Related provisions for ICOBS 8.4.2

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PERG 8.33.6GRP
The exclusions in articles2 29 and 33 of the Regulated Activities Order are not available where the investment is a contract of insurance (unless, as regards article 33, the relevant arrangements meet the requirements of article 33B).2 However, certain other exclusions do apply. This results from implementation of the requirements of the IDD2 and is explained in more detail in PERG 5.6 (The regulated activities: arranging deals in, and making arrangements with a view to transactions
MIPRU 4.1.3GRP
The definition of insurance distribution activity11 refers to several activities 'in relation to a contract of insurance' which includes a contract of reinsurance. This chapter, therefore, applies to a reinsurance intermediary in the same way as it applies to any other insurance intermediary.
ICOBS 2.2.1RRP
In addition to the general application rule for this sourcebook, this section applies to the communication, or approval for communication, to a person in the United Kingdom of a financial promotion of a non-investment insurance contract unless it can lawfully be communicated by an unauthorised communicator without approval.
SYSC 19B.1.23RRP
An AIFM must ensure that its employees undertake not to use personal hedging strategies or remuneration- and liability-related insurance to undermine the risk alignment effects embedded in their remuneration arrangements.[Note: paragraph 1(q) of Annex II of AIFMD]
PERG 8.7.2GRP
Controlled activity and controlled investment are defined in Schedule 1 to the Financial Promotion Order and are listed in PERG 8.36.3 G and PERG 8.36.4 G. Broadly speaking, controlled activities and controlled investments are similar to regulated activities and specified investments under the Regulated Activities Order. However, with controlled activities, the exclusions set out in the Regulated Activities Order do not, in most cases, apply. It is important to note, however,
CREDS 1.1.2GRP
(1) CREDS covers only the requirements associated with a Part 4A permission to accept deposits. The Conduct of Business sourcebook (COBS) sets out additional requirements for credit unions that are CTF providers in relation to cash deposit CTFs.(2) Other permissions are covered elsewhere in the Handbook. So, for example, a credit union seeking a permission to undertake a regulated mortgage activity would need to comply with the requirements in the Mortgages and Home Finance: Conduct
CASS 8.1.1RRP
1This chapter (the mandate rules)3 applies to a firm when it has a mandate3 in the course of, or in connection with, the firm's:3(1) designated investment business (including MiFID business); or33(2) insurance distribution activity8, except where it relates to a reinsurance contract;55(3) debt management activity.5
PERG 8.25.1GRP
For the purposes of article 53(1)3 of the Regulated Activities Order, a security or relevant investment is any one of the following:(1) shares;(2) debentures;(2A) alternative debentures;2(3) government and public securities;(4) warrants;(5) certificates representing certain securities;(6) units in collective investment schemes;(7) stakeholder pension schemes or personal pension schemes1;(7A) emission allowances;4(8) options;(9) futures;(10) contracts for differences;(11) contracts
SUP 6.4.14GRP
Under section 39824 of the Act (Misleading the FCA or PRA: residual cases),24 it is an offence, in purported compliance with a requirement imposed by or under the Act (including the directions in SUP 6.4.5 D), for a person to knowingly or recklessly give the regulator24 information that is false or misleading. If necessary, a firm should take appropriate professional advice when supplying information required by the regulator(s).24 An insurer, for example, may ask an actuary to
PERG 2.10.10GRP
But under section 316 of the Act (Direction by a regulator) the general prohibition does not apply to a person who is a member of the Society of Lloyds unless the FCA or PRA has made a direction that it should apply. The general prohibition is disapplied in relation to any regulated activity carried on by a member relating to contracts of insurance written at Lloyds. Directions can be made by the FCA or PRA in relation to individual members or the members of the Society of Lloyds
ICOBS 6A.2.1RRP
(1) 1A firm must not enter into an agreement with a customer under which a charge is, or may become, payable for an optional additional product unless the customer has actively elected to obtain that specific product. (2) A firm must not impose a charge on a customer for an optional additional product under an agreement entered into on or after 1 April 2016 unless the customer has actively elected to obtain that specific product before becoming bound to pay the charge.(3) A firm
SUP 12.5.6CGRP
4As SUP 12.5.6A R does not apply to non-investment insurance contracts, there are no restrictions on the number of principals an appointed representative may have in relation to those contracts.
SYSC 4.4.1ARRP
7(-2) 13This section applies to:(a) a limited scope SMCR firm (other than a firm in SUP 10C Annex 1 7.10R (Table: Limited scope SMCR firms to which no controlled functions apply)); and (b) an authorised professional firm that is a core SMCR firm. (-1) 13The application of this section is further limited by the rest of this rule.(1) 13This section applies to an authorised professional firm as follows: (a) it only applies in respect of its non-mainstream regulated activities; and (b)
SUP App 3.9.7GRP

Table 2B: Insurance Distribution14Directive2 Activities/Examples14

2

Part II RAO Activities

Part III RAO Investments

1.

