Related provisions for PERG 6.5.2
141 - 160 of 1122 items.
3For
the purpose of this Statement of Principle,
regulators in addition to the FCA and
the PRA are those which have
recognised jurisdiction in relation to regulated
activities and a power to call for information from the approved person in connection with their 1accountable function or (in the case of
an individual performing an accountable higher management function)1 in connection with the business for which they are1 responsible.
This may include an exchange or an oversea
1Failing
to report promptly in accordance with his firm's internal
procedures (or if none exist direct to the regulator concerned), information which it would be
reasonable to assume would be of material significance to the regulator concerned), whether in response to questions
or otherwise, falls within APER 4.4.3 G. The
regulator concerned is:(1) the FCA if
it would be reasonable to assume that it would be of material significance
to it;3(2) the PRA if
it would be reasonable
There
is no duty on an approved person to
report such information directly to the regulator concerned3 unless he is one of the approved persons responsible within the firm for reporting matters to the regulator concerned.3However, if an approved person takes steps to influence the decision so as not to report to the regulator concerned or acts in a way that is intended to obstruct the reporting of the information to the regulator concerned, then the FCA1 will, in respect of that
1In
determining whether or not an approved person's conduct
under APER 4.4.4 G complies with Statement of Principle 4,
the following are factors which, in the opinion of the FCA, are to be taken into account:3(1) the
likely significance to the regulator concerned (as defined in APER 4.4.4 G1) of the information which it was
reasonable for the individual to assume;31(2) whether
the information related to the individual himself or to his firm;(3) whether
any decision not to report
1In determining whether or not an approved person's conduct under APER 4.4.7G complies with Statement of Principle 4, the following are factors which, in the opinion of the FCA, are to be taken into account:(1) the likely significance of the information to the regulator concerned (as defined in APER 4.4.4G) which it was reasonable for the approved person to assume;(2) whether any decision not to inform the regulator concerned (as defined in APER 4.4.4G) was taken after reasonable
(1) A firm16 other than:99(a) a credit union; or9(b) a firm which intends to appoint , or has appointed, an appointed representative to carry on only credit-related regulated activity;9must submit the form in SUP 12 Annex 3 via16 online 9submission16 at the FCA’s website at16http://www.fca.org.uk or any of the methods set out in SUP 15.7.4R to SUP 15.7.5AR (Method of notification)16.1010(2) A credit union or a firm which intends to appoint , or has appointed, an appointed representative
(1) If:434(a) (i) the scope of appointment of an appointed representative is extended to cover insurance mediation activities for the first time; and42(ii) the appointed representative is not included on the Financial Services Register as carrying on insurance mediation activities in another capacity; or42(b) the scope of appointment of an appointed representative ceases to include insurance mediation activity;42the appointed representative's principal must give written notice
(1) As soon as a firm has reasonable grounds to believe that any of the conditions in SUP 12.4.2 R,SUP 12.4.6 R,11SUP 12.4.8A R4, SUP 12.4.10A R or SUP 12.4.10B R11 (as applicable) are not satisfied, or are likely not to be satisfied, in relation to any of its appointed representatives, it must complete and submit to the FCA the form in SUP 12 Annex 4 R (Appointed representative notification form), in accordance with the instructions on the form.3(2) In its notification under
(1) 8Subject to (2A), a 9firm other than a credit union must submit the form as set out in SUP 12 Annex 4 R online at http://www.fca.org.uk using the FCA'sonline notification and application system12.91010(2) A credit union must submit the form in SUP 12 Annex 4 R in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).(2A) If the notification:9(a) relates to an appointed representative whose scope of appointment covers only credit-related regulated
8If 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 firms, other than credit unions, should use the alternative methods of submission set out in SUP 12.7.1AR (3) and SUP 12.7.8AR (3) (as appropriate), and SUP 15.7.4 R to SUP 15.7.9 G, addressingclearly marking applications for the attention of the Approved
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
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
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',
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
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
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
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,
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
(1) If an issuer wishes to transfer the5 category of its5listing it must notify the FCA of the proposal.2(2) The notification must be made as early as possible and in any event not less than 20 business days before it sends the circular required under LR 5.4A.4 R (2)(a) or publishes the announcement required under LR 5.4A.5 R (2).(3) The notification must include:(a) an explanation of why the issuer is seeking the transfer;(b) if a sponsor's letter is not required under LR 8.4.14R(1),
The circular referred to in LR 5.4A.4 R must:(1) comply with the requirements of LR 13.1, LR 13.2 and LR 13.3;(2) be approved by the FCA before it is circulated or published; and(3) include the anticipated transfer date (which must be not less than 20 business days after the passing of the resolution under LR 5.4A.4 R).
