Related provisions for PERG 6.4.3
241 - 260 of 1114 items.
1Decisions about whether to apply to the civil courts for restitution orders under the Act will be made by the RDC Chairman or, in an urgent case and if the Chairman is not available, by an RDC Deputy Chairman. In an exceptionally urgent case the matter will be decided by the director of Enforcement or, in his or her absence, another member of the FCA's executive of at least director of division level.
1An exceptionally urgent case in these circumstances is one where the FCA staff believe that a decision to begin proceedings (1) should be taken before it is possible to follow the procedure described in paragraph 11.1.1; and (2) it is necessary to protect the interests of consumers or potential consumers.
1The FCA has power to apply to the court for a restitution order under section 382 of the Act and (in the case of market abuse) under section 383 of the Act. It also has an administrative power to require restitution under section 384 of the Act. When deciding whether to exercise these powers, the FCA will consider whether this would be the best use of the FCA's limited resources taking into account, for example, the likely amount of any recovery and the costs of achieving and
Article 25(1) applies only where the arrangements bring about or would bring about the particular transaction in question. This is because of the exclusion in article 26. In the FCA's view, a person brings about or would bring about a transaction only if his involvement in the chain of events leading to the transaction is of enough importance that without that involvement it would not take place. The second limb (article 25(2)) is potentially much wider as it does not require
The ordinary business of a publisher or broadcaster can involve him in publishing or broadcasting financial promotions (for example, advertisements) on behalf of authorised or exempt persons. Journalists who write about investments or financial services may promote the services of an authorised or exempt person. In the FCA's opinion, such persons would not normally be regarded as making arrangements under article 25(2). This is the case even if any arrangements they may have made
The Regulated Activities Order contains an exclusion (article 27: Enabling parties to communicate) to bring a degree of certainty to this area. This applies to arrangements which might otherwise fall within article 25(2) merely because they provide the means by which one party to a transaction (or potential transaction) is able to communicate with other parties. In the FCA's view, the crucial element of the exclusion is the inclusion of the word ‘merely’. So that, where a publisher,
For example, in the FCA's view a publisher or broadcaster would be likely to be making arrangements within the meaning of article 25(2) and be unable to make use of the exclusion in article 27 if:(1) he enters into an agreement with a provider of investment services such as a broker or product provider for the purpose of carrying their financial promotion; and(2) as part of the arrangements, the publisher or broadcaster does one or more of the following:(a) brands the investment
Other persons who may benefit from the exclusion in article 27 include persons who provide the means for someone to route an order to another person. A person providing such order routing services would not, in the FCA's view, be merely facilitating communication (of the orders) if he provides added value. This added value could be in the form, for example, of such things as formatted screens, audit trails, checking completeness of orders or matching orders or reconciling tra
(1) 1Unless (1A) applies to the firm, where,27 in accordance with DISP 1.10.1 R, a firm submits a report to the
FCA
reporting 500 or more complaints, it must publish a summary of the complaints data contained in that report (the complaints data summary).27(1A) (a) This paragraph applies to a firm which:(i) has permission to carry on only credit-related regulated activities or to operate an electronic system in relation to lending3; and(ii) has revenue arising from those activities3
A firm must immediately confirm to the
FCA
, in an email submitted to
complaintsdatasummary@fca.org.uk ,
that the complaints data summary or total number of complaints (as appropriate)27 accurately reflects the report submitted to the
FCA
, that the summary or total number of complaints (as appropriate)27 has been published and where it has been published.
Firms may choose how they publish the complaints data summary or total number of complaints (as appropriate)27. However, the summary or total number of complaints (as appropriate)27 should be readily available. For this reason, the
FCA
recommends that firms should publish the summary or total number of complaints (as appropriate)27 on their websites.
