Related provisions for COBS 6.1A.7
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Except as specified in COBS 6.1A.4A R, COBS 6.1A.4AB R, COBS 6.1A.4AC G11 and COBS 6.1A.4B R, a firm must:6(1) only be remunerated for the personal recommendation (and any other related services provided by the firm) by adviser charges; and(2) not solicit or accept (and ensure that none of its associates solicits or accepts) any other commissions, remuneration or benefit of any kind in relation to the personal recommendation or any other related service, regardless of whether
6A firm and its associates may:(1) solicit and accept a commission, remuneration or benefit of any kind in the circumstances set out in COBS 6.1A.4 R if:(a) the personal recommendation was made on or before 30 December 2012;(b) the solicitation and acceptance of the commission, remuneration or benefit of any kind was permitted by the rules in force on 30 December 2012;(c) the contract under which the right to receive the commission, remuneration or benefit of any kind was entered
(1) 8A firm may continue to accept a commission, remuneration or benefit of any kind after 30 December 2012 if there is a clear link between the payment and an investment in a retail investment product which was made by the retail client following a personal recommendation made, or a transaction executed, on or before 30 December 2012. This is the case even if the firm makes a personal recommendation to the same retail client after 30 December 2012 to the extent that the continued
11A firm and its associates may solicit and accept a commission, remuneration or benefit of any kind from a discretionary investment manager in the circumstances in COBS 6.1A.4 R if:(1) the firm or its associates recommended the discretionary investment manager to a retail client on or before 30 December 2012;(2) the solicitation and acceptance of the commission, remuneration or benefit of any kind was permitted by the rules in force on 30 December 2012;(3) the contract under
(1) 11If a firm makes a recommendation of a discretionary investment manager to a retail client and wishes to:(a) receive remuneration for that recommendation in addition to any commission, remuneration or benefit of any kind it receives in the circumstances contemplated by COBS 6.1A.4AB R; or(b) be paid additional amounts for any actions linked to a new amount invested by the retail client through the same discretionary investment manager;it should only be paid those additional
6If a retail client chooses to become a client of a firm and that firm or its associate enters into an arrangement in COBS 6.1A.4AR (2), the firm must:(1) before the arrangement is entered into, disclose to the retail client that the transfer of the commission, remuneration or benefit of any kind will be requested by the firm or its associate;(2) throughout the period during which the firm or its associate receives the commission, remuneration or benefit of any kind, provide the
7‘Related service(s)’ for the purposes of COBS 6.1A includes:(1) arranging or executing a transaction which has been recommended to a retail client by the firm, an associate or another firm in the same group or conducting administrative tasks associated with that transaction; or(2) managing a relationship between a retail client (to whom the firm provides personal recommendations on retail investment products or P2P agreements) 12and a discretionary investment manager or providing
11‘Other services’ in COBS 6.1A.6R (3) includes:(1) providing information relating to retail investment products, P2P agreements or operators of electronic systems in relation to lending12 to the retail client, for example, general market research; or(2) passing on information from the discretionary investment manager to the retail client.
Examples of payments and benefits that should not be accepted under the requirement to be paid through adviser charges include:(1) a share of the retail investment product charges or platform service provider's charges, or5retail investment product provider’s or platform service provider's5 revenues or profits; 125(2) a commission set and payable by a retail investment product provider or an operator of an electronic system in relation to lending12 in any jurisdiction12; and(3)
If the firm or its associate is the retail investment product provider, platform service provider14 or operator of an electronic system in relation to lending12, the firm must ensure that the level of its adviser charges is at least reasonably representative of the cost of the14 services associated with making the personal recommendation (and related services).
An adviser charge is likely to be reasonably representative of the cost of the14 services associated with making the personal recommendation if:(1) the total14 expected14 costs associated with making a personal recommendation and distributing the retail investment product will:14(a) be recovered through adviser charges; and14(b) not be recovered by charges for, or profits from, other services (such as manufacturing and administering the retail investment product);14(2) the14adviser
In determining its charging structure and adviser charges a firm should have regard to its duties under the client's best interests rule. Practices which may indicate that a firm is not in compliance with this duty include:(1) varying its adviser charges inappropriately according to provider or, for substitutable and competing retail investment products, the type of retail investment product; or(2) allowing the availability or limitations of services offered by third parties
9A firm must not make a personal recommendation to a retail client in relation to a retail investment product or P2P agreement12if it knows, or ought to know, that:(1) the product’s charges,12 the platform service provider's charges or the operator of the electronic system in relation to lending’s charges 12are presented in a way that offsets or may appear to offset any adviser charges or platform charges that are payable by that retail client; or(2) the product’s charges or other
A firm is likely to be viewed as operating a charging structure that conceals the amount or purpose of its adviser charges if, for example:(1) it makes arrangements for amounts in excess of its adviser charges to be deducted from a retail client's investments from the outset, in order to be able to provide a cash refund to the retail client later; or(2) it provides other services to a retail client (for example, advising on a home finance transaction or advising on an equity release
In order to meet its responsibilities under the client's best interests rule and Principle 6 (Customers’ interests), a firm should consider whether the personal recommendation or any other related service7 is likely to be of value to the retail client when the total charges the retail client is likely to be required to pay are taken into account.
