Related provisions for SYSC 22.5.17
241 - 260 of 1122 items.
35Unless a contrary intention appears, to the extent that a provision made by the FCA15 ('the referring provision') contains a cross-reference to another provision that is not made by the FCA including a provision formerly made by the PRA which the PRA has now deleted15 ('the referred provision'), the referred provision as amended from time to time (excepting deletion in its entirety)15 is to be treated as having15 been made by the FCA15 to the extent necessary to make the referring
A general rule (that is a rule made by the FCA18 the general rule making powers35) is to be interpreted as:3535(1) applying to a firm with respect to the carrying on of all regulated activities, except to the extent that a contrary intention appears; and(2) not applying to a firm with respect to the carrying on of unregulated activities, unless and then only to the extent that a contrary intention appears.
(1) This rule applies to Handbook provisions20 where the PRA have made commensurate provisions in the PRA Rulebook. It may affect their application by the FCA to PRA-authorised persons and PRA approved persons20.3516151615(2) Where a Handbook provision (or part of one) goes beyond the FCA's20 powers or regulatory responsibilities, it is to be interpreted as applied20 to the extent of the FCA’s20 powers and regulatory responsibilities only.(3) The extent of a Handbook provision
An example of a rule20 being interpreted as cut back by GEN 2.2.23R is SYSC 6.1.1R, which requires a firm to maintain adequate policies and procedures to ensure compliance with its obligations under the regulatory system; SYSC 6.1.1R should be interpreted as applied by the FCA in respect of a PRA-authorised person’s compliance with regulatory obligations that are the responsibility of the FCA (for example, in respect of a bank maintaining policies and procedures to ensure compliance
(1) 1The FCA may suspend, with effect from such time as it may determine, the listing of any securities if the smooth operation of the market is, or may be, temporarily jeopardised or it is necessary to protect investors. [Note: article 18(1) CARD](2) An issuer that has the listing of any of its securities suspended must continue to comply with all listing rules applicable to it.(3) If the FCA suspends the listing of any securities, it may impose such conditions on the procedure
Examples of when the FCA may suspend the listing of securities include (but are not limited to) situations where it appears to the FCA that:(1) the issuer has failed to meet its continuing obligations for listing; or(2) the issuer has failed to publish financial information in accordance with the listing rules; or(3) the issuer is unable to assess accurately its financial position and inform the market accordingly; or(4) there is insufficient information in the market about a
(1) The removal of the exclusion for groups and joint enterprises in article 69 of the Regulated Activities Order (Groups and joint enterprises) may have implications for a company providing services for:(a) other members of its group; or(b) other participants in a joint enterprise of which it is a participant.(2) Such companies might typically provide risk or treasury management or administration services which may include regulated activities relating to a contract of insurance.
Article 67 excludes from the activities of dealing as agent, arranging (bringing about) deals in investments, making arrangements with a view to transactions in investments, assisting in the administration and performance of a contract of insurance and advising on investments, any activity which:(1) is carried on in the course of carrying on any profession or business which does not otherwise consist of the carrying on of regulated activities in the United Kingdom; and(2) may
Article 67 may also apply to activities relating to assignments of insurance policies, as, in the FCA's view, article 2.3 of the IMD applies essentially to the creation of new contracts of insurance and not the assignment of rights under existing policies. As such, where a solicitor or licensed conveyancer arranges an assignment of a contract of insurance, the exclusion in article 67 remains of potential application. For similar reasons, trustees advising on or arranging assignments
Article 72B (see also PERG 5.3.7 G (Connected contracts of insurance)) may be of relevance to persons who supply non-motor goods or provide services related to travel in the course of carrying on a profession or business which does not otherwise consist of carrying on 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
In the FCA's view, the liability risks referred to in PERG 5.11.13G (5) cover risks in relation to liabilities that the policyholder might have to others (that is, third party claims). Many policies will provide this sort of cover and so fall outside the scope of the exclusion. For example, a policy that covers the cost of unauthorised calls made when a mobile telephone is stolen includes 'liability risks' and would not be a 'connected contract of insurance'. By contrast, travel
A firm is required to provide the FCA2 with a wide range of information to enable the FCA2 to meet its responsibilities for monitoring the firm's compliance with requirements imposed by or under the Act. Some of this information is provided through regular reports, including those set out in SUP 16 (Reporting requirements) and SUP 17 (Transaction reporting). In addition, other chapters in the Handbook set out specific notification and reporting requirements. Principle 11 includes
7Payment service providers are required to provide the FCA with such information as the FCA may direct in respect of their provision of payment services or compliance with the requirements imposed by or under Parts 2 to 7 or regulation 105 of the Payment Services Regulations. The purpose of SUP 15.8 is to request information from full credit institutions where they provide (or propose to provide) account information services or payment initiation services. In addition to this
3SUP 15.11 (Notification of COCON breaches and disciplinary action) provides rules and guidance on notifications to the FCA by a relevant authorised person where the relevant authorised person4 takes disciplinary action in relation to any conduct rules staff and the reason for taking that action is a reason specified in rules made by the FCA. This is a requirement imposed4 under section4 64C of the Act.
