Related provisions for EG 12.3.3
561 - 580 of 1091 items.
(1) An EEA UCITS management company which applies to manage a UCITS scheme under paragraph 15A(1) of Schedule 3 to the Act must provide the FCA with the following documents:(a) the written contract3 that has been entered into with the depositary3 of the scheme, as referred to in article 22(2) of the UCITS Directive3; (b) information on any delegation arrangements it has made regarding the functions of investment management and administration, as referred to in Annex II of the
An EEA UCITS management company that manages a UCITS scheme must comply with the rules of the FCAHandbook which relate to the constitution and functioning of the UCITS scheme (the fund application rules), as follows:(1) the setting up and authorisation of the UCITS scheme (COLL 1 (Introduction), COLL 2 (Authorised fund applications), COLL 3 (Constitution), COLL 6.5 (Appointment and replacement of the authorised fund manager and the depositary), COLL 6.6 (Powers and duties of
(1) An EEA UCITS management company that manages a UCITS scheme must establish appropriate procedures and arrangements to make information available at the request of the public or the FCA.(2) The EEA UCITS management company must ensure that the procedures and arrangements it establishes in accordance with (1), enable the FCA to obtain any information it requests directly from the management company.[Note: article 15 second paragraph and article 21(2) third paragraph, of the
In negotiating its contract with a service provider, a firm should have regard to:(1) reporting or notification requirements it may wish to impose on the service provider;(2) whether sufficient access will be available to its internal auditors, external auditors or actuaries (see section 341 of the Act) and to the FCA2 (see SUP 2.3.5 R (Access to premises) and SUP 2.3.7 R (Suppliers under material outsourcing arrangements);(3) information ownership rights, confidentiality
(1) 1Parts of the guidance in SYSC 13.9 do not apply to a Solvency II firm. They are SYSC 13.9.3G3, SYSC 13.9.4G(1), (2), (4) and (5) and SYSC 13.9.5G(6).(2) A Solvency II firm is subject to the outsourcing requirements in PRA Rulebook: Solvency II firms: Conditions Governing Business 7. (3) The Solvency II Regulation (EU) 2015/35 of 10 October 2014 (article 274) also imposes specific requirements on firms which outsource, or propose to outsource, functions or insurance activities.
In the FCA's view, it is the very existence of the body corporate that is the collective investment scheme. There are a number of statutory references that support this view. For example, it is clear that paragraph 21 of the Schedule to the Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001 (SI 2001/1062) (Arrangements not amounting to a collective investment scheme) is drafted on the basis that it is the body corporate itself that is (or would
Analysing a typical corporate structure in terms of the definition of a collective investment scheme, money will be paid to the body corporate in exchange for shares or securities issued by it. The body corporate becomes the beneficial owner of that money in exchange for rights against the legal entity that is the body corporate. The body corporate then has its own duties and rights that are distinct from those of the holders of its shares or securities. Such arrangements will,
In the FCA's view, the question of what constitutes a single scheme in line with section 235(4) of the Act does not arise in relation to a body corporate. This is simply because the body corporate is itself a collective investment scheme (and so is a single scheme). Section 235(4) contemplates a 'separate' pooling of parts of the property that is subject to the arrangements referred to in section 235(1). But to analyse a body corporate in this way requires looking through its
2A person performs the other local responsibility function in relation to a branch maintained in the United Kingdom by a third-country relevant authorised person if that person: (1) is performing:(a) a function allocated to that person under SYSC 4.8.10R (Local responsibility for a firm’s activities, business areas and management functions) in relation to the firm; or (b) FCA-prescribed senior management responsibility number (8) in the table in SYSC 4.8.9R (functions in relation
Table: Examples of how the other local responsibility function applies
Example |
Comments |
(1) ‘A’ is allocated local responsibility for one of a branch’s main business lines. A is also appointed to perform a PRA-designated senior management function for the same branch. |
A only needs approval to perform the PRA-designated senior management function. |
(2) ‘A’ is outside the branch’s management structure and A’s responsibilities for the branch are limited to setting overall strategy for the branch. A does not have responsibility for implementing that strategy. |