(1) 4To improve consumer awareness and to help firms compare their performance against their peers, the FCA publishes:(a) complaints data about the financial services industry as a whole; and(b) firm-level complaints data for those firms that are required to publish a complaints data summary or the total number of complaints (as appropriate) under DISP 1.10A.1R.(2) The FCA also publishes firm-level information giving context to the complaints data reported to it for those firms
4For firms reporting 500 or more complaints under DISP 1.10.1R(1) or 1000 or more complaints under DISP 1.10.1R(2) in the relevant reporting period, the FCA will publish the firm-level complaints data and information providing context to the complaints data reported to it either:(1) after the firm provides the appropriate consent in the complaints data report and confirms that the reported data accurately reflects the data which it will publish under DISP1.10A.1R; or(2) after
4For firms with only a limited permission that report complaints to the FCA under the reporting requirements in SUP 16.12, the FCA will publish the firm-level complaints data reported to it after the FCA receives an email from the firm under DISP 1.10A.4R. That email should confirm that the total number of complaints accurately reflects the report submitted to the FCA under SUP 16.12, that the total number of complaints has been published and where the information has been pu
(1) 1The following provisions of the MiFI Regulations regulate the establishment, application and resetting of position limits:
(a) Regulation 16(1) imposes an obligation on the FCA to establish position limits in respect of commodity derivatives traded on trading venues in the United Kingdom and economically equivalent OTC contracts;
(b) Regulation 16(2) imposes an obligation on the FCA to establish position limits on the basis of all positions held by a person in the contract
(1) 1A person must comply at all times with commodity derivative position limits established by the FCA, published at www.fca.org.uk. (2) A direction made under (1) applies where a commodity derivative is traded on a trading venue in the United Kingdom, provided that there is not a central competent authority established in an EEA State other than the United Kingdom. (3) Position limits established under (1) shall apply to the positions held by a person together with those held
(1) 1Regulation 17 of the MiFI Regulations regulates the position limit exemption applicable to positions in a commodity derivative held by or on behalf of a non-financial entity which are objectively measurable as reducing risks directly relating to the commercial activity of that non-financial entity, and which is approved by the FCA in accordance with the relevant criteria and procedures. Regulation 17(1) imposes an obligation on the FCA to disregard such positions, when calculating
1Where a position limit is established by a competent authority or central competent authority other than the FCA, a non-financial entity should submit its application for exemption, in relation to the position limit, to that competent authority or central competent authority in the manner it specifies.
[Note: article 8 of MiFID RTS 21]
GEN 6.1.4A R,2GEN 6.1.5 R and GEN 6.1.6 R do not prevent a firm or member from entering into, arranging, claiming on or making any payment under a contract of insurance which indemnifies any person against all or part of the costs of defending FCA3 enforcement action or any costs they may be ordered to pay to the FCA3 .5555
(1) The purpose of this section2 is to set out the requirements for firms in the retail mortgage, investment, consumer credit lending8 and pure protection contract markets specified in SUP 16.11.1 R to report individual product sales data, and to report individual performance data on regulated mortgage contracts,7 to the FCA17. In the case of firms in the sale and rent back market, there is a requirement to record, but not to submit, sales data13. These requirements apply6 whether
(1) A firm may submit a sales 7data report more frequently than required by SUP 16.11.3 R7if it wishes.7(2) If it is easier and more practical for a firm to submit additional data relating to products other than those specified in SUP 16.11.5 R, it may submit that additional data to the FCA17 in a data report.17
(1) A firm may appoint another person to provide a 7data report on the firm's behalf if the firm has informed the FCA17 of that appointment in writing.717(2) Where (1) applies, the firm must ensure that the data report complies with the requirements of SUP 16.11 and identifies the originator of the transaction.