Proposing14 or carrying out other work preparatory to the conclusion of contracts of insurance or reinsurance14.

Articles 25, 53(1)10 and 64

Articles 75, 89 (see Note 1)

141A.

Advising on contracts of insurance or reinsurance

Articles 53(1) and 64

Articles 75, 89

2.

Concluding contracts of insurance or reinsurance14

Articles 21, 25, 53(1)10 and 64

Articles 75, 89

3.

Assisting in the administration and performance of contracts of insurance or reinsurance14, in particular in the event of a claim.

Articles 39A, 64

Articles 75, 89

144

Provision of information concerning one or more insurance contracts in accordance with criteria selected by customers through a website or other media and the compilation of an insurance product ranking list, including price and product comparison, or a discount on the price of an insurance contract, when the customer is able to directly or indirectly conclude an insurance contract using a website or other media.

Articles 21, 25, (where this involves the provision of advice) 53(1), and 64.

Articles 75, 89

Note 1. Rights to or interests in life policies are specified investments under Article 89 of the Regulated Activities Order, but rights to or interests in general insurance contracts are not.

14Note 2. Row 4 in Table 2B includes text that appears in article 2.1(1) of the IDD. These activities are not considered to be separate, discrete activities under the IDD but rather are included by way of an example of what constitutes insurance distribution. They have been included in this table for completeness, together with an indication of the Part II RAO activities and Part III RAO investments that may be relevant. This is to indicate, including for firms considering undertaking passport activities under the IDD, how these examples may relate to regulated activities and specified investments.

CREDS 10.1.3GRP

Module

Relevance to Credit Unions

The Principles for Businesses (PRIN)

The Principles for Businesses (PRIN) set out 3high-level requirements 3imposed by the FCA3. They provide a general statement of regulatory requirements. The Principles apply to all12credit unions. In applying the Principles to credit unions, the FCA3 will be mindful of proportionality. In practice, the implications are likely to vary according to the size and complexity 3of the credit union.

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Senior Management Arrangements, Systems and Controls (SYSC)

SYSC 1,3SYSC 4 to 10 and SYSC 213 apply to all credit unions in respect of the carrying on of their regulated activities and unregulated activities in a prudential context. SYSC 23 (Senior managers and certification regime: Introduction and classification), SYSC 24 (Senior managers and certification regime: Allocation of prescribed responsibilities), SYSC 25 (Senior managers and certification regime: Management responsibilities maps and handover procedures and material), SYSC 26 (Senior managers and certification regime: Overall and local responsibility), SYSC 27 (Senior managers and certification regime: Certification regime)7 and SYSC 18 apply to all credit unions in respect of both their regulated activities and their unregulated activities.

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3Code of Conduct (COCON)

This contains rules and guidance that are directly applicable to a credit union’sSMF managers, certification employees and (from 2017) other conduct rules staff. There is also guidance for credit unions on giving their staff training about COCON.

Threshold Conditions (COND)

In order to become authorised under the Act all firms must meet the threshold conditions. The threshold conditions must be met on a continuing basis by credit unions. Failure to meet one of the conditions is sufficient grounds for the exercise by the FCA3 of its powers.

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3

3

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The Fit and Proper test for Employees and Senior Personnel7 (FIT)

The purpose of FIT is to set out and describe the criteria that a firm should3 consider when assessing the fitness and propriety of a person (1)3 in respect of whom an application is being made for approval to undertake a controlled function under the senior managers7 regime, (2)3 who has already been approved, (3) who is a certification employee or (4) whom a firm is considering appointing to be a certification employee3.

It also sets out and describes criteria that the FCA will consider when assessing the fitness and propriety of a candidate for a controlled function position and that it may consider when assessing the continuing fitness and propriety of approved persons.3

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General Provisions (GEN)

GEN contains rules and guidance on general matters, including interpreting the Handbook, statutory status disclosure, the FCA's3 logo and insurance against financial penalties.

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Fees manual (FEES)

This manual sets out the fees applying to credit unions.

3Prudential sourcebook for Mortgage and Home Finance Firms, and Insurance Intermediaries (MIPRU)

MIPRU applies to any credit union carrying out insurance distribution activity5 or home finance mediation activity, or using these services. In particular, it sets out requirements for allocation of responsibility for the credit union’sinsurance distribution activity5 (MIPRU 2), for the use of home finance intermediaries (MIPRU 5) and for professional indemnity insurance (MIPRU 3).

