Related provisions for PERG 8.3.4
101 - 120 of 1113 items.
The first activity (article 25A(1) and (2A)2) is referred to in this guidance as arranging (bringing about) regulated mortgage contracts. Various points arise:(1) It is not necessary for the potential borrower himself to be involved in making the arrangements.(2) This activity is carried on only if the arrangements bring about, or would bring about a regulated mortgage contract. This is because of the exclusion in article 26 (see PERG 4.5.4 G). As explained in PERG 4.5.4A G, this
Article 26 of the Regulated Activities Order (Arrangements not causing a deal) excludes from article 25A(1) arrangements which do not bring about or would not bring about the regulated mortgage contract in question. In the FCA's view, a person brings about or would bring about a regulated mortgage contract 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.
In the FCA's view, the crucial element of the exclusion in article 27 is the inclusion of the word "merely". When a publisher, broadcaster or Internet website operator goes beyond what is necessary for him to provide his service of publishing, broadcasting or otherwise facilitating the issue of promotions, he may well bring himself within the scope of article 25A(2). Further detailed guidance relating to the scope of the exclusion in article 27 is contained in PERG 8.32.6 G to
Arranging a regulated mortgage contract (or contract variation) to which the arranger is to be a party is excluded from both article 25A(1) and (2) by article 28A of the Regulated Activities Order (Arranging contracts to which the arranger is a party). As a result, a person cannot both be entering into a regulated mortgage contract and arranging a regulated mortgage contract under article 25A as regards a particular regulated mortgage contract. This means that a direct sale by
An unauthorised person who makes arrangements for or with a view to a regulated mortgage contract between a borrower and an authorised person, is excluded from article 25A(1) and (2), 25A(2A) and2 by article 29 of the Regulated Activities Order (Arranging deals with or through authorised persons) if specified conditions as to advice and remuneration are satisfied. For example, the exclusion is dependent on the borrower not receiving any advice on the regulated mortgage contract
The exclusion applies for introductions to:(1) an authorised person who has permission to carry on a regulated activity specified in article 25A (Arranging regulated mortgage contracts) or article 53A (Advising on regulated mortgage contracts) or article 61(1) (Entering into a regulated mortgage contract as lender); introducers can check the status of an authorised person and its permission by visiting the Financial Services Register1 at http://www.fsa.gov.uk/register/;11(2) an
In the FCA's view, money payable to an introducer on his own account includes money legitimately due to him for services rendered to the borrower, whether in connection with the introduction or otherwise. It also includes sums payable to an introducer (for example, a housebuilder) by a buyer in connection with a transfer of property. For example, article 33A allows a housebuilder to receive the purchase price on a property that he sells to a borrower, whom he previously introduced
In the FCA's view, details of fees or commission referred to in PERG 4.5.14G (2) does not require an introducer to provide an actual sum to the borrower, where it is not possible to calculate the full amount due prior to the introduction. This may arise in cases where the fee or commission is a percentage of the eventual loan taken out and the amount of the required loan is not known at the time of the introduction. In these cases, it would be sufficient for the introducer to
In the FCA's view, the information condition in PERG 4.5.14G (3) requires the introducer to indicate to the borrower any other advantages accruing to him as a result of ongoing arrangements with N relating to the introduction of borrowers. This may include, for example, indirect benefits such as office space, travel expenses, subscription fees and this and other relevant information may be provided on a standard form basis to the borrower, as appropriate.
The FCA's approach to taking enforcement action under the PARs will reflect 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 and responsive to the issue and consistent with its publicly stated policies. It will also seek to ensure fair treatment of subjects under investigation when exercising its enforcement powers.
Part 1 of Schedule 7 to the PARs applies many of the provisions of the Act in relation to the FCA’s investigation and information-gathering powers to the FCA’s functions under the PARs. The effect of this is to apply the same procedures under the Act for appointing investigators and requiring information when investigating any breaches of the PARs.
For example, the FCA will, if appropriate, notify the subject of the investigation that it has appointed investigators to carry out an investigation and the reasons for the appointment. The FCA's policy in regulatory investigations under the PARs is to use powers to compel information, in the same way as it would in the course of an investigation under the Act.
