Related provisions for REC 6A.2.3

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EG 7.1.1RP
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
EG 7.1.2RP
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
EG 7.1.3RP
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.
SUP 12.5.3GRP
(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
SUP 12.5.9GRP
8Under section 39A(6)(a) of the Act a UK MiFID investment firm must ensure that the contract it uses to appoint an FCA registered tied agent complies with the requirements that would apply under the Appointed Representatives Regulations17 if it were appointing an appointed representative.
PR 1.2.1UKRP

Sections 85 and 86 of the Act provide for when a prospectus approved by the FCA will be required:

85

(1)

It is unlawful for transferable securities to which this subsection applies to be offered to the public in the United Kingdom unless an approved prospectus has been made available to the public before the offer is made.

(2)

It is unlawful to request the admission of transferable securities to which this subsection applies to trading on a regulated market situated or operating in the United Kingdom unless an approved prospectus has been made available to the public before the request is made.

(3)

A person who contravenes subsection (1) or (2) is guilty of an offence and liable –

(a)

on summary conviction, to imprisonment for a term not exceeding 3 months or a fine not exceeding the statutory maximum or both;

(b)

on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

(4)

A contravention of subsection (1) or (2) is actionable, at the suit of a person who suffers loss as a result of the contravention, subject to the defences and other incidents applying to actions for breach of statutory duty.

(5)

Subsection (1) applies to all transferable securities other than –

(a)

those listed in Schedule 11A;

(b)

such other transferable securities as may be specified in prospectus rules [see PR 1.2.2 R].

(6)

Subsection (2) applies to all transferable securities other than –

(a)

those listed in Part 1 of Schedule 11A;

(b)

such other transferable securities as may be specified in prospectus rules [see PR 1.2.3 R].

(7)

"Approved prospectus" means, in relation to transferable securities to which this section applies, a prospectus approved by the competent authority of the home State in relation to the issuer of the securities.

86

Exempt offers to the public

(1)

A person does not contravene section 85(1) if –

(a)

the offer is made to or directed at qualified investors only;

(b)

the offer is made to or directed at fewer than 1502 persons, other than qualified investors, per EEA State;

(c)

the minimum consideration which may be paid by any person for transferable securities acquired by him pursuant to the offer is at least 100,0003 euros (or an equivalent amount);

3

(d)

the transferable securities being offered are denominated in amounts of at least 100,0003 euros (or equivalent amounts);

33

(e)

the total consideration for the transferable securities being offered in the EEA states3 cannot exceed 100,000 euros (or an equivalent amount); or3

3

3(f)

the offer falls within subsection (1A).

3(1A)

An offer (“the current offer”) falls within this subsection where transferable securities are resold or placed through a financial intermediary where:

3(a)

the transferable securities have previously been the subject of one or more offers to the public;

3(b)

in respect of one or more of those previous offers, any of paragraphs (a) to (e) of subsection (1) applied;

3(c)

a prospectus is available for the securities which has been approved by the FCA and meets either of the conditions in subsection (1B);4 and

4

3(d)

the issuer or other person who was responsible for drawing up the prospectus has given written consent to the use of the prospectus for the purpose of the current offer.4

4(1B)

The conditions referred to in subsection (1A)(c) are:

(a)

that the prospectus was approved by the FCA no earlier than 12 months before the date the current offer is made, and is supplemented by every supplementary prospectus which was required to be submitted under section 87G; or

(b)

in the case of non-equity transferable securities falling within article 5(4)(b) of the prospectus directive, that the securities concerned have not ceased to be issued in a continuous or repeated manner.

(2)

Where -

(a)

a person who is not a qualified investor ("the client") has engaged a qualified investor falling within point (1) of Section 1 of Annex II to the markets in financial instruments directive3 to act as his agent; and

3

(b)

the terms on which the qualified investor is engaged enable him to make decisions concerning the acceptance of offers of transferable securities on the client's behalf without reference to the client,

an offer made to or directed at the qualified investor is not to be regarded for the purposes of subsection (1) as also having been made to or directed at the client.

(3)

For the purposes of subsection (1)(b), the making of an offer of transferable securities to –

(a)

trustees of a trust,

(b)

members of a partnership in their capacity as such, or

(c)

two or more persons jointly,

is to be treated as the making of an offer to a single person.