Conduct of Business sourcebook (COBS)

A credit union which acts as a CTF provider or provides a cash-deposit ISA will need to be aware of the relevant requirements in COBS. COBS 4.6 (Past, simulated past and future performance), COBS 4.7.1 R (Direct offer financial promotions), COBS 4.10 (Systems and controls and approving and communicating financial promotions), COBS 13 (Preparing product information) and COBS 14 (Providing product information to clients) apply with respect to accepting deposits as set out in those provisions, COBS 4.1 and BCOBS. A credit union that communicates with clients, including in a financial promotion, in relation to the promotion of deferred shares and credit union subordinated debt will need to be aware of the requirements of COBS 4.2 (Fair, clear and not misleading communications) and COBS 4.5 (Communicating with retail clients).4

3Insurance: Conduct of Business sourcebook (ICOBS)

ICOBS applies to any credit union carrying on non-investment insurance distribution5 activities, such as arranging or advising on general insurance contracts to be taken out by members. But ICOBS does not apply to a credit union taking out an insurance policy5 for itself, such as a policy5 against default by members on their loans where the credit union is the beneficiary of the policy5, since in this circumstance the credit union would not be acting as an insurance intermediary, but would itself be the customer. Credit unions are reminded that they are subject to the requirements of the appropriate legislation, including the Credit Unions Act 1979, relating to activities a credit union may carry on.

3Mortgages and Home Finance: Conduct of Business sourcebook (MCOB)

MCOB applies to any credit union that engages in any home finance activity. MCOB rules cover advising and selling standards, responsible lending (including affordability assessment), charges, and the fair treatment of customers in payment difficulties.

Banking: Conduct of Business sourcebook (BCOBS)

BCOBS sets out rules and guidance for credit unions on how they should conduct their business with their customers. In particular there are rules and guidance relating to communications with banking customers3and financial promotions (BCOBS 2), distance communications (BCOBS 3), information to be communicated to banking customers3(BCOBS 4), post sale requirements (BCOBS 5), and cancellation (BCOBS 6). 3The rules in BCOBS 3.1 that relate to distance contracts may apply 3to a credit union. This is because the Distance Marketing Directive3applies where there is "an organised distance sales or service-provision scheme run by the supplier" (Article 2(a)), i.e. if the credit union routinely sells any of its services by post, telephone, fax or the internet3.

Supervision manual (SUP)

The following provisions of SUP are relevant to credit unions: 13SUP 1A13 (The FCA’s 3 approach to supervision), SUP 2 (Information gathering by the FCA or PRA 3 on its own initiative), SUP 3.1 to SUP 3.8 (Auditors), SUP 5 (Skilled persons), SUP 6 (Applications to vary or cancel Part 4A12permission), SUP 7 (Individual requirements), SUP 8 (Waiver and modification of rules), SUP 9 (Individual guidance), 13SUP 10C (FCA senior managers7 regime for approved persons in SMCR firms7), SUP 11 (Controllers and Close links), SUP 15 (Notifications to the FCA or PRA 3) and SUP 16 (Reporting Requirements).

Credit unions are reminded that they are subject to the requirements of the Act and SUP 11 on close links, and are bound to notify the FCA3 of changes. It may be unlikely, in practice, that credit unions will develop such relationships. It is possible, however, that a person may acquire close links with a 3credit union3 within the meaning of the Act by reason of holding the prescribed proportion of deferred shares in the credit union.

In relation to SUP 16, credit unions are exempted from the requirement to submit annual reports of 3close links.

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3Consumer Credit sourcebook (CONC)

CONC contains rules that apply to firms carrying on credit-related regulated activities. PERG 2.7.19IG provides guidance on relevant exemptions. Most credit union lending is therefore outside the scope of CONC. However, subject to the constraints in the Credit Unions Act 1979 or the Credit Unions (Northern Ireland) Order 1985 (as relevant), credit unions may undertake credit-related regulated activities to which CONC does apply if the activity is carried out by way of business. This could include lending under a borrower-lender-supplier agreement, or debt adjusting or debt counselling where the credit union is not the lender. A credit union carrying on such activities should consider whether it requires permission to do so. Further information can be found on the FCA’s website.

Decision, Procedure and Penalties manual (DEPP)

DEPP is relevant to credit unions because it sets out:

(1) the FCA's12 decision-making procedure for giving statutory notices. These are warning notices, decision notices and supervisory notices (DEPP 1.2 to DEPP 5); and

(2) the FCA's12 policy with respect to the imposition and amount of penalties under the Act (see DEPP 6).

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Dispute Resolution: Complaints (DISP)

DISP sets out rules and guidance in relation to treating complainants fairly and the Financial Ombudsman Service.