A is not performing the other local responsibility function. The reason for this is explained in SYSC 4.8.27G. SUP 10C.8.1R(2) is irrelevant to this example. |
(3) A small branch undertakes two business lines (wholesale lending and corporate investments). ‘A’ is head of wholesale lending and is also an executive director of the branch. ‘B’ is head of corporate investments and does not sit on the branch management committee but reports to it on corporate investments. The branch allocates local responsibility for these functions to A and B. Neither A nor B performs any other PRA or FCA-designated senior management functions. |
A only needs approval to perform the executive director function3. B needs approval to perform the other local responsibility function. |
(4) A branch does not have a Head of Internal Audit. ‘P’ is allocated local responsibility for internal audit in relation to that branch. |
P needs approval to perform the other local responsibility function. However, if P has already been approved to perform another PRA or FCA designated senior management function, then P will not be performing the other local responsibility function. |
(5) ‘A’ is appointed to perform the executive3director function. The same branch also allocates local responsibility for some branch functions to A. |
A only needs approval to perform the executive3director function. |
(6) ‘A’ is approved to perform the other local responsibility function. Later, A is appointed to perform the executive3director function for the same firm. |
A requires approval for the other local responsibility function when A is first appointed. When A is later approved to perform the executive3director function, A stops performing the other local responsibility function. The firm should use Form E to apply for approval for A to perform the executive3director function. |
(7) ‘A’ is appointed to perform: (a) the compliance oversight function for one firm (Firm X) in a group (which may or may not be a relevant authorised person); and (b) a function coming within the scope of the other local responsibility function for another firm (which is a third-country relevant authorised person) in the same group (Firm Y). |
A needs approval to perform the compliance oversight function for Firm X and the other local responsibility function for Firm Y. |
(8) ‘A’ is appointed to take on some functions that come within the other local responsibility function. Later, A is appointed as chief risk officer. |
On A’s first appointment, A will need to be approved to perform the other local responsibility function. On being approved as chief risk officer, A stops performing the other local responsibility function as being chief risk officer is a PRA designated senior management function. |
(9) ‘A’ is appointed as an executive director. A then resigns and takes up a job with the same firm coming within the other overall responsibility function. |
On A’s first appointment, A will need to be approved to perform the executive3director function. A will need to get approval to perform the other overall responsibility function before A gives up being a director. |
Note: Local responsibility is explained in SYSC 4.8.10R (Third-country relevant authorised persons: Allocation of responsibilities) |
|
(1) The definition of the EEA branch senior manager function (SMF21) is similar to that of the significant management FCA-specified significant-harm function under SYSC 5.2.35R. However, only the former is an FCA-designated senior management function.(2) The main differences are:(a) SUP 10C.8.4R(2)(d) is not included in the significant management FCA-specified significant-harm function; and(b) the overriding requirements in SUP 10C.3 (General material about the definition of controlled
The IML levy is calculated as follows:(1) identify whether activity group CC1 or CC2 applies to the business of the firm for the relevant period (for this purpose, the activity groups are defined in accordance with Part 1 of FEES 4 Annex 1AR);(2) for each of those activity groups, calculate the amount payable in the way set out in FEES 13.2.4R;(3) add the amounts calculated under (2);(4) work out whether a minimum fee is payable under Part 2 of FEES 7 Annex 1R and if so how much;(5)
For the purposes of FEES 13.2.4R:(1) a firm in activity group CC2 may apply the relevant tariff bases and rates to its non-UK business, as well as to its UK business, if:(a) it has reasonable grounds for believing that the costs of identifying the firm’sUK business separately from its non-UK business in the way described in FEES 4 Annex 11BR are disproportionate to the difference in fees payable; and (b) it notifies the FCA in writing at the same time as it provides the information
Table of rules in FEES 4 that also apply to FEES 13 to the extent that in FEES 4 they apply to fees payable to the FCA.