1The FCA has investigation and sanctioning powers in relation to both criminal and civil breaches of the Payment Services Regulations. The Payment Services Regulations impose requirements including, amongst other things, obligations on payment service providers to provide users with a range of information and various provisions regulating the rights and obligations of payment service users and providers.
1The FCA's approach to enforcing the Payment Services Regulations will mirror its general approach to enforcing the Act, as set out in EG 2. It will seek to exercise its enforcement powers in a manner that is transparent, proportionate, responsive to the issue, and consistent with its publicly stated policies. It will also seek to ensure fair treatment when exercising its enforcement powers. Finally, it will aim to change the behaviour of the person who is the subject of its
1The regulatory powers which the Payment Services Regulations provide to the FCA include: the power to require information;powers of entry and inspection;power of public censure;the power to impose financial penalties;the power to prosecute or fine unauthorised providers; andthe power to vary an authorisation on its own initiative.
1The Payment Services Regulations, for the most part, mirror the FCA's investigative, sanctioning and regulatory powers under the Act. The FCA has decided to adopt procedures and policies in relation to the use of those powers akin to those it has under the Act. Key features of the FCA's approach are described below.
1In deciding whether to make a prohibition order and/or, in the case of an approved person, to withdraw its approval, the FCA will consider all the relevant circumstances including whether other enforcement action should be taken or has been taken already against that individual by the FCA. As is noted below, in some cases the FCA may take other enforcement action against the individual in addition to seeking a prohibition order and/or withdrawing its approval. The FCA will also
1The FCA has the power to make a range of prohibition orders depending on the circumstances of each case and the range of regulated activities to which the individual's lack of fitness and propriety is relevant. Depending on the circumstances of each case, the FCA may seek to prohibit individuals from performing any class of function in relation to any class of regulated activity, or it may limit the prohibition order to specific functions in relation to specific regulated activities.
1Where the FCA issues a prohibition order, it may indicate in the decision notice or final notice that it would be minded to revoke the order on the application of the individual in the future, in the absence of new evidence that the individual is not fit and proper. If the FCA gives such an indication, it will specify the number of years after which it would be minded to revoke or vary the prohibition on an application. However, the FCA will only adopt this approach in cases
1Paragraphs 9.3.1 to 9.3.7 set out additional guidance on the FCA's approach to making prohibition orders against approved persons and/or withdrawing such persons’ approvals. Paragraphs 9.5.1 to 9.5.2 set out additional guidance on the FCA's approach to making prohibition orders against other individuals.