Information required under LR 13.3.1R(1) (Contents of all circulars) to be included in the circular or announcement should include an explanation of:(1) the background and reasons for the proposed transfer;(2) any changes to the issuer's business that have been made or are proposed to be made in connection with the proposal;(3) the effect of the transfer on the issuer's obligations under the listing rules;(4) how the issuer will meet any new eligibility requirements, for example
If an issuer has initially notified the FCA under LR 5.4A.3 R it may apply to the FCA to transfer the listing of its securities5 from one category to another. The application must include:2(1) the issuer's name;(2) details of the securities5 to which the transfer relates;2(3) the date on which the issuer wishes the transfer to take effect;(4) a copy of any circular, announcement or other document on which the issuer is relying;(5) if relevant, evidence of any resolution required
If an issuer applies under LR 5.4A.10 R, the FCA may approve the transfer if it is satisfied that:(1) the issuer has complied with LR 5.4A.4 R or LR 5.4A.5 R (whichever is relevant);(2) the 20 business day period referred to in LR 5.4A.6 R or LR 5.4A.7 R (whichever is relevant) has elapsed; and(3) the issuer and the securities5 will comply with all eligibility requirements that would apply if the issuer was seeking admission to listing of the securities5 to the category of listing
(1) If the FCA approves a transfer of a listing then it must announce its decision on a RIS.(2) The transfer becomes effective when the FCA's decision to approve is announced on the RIS.(3) The issuer must continue to comply with the requirements of its existing category of listing until the decision is announced on the RIS.(4) After the decision is announced the issuer must comply with the requirements of the category of listing to which it has transferred.
There may be situations in which an issuer's business has changed over a period of time so that it no longer meets the requirements of the applicable listing category against which it was initially assessed for listing. In those situations, the FCA may consider cancelling the listing of the equity shares2 or suggest to the issuer that, as an alternative, it applies for a transfer of its listing category.
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
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
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
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 8.6.9 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,
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
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
24Under section 55H(3) of the Act (Variation by FCA at request of authorised person), if an FCA-authorised person applies to the FCA, the FCA may cancel its Part 4A permission. Cancellation applies to a firm's entire Part 4A permission, that is to every activity and every specified investment and not to the individual elements such as specified investments. Changes to the individual elements of a permission would require a variation.
(1) Subject to (1A), a 11firm other than a credit union wishing to cancel its Part 4A permission, must apply online at the appropriate regulator website using the form specified on the online notification and application system16.9112412129(1A) An FCA-authorised person wishing to cancel its Part 4A permission which covers only credit-related regulated activities must submit any form, notice or application by using the form in SUP 6 Annex 6 and submitting it in the way set out
(1) In addition to applying for cancellation of Part 4A permission24 in accordance with SUP 6.4.5 D, a firm may discuss prospective cancellations with its supervisory contact at the appropriate regulator.244 Alternatively a firm can contact the Contact Centre on 0300 500 0597.1424424241414(2) To contact the Cancellations Team: 424(a) write to: Cancellations Team, The Financial Conduct24Authority, 12 Endeavour Square, London, E20 1JN19; or24; or2424(b) email cancellation.team@fca.org.uk24(3)
(1) If a firm is subject to the complaints rules in DISP, the FCA24 may request confirmation from the firm that there are no unresolved, unsatisfied or undischarged complaints against the firm from a customer of the firm.24(2) If there are unresolved or undischarged complaints against a firm from a customer of the firm, the FCA24 may request confirmation, as appropriate, of the steps (if any) which have been taken under the firm's complaints procedures and the amount of compensation
Consequently, the relevant regulator24 considers that it will have good reason not to grant a firm's application for cancellation of permission where:24(1) the FCA and/or the PRA24 proposes to exercise any of the powers described in SUP 6.4.24 G; or24(2) the FCA and/or the PRA24 has already begun disciplinary and/or24 restitution proceedings against the firm by exercising either or both of these powers against the firm.24
(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.