FEES 4 rules incorporated into FEES 13 |
Description |
Method of payment |
|
Calculation of periodic fee and tariff base for a firm’s second financial year |
|
How FEES 4.2.7R applies in relation to an incoming EEA firm or an incoming Treaty firm |
|
Extension of time |
|
FEES 4.2.11R (first entry only) |
Due date and changes in permission for periodic fees |
Group of firms |
|
Firms applying to cancel or vary permission before start of period |
|
Information on which fees are calculated |
(1) This section applies to:(a) an authorised fund manager of an AUT, ACS1 or ICVC;(b) any other director of an ICVC; and(c) an ICVC;which is a UCITS scheme whose units may be marketed in another EEA State (the Host State).(2) The marketing of units of a UCITS scheme in the Host State may not commence until the FCA has, in accordance with paragraph 20B(5) (Notice of intention to market) of Schedule 3 to the Act, notified the authorised fund manager, in response to the application
(1) The authorised fund manager of a UCITS scheme whose units are being marketed in the Host State must ensure that:(a) its instrument constituting the fund,2 its prospectus and, where appropriate, its latest annual report and any subsequent half-yearly report; and2(b) its key investor information document;together with their translations (wherever necessary), are kept up to date.(2) The authorised fund manager must notify any amendments to the documents referred to in (1) to
(1) The authorised fund manager of a UCITS scheme whose units are being marketed in a Host State must ensure that an electronic copy of each document referred to in COLL 12.4.4 R (1) is made available on: (a) the website of the UCITS scheme or the authorised fund manager; or(b) another website designated by the authorised fund manager in the notification letter submitted to the FCA under paragraph 20B of Schedule 3 to the Act or any updates to it. (2) Any document that is made
As regards PERG 5.4.2G (1), the Business Order does not provide a definition of 'remuneration', but, in the FCA's view, it has a broad meaning and covers both monetary and non-monetary rewards. This is regardless of who makes them. For example, where a person pays discounted premiums for his own insurance needs in return for bringing other business to an insurance undertaking, the discount would amount to remuneration for the purposes of the Business Order. Remuneration can also
As regards PERG 5.4.2G (2), in the FCA's view, for a person to take up or pursue insurance mediation activity by way of business, he will usually need to be carrying on those activities with a degree of regularity. The person will also usually need to be carrying on the activities for commercial purposes. That is to say, he will normally be expecting to gain a direct financial benefit of some kind. Activities carried on out of friendship or for altruistic purposes will not normally
PERG 5.4.8 G contains a table that summarises the main issues surrounding the business test as applied to insurance mediation activities and that may assist persons to determine whether they will need authorisation or exemption. The approach taken in the table involves identifying factors that, in the FCA's view, are likely to play a part in the analysis. Indicators are then given as to the significance of each factor to the person's circumstances. By analysing the indicators
(1) 2SUP 10C.1.4R reflects the provisions of section 59(8) of the Act and, where relevant, the Treaty.(2) It preserves the principle of Home State prudential regulation. (3) For an EEA relevant authorised person, the effect is to reserve to the Home State regulator the assessment of fitness and propriety of a person performing a function in the exercise of an EEA right. A member of the governing body, or the notified3UKbranchmanager, of an EEA relevant authorised person, acting
(1) SUP 10A.1.15R to SUP 10A.1.16DG (Appointed representatives) deal with the approved persons regime for appointed representatives of relevant authorised persons. (2) In general this chapter does not apply to appointed representatives of relevant authorised persons. SUP 10A applies instead.(3) In theory, a person employed by an appointed representative of a relevant authorised person could come within one of the controlled functions in this chapter. If so, that person will
(1) In addition to the notification requirements in the dual-regulated firms Remuneration Code2, general circumstances in which the FCA expects to be notified by firms of matters relating to their compliance with requirements under the regulatory system are set out in SUP 15.3 (General notification requirements).(2) For remuneration matters in particular, those circumstances should take into account unregulated activities, as well as regulated activities and the activities of
The FCA's policy on individual guidance is set out in SUP 9. Firms should particularly note the policy on what the FCA considers to be a reasonable request for guidance (see SUP 9.2.5G). For example, where a firm is seeking guidance on a proposed remuneration structure, the FCA will expect the firm to provide a detailed analysis of how the structure complies with the dual-regulated firms Remuneration Code, including the general requirement for remuneration policies, procedures
In the FCA's view, for a person to be carrying on the business of advising on investments or advising on a home finance transaction1 he will usually need to be doing so with a degree of regularity and for commercial purposes – that is to say, he will normally be expecting to gain some kind of a direct or indirect financial benefit. But, in the FCA's view it is not necessarily the case that advice provided free of charge will not amount to a business. Advice is often given 'free'
In other circumstances, advice issued remotely may still be given in the United Kingdom. For example, the FCA considers that advice is given in the United Kingdom if:(1) it is contained in a non-UK periodical that is posted in hard copy to persons in the United Kingdom;(2) it is contained in a non-UK periodical (or given in or by way of a service) which is made available electronically to such persons.
