Related provisions for CASS 1.4.6
This table belongs to COLL 8.2.5 R
1 |
Description of the authorised fund |
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Information detailing: |
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(1) |
the name of the authorised fund; |
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(2) |
that the authorised fund is a qualified investor scheme; and |
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(3) |
in the case of an ICVC, whether the head office of the company is situated in England and Wales or Wales or Scotland or Northern Ireland. |
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3Property Authorised Investment Funds |
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1A |
For a property authorised investment fund, a statement that: |
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(1) |
it is a property authorised investment fund; |
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(2) |
no body corporate may seek to obtain or intentionally maintain a holding of more that 10% of the net asset value of the fund; and |
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(3) |
in the event that the authorised fund manager reasonably considers that a body corporate holds more than 10% of the net asset value of the fund, the authorised fund manager is entitled to delay any redemption or cancellation of units in accordance with 6A if the authorised fund manager reasonably considers such action to be: |
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(a) |
necessary in order to enable an orderly reduction of the holding to below 10%; and |
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(b) |
in the interests of the unitholders as a whole. |
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2 |
Constitution |
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The following statements: |
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(1) |
the scheme property of the scheme is entrusted to a depositary for safekeeping (subject to any exception permitted by the rules); |
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(2) |
if relevant, the duration of the scheme is limited and, if so, for how long; |
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(3) |
charges and expenses of the scheme may be taken out of scheme property; |
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(4) |
for an ICVC: |
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(a) |
what the maximum and minimum sizes of the scheme's capital are; and |
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(b) |
the unitholders are not liable for the debts of the company;5 6 |
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5(4A) |
for an ICVC which is an umbrella, a statement that the assets of a sub-fund belong exclusively to that sub-fund and shall not be used to discharge directly or indirectly the liabilities of, or claims against, any other person or body, including the umbrella, or any other sub-fund, and shall not be available for any such purpose;6 |
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6(4B) |
for a co-ownership scheme which is an umbrella, the property subject to a sub-fund is beneficially owned by the participants in that sub-fund as tenants in common (or, in Scotland, is the common property of the participants in that sub-fund) and must not be used to discharge any liabilities of, or meet any claims against, any person other than the participants in that sub-fund; |
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6(4C) |
for a limited partnership scheme, that the scheme prohibits pooling as is mentioned in section 235(3)(a) of the Act in relation to separate parts of the scheme property, with the effect that the scheme cannot be an umbrella; |
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(5) |
for an AUT: |
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(a) |
the trust deed: |
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(i) |
is made under and governed by the law of England and Wales, or the law of Scotland or the law of Northern Ireland; |
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(ii) |
is binding on each unitholder as if he had been a party to it and that he is bound by its provisions; and |
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(iii) |
authorises and requires the trustee and the manager to do the things required or permitted of them by its terms; |
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(b) |
subject to the provisions of the trust deed and all the rules made under section 247 of the Act (Trust scheme rules): |
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(i) |
the scheme (other than sums held to the credit of the distribution account) is held by the trustee on trust for the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of individual shares in the scheme property represented by the units held by each unitholder; and |
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(ii) |
the sums standing to the credit of any distribution account are held by the trustee on trust to distribute or apply in accordance with COLL 8.5.15 R (Income); |
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(c) |
a Unitholder is not liable to make any further payment after he has paid the price of his units and that no further liability can be imposed on him in respect of the units he holds; and |
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(d) |
payments to the trustee by way of remuneration are authorised to be paid (in whole or in part) out of the scheme property; and6 6 |
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(6)6 |
for an ACS: |
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(a) |
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(i) |
is made under and governed by the law of England and Wales, or the law of Scotland or the law of Northern Ireland; |
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(ii) |
is binding on each unitholder as if he had been a party to it and that he is bound by its provisions; |
