designated senior management function or an FCA specified significant-harm function, 7a relevant authorised person must have particular regard to whether that person:77(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
FIT 1.2.3AGRP
19Under section 63(1) of the Act (Withdrawal of approval), the FCA may withdraw an approval under section 59 given by the FCA or the PRA in relation to the performance by a person of a function if it considers that the person is not a fit and proper person to perform the function.
FIT 1.2.4GRP
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
FIT 1.2.4BGRP
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
SUP 10A.11.1GRP
SUP 10A.11 deals with how the FCA'sapproved persons regime applies to PRA-authorised persons. SUP 10A.11 therefore only applies if the firm in question is a PRA-authorised person.
SUP 10A.11.2GRP
Both the FCA and the PRA may specify a function as a controlled function in relation to a PRA-authorised person. However, only the FCA has power to specify a customer-dealing function as a controlled function.
SUP 10A.11.3GRP
Therefore, if a person's job for a firm involves:(1) an FCA controlled function, the firm should apply to the FCA for approval;(2) a PRA controlled function, the firm should apply to the PRA for approval;(3) both an FCA controlled function and a PRA controlled function, the firm should apply to both the FCA and the PRA for approval (the purpose of SUP 10A.11 is to cut down the need for this sort of dual approval).
SUP 10A.11.4GRP
The PRA cannot give its approval for the performance of a PRA controlled function without the consent of the FCA. The firm does not need to apply to the FCA for that consent. The PRA must as soon as practicable notify the FCA of the receipt or withdrawal of an application to the PRA.
SUP 10A.11.5GRP
Under section 59B of the Act (Role of FCA in relation to PRA decisions) the FCA may arrange with the PRA that in agreed cases the PRA may give approval without obtaining the consent of the FCA. No such arrangements are currently in force.
SUP 10A.11.6GRP
The FCA and PRA have coordinated their approved persons regime to reduce the amount of overlap. These arrangements do not1 relate to the customer-dealing functions1.
SUP 10A.11.8GRP
(1) [deleted]31(2) For a Solvency II firm and a small non-directive insurer3 only, SUP 10A.11.12R disapplies the FCA governing functions for a person who is approved to perform a PRA controlled function, subject to the conditions in SUP 10A.11.12R.1(3) The FCA functions disapplied in accordance with the FCA2governing functions overlap rule for Solvency II firms and small non-directive insurers3 (SUP 10A.11.12R) are absorbed into the relevant PRA controlled function by virtue
IFPRU 8.2.2RRP
This section does not apply to a FCAconsolidation group on the basis of its consolidated situation if the group only contains limited activity firms or limited licence firms.
IFPRU 8.2.3GRP
This section contains the rules that exercise the discretion afforded to the FCA as competent authority under article 400(2)(c) and (3) of the EU CRR (Large exposures: exemptions). The FCA does not intend to exercise its discretion for any of the other exemptions in article 400(2).
IFPRU 8.2.4GRP
Article 400(2) of the EU CRR permits the FCA to fully or partially exempt exposures incurred by a firm to intra-group undertakings that meet the specified criteria from the limit stipulated in article 395(1) of the EU CRR in relation to a firm's group of connected clients that represent its wider group. The FCA will consider exempting non-trading book and trading book exposures to intra-group undertakings if specified conditions throughout IFPRU 8.2 are met.
IFPRU 8.2.5GRP
The FCA expects that applications for exemptions under article 400(2)(c) of the EU CRR will be for firms established in the UK where the intra-group undertakings to which they have exposures meet the criteria for the core UK group in article 113(6) of the EU CRR, except for article 113(6)(d) (established in the same EEA State as the firm).
IFPRU 8.2.7RRP
A firm may only make use of the non-core large exposure group exemption where the following conditions are met: (1) the total amount of the non-trading book exposures from the firm to its non-core large exposures group does not exceed 100% of the firm'seligible capital; or (if the firm has a core UK grouppermission) the total amount of non-trading book exposures from its core UK group (including the firm) to its non-core large exposures group does not exceed 100% of the core
IFPRU 8.2.11GRP
The FCA will assess core UK group and non-core large exposure group applications against article 400(2)(c) on a case-by-case basis. The FCA will only approve this treatment for non-core large exposure group undertakings where the conditions in article 400(2)(c) are met. A firm should note that the FCA will still make a wider judgement whether it is appropriate to grant this treatment even where the conditions in article 400(2)(c) are met.