The RDC is the FCA’s decision maker for some decisions which require warning notices, decision notices or other written notices to be given under the PARs as set out in DEPP 2 Annex 1 and DEPP 2 Annex 2. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3 or DEPP 3.4.
When determining whether to take action to impose a penalty or to issue a public censure under the PARs, the FCA’s policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA’s policy includes having regard to the relevant principles and factors in DEPP 6.5, DEPP 6.5A, DEPP 6.5D and DEPP 6.7.
(1) The purpose of REC 3.15.2 R to REC 3.15.5 G is to enable the FCA3 to obtain information where a UK recognised body decides to suspend the provision of its services in relation to particular investments or (for an RAP) decides to cancel an auction.2 Planned changes to the provision of services should be notified to the FCA3under REC 3.14.33(2) REC 3.15.6 R to REC 3.15.7 R provide for notification to the FCA3where a UK recognised body is unable to operate or provide its facilities
Where, for any reason, an RIE halts trading in a financial instrument on a trading venue which is material in terms of liquidity in that financial instrument,4it must immediately give the FCA3notice of that event, particulars of that financial instrument4, and the reasons for the action taken.[Note: article 48(5) of MiFID and MiFID RTS 12]43
1When a UK RIE suspends trading on a trading venue4 in any financial instrument, it must immediately give the FCA3notice of that event and relevant information including particulars of that financial instrument and the reasons for the action taken. [Note: articles 32(2) and 52(2), paragraph 14 of MiFID. REC 2.6.6UK(4)5 requires that the FCA be notified when a trading suspension for a financial instrument is lifted or a financial instrument is re-admitted to trading. MiFID ITS
Where a UK recognised body suspends providing clearing facilitation services generally in respect of any derivative (other than an option in relation to a security), type of security or type of option in relation to a security, it must immediately give the FCA notice of that event, particulars of that derivative, type of security or type of option in relation to a security, as the case may be, and the reasons for the action taken.33
Where a UK recognised body suspends any arrangements it makes for the safeguarding and administration of any type of asset belonging to any other person (other than an undertaking in the same group), that UK recognised body must immediately give the FCA3notice of that event, particulars of that type of asset and the reasons for the action taken.3
Where, because of the occurrence of any event or circumstances, a UK recognised body is unable to operate any of its facilities within its normal hours of operation, it must immediately give the FCA3notice of that inability and inform the FCA:333(1) which facility it is unable to operate; (2) what event or circumstance has caused it to become unable to operate that facility within those hours; and(3) what action, if any, it is taking or proposes to take to enable it to recommence
Where, because of the occurrence of any event or circumstances, a UK recognised body extends its hours of operation, it must immediately give the FCA3notice of that event, and inform the FCA3:33(1) what event or circumstance has caused it to do so; (2) the new hours of operation; and(3) the date on which it expects to revert to its normal hours of operation.
The FCA would normally consider the dissolution of a sub-pool, such that the firm no longer operates the sub-pool or no longer uses the relevant net margined omnibus client account or transfers the business to another authorised central counterparty, to be examples of material changes to a sub-pool.
The records maintained under this section, including the sub-pool disclosure documents, are a record of the firm that must be kept in a durable medium for at least five years following the date on which client money was last held by the firm for a sub-pool to which those records or the sub-pool disclosure document applied.