Many people may be involved in the production of a periodical publication, news service or broadcast. But if the regulated activity of advising on investments, advising on regulated credit agreements for the acquisition of land4 or advising on a home finance transaction1 is being carried on so that authorisation is required, the FCA's view is that the person carrying on the activity (and who will require authorisation) is the person whose business it is to have the editorial
(Subject to SUP 12.5.3AG) a 13firm should satisfy itself that the terms of the contract with its appointed representative (including an introducer appointed representative):13(1) are designed to enable the firm to comply properly with any limitations or requirements on its own permission;(2) require the appointed representative to cooperate with the FCA as described in SUP 2.3.4 G (Information gathering by the FCA on its own initiative: cooperation by firms) and give access to
13To the extent that the appointment of the appointed representative includes CBTL business, a firm should satisfy itself that the terms of the contract with its appointed representative:(1) are designed to enable the firm to comply properly with any direction issued or imposed under article 19 of the MCD Order; and(2) require the appointed representative to deal with the FCA in an open and co-operative manner and give access to its premises, as set out in SUP 2.3.4G and SUP 2.3.5R(2),
12A firm must ensure that, if appointing an appointed representative to carry on MCD credit intermediation activity, its written contract requires the appointed representative to provide such evidence to the FCA as to the knowledge and competence of the staff of the appointed representative, as the FCA may require from time to time. [Note: article 9(4) of the MCD]
(1) UK recognised bodies are encouraged to consider adopting appropriate internal procedures which will encourage their workers with concerns to blow the whistle internally about matters which are relevant to the functions of the FCA.22(2) In considering appropriate internal procedures, UK recognised bodiesmay find the guidance provided to firms in SYSC 18.2.2 G (2) and SYSC 18.2.2 G (3)1 helpful.1
3Financial penalties, suspensions, restrictions, conditions, limitations, disciplinary prohibitions,2 and public censures are important regulatory tools. However, they are not the only tools available to the FCA, and there will be many instances of non-compliance which the FCA considers it appropriate to address without the use of formal disciplinary sanctions. Still1, the effective and proportionate use of the FCA's powers to enforce the requirements of the Act, the rules, COCON1
3The FCA has the following powers to impose sanctions2.(1) It may publish a statement: (a) against an approved person or conduct rules staff1 under section 66 of the Act;
(b) against an issuer under section 87M of the Act;
(c) against a sponsor under section 88A of the Act;
(ca) against a primary information provider under section 89Q of the Act;
(d) where there has been a contravention
3Section 415B of the Act requires the FCA to consult with the PRA before it takes certain enforcement action in relation to a PRA-authorised person or someone who has a qualifying relationship (as defined in section 415B(4) of the Act) with a PRA-authorised person. Further detail on when the FCA is required to consult the PRA, and when it has agreed to notify the PRA of certain matters, is set out in the Memorandum of Understanding between the PRA and the FCA.
In determining a person's honesty, integrity and reputation, the FCA5 will have regard to all relevant 3matters including, but not limited to, those set out in FIT 2.1.3 G which may have arisen either in the United Kingdom or elsewhere. The FCA5 should be informed of these matters (see SUP 10A.14.17 R and SUP 10C.14.18R5), but will consider the circumstances only where relevant to the requirements and standards of the regulatory system. For example, under FIT 2.1.3 G(1), conviction
The matters referred to in FIT 2.1.1 G to which the FCA5 will have regard, and to which a relevant authorised person should also have regard, 5include, but are not limited to:55(1) whether the person has been convicted of any criminal offence; this must include, where provided for by the Rehabilitation Exceptions Orders4to2 the Rehabilitation of Offenders Act 1974 or the Rehabilitation of Offenders (Northern Ireland) Order 1978 (as applicable)4, any spent convictions2; particular
This section has rules requiring a firm to identify and assess risks to its ability to meet its liabilities as they fall due, how it intends to deal with those risks, and the amount and nature of financial resources that the firm considers necessary. IFPRU 2.2.43 R (Documentation of risk assessment) provides that a firm should document that assessment. The FCA will review that assessment as part of its own assessment of the adequacy of a firm's capital under its supervisory review
This section has rules requiring a firm to carry out appropriate stress tests and scenario analyses for the risks it has previously identified and to establish the amount of financial resources and internal capital needed in each of the circumstances and events considered in that analyses. The FCA will consider, as part of its SREP, whether the firm should hold a capital planning buffer and the amount and quality of that buffer. The capital planning buffer is an amount separate,
4An EEA firm that has exercised an EEA right under the auction regulation to establish a branch in the United Kingdom must notify the FCA7 by email to 7emissionstrading@fca.org.uk7 when it ceases to carry on regulated activities through a branch passport in the United Kingdom or whenever possible thereafter.