IFPRU 8.2.12RRP
A firm must immediately notify the FCA in writing if it becomes aware that any exposure that it has treated as exempt under IFPRU 8.2.6 R or any counterparty that it has been treating as a member of its non-core large exposures group has ceased to meet the conditions for application of the treatment in this section.
FEES 4.3.3RRP
The periodic fee referred to in FEES 4.3.1 R is (except in relation to the Society,10fee-paying payment service providers and fee-paying electronic money issuers)107 calculated as follows:(1) identify each of the tariffs set out in Part 1 of FEES 4 Annex 2AR1727 which apply to the business of the firm for the period specified in that annex;27(2) for each of the applicable27 tariffs, calculate the sum payable in relation to the business of the firm for that period;279(3) add together
FEES 4.3.4GRP
(1) A firm which becomes authorised or registered 7during the course of a fee year26 will be required to pay a proportion of the periodic fee which reflects the proportion of the year for which it will have a permission or the right to provide particular payment services or the right to issue electronic money107- see FEES 4.2.5 G and FEES 4.2.6 R.26(2) Similarly a firm which extends its permission or its right to provide particular payment services7so that its business then falls
FEES 4.3.6RRP
(1) [deleted]17272712112727111127(1A) [deleted] 1727(1B) [deleted] 1727(1C) 17If a person meets either of the conditions in (1D) it must pay the FCA the fee in (1E).(1D) 17A person meets the conditions referred to in (1C) if:(a) its periodic fee for the previous fee year was at least £50,000 and it is:(i) an FCA-authorised person; or(ii) a designated professional body; or(iii) a recognised investment exchange; or(iv) a regulated covered bondissuer; or(b) it is a PRA-authorised
FEES 4.3.7RRP
A firm which is a member of a group may pay all of the amounts due from other firms in the same group under FEES 4.2.1 R, if:(1) it notifies the FCA (in its own capacity and, if applicable, in its capacity as collection 17agent for the PRA)26 in writing of the name of each other firm within the group for which it will pay; and26(2) it pays the fees, in accordance with this chapter, as a single amount as if that were the amount required from the firm under FEES 4.2.1 R.
FEES 4.3.9GRP
If the payment made does not satisfy in full the periodic fees payable by all of the members of the group notified to the FCA26 under FEES 4.3.7 R, the FCA (in its own capacity and, if applicable, in its capacity as collection 17agent for the PRA)26 will apply the sum received among the firms which have been identified in the notification given under FEES 4.3.7R (1) in proportion to the amounts due from them. Each firm will remain responsible for the payment of the outstanding
FEES 4.3.10GRP
If a firm pays its fees through an agent outside the scope of FEES 4.3.7 R, the firm is responsible for ensuring that the FCA (in its own capacity and, if applicable, in its capacity as collection 17agent for the PRA)26 is informed that the sum being paid is for that firm's periodic fees.26
FEES 4.3.11GRP
(1) The FCA17recognises that its responsibilities in respect of an incoming EEA firm, an incoming Treaty firm, an EEA authorised payment institution or an EEA authorised electronic money institution are reduced compared with a firm which is incorporated in the United Kingdom.17(2) Accordingly the periodic fees which would otherwise be applicable to incoming EEA firms, incoming Treaty firms, EEA authorised payment institutions and EEA authorised electronic money institutions are
FEES 4.3.13RRP
(1) If:(a) a firm makes an application to vary its permission (by reducing its scope), or cancel it, in the way set out in SUP 6.3.15 D (3) (Variation of permission) and SUP 6.4.5 D (Cancellation of permission), or applies to vary (by reducing its scope) or cancel its authorisation or registration (regulation 8 and 10(1) of the Payment Services Regulations including as applied by regulation 14 of the Payment Services Regulations) or applies to cancel its authorisation or registration
FEES 4.3.14GRP
Where a firm has applied to cancel its Part 4A permission, or its authorisation or registration under the Payment Services Regulations7or the Electronic Money Regulations, 10 or its registration as a CBTL firm under article 13(c) the MCD Order, 16or the FCA17 has exercised its own-initiative powers to cancel a firm's7Part 4A permission or the FCA17 has exercised its powers under regulation 10 (Cancellation of authorisation), including as applied by regulation 14 (Supplementary
SUP 12.8.1RRP
If either the firm or the appointed representative notifies the other that it proposes to terminate the contract of appointment or to amend it so that it no longer meets the requirements contained or referred to in SUP 12.5 (Contracts: required terms), the firm must:2(1) complete and submit to the FCA the form in SUP 12 Annex 5 R (Appointed representative termination form) in accordance with the instructions on the form and no more than ten business days after the date of the
SUP 12.8.1ARRP
(1) 4Subject to (2A), a5firm other than a credit union must submit any notification under SUP 12.8.1 R (1) in the form set out in SUP 12 Annex 5 R, online at www.fca.org.uk5 using the FCA'sonline notification and application system8.5566(2) A credit union must submit any notification under SUP 12.8.1 R (1) in the form set out in SUP 12 Annex 5 R and in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).(2A) A firm must submit any notification under
SUP 12.8.1BGRP
4If the FCA's information technology systems fail and online submission is unavailable for 24 hours or more, the FCA will endeavour to publish a notice on its website confirming that online submission is unavailable and that the alternative methods of submission set out in SUP 12.8.1AR(3) and SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification) should be used.