Recognition Requirements Regulations, Regulation 6
2(1) In considering whether a [UK recognised body] or applicant satisfiesrecognition requirements applying to it under these [Recognition Requirements Regulations], the [FCA]3 may take into account all relevant circumstances including the constitution of the person concerned and its regulatory provisions within the meaning of section 300E3 of the Act. 33 |
(2) Without prejudice to the generality of paragraph (1), a [UK recognised body] or applicant may satisfyrecognition requirements applying to it under these [Recognition Requirements Regulations] by making arrangements for functions to be performed on its behalf by any otherperson. |
(3) Where a [UK recognised body] or applicant makes arrangements of the kind mentioned in paragraph (2), the arrangements do not affect the responsibility imposed by the Act on the [UK recognised body] or applicant to satisfy recognition requirements applying to it under these [Recognition Requirements Regulations ], but it is in addition a recognition requirement applying to the [UK recognised body] or applicant that the person who performs (or is to perform) the functions is a fit and proper person who is able and willing to perform them. |
The FCA3 will usually expect :3(1) the constitution, regulatory provisions and practices of the UK recognised body or applicant;(2) the nature (including complexity, diversity and risk) and scale of the UK recognised body's or applicant's business; (3) the size and nature of the market which is supported by the UK recognised body's or applicant's facilities; (4) the nature and status of the types of investor who use the UK recognised body's or applicant's facilities or have an
It is the UK recognised body's responsibility to demonstrate to the FCA3 that a person who performs a function on behalf of the UK recognised body is fit and proper and able and willing to perform that function. The recognition requirement referred to in Regulation 6(3) applies to the UK recognised body and not to any person who performs any function on its behalf. In this context, for a person to be "fit and proper" does not necessarily imply that they are5 an authorised person,
In determining whether the UK recognised body meets the recognition requirement in Regulation 6(3), the FCA3 may have regard to whether that body has ensured that the person who performs that function on its behalf:3(1) has sufficient resources to be able to perform the function (after allowing for any other activities);(2) has adequate systems and controls to manage that function and to report on its performance to the UK recognised body;(3) is managed by persons of sufficient
In determining whether a UK recognised body continues to satisfy the recognition requirements where it has made arrangements for any function to be performed on its behalf by any person , the FCA3 may have regard, in addition to any of the matters described in the appropriate section of this chapter, to the arrangements made to exercise control over the performance of the function, including:3(1) the contracts (and other relevant documents) between the UK recognised body and the
Schedule to the Recognition Requirements Regulations, Paragraph 6
2(1) The [UK RIE] must be able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on of regulated activities by persons in the course of using the facilities provided by the [UK RIE]. |
(2) The [UK RIE] must be able and willing to cooperate by the sharing of information or otherwise, with the [FCA].4with any other authority, body or person having responsibility in the United Kingdom for the supervision or regulation of any regulated activity or other financial service, or with an overseas regulator within the meaning of section 195 of the Act. 4 |
In determining whether a UK recognised body is able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on of regulated activities, the FCA4 may have regard to the extent to which the UK recognised body seeks to promote and encourage, through its rules, practices and procedures, conduct in regulated activities which is consistent with the Market Abuse Regulation5 and with any5 codes of conduct, rules or principles relating to behaviour
In assessing the ability of a UK recognised body to cooperate with the FCA4 and other appropriate bodies, the FCA4 may have regard to the extent to which the constitution and rules of the UK recognised body and its agreements with its members enable it to obtain information from members and to disclose otherwise confidential information to the FCA4 and other appropriate bodies.444
In assessing the willingness of a UK recognised body to cooperate with the FCA4 and other appropriate bodies, the FCA4 may have regard to:44(1) the extent to which the UK recognised body is willing to provide information about it and its activities to assist the FCA4 in the exercise of its functions;4(2) the extent to which the UK recognised body is open with the FCA4 or other appropriate bodies in regulatory matters;4(3) how diligently the UK recognised body investigates or pursues
The report referred to in IPRU-INV 4.4.2D must reach the FCA1 within two months of the end of the relevant quarter and must state: (1) whether the Society has any information indicating or tending to indicate that, during the quarter to which the report relates, the members’ agents1 failed to meet the financial resource requirements referred to in IPRU-INV 4.4.1D; (2) whether, at the end of the quarter to which the report relates, the members’ agents1 failed to meet the financial