Compensation (COMP)

COMP sets out rules relating to the scheme for compensating consumers when authorised firms are unable, or likely to be unable, to satisfy claims against them.12

6General guidance on Benchmark Administration, Contribution and Use (BENCH)

BENCH provides guidance about which parts of the Handbook are relevant to a firm when carrying out benchmark activities and when using a benchmark. It also provides guidance about the benchmarks regulation.

The Enforcement Guide (EG)

The Enforcement Guide (EG) describes the FCA's12 approach to exercising the main enforcement powers given to it by the Act and by other legislation.2

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Financial Crime Guide: A firm’s guide to countering financial crime risks (FCG) and Financial Crime Thematic Reviews (FCTR)8

FCG and FCTR provide8guidance on steps that a firm can take to reduce the risk that it might be used to further financial crime.

CASS 1.4.8ARRP
(1) 7The application of CASS for a trustee firm acting as a depositary is set out in CASS 1.4.6 R and CASS 1.4.7 R.(2) The application of CASS for a trustee firm that is not acting as a depositary is limited as follows:(a) the mandate rules apply;(b) for MiFID business, the custody chapter and the client money chapter apply; and(c) for business that is not MiFID business, the custody chapter and the client money chapter apply only to trustee firms acting as trustees of personal
PERG 8.1.3GRP
In particular, this guidance covers:(1) invitations and inducements (see PERG 8.4);(2) meaning of 'in the course of business' (see PERG 8.5);(3) meaning of 'communicate' (see PERG 8.6);(4) meaning of 'engage in investment activity' (see PERG 8.7);(4A) meaning of ‘engage in claims management activity’ (see PERG 8.7A);2(5) meaning of 'having an effect in the United Kingdom' (see PERG 8.8);(6) circumstances where the restriction in section 21 does not apply (see PERG 8.9);(7) types
PERG 8.29.7GRP

1Typical recommendations and whether they will be regulated as advising on investments (except P2P agreements)3 under article 53(1)3 of the Regulated Activities Order. This table belongs to PERG 8.29.1 G to PERG 8.29.6 G.2

Recommendation

Regulated under article 53(1)3 or not?

I recommend that you take out the ABC investment.

Yes. This is advice which steers the client in the direction of a particular investment which the client could buy.

I recommend that you do not take out the ABC investment.

Yes. This is advice which steers the client away from a particular investment which the client could have bought.

I recommend that you take out either the ABC investment or the DEF investment.

Yes. This is advice which steers the client in the direction of more than one particular investment which the client could buy.

I recommend that you sell your ABC investment.

Yes. This is advice which steers the client in the direction of a particular investment which the client could sell.

I recommend that you do not sell your ABC investment.

Yes. This is advice which steers the client away from a particular investment which the client could have sold.

I recommend that you transfer ownership of your ABC investment to your spouse.

Advising the client to gift an investment to another person will not be advice because it does not involve advice on buying, selling, subscribing for or underwriting an investment.

I recommend that you increase the regular payments you are making to your GHI fund*.

Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund.

I recommend that you decrease the regular payments you are making to your GHI fund*.

Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund but advises against the client buying as many as he intended.

I recommend that you keep making the same regular payments to your GHI fund*.

Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund.

I recommend that you stop making the regular payments you are making to the GHI fund*.

Yes. This is advice which steers the client away from buying units in a particular fund which the client could have bought.

I recommend that you pay a lump sum into your GHI fund*.

Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund.

I recommend that you do not pay a lump sum into your GHI fund*.

Yes. This is advice which steers the client away from buying units in a particular fund which the client could have bought.

I recommend that you move part of your investment in the JKL investment from fund X into fund Y*.

Yes. This is advice which steers the client in the direction of selling units in a particular fund and buying units in another specific fund. Where the two funds are sub-funds of the same main fund it is still advice. The terms ‘bought’ and ‘sold’ are given a wide meaning and include any acquisition or disposal for valuable consideration.

I recommend that you move all of your investment in JKL investment from fund X into fund Y*.

Yes, for the same reason.

4I recommend that you keep your investment in fund X*.

Yes. This is advice because it is advice to hold on to an investment and advice not to sell it.

I recommend that you move your MNO investment from platform X and re-register it on platform Y.

This is unlikely to be advice because normally it will not involve buying and selling the investment held on the platform.

A client decides of his own accord to increase, decrease or temporarily suspend his regular payments or the payments are increased automatically into an investment without advice being given.

No. No advice is being given.

The firm is providing discretionary management services under a mandate and makes changes to a client'sinvestment without providing advice.

No. No advice is being given.

Dividends are re-invested into an investment without advice being given.

No. No advice is being given.

* The same answer would apply where the fund is a life policy as rights under a contract of insurance are regulated investments under the Act. The position under a personal pension scheme is similar, as explained in more detail in PERG 12.3.