The criteria listed in FIT 2.1 to FIT 2.3 are guidance and will be applied in general terms when the FCA1 is determining a person's fitness and propriety. It would be impossible to produce a definitive list of all the matters which would be relevant to a particular determination. An SMCR firm2 assessing the fitness and propriety of staff being assessed under FIT should be guided by substantially the same criteria in FIT 2.1 to FIT 2.3 (to the extent applicable to the firm), recognising
If a matter comes to the FCA's1 attention which suggests that the person might not be fit and proper, the FCA1 will take into account how relevant and how important it is. In the same way, if a matter comes to the attention of an SMCR firm2 which suggests that any staff being assessed under FIT might not be fit and proper, the firm should take into account how relevant and how important that matter is. 111
1An SMCR firm2 assessing the continuing fitness and propriety of an approved person is required to notify the FCA under section 63(2A) of the Act if it forms the opinion that there are grounds on which the FCA could withdraw its approval (see SUP 10C.14.24R). In discharging its obligation to notify the FCA, an SMCR firm2 should take into account how relevant and how important the matter is that comes to its attention which suggests an approved person might not be fit and proper
A decision to: (1) revoke a recognition order under section 297 of the Act (Revoking recognition) or (for RAPs) regulation 4 of the RAP regulations; or3(2) make a direction under section 296 (FCA's4powers to give directions) or (for RAPs) regulation 3 of the RAP regulations; or34(3) refuse to make a recognition order under section 290 (Recognition orders) or 290A (Refusal of recognition on ground of excessive regulatory provision) or (for RAPs) regulation 2 of the RAP regulations32;is
In considering whether it would be appropriate to exercise the powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations,3 the FCA4 will have regard to all relevant information and factors including:4(1) its guidance to recognised bodies;(2) the results of its routine supervision of the body concerned;(3) the extent to which the failure or likely failure to satisfy one or more of the recognised body requirements31may affect the statutory
In considering whether or not to make a recognition order, the FCA4 will have regard to all relevant information and factors, including its guidance to recognised bodies and applicants and the information provided by applicants. Details of the application processes and other guidance for applicants are set out in REC 5 and (for overseas applications) REC 6.4
Before exercising its powers under section 296 or section 297 of the Act or (for RAPs) regulation 3 or 4 of the RAP regulations3, the FCA4 will usually discuss its intention, and the basis for this, with the members of the management body5 or other appropriate representatives of the recognised body. It will usually discuss its intention not to make a recognition order with appropriate representatives of the applicant.4
3Key steps in the section 298 procedure4
| 4 | ||
(1) |
give written notice to theRIE4 (or applicant); 4 |
The notice will state why the FCA4 intends to take the action it proposes to take, and include an invitation to make representations, and the period within which representations should be made (unless subsequently extended by the FCA)4. 4 |
(2)4 4 |
receive representations from the RIE or applicant concerned;4 4 |
The FCA4 will not usually consider oral representations without first receiving written representations from theRIE (or applicant)4. It will normally only hear oral representations from the RIE4 on request. 444 |
(3)4 4 |
write promptly to RIE (or applicant)4 who requests the opportunity to make oral representations if it decides not to hear that person's representations; 4 |
The FCA4 will indicate why it will not hear oral representations and the FCA4 will allow the RIE (or applicant)4 further time to respond. 444 |
(4)4 4 |
have regard to representations made; |
|
(5)4 4 |
(when it has reached its decision) notify the RIE4 (or applicant) concerned in writing. 4 |
|
| 4 |
4For RAPs, key steps in the regulation 5 procedure
The FCA will: |
||
(1) |
give written notice to the RAP (or applicant); |
The notice will state why the FCA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made. |
(2) |
take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the RAP or of the applicant, as the case may be; |
The FCA will also notify persons individually (as far as it considers it reasonably practicable to do so) if it considers that the action it proposes to take would affect them adversely in a way which would be different from its effect on other persons of the same class. |
(3) |
publish the notice so as to bring it to the attention of other persons likely to be affected; |
|
(4) |
receive representations from the RAP or applicant concerned, any member of the RAP or applicant, and any other person who is likely to be affected by the action the FCA proposes to take; |
The FCA will not usually consider oral representations without first receiving written representations from the person concerned. It will normally only hear oral representations from the RAP (or applicant) itself or of a person whom it has notified individually, on request. |
(5) |
write promptly to any person who requests the opportunity to make oral representations if it decides not to hear that person's representations; |
The FCA will indicate why it will not hear oral representations and the FCA will allow the person concerned further time to respond. |
(6) |
have regard to representations made; |
|
(7) |
(when it has reached its decision) notify the RAP (or applicant) concerned in writing; |
|
(8) |
(if it has decided to give a direction, or revoke or refuse to make a recognition order) take such steps as it considers reasonably practicable to bring its decision to the attention of members of the RAP or applicant and to other persons likely to be affected. |
The FCA will usually give notice of its decision to the same persons and in the same manner as it gave notice of its intention to act. |
1The RDC is the FCA's decision maker for some of the decisions under the Payment Services Regulations as set out in DEPP 2 Annex 1G. This builds a layer of separation into the process to help ensure not only that decisions are fair but that they are seen to be fair. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3 and 3.4. DEPP 3.4 applies for urgent notices under regulations 12(6), 12(9), and 12(10)(b) (including as applied
1As with cases under the Act, the FCA may settle or mediate appropriate cases involving civil breaches of the Payment Services Regulations to assist it to exercise its functions under the Regulations in the most efficient and economic way. See DEPP 5, DEPP 6.7 and EG 5 for further information on the settlement process and the settlement discount scheme.