The report in IPRU-INV 4.4.4D must reach the FCA1 within seven months of that members’ agent's1 accounting reference date and must: (1) confirm that: (a) the Society has received from that members’ agent1 in respect of the financial year to which the report relates, all relevant attachments to the Annual Financial Return that the members’ agent1 is required to make to the Society under the requirements identified in IPRU-INV 4.4.1D; (b) that members’ agent1 met the applicable
The characteristics that a reasonable investor can be expected to have will inform the use of judgment required by the 'expectation test' and the 'satisfaction test'. These tests relate to the investor's ability to realise an investment within a reasonable period and to do so on the basis of the net value of its assets. In the FCA's view, the characteristics of the reasonable investor include:(1) sound judgment based on good sense;(2) some knowledge of, and possibly experience
The reasonable investor is a hypothetical investor. The implications of this are that the test does not relate to actual investment by a particular person at a particular time or in relation to a particular issue of any class of shares or securities. In the FCA's view, what underlies the test is what a reasonable investor would think he was getting into if he were contemplating investment in a particular body corporate. In addition, because the investor is hypothetical, the investment
After an initial assessment, however, the FCA's view is that subsequent applications of the investment condition could produce a different result, but only if there is a change to the constitution or practice of the body corporate which is significant and sustained. For example, this may happen if there is a change in the body corporate's published intentions or regular practices. As the Economic Secretary to the Treasury said in parliamentary debate when commenting on the definition,
Section 236(3) uses the words "the investor would, if he were to participate in the scheme". This is consistent with the fact that the reasonable investor is hypothetical. But applying the test at this early stage makes it clear that there must be objectively justifiable grounds on which the reasonable investor could base the expectation in section 236(3)(a). And on which he could be satisfied on the matters in section 236(3)(b). In the FCA's view, this requires, for example,
36Unless 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 powers36) is to be interpreted as:3636(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 persons20.3616151615(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
Firm details are13 used by the FCA10 :2020(1) to ensure that a firm is presented with the correct regulatory return when it seeks to report electronically;(2) in order to communicate with a firm;(3) as the basis for some sections of the Financial Services Register;20 and 20(4) in order to carry out thematic analysis across sectors and groups of firms.
(1) Within 6016business days of its accounting reference date, a firm must check the accuracy of its firm details13 through the relevant section of the FCA10 website.2020(2) [paragraph suspended by FSA 2004/79]5(3) If any firm details are13 incorrect, the firm must submit5 the corrected firm details13 to the FCA10520 using the appropriate form set out in SUP 15 Ann 3 and in accordance with SUP 16.10.4A R.55
(1) A firm must submit any corrected firm details under SUP 16.10.4R(3) using the appropriate online systems accessible through the FCA’s website.1688138202020779(2) [deleted]1681312202020(3) Where a firm is obliged to submit corrected firm details13 online under (1), if the FCA's20 information technology systems fail and online submission is unavailable for 24 hours or more, until such time as facilities for online submission are restored, a firm must submit its corrected firm
5If the FCA's20 information technology systems fail and online submission is unavailable for 24 hours or more, the FCA20 will endeavour to publish a notice on its website confirming that online submission is unavailable and that the alternative methods of submission set out in SUP 16.3.9 R20 should be used.202020
The firm details are made available to the firm when the firm logs into the appropriate section of the FCA’s website. The firm should check the firm details and send any corrections to the FCA.15 The FCA’s preferred method of receiving corrections to firm details is by the online forms available at the FCA’s website.1310202013102020102020131020202
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
The FSCS must allocate a compensation costs levy or specific costs levy, which has been allocated to the retail pool (under FEES 6.5.2-AR(2) or FEES 6.4.6AR32):(1) to classes whose levy limit3 has not been reached as at the date of the levy;(2) in proportion to the relative sizes of the levy limits3 of the classes in (1) and up to those levy limits32; and(3) in accordance with the table in FEES 6 Annex 2R; and32(4) a class’s share of a levy allocated to the retail pool must be
[deleted]2
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.