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.
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
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).
(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
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.
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).
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
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.
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.
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
(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
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.
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.
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)
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,
If a UK firm is passporting under the UCITS Directive, regulation 12(1) states that the UK firm must not make a change in its programme of operations, or the activities to be carried on under its EEA right, unless the relevant requirements in regulation 12(2) have been complied with. These requirements are:5(1) the UK firm has given a notice to the FCA15 and to the Host State regulator stating the details of the proposed change; or15(2) if the change arises as a result of circumstances
13A UK MiFID investment firm is also required to notify the FCA of any changes to the information in its investment services and activities passport notification, including changes relating to a UKtied agent, in accordance with:(1) article 4 (Information to be notified concerning the change of investment services and activities particulars) of MiFID RTS 3A; and(2) article 7 (Submission of the change of investment services and activities particulars notification) of MiFID ITS
(1) 13If any of the details in an investment services and activities passport notification change, a UK MiFID investment firm is required to notify the FCA by completing the form in Annex I of MiFID ITS 4A.[Note: article 7(1) of MiFID ITS 4A](2) When communicating a change to investment services and/or activities, ancillary services or financial instruments, the firm is required to list all: (a) the investment services and/or activities and ancillary services that it currently
13A UK MiFID investment firm should use the relevant form in SUP 13 Annex 2AR to notify the FCA that it intends to:(1) change its programme of operations by ceasing to provide cross border services; or(2) change its programme of operations by ceasing to provide cross border services through a tied agent established in the UK; or(3) terminate in the territory of an EEA State, the provision of arrangements to facilitate access to, and trading on, an MTF or OTF by remote users, members
5For further details on giving the notices to the appropriate UK regulator, as described in SUP 13.7.3 G (1), SUP 13.7.3AG and SUP 13.7.3BG12, UK firms may wish to use the standard electronic15 form available from the FCA and PRA authorisation teams 15(see SUP 13.12 (Sources of further information)).15151551515
15Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give consent to a change (or proposed change) and where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give consent in relation to a UK firm whose immediate group includes a PRA-authorised person.
(1) 11A UK firm which has exercised an EEA right deriving from the MCD to provide a cross border service, must not make any material changes to the service unless it has complied with the requirements in regulation 17(B)(2).(2) The requirements in regulation 17(B)(2) are that;(a) the UK firm has given notice to the FCA stating the details of the proposed change; and(b) the period of one month has elapsed, beginning with the day on which the UK firm gave notice.(3) Paragraph (1)
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
(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
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
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.