SUP 12.8.2GRP
In assessing whether to terminate a relationship with an appointed representative, a firm should be aware that the notification rules in SUP 15 require notification to be made immediately to the FCA if certain events occur. Examples include a matter having a serious regulatory impact or involving an offence or a breach of any requirement imposed by the Act or by regulations or orders made under the Act by the Treasury.
SUP 12.8.4GRP
The firm is responsible for notifying the FCA of any approved person who no longer performs a controlled function under an arrangement entered into by a firm or its appointed representative (see SUP 10A.3 and SUP 10C.3)7.
SUP 12.8.5GRP
2The FCA has the power to remove from the Financial Services Register an appointed representative, whose scope of appointment covers insurance mediation activities (see SUP 12.4.9 G and SUP 12.4.10 G).
IFPRU 11.2.7RRP
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)
IFPRU 11.2.8AGRP
1The FCA may require a firm to include the additional information referred to in IFPRU 11.2.8G in its recovery plan using its power under section 55L of the Act.[Note: article 4(3) of RRD]
IFPRU 11.2.14RRP
1A firm must notify the FCA without delay of a decision to take an action referred to in its recovery plan, whether or not the relevant indicator has been met.
IFPRU 11.2.15RRP
A firm must notify the FCA without delay of a decision not 1 to take an action referred to in its recovery plan1where the relevant indicator has been met.1[Note: article 9(1) of RRD]
IFPRU 11.2.16RRP
A firm must ensure its management body assesses and approves the recovery plan before sending it to the FCA.[Note: article 5(9) of RRD]
IFPRU 11.2.17RRP
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,
IFPRU 11.2.19RRP
A firm must send its recovery plan to the FCA in line with SUP 16.20 (Recovery plans and information for resolution plans).[Note: article 6(1) of RRD]
SUP 13.3.2GRP
A UK firm17 cannot establish a branch in another EEA State for the first time under an EEA right unless the relevant13 conditions in paragraphs 19(2), (4) and (5)12 of Part III of Schedule 3 to the Act are satisfied. It is an offence for a UK firm which is not an authorised person to contravene this prohibition (paragraph 21 of Part III of Schedule 3 to the Act). These conditions are that:913121213(1) the UKfirm has given the appropriate UK regulator,20 in accordance with the
SUP 13.3.2AGRP
4If the UK firm is passporting under the Insurance Mediation Directive and the EEA State in which the UK firm is seeking to establish a branch has not notified the European Commission of its wish to be informed of the intention of persons to establish a branch in its territory in accordance with article 6(2) of that directive, SUP 13.3.2 G (2) and SUP 13.3.2 G (3) do not apply. Accordingly, the UK firm may establish the branch to which its notice of intention8 relates as soon
SUP 13.3.2CGRP
4An exempt professional firm which is included in the record of unauthorised persons carrying on insurance mediation activity maintained by the FCA20 under article 93 of the Regulated Activities Order may establish a branch in another EEA State under the Insurance Mediation Directive (see PROF 7.2).20
SUP 13.3.5GRP
(1) 8If the UK firm'sEEA right derives from the CRD12 or10MiFID8,10 the appropriate UK regulator20 will give the Host State regulator a consent notice within three months unless it has reason to doubt the adequacy of a UK firm's resources or its administrative structure.8 The Host State regulator then has a further two months to notify the applicable provisions (if any) and prepare for the supervision, as appropriate, of the UK firm, or in the case of a MiFID investment firm,
SUP 13.3.5AGRP
20Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give a consent notice, except where paragraph 19(7A) of Part III of Schedule 3 to the Act applies. Where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give a consent notice in relation to a UK firm whose immediate group includes a PRA-authorised person.