In order to meet the requirement in the rule on information disclosure before providing services (COBS 2.2.1 R), a firm should ensure that the disclosure of its charging structure is in clear and plain language and, as far as is practicable, uses cash terms. If a firm's charging structure is in non-cash terms, examples in cash terms should be used to illustrate how the charging structure will be applied in practice.
A firm is unlikely to meet its obligations under the fair, clear and not misleading rule and the client's best interests rule unless it ensures that:(1) the charging structure it discloses reflects, as closely as is practicable, the total adviser charge to be paid; for example, the firm should avoid using a wide range; and(2) if using hourly rates in its charging structure, it states whether the rates are indicative or actual hourly rates, provides the basis (if any) upon which
A firm must not use an adviser charge which is structured to be payable by the retail client over a period of time unless (1) or (2) applies:(1) the adviser charge is in respect of an ongoing service for the provision of personal recommendations or related services and: (a) the firm has disclosed that service along with the adviser charge; and6(b) the retail client is provided with a right to cancel the ongoing service, which must be reasonable in all the circumstances, without
(1) A firm must agree with and disclose to a retail client the total adviser charge payable to it or any of its associates by a retail client.(2) A disclosure under (1) must:(a) be in cash terms (or convert non-cash terms into illustrative cash equivalents);(b) be as early as practicable;(c) be in a durable medium or through a website (if it does not constitute a durable medium) if the website conditions are satisfied; and(d) if there are payments over a period of time, include
3If the price of the retail investment product may vary as a result of fluctuations in the financial markets and the adviser charge is expressed as a percentage of that price, a firm need not disclose to the retail client the total adviser charge payable to the firm or any of its associates by the retail client until after execution of the transaction, provided it then does so promptly.
To comply with the rule on disclosure of total adviser charges (COBS 6.1A.24 R) and the fair, clear and not misleading rule, a firm's disclosure of the total adviser charge should:(1) provide information to the retail client as to which particular service an adviser charge applied to;(2) include information as to when payment of the adviser charge is due; (3) inform the retail client if the total adviser charge varies materially from the charge indicated for that service in the
A firm must keep a record of:(1) its charging structure;(2) the total adviser charge payable by each retail client; and(3) if the total adviser charge paid by a retail client has varied materially from the charge indicated for that service in the firm's charging structure, the reasons for that difference.
5A firm and its associates may:(1) offer and pay a commission, remuneration or benefit of any kind in the circumstances set out in COBS 6.1B.5 R if:(a) the personal recommendation was made on or before 30 December 2012;(b) the offer and payment was permitted by the rules in force on 30 December 2012;(c) the contract under which the right to receive the commission, remuneration or benefit of any kind was entered into on or before 30 December 2012; (d) the terms of that contract
8A firm may continue paying commission, remuneration or benefits of any kind to another firm in relation to a personal recommendation made by that other firm in circumstances where that other firm may accept that commission, remuneration or benefit of any kind (see COBS 6.1A.4A R and COBS 6.1A.4AA G).
10A retail investment product provider may maintain retail investment product charges at a level such that a cash rebate is payable to the retail client if:(1) the retail investment product transaction was agreed on or before 5 April 2014 and executed within a reasonable time of that agreement; and (2) the retail client's right to receive the cash rebate arose on or before 5 April 2014; and(3) on or after 6 April 2014 no change is made to that product, or, where there is such
COBS 6.1B.7 R does not prevent a firm from offering a promotional discount to a retail client in the form of extra units or additional investment, but a9firm that offers to facilitate, directly or through a third party, the payment of adviser charges, including6 by means of a platform service must:49(1) obtain and validate instructions from a retail client in relation to an adviser charge;(2) offer sufficient flexibility in terms of the adviser charges it facilitates; and(3) not
6A firm may facilitate the payment of adviser charges for the purposes of COBS 6.1B.9 R by:(1) selling all or part of the retail client'sretail investment product to pay the adviser charge; or(2) disposing of or reducing all or part of the retail client's rights under the retail investment product (for example, by way of a part disposal which creates benefits under a life policy) to pay the adviser charge; or(3) separating out an amount or amounts for the payment of the adviser
COBS 6.1B.9R(3) does not prevent a firm, if this is in the retail client's best interests, from entering into an agreement with another firm which is providing a personal recommendation to a retail client, or with a retail client of such a firm, to provide it with credit separately in accordance with the rules on providing credit and other benefits to firms that advise on retail investment products or P2P agreements11(COBS 2.3.12 E and COBS 2.3.12A G).