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
(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
(1) 1Under section 313A of the Act, the FCA5 may for the purpose of protecting:5(a) the interests of investors; or (b) the orderly functioning of the financial markets; require a UK RIE to suspend or remove a financial instrument from trading.(2) If the FCA5 exercises this power, the UK RIE concerned may refer the matter to the Tribunal.5
The procedure the FCA5 will follow if it exercises its power to require a UK RIE to suspend or remove a financial instrument3 from trading is set out in sections 313B to 313BE of the Act.3 The FCA's internal arrangements provide for decisions to exercise this power to be taken at an appropriately senior level. If the FCA5 exercises this power, the UK RIE concerned and the issuer (if any) of the relevant financial instrument may refer the matter to the Tribunal(see EG 2.39)2.2
6Under sections 313CA(2) and (3) of the Act, if the FCA imposes a requirement to suspend or remove a financial instrument from trading, the FCA must require any trading venue or systematic internaliser, falling under its jurisdiction as defined in section 313D of the Act, which trades the same instrument to suspend or remove the instrument if the suspension or removal was due to suspected market abuse; a take-over bid; or the non-disclosure of inside information about the issuer
6Under sections 313CB (2) and (3) of the Act, if the FCA receives notice that a person operating a trading venue has suspended or removed a financial instrument from trading on the trading venue because the instrument no longer complies with the venue’s rules, the FCA must require any other trading venue or systematic internaliser, falling under its jurisdiction as defined in section 313D of the Act, which trades the same instrument to suspend or remove the instrument if the suspension
6Under sections 313CC (2) and (3) of the Act, if the FCA receives notice that a competent authority of another EEA State has suspended or removed a financial instrument from trading on a trading venue or systematic internaliser pursuant to articles 32.2, 52.2 or 69.2 of MiFID, the FCA must require any trading venue or systematic internaliser falling under its jurisdiction as defined in section 313D of the Act, and which trades the same instrument, to suspend or remove the instrument
1The FCA has investigation and sanctioning powers in relation to both criminal and civil breaches of the Money Laundering Regulations. The Money Laundering Regulations impose requirements including, amongst other things, obligations to apply customer due diligence measures and conduct ongoing monitoring of business relationships on designated types of business.
1The FCA is responsible for monitoring and enforcing compliance with the Money Laundering Regulations2 not only by authorised firms who are within the Money Laundering Regulations’ scope, but also by what the Regulations describe as “Annex I financial institutions”. These are businesses which are not otherwise authorised by us but which carry out certain of the activities listed in Annex I of the Banking Consolidation Directive28, now Annex I of the CRD. The activities include
1The Money Laundering Regulations add to the range of options available to the FCA for dealing with anti-money laundering and anti-terrorist financing 2 failures. These options include2:• to prosecute a relevant person, including but not limited to an 2authorised firm, an 2Annex I financial institution or an auction platform, as well as any responsible officer2;2• to fine or censure a relevant person, including but not limited to an2 authorised firm, an2 Annex I financial institution
1This means that there will be situations in which the FCA has powers to investigate and take action under both the Act and the Money Laundering Regulations. The FCA will consider all the circumstances of the case when deciding what action to take and, if it is appropriate to notify the subject about the investigation, will in doing so inform them about the basis upon which the investigation is being conducted and what powers it is using. The FCA will adopt the approach outlined
1The Money Laundering Regulations also provide investigation powers that the FCA can use when investigating whether breaches2 have taken place. These powers include: • the power to require information from, and attendance of, relevant persons, payment service providers2and connected persons (regulation 662); and• powers of entry and inspection without or under warrant (regulations 69 and 702).The use of these powers will be limited to those cases in which the FCA is exercising
1The FCA will adopt a risk-based approach to its enforcement under2 the Money Laundering Regulations. Failures in anti-money laundering or counter-terrorist financing2 controls will not automatically result in disciplinary sanctions, although enforcement action is more likely where a firm has not taken adequate steps to identify its2 risks or put in place appropriate controls to mitigate those risks, and failed to take steps to ensure that controls are being effectively implemented.
1However, the Money Laundering Regulations say little about the way in which investigation and sanctioning powers should be used, so the FCA has decided to adopt enforcement and decision making procedures which are broadly akin to those under the Act. Key features of the FCA's approach are described in EG 19.152.
The periodic fee referred to in FEES 4.3.1 R is (except in relation to the Society,10fee-paying payment service providers, CBTL firms,20fee-paying electronic money issuers and data reporting services providers20) 20 calculated as follows:107(1) identify each of the tariffs set out in Part 1 of FEES 4 Annex 2AR1726 which apply to the business of the firm for the period specified in that annex;26(2) for each of the applicable26 tariffs, calculate the sum payable in relation to
(1) A firm which becomes authorised or registered 7during the course of a fee year25 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.25(2) Similarly a firm which extends its permission or its right to provide particular payment services7so that its business then falls
(1) [deleted]17262612112626111126(1A) [deleted] 1726(1B) [deleted] 1726(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
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)25 in writing of the name of each other firm within the group for which it will pay; and25(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.