SUP 13.3.6GRP
(1) If the appropriate UK regulator20 gives a consent notice, it will inform the UK firm in writing that it has done so.20(2) The consent notice will contain, among other matters, the requisite details17 (see SUP 13 Annex 18) provided by the UK firm in its notice of intention8 (see SUP 13.5 (Notices of intention)).8815158888(3) 10Where a consent notice is given under the UCITS Directive, the FCA20 will at the same time: 20(a) communicate to the Host State regulator details of
SUP 13.3.7AGRP
20For details of the FCA's procedures for the giving of warning notices or decision notices see DEPP 2 (Statutory notices and the allocation of decision making).
COND 1.3.1GRP
The guidance in COND 2 explains each FCA1threshold condition in Schedule 6 (threshold conditions) to the Act and indicates1 how the FCA1 will interpret it in practice. This guidance is not, however, exhaustive and is written in very general terms. A firm will need to have regard to the obligation placed upon the FCA1 under section 55B (The threshold conditions) of the Act; that is, the FCA1 must ensure that the firm will satisfy, and continue to satisfy, the FCA1threshold conditions
COND 1.3.2GRP
(1) The FCA1 will consider whether a firm satisfies, and will continue to satisfy, the FCA1threshold conditions in the context of the size, nature, scale and complexity of the business which the firm carries on or will carry on if the relevant application is granted.1(2) In relation to threshold conditions set out in paragraphs 2D to 2F of Schedule 6 to the Act in respect of firms which are not PRA-authorised persons and paragraphs 3C to 3E of Schedule 6 to the Act in respect
COND 1.3.3GRP
Although the FCA1 may consider that a matter is relevant to its assessment of a firm, the fact that a matter is disclosed to the FCA1, for example in an application, does not necessarily mean that the firm will fail to satisfy the FCA1threshold conditions. The FCA1 will consider each matter in relation to the regulated activities for which the firm has, or will have, permission, having regard to its statutory objectives1. A firm should disclose each relevant matter but, if it
COND 1.3.3AGRP
1In determining the weight to be given to any relevant matter, the FCA will consider its significance in relation to the regulated activities for which the firm has, or will have, permission, in the context of its ability to supervise the firm adequately, having regard to the FCA'sstatutory objectives. In this context, a series of matters may be significant when taken together, even though each of them in isolation might not give serious cause for concern.
COND 1.3.3BGRP
1In determining whether the firm will satisfy, and continue to satisfy, the FCAthreshold conditions, the FCA will have regard to all relevant matters, whether arising in the United Kingdom or elsewhere.
COND 1.3.3CGRP
1When assessing the FCAthreshold conditions, the FCA may have regard to any person appearing to be, or likely to be, in a relevant relationship with the firm, in accordance with section 55R of the Act (Persons connected with an applicant). For example, a firm'scontrollers, its directors or partners, other persons with close links to the firm (see COND 2.3), and other persons that exert influence on the firm which might pose a risk to the firm's satisfaction of the FCAthreshold
COND 1.3.3EGRP
1Notes on the contents of a business plan are given in the business plan section of the application pack for Part 4A permission on the FCA's website.