(4)

In determining whether subsection (1)(e) is satisfied in relation to an offer ("offer A"), offer A is to be taken together with any other offer of transferable securities of the same class made by the same person which –

(a)

was open at any time within the period of 12 months ending with the date on which offer A is first made; and

(b)

had previously satisfied subsection (1)(e).

(5)

For the purposes of this section, an amount (in relation to an amount denominated in euros) is an "equivalent amount" if it is an amount of equal value denominated wholly or partly in another currency or unit of account.

(6)

The equivalent is to be calculated at the latest practicable date before (but in any event not more than 3 working days before) the date on which the offer is first made.

(7)

"Qualified investor",6 in relation to an offer of transferable securities,3 means –

(a)

a person described in points (1) to (4) of Section I of Annex II to the markets in financial instruments directive, other than a person who, before the making of the offer, has agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II to that directive;3

3

(b)

a person who has made a request to one or more relevant firms to be treated as a professional client in accordance with Section II of Annex II to that directive and has not subsequently, but before the making of the offer, agreed in writing with that relevant firm (or each of those relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II to that directive;3

3

(c)

a person who is recognised as an eligible counterparty in accordance with article 24 of that directive and has not, before the making of the offer, agreed in writing with the relevant firm (or each of the relevant firms) to be treated as a non-professional client in accordance with the final paragraph of Section I of Annex II of that directive;3

3

3(d)

a person whom –6

6(i)

any relevant firm was6 authorised to continue to treat as a professional client immediately before 3 January 2018 by virtue of article 71.6 (transitional provisions) of Directive 2004/39/EC on markets in financial instruments; and6

6(ii)

the firm may continue to treat as a professional client from 3 January 2018 by virtue of Section II.2 of Annex II to the markets in financial instruments directive.

3(8)

In subsection (7) “relevant firm” means an investment firm or credit institution acting in connection with the offer.

3(9)

Investment firms and credit institutions which are authorised persons7 must communicate their classification of their clients as being or not being qualified investors on request to an issuer, subject to complying with data protection legislation7.

3(10)

In subsections (8) and (9) -

“credit institution” means -

(a) a credit institution authorised under the banking consolidation directive; or