2In some cases there will be instances of market misconduct that may arguably involve a breach of the criminal law as well as market abuse1. When the FCA decides whether to commence criminal proceedings rather than impose a sanction for market abuse in relation to that misconduct, it will apply the basic principles set out in the Code for Crown Prosecutors. When deciding whether to prosecute market misconduct which also falls within the definition of market abuse, application
2The factors which the FCA may consider when deciding whether to commence a criminal prosecution for market misconduct rather than impose a sanction for market abuse include, but are not limited to, the following: (1) the seriousness of the misconduct: if the misconduct is serious and prosecution is likely to result in a significant sentence, criminal prosecution may be more likely to be appropriate; (2) whether there are victims who have suffered loss as a result of the misconduct:
2It is the FCA's
policy not to impose a sanction for market abuse where a person is being prosecuted for market misconduct or has been finally convicted or acquitted of market misconduct (following the exhaustion of all appeal processes) in a criminal prosecution arising from substantially the same allegations. Similarly, it is the FCA's
policy not to commence a prosecution for market misconduct where the FCA has brought or is seeking to bring
The FCA expects a firm to have a validation process that includes the following:(1) standards of objectivity, accuracy, stability and conservatism that it designs its ratings systems to meet and processes that establish whether its rating systems meet those standards;(2) standards of accuracy of calibration (ie, whether outcomes are consistent with estimates) and discriminative power (ie, the ability to rank-order risk) that it designs its rating systems to meet and processes
The FCA expects a firm to be able to explain the performance of its rating systems against its chosen measure (or measures) of discriminative power. In making this comparison, a firm should rely primarily on actual historic default experience where this is available. In particular, the FCA expects a firm to be able to explain the extent of any potential inaccuracy in these measures, caused, in particular, by small sample size and the potential for divergence in the future, whether
In the case of a portfolio for which there is insufficient default experience to provide any confidence in statistical measures of discriminative power, the FCA expects a firm to use other methods. For example, analysis of whether the firm's rating systems and an external measurement approach (eg, external ratings) rank common obligors in broadly similar ways. Where such an approach is used, the FCA would expect a firm to ensure it does not systematically adjust its individual
Under section 60(3) of the CCA, if, on an application made to the FCA by a firm carrying on a consumer credit business or a consumer hire business, it appears to the FCA impracticable for the firm to comply with any requirement of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) or the Consumer Credit (Agreements) Regulations (SI 2010/1014) in a particular case, it may direct that the requirement be waived or varied in relation to the regulated agreement and subject
The requirement under section 64(1)(b) of the CCA to send debtors or hirers a notice of their rights to cancel a cancellable agreement within the seven days following the making of that agreement does not apply in the case of the agreements described in SUP 8A.2.5 G, if: (1) on application by a firm to the FCA, the FCA has determined, having regard to:(a) the manner in which antecedent negotiations for the relevant agreements with the firm are conducted; and(b) the information
If on an application made to the FCA by a firm carrying on a consumer hire business, it appears to the FCA that it would be in the interests of hirers to do so, the FCA may direct that subject to such conditions (if any) as it may specify, section 101 of the CCA shall not apply to consumer hire agreements made by that firm.
Under article 53 of the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No 2) Order 2013, any of the following given or made by the Office of Fair Trading which were in effect immediately before 1 April 2014 have effect as if they had been given or made by the FCA:(1) a direction given under section 60(3) of the CCA (form and content of agreements);(2) a determination made under section 64(4) of the CCA (duty to give notice of cancellation rights) and
1The OEIC Regulations set out requirements relating to the way in which collective investment may be carried on by open-ended investment companies. Under the OEIC Regulations, the FCA has the power, amongst other things, to: revoke an open-ended investment company’s authorisation in several situations, including where the firm breaches relevant requirements or provides us with false or misleading information (regulation 23);give, vary and revoke certain directions, including that
1Factors that the FCA may take into account when it decides whether to use one or more of these powers include, but are not limited to, factors which are broadly similar to those in EG 14.1.1 in the context of AUTs or ACSs. However, the relevant conduct will be that of the ICVC, the director or directors of the ICVC and its depositary. Another difference is that the FCA is also able to take disciplinary action against the ICVC itself since the ICVC will be an authorised person.
1The FCA will give a company a warning notice if it proposes to revoke the company’s authorisation and a decision notice if the decision to revoke the company’s authorisation is subsequently taken. The decisions to give a warning notice or a decision notice will be taken by the RDC following the procedures set out in DEPP 3.2 or, where appropriate, DEPP 3.3. A person who receives a decision notice under the OEIC Regulations may refer the matter to the Tribunal.
