Related provisions for LR 11.1.1B
161 - 180 of 1082 items.
A firm must take reasonable steps to ensure that all information it gives to the FCA3 in accordance with a rule in any part of the Handbook (including Principle 11) is:99(1) factually accurate or, in the case of estimates and judgments, fairly and properly based after appropriate enquiries have been made by the firm; and(2) complete, in that it should include anything of which the FCA3 would reasonably expect notice.99
SUP 15.6.1 R applies also in relation to rules outside this chapter, and even if they are not notification rules. Examples of rules and chapters to which SUP 15.6.1 R is relevant, are:(1) Principle 11, and the guidance on Principle 11 in SUP 2 (Information gathering by the FCA and PRA99 on their9 own initiative);9(2) SUP 15 (Notifications to the FCA3):99(3) SUP 16 (Reporting requirements); (4) SUP 17 (Transaction reporting); 1(5) any notification rule (see Schedule 2 which contains
If a firm becomes aware, or has information that reasonably suggests that it has or may have provided the FCA3 with information which was or may have been false, misleading, incomplete or inaccurate, or has or may have changed in a material particular, it must notify the FCA3 immediately. Subject to SUP 15.6.5 R, the notification must include:9999(1) details of the information which is or may be false, misleading, incomplete or inaccurate, or has or may have changed; (2) an
Firms are reminded that section 398 of the Act (Misleading the FCA or PRA:9 residual cases) makes it an offence for a firm knowingly or recklessly to provide the FCA3 with information which is false or misleading in a material particular in purported compliance with the FCA's3rules or any other requirement imposed by or under the Act. An offence by a body corporate, partnership or unincorporated association may be attributed to an officer or certain other persons (section 400
3The FCA does not have a set of enforcement priorities that are distinct from the priorities of the FCA as a whole. Rather, the FCA consciously uses the enforcement tool to deliver its overall strategic priorities. The areas and issues which the FCA as an organisation regards as priorities at any particular time are therefore key in determining at a strategic level how enforcement resource should be allocated. FCA priorities will influence the use of resources in its supervisory
3One way in which the FCA focuses on priority areas is through its thematic work. This work involves the FCA looking at a particular issue or set of issues across a sample of firms. Themes are, in general, selected to enable the FCA to improve its understanding of particular industry areas or to assess the validity of concerns the FCA has about risks those areas may present to the statutory objectives. Thematic work does not start with the presumption that it will ultimately lead
3This does not mean that the FCA will only take enforcement action in priority strategic areas. There will always be particularly serious cases where enforcement action is necessary, ad hoc cases of particular significance in a markets, consumer protection or financial crime context, or cases that the FCA thinks are necessary to achieve effective deterrence.
3The combination of the priority given to certain types of misconduct over others and the FCA's risk-based approach to enforcement means that certain cases will be subject to enforcement action and others not, even where they may be similar in nature or impact. The FCA's choice as to the use of the enforcement tool is therefore a question of how the FCA uses its resources effectively and efficiently and how it ensures that it is an effective regulator.
In all cases, before 4it proceeds with an investigation, the FCA will satisfy itself that there are grounds to investigate under the statutory provisions that give the FCA powers to appoint investigators. Another consideration will be whether the FCA is under a Community obligation to take action on behalf of, or otherwise to provide assistance to, an authority from another EU
member state. EG 2.5.14discusses the position where other authorities may have
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
When considering the use of this power to deal with a particular concern, the FCA will have regard to the range of regulatory tools that are available. The FCA will consider dealing with any concerns informally through discussion and agreement with the firm and the SMF manager, instead of using the own-initiative variation of approval power.
The power to impose a conditional or time-limited approval does not depend on the SMF manager being unfit without that condition or time limitation. The FCA can impose a condition or time limitation even if the candidate would still be fit and proper without it. Conversely, where an SMF manager is not fit and proper but might be if a condition or time limitation is imposed, the FCA is not obliged to impose a condition or time limitation, and may take the view that a prohibition
The circumstances which will lead to a condition or time limitation being imposed on a candidate for an SMF manager role will, where appropriate, also lead to an existing SMF manager’s approval being varied. SUP 10C is therefore relevant to the FCA’s use of the own-initiative variation of approval power.