COND 1.3.4GRP
(1) For ease of reference, the FCA1threshold conditions in or under Schedule 6 to the Act have been quoted in full in COND 2. (1A) 1Paragraphs 2A and 3A of Schedule 6 of the Act have not been quoted. These set out the application of the FCAthreshold conditions to firms which do not carry on, or are not seeking to carry on, a PRAregulated activity and firms which carry on, or are seeking to carry on, a PRAregulated activity respectively. This application is summarised in COND
REC 3.4.1GRP
The purpose of REC 3.4 is to enable the FCA3 to monitor changes in the arrangements a UK recognised body makes for the carrying out of its relevant functions or for overseeing the work of key individuals or departments responsible for its relevant functions. 3
REC 3.4.2ARRP
1Where, in relation to a UK RIE a proposal has been made to appoint or elect a person as a key individual, that UK RIE must at least 30 days before the date of the appointment or election give notice of that event, and give the information specified for the purposes of this rule in REC 3.4.4A R to the FCA.3 [Note: Article 37(1), paragraph 1, second sentence of MiFID]3
REC 3.4.2BRRP
1Where, in relation to a UK RIE a person has resigned as, or has ceased to be, a key individual, that UK RIE must immediately give notice of that event, and give the name of the person.[Note: Article 37(1), paragraph 1, second sentence ofMiFID]
REC 3.4.3GRP
(1) Key individuals include the persons who, under the operational or managerial arrangements of the UK recognised body, are appointed to manage the departments responsible for carrying out its relevant functions, whether or not they are members of its governing body. A person appointed to carry out specific tasks, such as to conduct a particular investigation into a specific set of facts, would not usually be a key individual.(2) A key individual need not be an employee of a
REC 3.4.4ARRP
1The following information is specified for the purposes of REC 3.4.2A R:(1) that person's name;(2) his date of birth;(3) where applicable, a description of the responsibilities which he will have in the post to which he is to be appointed or elected, including for a UK RIE which operates an RAP where the person has responsibilities both in the UK RIE and RAP, a description of the responsibilities he has in respect of each body.3[Note: Article 37(1), paragraph 1, second sentence
REC 3.4.5RRP
Where the governing body of a UK recognised body delegates any of its functions (which relate to that UK recognised body'srelevant functions) to a standing committee, or appoints a standing committee to manage or oversee the carrying out of any of that UK recognised body'srelevant functions, that UK recognised body must immediately notify the FCA3 of that event and give the FCA3 the following information:33(1) the names of the members of that standing committee; and(2) the terms
REC 3.4.6RRP
Where:(1) there is any change in the composition or the terms of reference of any standing committee referred to in REC 3.4.5 R; or(2) any such committee is dissolved; the UK recognised body must immediately notify the FCA3 of that event and give particulars of any change referred to in (1) to the FCA.333
PERG 9.8.1GRP
The test in section 236(3)(a) of the Act is whether the reasonable investor would expect that, were he to invest, he would be in a position to realise his investment within a period appearing to him to be reasonable. In the FCA's view, this is an objective test with the appropriate objective judgment to be applied being that of the hypothetical reasonable investor with qualities such as those mentioned in PERG 9.7.2 G (The investment condition: the 'reasonable investor').
PERG 9.8.2GRP
In the FCA's view, the 'realisation' of an investment means converting an asset into cash or money. The FCA does not consider that 'in specie' redemptions (in the sense of exchanging shares or securities of BC with other shares or securities) will generally count as realisation. Section 236(3)(a) refers to the realisation of an investment, the investment being represented by the 'value' of shares or securities held in BC. In the FCA's view, there is no realisation of value where
PERG 9.8.3GRP
The most typical means of realising BC's shares or securities will be by their being redeemed or repurchased, whether by BC or otherwise. There are, of course, other ways in which a realisation may occur. However, the FCA considers that these will often not satisfy all the elements of the definition of an open-ended investment company considered together. For example, the mere fact that shares or securities may be realised on a market will not meet the requirements of the 'satisfaction
PERG 9.8.4GRP
An investor in a body corporate may be able to realise part, but not all, of his investment. The FCA considers that the fact that partial realisations may take place at different times does not prevent the body corporate coming within the definition of an open-ended investment company. But, in any particular case, the 'expectation test' will only be met if the overall period for realising the whole of the investment can be considered to be reasonable. Apart from this, the simple
PERG 9.8.5GRP
The use of an expectation test ensures that the definition of an open-ended investment company is not limited to a situation where a holder of shares in, or securities of, a body corporate has an entitlement or an option to realise his investment. It is enough if, on the facts of any particular case, the reasonable investor would expect that he would be able to realise the investment. The following are examples of circumstances in which the FCA considers that a reasonable investor
PERG 9.8.7GRP
In the FCA's view, the fact that a person may invest in the period shortly before a redemption date would not cause a body corporate, that would not otherwise be regarded as such, to be open-ended. This is because the investment condition must be applied in relation to BC as a whole (see PERG 9.6.3 G (The investment condition (section 236(3) of the Act): general).