(b) an institution which would satisfy the requirements for authorisation as a credit institution under that directive if it had its registered office (or if it does not have one, its head office) in an EEA State.
PR 1.2.2RRP
In accordance with section 85(5)(b) of the Act, section 85(1) of the Act does not apply to offers of the following types of transferable securities:(1) shares issued in substitution for shares of the same class already issued, if the issue of the new shares does not involve any increase in the issued capital;(2) transferable securities offered in connection with a takeover by means of an exchange offer, if a document is available containing information which is regarded by the
PR 1.2.3RRP
In accordance with section 85(6)(b) of the Act, section 85(2) of the Act does not apply to the admission to trading of the following types of transferable securities:(1) transferable securities referred to in article 1(5)(a) of the Prospectus Regulation5;(2) shares issued in substitution for shares of the same class already admitted to trading on the same regulated market, if the issue of the shares does not involve any increase in the issued capital;(3) transferable securities
COLL 6.5.10RRP
(1) The depositary of an authorised fund may not retire voluntarily except upon the appointment of a new depositary.(2) The depositary of an authorised fund must not retire voluntarily unless, before its retirement, it has ensured that the new depositary has been informed of any circumstance of which the retiring depositary has informed the FCA.(3) When the depositary of an authorised fund wishes to retire or ceases to be an authorised person, the authorised fundmanager may, subject
EG 13.4.1RP
1Where the FCA believes that a company or partnership to which sections 359(1) and 367(1) of the Act applies is, or is likely to become, unable to pay its debts, the FCA will consider whether it is appropriate to seek an administration order or a compulsory winding up order from the court. The FCA's approach will be in two stages: the first is to consider whether it is appropriate to seek any insolvency order; the second is to consider which insolvency order will meet, or is likely
EG 13.4.2RP
1In determining whether it is appropriate to seek an insolvency order on this basis, the FCA will consider the facts of each case including, where relevant: (1) whether the company or partnership has taken or is taking steps to deal with its insolvency, including petitioning for its own administration, placing itself in voluntary winding up or proposing to enter into a company voluntary arrangement, and the effectiveness of those steps; (2) whether any consumer or other creditor
REC 4.1.2GRP
This chapter sets out the FCA's3 approach to the supervision of recognised bodies and contains guidance on: 3(1) the arrangements for investigating complaints about recognised bodies made under section 299 of the Act (Complaints about recognised bodies) (REC 4.4); (2) the FCA's3approach to the exercise of its powers under:3(a) (for RIEs)2section 296 of the Act (Appropriate regulator's3 power to give directions) or (for RAPs) regulation 3 of the RAP regulations2 to give directions
REC 4.1.4GRP
In applying these principles of risk based supervision to the supervision of recognised bodies, the FCA3 has had particular regard to the special position of recognised bodies under the Act as well as to its general duties set out in section 2 of the Act (The FCA's 3general duties).33
SUP 8.1.3GRP
This chapter is not relevant to the functions of the FCA7 acting in its capacity as the competent authority for the purposes of Part VI of the Act (Official Listing).37
FEES 13.1.4GRP
Section 333T of the Act (Funding of action against illegal money lending) requires the Treasury to notify the FCA of the amount of the Treasury’s illegal money lending costs. The FCA must make rules requiring authorised persons, or any specified class of authorised person, to pay to the FCA the specified amounts or amounts calculated in a specified way, with a view to recovering the amounts notified to it by the Treasury.
PERG 2.7.6BGRP
11The RAO and the auction regulation together generate three broad categories of person in relation to bidding for emission allowances26 on an auction platform:(1) The first category consists of an investment firm to which MiFID applies, a CRD credit institution and a third country credit institution where the 26 firm is bidding on behalf of its clients or on its own account for emissions auction products26. For these purposes a third country credit institution refers to a credit
COLL 5.2.10EGRP
(1) 7In addition to instruments admitted to or dealt in on an eligible market, a UCITS scheme may also with the express consent of the FCA (which takes the form of a waiver under sections 138A and 138B of the Act as applied by section 250 of the Act or regulation 7 of the OEIC Regulations) invest in an approved money-market instrument provided:(a) the issue or issuer is itself regulated for the purpose of protecting investors and savings in accordance with COLL 5.2.10AR (2);(b)
EG 7.6.4RP
2Generally, the FCA would expect to use private warnings in the context of firms, approved persons and conduct rules staff1. However, the FCA may also issue private warnings in circumstances where the persons involved may not necessarily be authorised or approved. For example, private warnings may be issued in potential cases of market abuse; cases where the FCA has considered making a prohibition order or a disapplication order; or cases involving breaches of provisions imposed
EG 19.5.5RP
1Under Part III RIPA the FCA is able to require a person who holds “protected” electronic information (that is, information which is encrypted) to put that information into an intelligible form and, where the person has a key to the encrypted information, to require the person to disclose the key so that the data may be put into an intelligible form. The FCA may impose such a requirement where it is necessary for the purpose of preventing or detecting crime or where it is necessary
EG 9.3.2RP
2When the FCA1 decides whether to make a prohibition order against an approved person and/or withdraw their1 approval, the FCA will consider all the relevant circumstances of the case. These may include, but are not limited to those set out below. (1) The matters set out in section 61(2) of the Act. (2) Whether the individual is fit and proper to perform functions in relation to regulated activities. The criteria for assessing the fitness and propriety of
EG 12.1.1RP
1The FCA has powers under sections 401 and 402 of the Act to prosecute a range of criminal offences in England, Wales and Northern Ireland. The FCA may also prosecute criminal offences where to do so would be consistent with meeting any of its statutory objectives.
SUP 10A.11.5GRP
Under section 59B of the Act (Role of FCA in relation to PRA decisions) the FCA may arrange with the PRA that in agreed cases the PRA may give approval without obtaining the consent of the FCA. No such arrangements are currently in force.
IFPRU 11.2.8AGRP
1The FCA may require a firm to include the additional information referred to in IFPRU 11.2.8G in its recovery plan using its power under section 55L of the Act.[Note: article 4(3) of RRD]