4If an operator of an IFR card payment system or card payment system is liable to pay PSR fees itself under FEES 9.2.1DR or FEES 9.2.1ER, and the PSR fee it paid for the previous fee year for its IFR card payment system or card payment system was at least £20,000, that operator must pay to the FCA:(1) an amount equal to 50% of the PSR fee payable for the previous fee year, by 15 March at the end of the previous fee year; and(2) the balance of the PSR fee due by 15 September in
4If an operator of an IFR card payment system or card payment system is liable to pay PSR fees itself under FEES 9.2.1DR or FEES 9.2.1ER, and the PSR fee it paid for the previous fee year for its IFR card payment system or card payment system was less than £20,000, that operator must pay its PSR fee in full to the FCA5by 15 September in the current fee year5.
The FCA will not relieve or refund a PSR fee if after the start of that fee year:42(1) 4a payment system ceases to be a regulated payment system; or4(2) 4an IFR card payment system ceases to be subject to the IFR;4 or(3) 4a person4 ceases to be a direct payment service provider of a regulated payment system or an IFR card payment system4.
If a direct payment service provider2 or an operator of an IFR card payment system4 does not pay the total amount of its PSR fees before the end of the date on which it is due, it must pay to the FCA2: (1) an administrative fee of £250; plus(2) interest on any unpaid part of the fee at an annual rate of 5% above the Official Bank Rate from time to time in force, accruing daily from the date on which the amount concerned became due.
(1) 15A must be a fit and proper person having regard to all the circumstances, including-(a) A’s connection with any person;(b) the nature (including the complexity) of any regulated activity that A carries on or seeks to carry on;(c) the need to ensure that A’s affairs are conducted in an appropriate manner, having regard in particular to the interests of consumers and the integrity of the UK financial system;(d) whether A has complied and is complying with requirements imposed
(1) 15B must be a fit and proper person, having regard to the operational objectives of the FCA.(2) The matters which are relevant in determining whether B satisfies the condition in sub-paragraph (1) include-(a) B’s connection with any person;(b) the nature (including the complexity) of any regulated activity that B carries on or seeks to carry on;(c) the need to ensure that B’s affairs are conducted in an appropriate manner, having regard in particular to the interests of consumers
15The guidance in COND 2.5 should be read as applying to both paragraph 2E of Schedule 6 to the Act and, as far as relevant to the discharge by the FCA of its functions under the Act in respect of firms carrying on, or seeking to carry on, a PRA-regulated activity, paragraph 3D of Schedule 6 of the Act.
(1) [deleted]1515(2) The FCA15 will also take into consideration anything that could influence a firm's continuing ability to satisfy the threshold conditions set out in paragraphs 2E and 3D of Schedule 6 to the Act15. Examples include the firm's position within a UK or international group, information provided by overseas regulators about the firm, and the firm's plans to seek to vary its Part 4A permission15 to carry on additional regulated activities once it has been granted
(1) The emphasis of the threshold conditions set out in paragraphs 2E and 3D of Schedule 6 of the Act15 is on the suitability of the firm itself. The suitability of each person who performs a controlled function will be assessed by the FCA and/or the PRA, as appropriate,15 under the approved persons regime (in relation to an FCA-approved person, 16see SUP 10A (FCA Approved Persons), SUP 10C (FCA senior management regime for approved persons in relevant authorised persons)16 and
(1) [deleted]1515(2) Examples of the kind of general considerations to which the FCA may have regard when assessing whether a firm will satisfy, and continue to satisfy, the threshold conditions set out in paragraphs 2E and 3D of Schedule 6 to the Act include, but are not limited to, whether the firm:1515(a) conducts, or will conduct, its business with integrity and in compliance with proper standards;(b) has, or will have, a competent and prudent management; and(c) can demonstrate
Examples of the kind of particular considerations to which the FCA may have regard when assessing whether a firm will satisfy, and continue to satisfy, this threshold condition include, but are not limited to, whether:1515(1) the firm has been open and co-operative in all its dealings with the FCA15and any other regulatory body (see Principle 11 (Relations with regulators)) and is ready, willing and organised to comply with the requirements and standards under the regulatory system