PERG 9.8.9GRP
As indicated in PERG 9.3.5 G (The definition), the potential for variation in the form and operation of a body corporate is considerable. So, it is only possible in general guidance to give examples of the factors that the FCA considers may affect any particular judgment. These should be read bearing in mind any specific points considered elsewhere in the guidance. Such factors include:(1) the terms of the body corporate's constitution;(2) the applicable law;(3) any public representations
REC 4.2C.1GRP
1Section 301A(1) of chapter3 1A of Part XVIII of the Act places an obligation on a person who decides to acquire or increase control (see sections 301D and 301E of the Act) over a UK RIE3to notify the FCA5, before making the acquisition3. Furthermore, those persons are required to obtain the FCA's5 approval before acquiring control 3or increasing the level of control held.3353533
REC 4.2C.2GRP
The FCA5 will approve an acquisition or an increase in 3control if it is satisfied that the acquisition by the person seeking approval does not pose a threat to the sound and prudent management of any financial market operated by the UK RIE (see section 301F(4) of the Act). 4The reference to any financial market is to be read as including a reference to any auction platform as a result of the RAP regulations.35333
REC 4.2C.3GRP
If a proposed acquirer 3has complied with the obligation to notify, the procedure the FCA5 will follow if it approves or does not approve of that person acquiring or increasing control 3is set out in sections3 301F and 301G 3of the Act.3533
REC 4.2C.6GRP
The FCA's5 internal arrangements provide for any decisions to refuse to approve an acquisition or3 object to an existing control to be taken at an appropriately senior level.53
REC 4.2C.7GRP
If the FCA5 refuses to approve an acquisition3 or objects to an existing control, the person concerned may refer the matter to the Tribunal (see EG 2.39).2532
REC 4.2C.8GRP
The powers the FCA5 can exercise in the event that a person acquires or continues to exercise control notwithstanding the FCA's5 refusal to approve the acquisition of control or the FCA's5 objection to the exercise of control are set out in sections 301J and 301K 3of the Act.5553
EG 16.2.1RP
1When the FCA has concerns about the fitness and propriety of a member to carry out exempt regulated activities, it will consider all the relevant circumstances of the case, including whether those concerns arise from the fitness and propriety of specific individuals engaged to perform the exempt regulated activities carried out by the member or whether its concerns arise from wider concerns about the member itself.
EG 16.2.3RP
1The FCA will also take into account the potentially more serious consequences that a disapplication of an exemption will have for the member concerned compared with the consequences of a prohibition of a particular individual engaged in exempt regulated activities. However, the FCA may consider it appropriate in some cases to disapply an exemption where it decides that the member concerned is not fit and proper to carry out exempt regulated activities in accordance with section
EG 16.2.4RP
1As an alternative to making an order to disapply an exemption, the FCA may consider issuing a private warning. A private warning may be appropriate where the FCA has concerns in relation to a member's fitness and propriety but feels that its concerns in relation to the conduct of exempt regulated activities can be more appropriately addressed by a private warning than by a disapplication of the member's exemption.
EG 16.2.5RP
1When it decides whether to exercise its power to disapply an exemption from the general prohibition in relation to a member, the FCA will take into account all relevant circumstances which may include, but are not limited to, the following factors: (1) Disciplinary or other action taken by the relevant designated professional body, where that action relates to the fitness and propriety of the member concerned: where the FCA considers that its concerns in relation to the fitness
EG 16.2.6RP
1Where the FCA is considering whether to exercise its power to make a disapplication order in relation to a member, it will liaise closely with the relevant designated professional body.
EG 16.2.7RP
1Where the FCA is considering making a disapplication order against a member as a result of a breach of rules made by the FCA under section 323(1) of the Act, it will take into account any proposed application by the member concerned for authorisation under the Act. The FCA may refrain from making a disapplication order pending its consideration of the application for authorisation.