1The Payment Services Regulations apply section 169 of the Act which requires the FCA to publish a statement of policy on the conduct of certain interviews in response to requests from overseas regulators. For the purposes of the Payment Services Regulations the FCA will follow the procedures described in DEPP 7.
1For a consumer contract term, if the FCA decides, after notifying the Competition and Markets Authority (the CMA), to the extent required by Schedule 3 to the CRA, to address issues using its powers under Schedule 3, if the contract term is within the CRA's scope, it will, unless the case is urgent, generally first write to a person using or proposing or recommending the use of that term.
1When writing, the FCA will express its concerns about whether the term is or would be unfair within the meaning of sections 62 to 64 of the CRA, or non-transparent within the meaning of section 68 of the CRA, or purports or would purport to exclude or restrict any liability described in the sections of the CRA specified in paragraph 3(2) of Schedule 3 and will invite the person's comments on those concerns.
1If the FCA, having considered those comments, remains of the view that the term is or would be unfair or non-transparent or purports, or would purport, to be exclusionary or restrictive, as described above, it will normally ask the person to undertake to stop using, relying on or recommending it or proposing its use. It should be noted that, under paragraphs 2(3), 6(3) and 7(1) of Schedule 3 to the CRA, such an undertaking must be notified by the FCA to the CMA and any relevant
1In relation to a notice to consumers within the CRA's scope, the FCA will generally, after notifying the CMA, request such an undertaking from the relevant person, if the notice causes the FCA relevant concerns, without first seeking comments. Although the FCA will, unless the case is an urgent one and time does not permit, then have regard to any representations responsive to that request.
1If, whether in relation to such a notice or such a term, the person either declines to give such an undertaking, or gives such an undertaking and fails to follow it, the FCA will consider the need to apply to court for an injunction under Schedule 3 to the CRA. The FCA will, again, notify the CMA appropriately at this stage, as required by Schedule 3.
1In determining whether to seek an injunction under Schedule 3 to the CRA against a person, after or, in an urgent case, instead of requesting such an undertaking, the FCA will consider the full circumstances of each case. A number of factors may be relevant for this purpose. The following list is not exhaustive; not all of the factors may be relevant in a particular case, and there may be other factors that are relevant such as: (1) whether the FCA is satisfied that the contract
1In an urgent case, the FCA may seek a temporary injunction, to prevent the continued or potential use of the term or notice until it can be fully considered by the court. An urgent case is one in which the FCA considers that the actual or potential detriment is so serious that urgent action is necessary. In deciding whether to apply for a temporary injunction, the FCA may take into account a number of factors, including one or more of the factors set out in paragraph 10.6.7.