(1) Regulation 15(8)(f) of the OEIC Regulations (Requirements for authorisation) requires independence between the depositary, the ICVC and the ICVC's directors, as does section 243(4) of the Act (Authorisation orders) for the trustee and manager of an AUT, and section 261D(4) of the Act (Authorisation orders) for the depositary and authorised fund manager of an ACS6. COLL 6.9.3 G to COLL 6.9.5 G give the6FCA's view of the meaning of independence of these relationships. An ICVC,
(1) Independence is likely to be lost if, by means of executive power, either relevant party could control the action of the other.(2) The board of one relevant party should not be able to exercise effective control of the board of another relevant party. Arrangements which might indicate this situation include quorum provisions and reservations of decision-making capacity of certain directors.(3) For an AUT or ACS6, the FCA would interpret the concept of directors in common to
Independence is likely to be lost if either of the relevant parties could control the actions of the other by means of shareholders' votes. The FCA considers this would happen if any shareholding by one relevant party and their respective associates in the other exceeds 15% of the voting share capital, either in a single share class or several share classes. The FCA would be willing, however, to look at cross-shareholdings exceeding 15% on a case-by-case basis to consider if there
(1) Regulation 15(9) of the OEIC Regulations, and sections 243(8) and 261D(10)6 of the Act require that an authorised fund's name must not be undesirable or misleading. This section contains guidance on some specific matters the FCA will consider in determining whether the name of an authorised fund is undesirable or misleading. It is in addition to the requirements of regulation 19 of the OEIC Regulations (Prohibition on certain names).6(2) The FCA will take into account whether
An ICVC must notify the FCA within 14 days of the occurrence of any of the following:(1) any amendment to the instrument of incorporation;(2) any change in the address of the head office of the ICVC;(3) any change of director;(4) any change of depositary;(5) in respect of any director or depositary, any change in the information mentioned in regulation 12(1)(b) or (c) of the OEIC Regulations (Applications for authorisation);(6) any change of the auditor of the ICVC;(7) any order
6If a mixed financial holding company is subject to equivalent provisions under this Chapter and under EEA prudential sectoral legislation in relation to the insurance sector as implemented in the United Kingdom and the FCA is the coordinator, the FCA may, on application by the firm and after consulting other relevant competent authorities, disapply such provisions of the EEA prudential sectoral legislation as implemented in the United Kingdom with regard to that undertaking which
4GENPRU 3.1.29 R4 to GENPRU 3.1.31 R and GENPRU 3 Annex 1 implement the detailed capital adequacy requirements of the Financial Groups Directive. They only deal with a financial conglomerate for which the FCA8 is the coordinator. If another competent authority is coordinator of a financial conglomerate, those rules do not apply with respect to that financial conglomerate and instead that coordinator will be responsible for implementing those detailed requirements.
Paragraph 5.7 of GENPRU 3 Annex 1 (Capital adequacy calculations for financial conglomerates) deals with a case in which there are no capital ties between entities in a financial conglomerate. In particular, the FCA8 , after consultation with the other relevant competent authorities and in accordance with Annex I of the Financial Groups Directive, will determine which proportional share of a solvency deficit in such an entity will have to be taken into account, bearing in mind
The5 Annex I method to be applied may be5 decided by the coordinator after consultation with the relevant competent authorities and the financial conglomerate itself. Where the FCA8 acts as coordinator, the financial conglomerate itself may choose which of Method 1 or Method 2 from Annex I it will apply, unless the firm is subject to a requirement obliging the firm to apply a particular method.555
5GENPRU 3.1.29 R applies to a firm with respect to the financial conglomerate of which it is a member if notification has been made in accordance with regulation 2 of the Financial Groups Directive Regulations that the financial conglomerate is a financial conglomerate and that the FCA8 is coordinator of that financial conglomerate.