APER 3.1.1AGRP
The purpose of the 5Code of Practice for Approved Persons is to help an approved person5 to determine whether or not that person's5 conduct complies with a Statement of Principle. The code sets out descriptions of conduct which, in the FCA's opinion, do or5 do not comply with the relevant Statements of Principle. The code also sets out certain factors which, in the opinion of the FCA, are to be taken into account in determining whether an approved person's conduct complies with
APER 3.1.2GRP
The Code of Practice for Approved Persons5 is general guidance. The status and effect of general guidance is described in the Readers' Guide. In particular, guidance:5(1) represents the FCA’s view and does not bind the courts or third parties;5(2) is not binding on approved persons, nor does it have ‘evidential’ effect;5(3) need not be followed to achieve compliance with the Statements of Principle, nor is there any presumption that departing from guidance is indicative of a
APER 3.1.3GRP
5In assessing compliance with, or a breach of, a Statement of Principle, the FCA will look at5 all the circumstances of a particular case. 5 Account will be taken of the context in which a course of conduct was undertaken, including the precise circumstances of the individual case, the characteristics of the particular accountable function12 and the behaviour to be expected in that function. 12
APER 3.1.5GRP
In particular, in determining whether or not an approved person's conduct complies with a Statement of Principle, the FCA5 will take into account the extent to which an approved person has acted in a way that is stated to be in breach of a Statement of Principle.12125
APER 3.1.6GRP
The Code of Practice for Approved Persons (and in particular the specific examples of behaviour which may be in breach of a generic description of conduct in the code) is not exhaustive of the kind of conduct that may contravene the Statements of Principle. The purpose of the code is to help determine whether or not a person's conduct complies with a Statement of Principle. The code may be supplemented from time to time. The FCA5 will amend the code if there is a risk that unacceptable
APER 3.1.8AGRP
In applying Statements of Principle 5 to 7, the nature, scale and complexity of the business under management and the role and responsibility of the individual performing an accountable higher management function5 within the firm will be relevant in assessing whether an approved person's conduct was reasonable. For example, the smaller and less complex the business, the less detailed and extensive the systems of control need to be. The FCA will be of the opinion that an individual
APER 3.1.9GRP
UK domestic firms with a premium listing of equity shares6 are subject to the UK Corporate Governance Code4, whose internal control provisions are amplified in the publication entitled ‘Guidance on Risk Management, Internal Control and Related Financial and Business Reporting (September 2014)’6 issued by the Financial Reporting Council4. Firms regulated by the FCA5 in this category will 6be subject to that code as well as to the requirements and standards of the regulatory system.
SUP 15.13.1GRP
This section sets out guidance for CBTL firms to assist them in complying with their obligation to notify the FCA immediately if they cease to satisfy any condition for registration in article 8(2) or 8(3) of the MCD Order.[Note: article 12 of the MCD Order]
SUP 15.13.3GRP
The circumstances in which a CBTL firm which has a Part 4A permission should notify the FCA include but are not limited to when:(1) it ceases to carry on CBTL business and does not propose to resume carrying on CBTL business in the immediate future. This does not include circumstances where the CBTL firm temporarily withdraws its products from the market or is preparing to launch fresh products; or(2) it applies to cancel its Part 4A permission; or(3) it applies to vary its Part
SUP 15.13.4GRP
The circumstances in which a CBTL firm which does not have a Part 4A permission should notify the FCA include but are not limited to when:(1) it ceases to carry on CBTL business and does not propose to resume carrying on CBTL business in the immediate future; this does not include circumstances where the CBTL firm temporarily withdraws its products from the market or is preparing to launch fresh products; or(2) it changes its registered office or place of residence as the case
SUP 15.13.5GRP
Any notification given by a CBTL firm under article 12 of the MCD Order should be:(1) in writing;(2) in English;(3) given to or addressed for the attention of the CBTL firm's usual supervisory contact at the FCA (where the CBTL firm does not have an identified supervisory contact this will be the FCA's Contact Centre);(4) delivered to the FCA by one of the methods in SUP 15.7.5AR to the appropriate address set out in SUP 15.7.6AG; and(5) given by a person who has full knowledge
SUP 15.13.7GRP
The MCD Order requires notification to be given immediately. The FCA expects CBTL firms to act with all due urgency in notifying it of any relevant event, and it is unlikely that the FCA will regard delay in excess of 5 working days as complying with the CBTL firm's obligations.
FINMAR 2.5.1GRP
1The FCA is required by article 23 of the short selling regulation to consider whether to impose measures to prohibit or restrict short selling or otherwise limit transactions in a financial instrument on a trading venue where the price of that financial instrument on that trading venue has fallen significantly during a single trading day in relation to the closing price on that venue on the previous trading day. In fulfilling this obligation, the FCA will assess:(1) whether the
FINMAR 2.5.2GRP
The FCA will assess whether the price fall in a financial instrument on a trading venue is or may become disorderly having regard to at least the following factors:(1) whether there have been violent movements in the price of the particular financial instrument on a particular trading venue, including any sudden or significant movements in price of a financial instrument during the trading day;(2) whether there is evidence of unusual or improper trading in the financial instrument
FINMAR 2.5.3GRP
The FCA may consider that the price fall in a financial instrument is not disorderly, for example, if the FCA considers that there is legitimate cause for a price fall in trading, such as the announcement of poor financial results.