If the payment made does not satisfy in full the periodic fees payable by all of the members of the group notified to the FCA25 under FEES 4.3.7 R, the FCA (in its own capacity and, if applicable, in its capacity as collection 17agent for the PRA)25 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
(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
(1) If:(a) a firm:20(i) makes an application to vary its permission (by reducing its scope), or cancel it, in the way set out in SUP 6.3.15D(3) (Variation of permission) and SUP 6.4.5D (Cancellation of permission); or20(ii) 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); or20(iii) applies to cancel its authorisation
The due dates for payment of periodic fees are modified by FEES 4.3.6R(3), FEES 4.3.6R(4)and FEES 4.3.6R(4A) respectively where:20(1) a firm has applied to cancel its:20(a) Part 4A permission; or20(b) its authorisation or registration under the Payment Services Regulations or the Electronic Money Regulations; or20(c) its registration as a CBTL firm under article 13(c) of the MCD Order; or20(d) authorisation under regulation 11 of the DRS Regulations; or20(2) the FCA has exercised
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').
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
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
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
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
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).
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
(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
(1) 1This rule applies to a UK firm operating a multilateral trading facility or an OTF and a UK branch of a third country investment firm operating a multilateral trading facility or an OTF.(2)
A firm must make public and provide to the FCA and ESMA a weekly report with the aggregate positions held by the different categories of persons for the different commodity derivatives or emission allowances traded on the trading venue, where those instruments meet the criteria of article
(1) 1This direction applies to:(a)
a UK firm operating a multilateral trading facility or an OTF; and
(b) a UK branch of a third country investment firm operating a multilateral trading facility or an OTF.(2)
A firm shall report to the FCA:
(a) (where it meets the minimum threshold as specified in article 83 of the MiFID Org Regulation) the weekly report referred to in MAR 10.4.3R(2), by using the form set out in Annex I of MiFID ITS 4, and publish it on its website and provide
1For the purposes of making the weekly report referred to under MAR 10.4.3R(2), the FCA will accept an email containing a link to the report, as published on the firm’s website. Emails should be sent to the FCA at COT_reports@fca.org.uk. This guidance does not affect the separate obligation for a firm to make the weekly report to ESMA.
(1) 1This direction applies to:(a)
a UK MiFID investment firm; and
(b) a UK branch of a third country investment firm.
(2) An investment firm in (1) trading in a commodity derivative or emission allowance outside a trading venue must, where the FCA is the competent authority of the trading venue where that commodity derivative or emission allowance is traded, provide the FCA with a report containing a complete breakdown of:(a)
their positions taken in those commodity derivatives
(1) 1This direction applies to:
(a) a UK MiFID investment firm; and
(b) a UK branch of a third country investment firm.
(2) An investment firm in (1) trading in a commodity derivative or emission allowance outside a trading venue must, where an EEA competent authority other than the FCA is the competent authority of the trading venue where that commodity derivative or emission allowance is traded, or the central competent authority for the purposes of that commodity derivative,
(1) 1This direction applies to an EEA MiFID investment firm which is a member, participant or a client of a UK trading venue.
(2) MAR 10.4.7D applies to an EEA MiFID investment firm under (1), as if it were a UK MiFID investment firm.(3) MAR 10.4.8D applies to an EEA MiFID investment firm under (1), as if it were a UK MiFID investment firm, where the EEA MiFID investment firm trades in a commodity derivative or emission allowance outside a trading venue, and the FCA is the competent
(1) 2This guidance applies to persons subject to MAR 10.4.8D(2) or MAR 10.4.10D(3).(2) A firm subject to MAR 10.4.8D(2) or MAR 10.4.10D(3) may use a third party technology provider to submit to the FCA the report referred to in MAR 10.4.8 D(2) provided that it does so in a manner consistent with MiFID. It will retain responsibility for the completeness, accuracy and timely submission of the report and should populate field 5 of MiFID ITS 4 Annex II with its own reporting entity
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
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