If GENPRU 3.1.29 R (application of Method 1 or 2 from Annex I of the Financial Groups Directive) applies to a firm with respect to the financial conglomerate of which it is a member, then with respect to the firm and the financial conglomerate:5(1) the definitions of conglomerate capital resources and conglomerate capital resources requirement that apply for the purposes of that rule are the ones from whichever of Part 1 or Part 2 of GENPRU 3 Annex 1 the firm has indicated to
Articles 7(3) (Risk concentration) and 8(3) (Intra-group transactions) and Annex II (Technical application of the provisions on intra-group transactions and risk concentration) of the Financial Groups Directive say that Member States may apply at the level of the financial conglomerate the provisions of the sectoral rules on risk concentrations and intra-group transactions. GENPRU 3.1 does not take up that option, although the FCA8 may impose such obligations on a case by case
(1) In accordance with Articles5 30 and 30a5 of the Financial Groups Directive (Asset management companies and Alternative investment fund managers5), this rule deals with the inclusion of an asset management company or an alternative investment fund manager5 that is a member of a financial conglomerate in the scope of regulation of financial conglomerates.55(2) An asset management company or an alternative investment fund manager5 is in the overall financial sector and is
Table: FCA approved persons forms and other documents
1Form or other document |
Purpose |
Handbook requirement |
|
the relevant Form A |
Application to perform designated senior management functions under the approved persons regime |
||
Form B |
Notice to withdraw an application to perform controlled functions under the approved persons regime |
||
Notice to withdraw an application to vary an approval under the senior management regime for SMF managers |
|||
Form C |
Notice of ceasing to perform controlled functions |
||
Form D |
Notification of changes in personal information or application details or functions |
||
Notification about fitness or of breach of conduct rules |
|||
Form E |
Internal transfer of an approved person |
||
Form I |
Application to vary a conditional approval under the senior management regime for SMF managers |
||
Form J |
Notification of significant change to a statement of responsibilities |
||
Relevant3statement of responsibilities 2 |
|||
Note: Some of the forms are also used in SUP 10A, which deals with the approved persons regime for firms that are not relevant authorised persons. Therefore: (1) where column three refers to the approved persons regime, that includes the senior management regime for SMF managers in this chapter, as well as the regime in SUP 10A for approved persons in firms that are not relevant authorised persons; (2) where column three refers to approved persons, that includes SMF managers in this chapter as well as other approved persons in SUP 10A |
|||
(1) An application or submission by a firm made under this rule must be made by submitting the form or document online at fca.org.uk using the FCA's and PRA's Connect system.(2) A firm must use the version of the form or document made available on the electronic system referred to in (1), which is based on the version found in the applicable Annex to this chapter or to SUP 10A (which are listed in SUP 10C.15.3G).(3) If the information technology systems used by the FCA fail and
If the information technology systems used by the FCA fail and online submission is unavailable for 24 hours or more, the FCA and PRA will endeavour to publish a notice on their websites confirming that:(1) online submission is unavailable; and(2) the alternative methods of submission in SUP 10C.15.14R applies.