5A firm must:(1) appoint an individual as MLRO, with responsibility for oversight of its compliance with the FCA'srules on systems and controls against money laundering; and(2) ensure that its MLRO has a level of authority and independence within the firm and access to resources and information sufficient to enable him to carry out that responsibility.
(1) Depending on the nature, scale and complexity of its business, it may be appropriate for a firm to have a separate risk assessment function responsible for assessing the risks that the firm faces and advising the governing body and senior managers on them.(2) The organisation and responsibilities of a risk assessment function should be documented. The function should be adequately resourced and staffed by an appropriate number of competent staff who are sufficiently independent
9(1) Depending on the nature, scale and complexity of its business, it may be appropriate for a firm to delegate much of the task of monitoring the appropriateness and effectiveness of its systems and controls to an internal audit function. An internal audit function should have clear responsibilities and reporting lines to an audit committee or appropriate senior manager, be adequately resourced and staffed by competent individuals, be independent of the day-to-day activities
A firm, other than a Solvency II firm,15 should have in place appropriate arrangements, having regard to the nature, scale and complexity of its business, to ensure that it can continue to function and meet its regulatory obligations in the event of unforeseen interruption. These arrangements should be regularly updated and tested to ensure their effectiveness. Solvency II firms are subject to the business continuity requirements in PRA Rulebook: Solvency II firms: Conditions
2The FCA's standard practice is generally to use statutory powers to require the production of documents, the provision of information or the answering of questions in interview. This is for reasons of fairness, transparency and efficiency. It will sometimes be appropriate to depart from this standard practice, for example: (1) For suspects or possible suspects in criminal or market abuse investigations, the FCA may prefer to question that person on a voluntary basis, possibly
Firms, approved persons and conduct rules staff1 have an obligation to be open and co-operative with the FCA (as a result of Principle 11 for Businesses,1 Statement of Principle 4 for Approved Persons and Rule 3 of COCON 2.11). The FCA will make it clear to the person concerned whether it requires them to produce information or answer questions under the Act or whether the provision of answers is purely voluntary. The fact that the person concerned may be a regulated person does
2The FCA will not bring disciplinary proceedings against a person for failing to be open and co-operative with the FCA1 simply because, during an investigation, they choose not to attend or answer questions at a purely voluntary interview. However, there may be circumstances in which an adverse inference may be drawn from the reluctance of a person (whether or not they are a firm or individual1) to participate in a voluntary interview. If a person provides the FCA with misleading
3The material in CASS 1A.3.1BG about how CASS 1A.3 fits into the FCA approved persons regime for relevant authorised persons also applies to a CASS small firm and the function in CASS 1A.3.1R. However:(1) the function in CASS 1A.3.1R is not an FCA specified significant-harm function; and(2) the person performing that function will not necessarily be subject to the employee certification regime described in SYSC 5.2 (Certification Regime).
1A CASS medium firm and a CASS large firm must allocate to a single6director or senior manager of sufficient skill and authority6 the function of:(1) oversight of the operational effectiveness of that firm’s systems and controls that are designed to achieve compliance with CASS;(2) reporting to the firm’sgoverning body in respect of that oversight; and(3) completing and submitting a CMAR to the FCA in accordance with SUP 16.14.[Note: article 7, first paragraph of the MiFID Delegated
(1) (a) CASS 1A.3.1AR describes the FCA controlled function known as the CASS operational oversight function (CF10a). The table of FCA controlled functions3 in SUP 10A.4.4R3 together with SUP 10A.7.9R3 specify the CASS operational oversight function as an FCA required function4 for a firm to which CASS 1A.3.1AR applies.3(b) The CASS operational oversight function does not apply to a relevant authorised person.3(2) (a) For a firm that is a UK relevant authorised person5, the function
2If, at the time a firm that is not a relevant authorised person3becomes a CASS medium firm or a CASS large firm in accordance with CASS 1A.2.12 R (1) or CASS 1A.2.12 R (2), the firm is not able to comply with CASS 1A.3.1A R because it has no director or senior manager who is an approved person in respect of the CASS operational oversight function, the firm must:(1) take the necessary steps to ensure that it complies with CASS 1A.3.1A R as soon as practicable, which must at least