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(iii) |
authorises and requires the depositary and the authorised contractual scheme manager to do the things required or permitted of them by its terms; and |
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(iv) |
states that units may not be issued to a person other than a person7: |
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(A) |
who 7is a: |
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(i) |
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(ii) |
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(iii) |
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(B) |
to whom units in a qualified investor scheme may be promoted under COBS 4.12.4 R;7 7 |
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(v) |
states that the authorised contractual scheme manager of an ACS must redeemunits as soon as practicable after becoming aware that those units are vested in anyone (whether as a result of subscription or transfer of units) other than a person meeting the criteria in (iv)(A) and (B); |
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(vi) |
states that for a co-ownership scheme: |
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(A) |
the scheme property is beneficially owned by the participants as tenants in common (or, in Scotland, is the common property of the participants); |
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(B) |
the arrangements constituting the scheme are intended to constitute a co-ownership scheme as defined in section 235A(2) of the Act; and |
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(C) |
the operator and depositary are required to wind up the scheme if directed to do so by the FCA in exercise of its power under section 261X (Directions) or section 261Z (Winding up or merger of master UCITS) of the Act; |
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(vii) |
states: |
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(A) |
whether the transfer of units in the ACS scheme or, for a co-ownership scheme which is an umbrella (sub-funds of which pursue differing policies in relation to transfer of units), in each particular sub-fund, is either: |
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(i) |
prohibited; or |
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(ii) |
allowed; |
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(B) |
where transfer of units is allowed by the scheme or, where appropriate the sub-fund, in accordance with (A)(ii), units may only be transferred in accordance with the conditions specified by FCArules, including that units may not be transferred to a person other than a person : 7 |
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(i) |
who 7is a: |
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(1) |
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(2) |
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(3) |
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(ii) |
to whom units in a qualified investor scheme may be promoted under COBS 4.12.4 R; and7 7 |
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(viii) |
states that for a limited partnership scheme, the scheme is not dissolved on any person ceasing to be a limited partner or nominated partner provided that there remains at least one limited partner; |
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(b) |
subject to the provisions of the contractual scheme deed and all the rules made under section 261I of the Act (Contractual scheme rules) and for the time being in force: |
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(i) |
the scheme property (other than sums standing to the credit of the distribution account) is held by, or to the order of, the depositary for and on behalf of the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of individual shares in the scheme property represented by the units held by each unitholder; and |
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(ii) |
the sums standing to the credit of any distribution account are held by the depositary to distribute or apply them in accordance with COLL 8.5.15 R(Income); and |
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(c) |
a unitholder in a co-ownership scheme is not liable to make any further payment after he has paid the price of his units and that no further liability can be imposed on him in respect of the units he holds; |
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(d) |
a unitholder in a limited partnership scheme is not liable for the debts or obligations of the limited partnership scheme beyond the amount of the scheme property which is available to the authorised contractual scheme manager to meet such debts or obligations, provided that the unitholder does not take part in the management of the partnership business; |
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(e) |
the exercise of rights conferred on limited partners by FCA rules does not constitute taking part in the management of the partnership business; |
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(f) |
the limited partners, other than the nominated partner, are to be the participants in the scheme; and |
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(g) |
the operator of a co-ownership scheme is authorised to: |
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(i) |
acquire, manage and dispose of the scheme property; and |
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(ii) |
enter into contracts which are binding on unitholders for the purposes of, or in connection with, the acquisition, management or disposal of scheme property. |
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3 |
Investment objectives |
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A statement of the object of the scheme, in particular the types of investments and assets in which it and each sub-fund (where applicable) may invest and that the object of the scheme is to invest in property of that kind with the aim of spreading investment risk. |