Requests for individual guidance may be made in writing or orally. Requests for individual guidance in relation to the Part 6 rules should be made in writing other than in circumstances of exceptional urgency or in the case of a request from a sponsor in relation to the provision of a sponsor service. 2If oral queries raise complex or significant issues, the FCA will normally expect the details of the request to be confirmed in writing. Simple requests for guidance may often be
A firm and its professional advisers should address requests for individual guidance to the firm's usual supervisory contact at the FCA4, with the exception of requests for guidance on3MAR 13 which should be addressed to the specialist team within the Enforcement3 and Markets Oversight3 Division. A firm may wish to discuss a request for guidance with the relevant contact before making a written request. 44
The FCA will aim to respond quickly and fully to reasonable requests. The FCA will give high priority to enquiries about areas of genuine uncertainty or about difficulties in relating established requirements to innovative practices or products. What constitutes a 'reasonable request' is a matter for the FCA. It will depend on the nature of the request and on the resources of the firm or other person making it. The FCA will expect the person to have taken reasonable steps to research
The FCA will always need sufficient information and time before it can properly evaluate the situation and respond to a request. If a request is time-critical, the person or its professional adviser should make this clear. The more notice a person can give the FCA, the more likely it is that the FCA will be able to meet the person's timetable. However, the time taken to respond will necessarily depend upon the complexity and novelty of the issues involved. In making a request,
A UK firm17 or an AIFM exercising an EEA right to market an AIF under AIFMD13,9 cannot start providing cross border services into another EEA State under an EEA right unless it satisfies the conditions in paragraphs 20(1) of Part III of Schedule 3 to the Act and, if it derives its EEA right from17AIFMD, MiFID or the UCITS Directive,13paragraph 20(4B) of Part III of Schedule 3 to the Act. If a UK firm derives its EEA right from the MCD, it cannot start providing cross border services
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 provide cross border services in another EEA State under the Insurance Mediation Directive (see PROF 7.2).20
14A UKfirm that is an AIFM may exercise an EEA right to market a UK AIF or EEA AIF managed by it under AIFMD when the following conditions are satisfied:(1) the UKfirm has given the FCA a notice of intentionSUP 13.5.2 R; and(2) the FCA has sent a copy of the notice of intention to the Host State regulator where the AIF will be marketed and has given the UKfirm written notice that it has done so.
8(2) [deleted]17(2A) 8(a) If the UK firm'sEEA right derives from the Insurance Mediation Directive, and the EEA State in which the UK firm is seeking to provide services has notified the European Commission of its wish to be informed of the intention of persons to provide cross border services in its territory in accordance with article 6(2) of that directive, paragraph 20(3B)(a) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to send a copy of the
(1) 14If the UKfirm'sEEA right derives from AIFMD (other than the EEA right to market an AIF (referred to in (3)) and the condition in (2) is met, paragraph 20(3D) of Part III of Schedule 3 to the Act requires the FCA to:(a) send a copy of the notice of intention to the Host State regulator within one month of receipt; (b) include confirmation that the UKfirm has been authorised by the FCA under AIFMD; and(c) immediately inform the UKfirm that the notice of intention and confirmation
20Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give a consent notice and 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.
The FCA may modify LR 2.2.4 R to allow partly paid securities to be listed if
it is satisfied that their transferability is not restricted and investors
have been provided with appropriate information to enable dealings in the securities to take place on an open and
proper basis. [Note: articles 46 and 54 CARD]
(1) This rule applies
if under the Act or under the
law of another EEA State:(a) a prospectus must
be approved and published for the securities;
or(b) the applicant is
permitted and elects to draw up a prospectus for
the securities.(2) To be listed:(a) a prospectus must
have been approved by the FCA and published in relation to the securities; or(b) if another EEA
State is the Home Member State for
the securities, the relevant
competent authority must have supplied the FCA with:(i)
The Companies Act 1989 also gives the FCA1 powers to supervise the taking of action under default rules. Under section 166 of the Companies Act 1989 (Powers of the appropriate regulator1 to give directions) (see REC 4.5.4 G), the FCA1 may direct a UK RIE1to take, or not to take, action under its default rules. Before exercising these powers the FCA1 must consult the UK RIE.1 The FCA1 may also exercise these powers if a relevant office-holder applies to it under section 167 of
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 |
|
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
Where, in relation to a member (or designated non-member) of a UK RIE :1(1) a bankruptcy order; or(2) an award of sequestration of his estate; or(3) an order appointing an interim receiver of his property; or(4) an administration or winding-up order; or(5) a resolution for a voluntary winding-up; or(6) an order appointing a provisional liquidator; has been made or passed and the UK RIE1 has not taken action under its default rules as a result of this event or of the matters giving