(1) 3CASS 1A.3.1CR provides a grace period for a firm that is not a relevant authorised person to apply for someone to be approved to perform the CASS operational oversight function. (2) There is no equivalent to CASS 1A.3.1CR for a relevant authorised person, because a person does not need specific FCA approval before carrying out the function. This is explained in (3) to (5), below.(3) As explained in CASS 1A.3.1BG(2), the function in CASS 1A.3.1AR is not, by itself, a controlled
1Under
section 312B of the Act, the FCA5 may
prohibit an EEA market operator from
making or, as the case may be, continuing arrangements in the United Kingdom, to facilitate access to,
or use of, a regulated market,6multilateral trading facility or organised trading facility6 operated by the operator if:5(1) the FCA5 has clear and demonstrable grounds for believing that the operator
has contravened a relevant requirement;6 and5(2) the FCA5 has first complied with sections 312B(3)
The operator's right to make
arrangements in the United Kingdom,
to facilitate access to, or use of, a regulated
market,6multilateral trading
facility or organised trading facility6, operated by the operator may be reinstated (together
with its exempt person status)
if the FCA5 is
satisfied that the contravention which led the FCA5 to exercise its prohibition power has been remedied.55
1The RCB Regulations provide a framework for issuing covered bonds in the UK.
Covered bonds issued under the RCB Regulations are subject to strict quality controls and both bonds and issuers must be registered with the FCA. The RCB Regulations give the FCA powers to enforce these Regulations. Where a person has failed, or is likely to fail, to comply with any obligation under the RCB Regulations, the FCA may make a direction that the person take
1The FCA's approach to the use of its enforcement powers, and its statement of policy in relation to imposing and determining financial penalties under the RCB Regulations, are set out in RCB 4.2. The FCA's penalty policy includes having regard, where relevant, DEPP 6.5 to DEPP 6.5D and such other specific matters as the likely impact of the penalty on the interests of investors in the relevant bonds. The FCA's statement of procedure in relation to giving warning notices or decision
1The FCA may agree to settle cases in which it proposes to impose a financial penalty under the RCB Regulations if the right regulatory outcome can be achieved. The settlement discount scheme set out in DEPP 6.7 applies to penalties imposed under the RCB Regulations. See DEPP 5 and EG 5 for further information about the settlement process.
The FCA5 recognises that there may be occasions when, because of a particular emergency, a person (generally a firm, but in certain circumstances, for example in relation to price stabilising rules, an unauthorised person) may be unable to comply with a particular rule in the Handbook. The purpose of GEN 1.3.2 R is to provide appropriate relief from the consequences of contravention of such a rule in those circumstances.1993
(1) If any emergency arises which:(a) makes it impracticable for a person to comply with a particular rule in the Handbook; (b) could not have been avoided by the person taking all reasonable steps; and(c) is outside the control of the person, its associates and agents (and of its and their employees);the person will not be in contravention of that rule to the extent that, in consequence of the emergency, compliance with that rule is impracticable. (2) Paragraph (1) applies only
GEN 1.3.2 R operates on the FCA's5rules. It does not affect the FCA's5 powers to take action against a firm in an emergency, based on contravention of other requirements and standards under the regulatory system. For example, the FCA5 may exercise its own-initiative power in appropriate cases to vary a firm'sPart 4A permission9 based on a failure or potential failure to satisfy the threshold conditions (see SUP 7 (Individual9 requirements) and EG 8 (Variation and cancellation
(1) Overseas investment exchanges which are considering whether to seek authorisation or recognition should first consider whether they will be carrying on regulated activities in the United Kingdom. Overseas investment exchanges which do not carry on regulated activities in the United Kingdom need take no action.33(2) Prospective applicants should discuss authorisation and recognition with the FCA3 before deciding whether to seek authorisation or recognition.3
Applicants for authorised person status should refer to the FCA3 website “Authorisation”: www.fca.org.uk/firms/authorisation1. Applications for recognition as an overseas recognised body should be addressed to:The Financial Conduct Authority3 (Infrastructure and Trading Firms Department)412 Endeavour Square5London, E20 1JN5133
There is no standard application form for application for recognition as an ROIE2. An application should be made in accordance with any direction the FCA3 may make under section 287 (Application by an investment exchange) of the Act and should include:333(1) the information, evidence and explanatory material necessary to demonstrate to the FCA3 that the recognition requirements (set out in REC 6.3) will be met;(2) the application fee (see REC 7);(3) the address of the applicant's