4 The sole purpose of the notification in SUP 14.6.3A R is to inform the FCA7 that it may discontinue its supervision of the UK branch of the incoming EEA firm's compliance with the applicable provisions. The applicable provisions that apply to that branch are set out in SUP 13A Annex 1 (Application of the Handbook to Incoming EEA Firms).7
(1) The purpose of REC 3.18 is to enable the FCA4 to monitor changes in the types of member admitted by UK recognised bodies and to ensure that the FCA4has notice of foreign jurisdictions in which the members of UK recognised bodies are based. UK recognised bodies may admit persons who are not authorised persons or persons who are not located in the United Kingdom, provided that the recognition requirements2or (for RAPs) RAP recognition requirements continue to be met.44(2) REC
Where a UK recognised body admits a member who is not an authorised person of a type of which, immediately before that time, that UK recognised body had not admitted to membership, it must immediately give the FCA4notice of that event, and:4(1) a description of the type of person whom it is admitting to membership; 2(2) (in relation to a UK RIE ) 2particulars of its reasons for considering that, in admitting that type of person to membership, it is able to continue to satisfy
Where a UK recognised body admits for the first time a member whose head or registered office is in a jurisdiction from which that UK recognised body has not previously admitted members, it must immediately give the FCA4notice of that event, and:4(1) the name of that jurisdiction; (2) the name of any regulatory authority in that jurisdiction which regulates that member in respect of activities relating to specified investments or (for an RAP) relating to emissions auction products;
2If a firm requires employees who are not subject to a qualification7 requirement in TC to pass a relevant examination from the list of recommended examinations maintained by the Financial Skills Partnership7, the appropriate regulator will take that into account when assessing whether the firm has ensured that the employee satisfies the knowledge component of the competent employees rule.777
Unless required sooner under another rule in this chapter, in complying with CASS 7.15.5 R (1) a firm should ensure it is able to determine the total amount of client money it should be holding for each client within two business days of having taken a decision to do so or at the request of the FCA.
(1) Before using a non-standard method of internal client money reconciliation, a firm must:(a) establish and document in writing its reasons for concluding that the method of internal client money reconciliation it proposes to use will:(i) (for the normal approach to segregating client money) check whether the amount of client money recorded in the firm's records as being segregated in client bank accounts meets the firm's obligation to its clients under the client money rules
A firm must inform the FCA in writing without delay if: (1) its internal records and accounts of client money are materially out of date, inaccurate or invalid so that the firm is no longer able to comply with the requirements in CASS 7.15.2 R, CASS 7.15.3 R or CASS 7.15.5 R (1);(2) it will be unable to, or materially fails to, pay any shortfall into a client bank account or withdraw any excess from a client bank account so that the firm is unable to comply with CASS 7.15.29 R
Principle 2 requires a firm to conduct its business with due skill, care and diligence. The purpose of MCOB 1.6.3 R is to reinforce this. The FCA would expect firms to take appropriate steps to determine whether any mortgage it proposes to enter into is subject to FCA regulation and, if so, whether it is a regulated mortgage contract or a regulated credit agreement4.
If, notwithstanding the steps taken by a firm to comply with MCOB 1.6.3 R, it transpires that a mortgage which the firm has treated as unregulated or as a regulated credit agreement4 is in fact a regulated mortgage contract, the firm must as soon as practicable after the correct status of the mortgage has been established:(1) contact the customer and provide him with the following information in a durable medium:(a) a statement that the mortgage contract is a regulated mortgage
(1) MCOB 1.6.4 R(2) means, for example, that if a firm discovered immediately after completion that a loan was a regulated mortgage contract, the firm would be required to comply with MCOB 7.4 (Disclosure at the start of the contract).(2) Although MCOB 1.6.4 R recognises that firms may become aware that a mortgage is a regulated mortgage contract at a late stage, the FCA expects this to be an extremely rare occurrence. It could arise, for example, if a firm has acted on the understanding,