FINMAR 2.5.4GRP
The FCA will consider at least the following factors when assessing whether measures to prohibit or restrict short selling or otherwise limit transactions are necessary or likely to prevent a further disorderly decline in the price of the financial instrument:(1) the volume of trading in that financial instrument on the trading venue as compared with the total trading volume in the financial instrument over at least that trading day; and(2) whether the price of the financial instrument
FINMAR 2.5.5GRP
Where the FCA imposes measures under article 23 of the short selling regulation it will normally specify that the measures will not apply to natural or legal persons who have satisfied the criteria to use the market maker exemption or the authorised primary dealer exemption and who are included on the list maintained and published by ESMA pursuant to article 17(13) of the short selling regulation.
FINMAR 2.5.6GRP
(1) For the purposes of article 23(1)(b) of Commission Delegated Regulation (EU) No 918/2012 the FCA will convert the figure of EUR 0.50 into pounds sterling using the daily spot foreign exchange rate of Sterling to Euro of the Bank of England applicable at the end of the first business day of October 2012 rounded up to the nearest £0.01. The FCA will state this figure (the 'sterling figure') on its public website.(2) The rate will be calculated on the same basis at the end of
FINMAR 2.5.7GRP
The FCA will treat the FTSE 100 index as the main national equity index of the Member State for the purposes of article 6(4) of Commission Implementing Regulation (EU) No 827/2012 and article 4 of Commission Delegated Regulation (EU) No 826/2012 and article 23(1) of Commission Delegated Regulation (EU) No 918/2012, all subject to approval by European Parliament and Council.
DEPP 6.5D.1GRP
(1) 1The FCA's3 approach to determining penalties described in DEPP 6.5 to DEPP 6.5C is intended to ensure that financial penalties are proportionate to the breach. The FCA3 recognises that penalties may affect persons differently, and that the FCA3 should consider whether a reduction in the proposed penalty is appropriate if the penalty would cause the subject of enforcement action serious financial hardship.333(2) Where an individual or firm claims that payment of the penalty
DEPP 6.5D.2GRP
(1) In assessing whether a penalty would cause an individual serious financial hardship, the FCA3 will consider the individual’s ability to pay the penalty over a reasonable period (normally no greater than three years). The FCA's3 starting point is that an individual will suffer serious financial hardship only if during that period his net annual income will fall below £14,000 and his capital will fall below £16,000 as a result of payment of the penalty. Unless the FCA3 believes
DEPP 6.5D.3GRP
In cases against individuals, including market abuse cases, the FCA3 may make a prohibition order under section 56 of the Act or withdraw an individual’s approval under section 63 of the Act, as well as impose a financial penalty. Such action by the FCA3 reflects the FCA's3 assessment of the individual’s fitness to perform regulated activity or suitability for a particular role, and does not affect the FCA's3 assessment of the appropriate financial penalty in relation to a breach.
DEPP 6.5D.4GRP
(1) The FCA3 will consider reducing the amount of a penalty if a firm will suffer serious financial hardship as a result of having to pay the entire penalty. In deciding whether it is appropriate to reduce the penalty, the FCA3 will take into consideration the firm’s financial circumstances, including whether the penalty would render the firm insolvent or threaten the firm’s solvency. The FCA3 will also take into account its statutory objectives3, for example in situations where
DEPP 6.5D.4AGRP
2The FCA3 may withdraw a firm’s authorisation under section 33 of the Act, as well as impose a financial penalty. Such action by the FCA3 does not affect the FCA's3 assessment of the appropriate financial penalty in relation to a breach. However, the fact that the FCA3 has withdrawn a firm’s authorisation, as a result of which the firm may have less earning potential, may be relevant in assessing whether the penalty will cause the firm serious financial hardship.3333
DEPP 6.5D.5GRP
Where the FCA3 considers that, following commencement of an FCA3 investigation, an individual or firm has reduced their solvency in order to reduce the amount of any disgorgement or financial penalty payable, for example by transferring assets to third parties, the FCA3 will normally take account of those assets when determining whether the individual or firm would suffer serious financial hardship as a result of the disgorgement and financial penalty.333