The FCA3 may require further information from the applicant and may need to have discussions with the appropriate authorities in the applicant's home territory. To allow sufficient time for applications to be processed and for the necessary contacts to be made with the appropriate home territory authorities, applications should be made not later than six months before the applicant wishes the recognition order to take effect. No guarantee can be given that a decision will be reached
2When considering whether to grant or refuse an application to revoke or vary a prohibition order, the FCA will consider all the relevant circumstances of a case. These may include, but are not limited to: (1) the seriousness of the misconduct or other unfitness that resulted in the order; (2) the amount of time since the original order was made; (3) any steps taken subsequently by the individual to remedy the misconduct or other unfitness; (4) any evidence which, had it been
2When considering whether to grant or refuse an application to revoke or vary a prohibition order, the FCA will take into account any indication given by the FCA in the final notice that it is minded to revoke or vary the prohibition order on application after a certain number of years (see paragraph 9.2.4).
2The FCA will not generally grant an application to vary or revoke a prohibition order unless it is satisfied that: the proposed variation will not result in a reoccurrence of the risk to consumers or confidence in the financial system that resulted in the order being made; and the individual is fit to perform functions in relation to regulated activities generally, or to those specific regulated activities in relation to which the individual has been prohibited. The FCA will
1In cases where the FCA proposes to submit an investigation report to the RDC with a recommendation for regulatory action, the FCA's usual practice is to send a preliminary findings letter to the subject of an investigation before the matter is referred to the RDC. The letter will normally annex the investigators' preliminary investigation report. Comment will be invited on the contents of the preliminary findings letter and the preliminary investigation report.
1The FCA recognises that preliminary findings letters serve a very useful purpose in focussing decision making on the contentious issues in the case. This in turn makes for better quality and more efficient decision making. However, there are exceptional circumstances in which the FCA may decide it is not appropriate to send out a preliminary findings letter. This includes: (1) where the subject consents to not receiving a preliminary findings letter; or (2) where it is not practicable
1In cases where it is sent, the preliminary findings letter will set out the facts which the investigators consider relevant to the matters under investigation (normally, as indicated above, by means of an annexed preliminary investigation report). And it will invite the person concerned to confirm that those facts are complete and accurate, or to provide further comment. FCA staff will allow a reasonable period (normally 28 days) for a response to this letter, and will take into
In assessing compliance with, or a breach of, a rule in COCON, the FCA will have regard to the context in which a course of conduct was undertaken, including: (1) the precise circumstances of the individual case; (2) the characteristics of the particular function performed by the individual in question; and (3) the behaviour expected in that function.
In determining whether or not the particular conduct of a person complies with the rules in COCON, factors the FCA would expect to take into account include: (1) whether that conduct relates to activities that are subject to other provisions of the Handbook; (2) whether that conduct is consistent with the requirements and standards of the regulatory system relevant to the person'sfirm.
In determining whether or not the conduct of a senior conduct rules staff member complies with rules SC1 to SC4 in COCON, factors the FCA would expect to take into account include:(1) whether they exercised reasonable care when considering the information available to them;(2) whether they reached a reasonable conclusion upon which to act;(3) the nature, scale and complexity of the firm's business;(4) their role and responsibility as determined by reference to the relevant statement
UK domestic firms listed on the London Stock Exchange are subject to the UK Corporate Governance Code, whose internal control provisions are explained in the publication entitled ‘Internal Control: Revised Guidance for Directors on the Combined Code (October 2005)’ issued by the Financial Reporting Council. Therefore, firms in this category will be subject to that code, as well as to the rules in COCON. In forming an opinion as to whether a senior conduct rules staff member has