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4 |
Units in the scheme |
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A statement of: |
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(1) |
the classes of units which the scheme may issue, indicating, for a scheme which is an umbrella, which class or classes may be issued in respect of each sub-fund; and |
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(2) |
the rights attaching to units of each class (including any provisions for the expression in two denominations of such rights). |
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5 |
Limitation on issue of and redemption of units |
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Details as to: |
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(1) |
the provisions relating to any restrictions on the right to redeem units in any class; and |
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(2) |
the circumstances in which the issue of the units of any particular class may be limited. |
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6 |
Income and distribution |
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Details of the person responsible for the calculation, transfer, allocation and distribution of income for any class of unit in issue during the accounting period. |
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3Redemption or cancellation of units on breach of law or rules |
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6A |
A statement that where any holding of units by a unitholder is (or is reasonably considered by the authorised fund manager to be) an infringement of any law, governmental regulation or rule, those units must be redeemed or cancelled. |
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7 |
Base currency |
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A statement of the base currency of the scheme. |
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8 |
Meetings |
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Details of the procedures for the convening of meetings and the procedures relating to resolutions, voting and the voting rights for unitholders. |
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9 |
Powers and duties of the authorised fund manager and depositary |
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Where relevant, details of any function to be undertaken by the authorised fund manager and depositary which the rules in COLL require to be stated in the instrument constituting the fund.8 8 |
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10 |
Termination and suspension |
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Details of: |
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(1) |
the grounds under which the authorised fund manager may initiate a suspension of the scheme and any associated procedures; and |
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(2) |
the methodology for determining the rights of unitholders to participate in the scheme property on winding up. |
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110A |
Investment in overseas2 property through an intermediate holding vehicle1 |
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If investment in an overseas2 immovable is to be made through an intermediate holding vehicle or a series of intermediate holding vehicles, a statement that the purpose of that intermediate holding vehicle or series of intermediate holding vehicles will be to enable the holding of overseas2 immovables by the scheme.1 |
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11 |
Other relevant matters |
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Details of those matters which enable the scheme, authorised fund manager or depositary to obtain any privilege or power conferred by the rules in COLL which is not otherwise provided for in the instrument constituting the fund.8 8 |
Table: Examples of factors to take into account when deciding whether old misconduct is sufficiently serious to disclose
Factors to take into account |
Comments |
(A) Whether P has committed a serious breach of individual conduct requirements. |
Individual conduct requirements has the same meaning as in Part Two of SYSC 22 Annex 1R (Template for regulatory references given by relevant authorised persons and disclosure requirements). Factors to take into account in deciding whether the breach is serious include the following. (1) The extent to which the conduct was deliberate or reckless. (2) The extent to which the conduct was dishonest. (3) Whether the breaches are frequent or whether they have continued over a long period of time. The fact that breaches were frequent or repeated may increase the likelihood that they should be disclosed since the breaches may show a pattern of non-compliance. (4) The extent of loss, or risk of loss, caused to existing, past or potential investors, depositors, policyholders or other counterparties or customers. (5) The reasons for the breach. For example, where the breach was caused by lack of experience which has been remedied by training or further experience, it is less likely that the breach will still be relevant. |
(B) Whether the conduct caused B to breach requirements of the regulatory system or P was concerned in a contravention of such a requirement by B and, in each case, whether P’s conduct was itself serious. |
(1) The factors in (A) are relevant to whether P’s conduct was serious. (2) The seriousness of the breach by B is relevant. The factors in (A) are also relevant to this. (3) A breach by B of certain requirements is always likely to be serious under (2). Breach of the threshold conditions is an example. However that does not mean that P’s involvement will automatically be serious. |
(C) Whether P’s conduct involved dishonesty (whether or not also involving a criminal act). |
Dishonesty is an important factor but it is not automatically decisive in every case. For instance, a small one-off case of dishonesty many years ago may not be sufficiently serious to require disclosure. |