The procedure is that the FCA1 must notify the UK recognised body of the application and, unless within three business days after receipt of that notice, the UK recognised body: 1(1) takes action under its default rules; or(2) notifies the FCA1 that it proposes to take action forthwith; or1(3) is directed to take action by the FCA1 under section 166(2)(a) of the Companies Act 1989; 1the provisions of sections 158 to 165 of the Companies Act 1989 do not apply in relation to market
Where an ROIE1 includes in its report made under section 295(1) of the Act (Notification: overseas investment exchanges and overseas clearing houses) a statement in compliance with section 295(2)(a) of the Act that an event has occurred in the period covered by that report which is likely to affect the FCA's1 assessment of whether it is satisfied as to the requirements set out in section 292(3) (Overseas investment exchanges and overseas clearing houses), it must include particulars
An ROIE1 must include in the first report submitted under section 295(1) of the Act after the recognition order in relation to that ROIE1 is made: 11(1) particulars of any events of the kind described in section 295(2) of the Act which occurred; (2) particulars of any change specified in REC 6.7.4 R (1) or disciplinary action specified in REC 6.7.4 R (2) which occurred; and(3) any annual report and accounts which covered a period ending; after the application for recognition
Where an ROIE1 proposes to change: (1) its address in the United Kingdom for the service of notices or other documents required or authorised to be served on it under the Act; or(2) the address of its head office;it must give notice to the FCA1 and inform it of the new address at least 14 days before the change is effected.1
Where an ROIE1 has notice that any licence, permission or authorisation which it requires to conduct any regulated activity in its home territory has been or is about to be:1(1) revoked; or(2) modified in any way which would materially restrict the ROIE1 in performing any regulated activity in its home territory or in the United Kingdom;1it must immediately notify the FCA1 of that fact and must give the FCA1 the information specified for the purposes of this rule in REC 6.7.9
The FCA expects that if a firm ordinarily assigns exposures in the corporate, institution or central government and central bank exposure classes to a member of a group, substantially on the basis of membership of that group and a common group rating, and the firm does so in the case of a particular obligor group, the firm should consider whether members of that group should be treated as a single obligor for the purpose of the definition of default in article 178(1) of the EU
The FCA would not expect a firm to treat an obligor as part of a single obligor under IFPRU 4.5.1 G if the firm rates its exposures on a standalone basis or if its rating is notched. (For these purposes, a rating is notched if it takes into account individual risk factors or otherwise reflects risk factors that are not applied on a common group basis.) Accordingly, if a group has two members which are separately rated, the FCA will not expect that the default of one will necessarily
Under article 178(1)(b)1 of the EU CRR, the FCA is empowered to replace 90 days with 180 days in the days past due component of the definition of default for exposures secured by residential or SME commercial real estate in the retail exposure class, as well as exposures to public sector entities (PSEs).1
The FCA would expect to replace 90 days with 180 days in the days past due component of the definition of default for exposures secured by residential real estate in the retail exposure class, and/or for exposures to PSEs,1 where this was requested by the firm. Where this occurred, it would be specified in the firm's IRB permission.
To be satisfied that a firm complies with the documentation requirements in article 175(3) of the EU CRR, the FCA expects a firm should have a clear and documented policy for determining whether an exposure that has been in default should subsequently be returned to performing status (see article 175(3) of the EU CRR).
The FCA would not consider it unusual if a person who has overall responsibility for a particular function was not a member of the governing body. For example, in some firms, the head of compliance reports directly to the governing body even though the head compliance is not a member of the governing body.
(1) A person may have overall responsibility for a matter without being a member of the firm'sgoverning body, which means that (ignoring (2)) a relatively junior person could have overall responsibility for an activity of a firm.(2) However, the FCA expects that anyone who has overall responsibility for a matter:(a) will be sufficiently senior and credible; and(b) will have sufficient resources and authority;to be able to exercise his management and oversight responsibilities
(1) It will be common for a small non-complex firm to divide overall responsibility for its activities between members of its governing body and not to assign overall responsibility for any activity to someone who is not a member.(2) However, when deciding how to divide up overall responsibility for its activities, a firm should avoid assigning such a wide range of responsibilities to a particular person so that the person is not able to carry out those responsibilities effectively.