(D) Whether the conduct would have resulted in B’s dismissing P, had P still been working for B, based on B's disciplinary policies and the requirements of the law about unfair dismissal. |
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(E) Whether the conduct was such that, if B was considering P for a role today and became aware of the historical conduct, B would not employ P today notwithstanding the time that has passed. |
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Note 1: P refers to the employee about whom the reference is being written. |
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Note 2: B refers to the firm giving the reference. |
42Where the measure is not cumulative (e.g. the number of traders for fee-block A10), the firm must use the figure relating to its annual reporting date (e.g. 31 December for A10) or, if that is not available, the projected figure used when it was authorised. Table A sets out the reporting requirements for the key fee-blocks when actual data is not available:
Table A: calculating tariff data for second and subsequent years of authorisation when full trading figures are not available
Fee-block |
Tariff base |
Calculation where trading data are not available |
A1. Deposit acceptors |
Average MELS for October - December |
Use data available at 31 December or, if trading has not commenced by 31 December, use the projection submitted as part of the application process. |
A2. Home finance providers and administrators |
Number of relevant contracts entered into or being administered in the twelve months up to 31 December |
Apply the formula (A÷B) x 12 to arrive at an annualised figure. |
A3. Insurers - general |
Gross written premium for fees purposes (GWP) 43for the financial year ended in the calendar year ending 31 December and best estimate liabilities for fees purposes (BEL) 43 valued at the end of the financial year |
GWP 43 – apply the formula (A÷B) x 12 to arrive at an annualised figure. BEL – use 43 data at valuation date or, if trading has not commenced by then, use projections provided at authorisation. |
A4. Insurers - life |
Gross written premium for fees purposes (GWP) 43 for the financial year ended in the calendar year ending 31 December and best estimate liabilities for fees purposes (BEL) 43 valued at the end of the financial year |
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A5. Managing agents at Lloyd’s |
Active capacity in respect of the underwriting year at the beginning of the period to which the fee relates |
Not applicable. |
A6. The Society of Lloyd’s |
Bespoke fee |
Not applicable. |
A7. Portfolio managers |
Funds under management valued at 31 December |
Use data as at 31 December or, if trading has not commenced by 31 December, use the projection submitted as part of the application process. |
A9. Managers and depositaries of investment funds, and operators of collective investment schemes or pension schemes |
Annual gross income for the financial year ended in the calendar year ending 31 December |
Apply the formula (A÷B) x 12 to arrive at an annualised figure. |
A10. Firms dealing as principal |
Number of traders as at 31 December |
Use data as at 31 December or, if trading has not commenced by 31 December, use the projection submitted as part of the application process |
A13. Advisors, arrangers, dealers or brokers |
Annual income for the financial year ended in the calendar year ending 31 December |
Apply the formula (A÷B) x 12 to arrive at the annualised figure |
A14. Corporate finance advisers |
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A18. Home finance providers, advisers and arrangers |
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A19. General insurance mediation |
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A21. Firms holding client money or assets, or both |
The highest amount of client money and the highest amount of custody assets held over the 12 months ending 31 December |
The highest amount of client money and/or custody assets over the period between the date of authorisation and 31 December or, if trading has not started, use the projection submitted as part of the application process. |
Flat fee |
Not applicable. |
|
B. Service companies |
Annual income for the financial year ended in the calendar year ending 31 December |
Apply the formula (A÷B) x 12 to arrive at the annualised figure. |
B. Regulated benchmark45 administrators |
Annual income for the financial year ended in the calendar year ending 31 December39 |
Apply the formula (A÷B) x 12 to arrive at the annualised figure.39 |
B. Recognised investment exchanges |
Annual income for the financial year ended in the calendar year ending 31 December39 |
Apply the formula (A÷B) x 12 to arrive at the annualised figure.39 |
B. Recognised auction platforms |
Flat fee |
Not applicable. |
B. Recognised overseas investment exchanges |
Flat fee |
Not applicable. |
CC1. Credit-related regulated activities with limited permission |
Annual income for the financial year ended in the calendar year ending 31 December |
Apply the formula (A÷B) x 12 to arrive at an annualised figure. |
CC2. Credit related regulated activities |
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G.2 Payment services institutions – deposit acceptors |
See A1 deposit acceptors |
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G.3. Large payment services institutions |
Relevant income |
Apply the formula (A÷B) x 12 to arrive at an annualised figure. |
G.4 Small payment institutions |
Flat fee |
Not applicable. |
G.5 Other payment institutions |
Relevant income |
Apply the formula (A÷B) x 12 to arrive at an annualised figure. |
G.10 Large electronic money institutions |
Average outstanding e-money over 12 months ending 31 December |
Average over the period from authorisation to 31 December. |
G.11 Small electronic money institutions |
Flat fee |
Not applicable. |
G.15 Issuer of regulated covered bonds |
Value as at 31 December |
Not applicable. |
G.20 Consumer buy-to-let (CBTL) lender |
Flat fee |
Not applicable. |
G.21 CBTL adviser and arranger |