(1) The FCA expects that normally a firm will allocate the FCA-prescribed senior management responsibility in rows (5), (7), (8), (9) and (10) of the table in SYSC 4.7.7R to an SMF manager who is a non-executive director of the firm.(2) The FCA expects that normally a firm will allocate:(a) the other FCA-prescribed senior management responsibilities; and(b) functions under SYSC 4.7.8R (Allocation of overall responsibility for a firm’s activities, business areas and management
(1) The FCA expects that a firm will not normally split an FCA-prescribed senior management responsibility between several SMF managers, with each only having responsibility for part.(2) The FCA expects that a firm will not normally allocate responsibility for:(a) an FCA-prescribed senior management responsibility; or(b) a function under SYSC 4.7.8R (Allocation of overall responsibility for a firm’s activities, business areas and management functions);to two or more SMF managers
(1) The FCA expects a firm to divide and allocate responsibilities under:(a) SYSC 4.7.5R (Allocation of FCA-prescribed senior management responsibilities); and(a) SYSC 4.7.8R (Allocation of overall responsibility for a firm’s activities, business areas and management functions); between its SMF managers so that responsibilities are grouped together appropriately.(2) The firm should make the judgement:(a) in (1); and(b) about whether and how responsibilities and functions should
SYSC 4.7.26G (a firm should normally allocate responsibility for particular areas to a single SMF manager) does not mean that the FCA expects there to be a separate person with overall responsibility for each individual business area in SYSC 4 Annex 1G (The main business activities and functions of a relevant authorised person).
(1) This section applies to BIPRU Remuneration Code staff, except as set out in (3).(2) When establishing and applying the total remuneration policies for BIPRU Remuneration Code staff, a firm must comply with this section in a way and to the extent that is appropriate to its size, internal organisation and the nature, scope and complexity of its activities (the BIPRU remuneration principles proportionality rule).(3) Paragraphs (1) and (2) do not apply to the requirement for significant
- (1)
In the FCA's view:
- (a)
- (b)
a person who performs a significant influence function for, or is a senior manager of, a firm would normally be expected to be part of the firm'sBIPRU Remuneration Code staff;
- (c)
the table in (2) provides a non-exhaustive list of examples of key positions that should, subject to (d), be within a firm's definition of staff who are risk takers;
- (d)
firms should consider how the examples in the table in (2) apply to their own organisational structure;
1 - (e)
firms may find it useful to set their own metrics to identify their risk takers based, for example, on trading limits; and
- (f)
a firm should treat a person as being BIPRU Remuneration Code staff in relation to remuneration in respect of a given performance year if they were BIPRU Remuneration Code staff for any part of that year.
[Note: The FCA has published guidance on the application of particular rules on remuneration structures in relation to individuals who are BIPRU Remuneration Code staff for only part of a given performance year. This guidance is available at www.fca.org.uk/firms/remuneration
.]
- (2)
High-level category
Suggested business lines
Heads of significant business lines (including regional heads) and any individuals or groups within their control who have a material impact on the firm's risk profile
Fixed income
Foreign exchange
Commodities
Securitisation
Sales areas
Investment banking (including mergers and acquisitions advisory)
Commercial banking
Equities
Structured finance
Lending quality
Trading areas
Research
Heads of support and control functions and other individuals within their control who have a material impact on the firm's risk profile
Credit/market/operational risk
Legal
Treasury controls
Human resources
Compliance
Internal audit
(1) This Remuneration Principle is designed to manage the conflicts of interest which might arise if other business areas had undue influence over the remuneration of employees within control functions. Conflicts of interest can easily arise when employees are involved in the determination of remuneration for their own business area. Where these do arise they need to be managed by having in place independent roles for control functions (including, notably, risk management and
(1) This Remuneration Principle stresses the importance of risk adjustment in measuring performance, and the importance of applying judgment and common sense. A firm should ask the risk management function to validate and assess risk-adjustment techniques and to attend a meeting of the governing body or remuneration committee for this purpose. (2) A number of risk-adjustment techniques and measures are available, and a firm should choose those that are most appropriate to its
(1) Taking account of the BIPRU remuneration principles proportionality rule, the FCA does not generally consider it necessary for a firm to apply the rules in (2) where, in relation to an individual ("X"), both the following conditions are satisfied: (a) condition 1 requires that X’s variable remuneration is no more than 33% of total remuneration; and(b) condition 2 requires that X’s total remuneration is no more than 500,000.(2) The rules referred to in (1) relate to: (a) guaranteed
Variable remuneration can be awarded to BIPRU Remuneration Code staff in the form of retention awards where it is compatible with the BIPRU Remuneration Code general requirement to do so. The FCA considers this is likely to be the case only where a firm is undergoing a major restructuring and a good case can be made for retention of particular key staff members on prudential grounds. Proposals to give retention awards should form part of any notice of the restructuring proposals
(1) Deferred remuneration paid in shares or share-linked instruments should be made under a scheme which meets appropriate criteria, including risk adjustment of the performance measure used to determine the initial allocation of shares. Deferred remuneration paid in cash should also be subject to performance criteria.(2) The FCA generally expects a firm to have a firm-wide policy (and group-wide policy, where appropriate) on deferral. The proportion deferred should generally
(1) Variable remuneration may be justified, for example, to incentivise employees involved in new business ventures which could be loss-making in their early stages. (2) The governing body (or, where appropriate, the remuneration committee) should approve performance adjustment policies, including the triggers under which adjustment would take place. The FCA may ask firms to provide a copy of their policies and expects firms to make adequate records of material decisions to operate
1When considering whether to cancel a sponsor's approval on its own initiative, the FCA will take into account all relevant factors, including, but not limited to, the following: (1) the competence of the sponsor;
(2) the adequacy of the sponsor's systems and controls;
(3) the sponsor's history of compliance with the listing rules;
(4) the nature, seriousness and duration of the suspected failure of the sponsor to meet (at
1When considering whether to cancel a primary information provider’s approval on its own initiative, the FCA will take into account all relevant factors, including, but not limited to, the following: (1) the competence of the primary information provider; (2) the adequacy of the primary information provider’s systems and controls;
(3) the primary information provider’s history of compliance with DTR 8; (4) the nature, seriousness and duration of the suspected
1The following are examples of situations where the FCA may consider it appropriate to seek a court order under section 258 (in the case of an AUT) or section 261Y (in the case of an ACS) to remove the authorised fund
manager or depositary:
(1) Where there are grounds for concern over the behaviour of the authorised fund
manager or depositary in respect of the management of the scheme or of its assets. (2) Where an authorised
1The FCA recognises that participants in an AUT or ACS have a direct financial interest in the scheme
property. It follows that in cases where it considers it appropriate to use its section 254 power (in the case of an AUT) or its section 261U power (in the case of an ACS) to revoke an authorisation order, the FCA will generally first require the authorised fund
manager or depositary to wind up the AUT or ACS (or seek a court order for the
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.
Energy market participants should bear in mind that3sections 138A and 138B of the Act requires that in order to give a waiver of particular rules, the FCA4 must be satisfied that:4344(1) compliance with the rules, or with the rules as unmodified, would be unduly burdensome or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of any of the FCA's operational objectives.44
In particular, clause 4 of the form of waiver in SUP 21 Annex 1 will not ordinarily be inserted in waivers for energy market participants that will not, at the time the waiver will take effect, clearly satisfy the conditions set out in that clause. For these purposes the FCA will take into account the relative proportions of the energy market participant's assets and revenues that are referable to the various parts of its business, as well as to any other factor that the FCA considers