1On obtaining information concerning possible financial crime facilitated through or involving an incoming ECA provider, or detriment to UK markets or UK ECA recipients caused by the activities of an incoming ECA provider, the FCA will contact the relevant EEA regulator of the incoming ECA provider. The FCA would expect the relevant EEA regulator to consider the matter, investigate it where appropriate and keep the FCA informed about what action, if any, was being taken. The FCA
1However, there are likely to be circumstances in which the FCA will need to use the electronic commerce activity direction power. Examples could include where it was necessary to stop the behaviour complained of, or to make the continued provision of services by the incoming ECA provider conditional upon compliance with specified requirements. Overall, the FCA may use the direction power: (1) where: (a) the behaviour complained of was causing, or had the potential to cause,
1The question of whether the FCA decides to prevent or prohibit the incoming electronic commerce activity, or to make it subject to certain requirements (for example, compliance with specified rules), will depend on the overall circumstance of the case. A relevant consideration will be whether the FCA is satisfied that its concerns over the incoming electronic commerce activity can be adequately addressed through the imposition of a requirement, rather than a complete prohibition
1The FCA may consider that a case is urgent, in particular, where: (1) the information available to it indicates serious concerns about the incoming electronic commerce activity that need to be addressed immediately; and (2) circumstances indicate that it is appropriate to use the direction power immediately to prohibit the incoming electronic commerce activity, or to make the carrying on of the activity subject to specified requirements.
1The FCA will consider the full circumstances of the case when deciding whether exercising the direction power, without first taking the procedural steps set out in regulation 6, is an appropriate response to such concerns. The factors the FCA may consider include those listed in paragraph 19.9.4 of this guide. There may be other relevant factors.
1The FCA's decision to make, revoke or vary an electronic commerce activity direction will generally be taken by the RDC Chairman. However, this is subject to two exceptions. (1) In an urgent case and if the Chairman is not available, the decision will be taken by an RDC Deputy Chairman and where possible, but subject to the need to act swiftly, one other RDC
member.
(2) If a provider who has been notified of the FCA's intention to make
1Where a provider must be given the opportunity to make representations in relation to a proposed direction or variation of a direction, the RDC Chairman will determine in each case the manner and the period within which those representations should be made. If the FCA decides to issue a direction or vary it at its own initiative, or if the FCA refuses an application to vary or revoke a direction, the person to whom the direction applies may refer the matter to the Tribunal.
1Regulation 10(8) of the ECD Regulations provides that if the FCA makes a direction, it may publish, in such manner as it considers appropriate, such information about the matter to which the direction relates as it considers appropriate in furtherance of any of the objectives referred to in paragraph 19.9.3(1) of this guide. However, under Regulation 10(9), the FCA may not publish information relating to a direction if publication would, in the FCA's
opinion, be unfair
1When deciding what information, if any, to publish and the appropriate manner of publication, the FCA will consider the full circumstances of each case. The FCA anticipates that it will generally be appropriate to publish relevant details of a direction, in order to protect and inform consumers. However, in accordance with the Regulation 10(9) prohibition, it will not publish information if it considers that publication would be unfair to the provider or prejudicial to the interests
(1) [deleted] Editor’s note: The text of this provision has been moved to SYSC 24.3.2G]66(2) [deleted] [Editor’s note: The text of this provision has been moved to SYSC 24.3.3G]6(3) [deleted] Editor’s note: The text of this provision has been moved to SYSC 24.3.1G]6(4) [deleted]66(5) [deleted] [Editor’s note: The text of this provision has been moved to SYSC 24.3.4G]6
The circumstances in which the FCA5 may vary a firm'sPart 4A permission5 on
its own initiative or impose
a requirement on a firm5 under sections 55J or 55L5 of the Act include
where it appears to the FCA5 that:5555(1) one
or more of the threshold conditions for which the FCA is
responsible5 is or is likely to be no longer
satisfied; or(2) it
is desirable to vary a firm's permission in order to meet any of the FCA's5 statutory objectives under the Act; or5335(3) a firm has
not
The FCA5 may also use its own-initiative powers5 for
enforcement purposes. EG 82 sets out in detail the FCA's5 powers under sections 55J and 55L of the Act5 and
the circumstances under which the FCA5 may use its own-initiative powers5 in this way, whether for enforcement purposes or as part of its
day to day supervision of firms.
This chapter provides additional guidance on when the FCA5 will use these powers for supervision purposes.55255555
The FCA5 may use its own-initiative powers5 only in respect of a firm's5Part 4A permission5; that is, a permission granted
to a firm under sections 55E or 55F5 of the Act (Giving
permission) or having effect as if so given. In respect of an incoming EEA firm, an incoming
Treaty firm, or a UCITS qualifier,
this power applies only in relation to any top-up
permission that it has. There are similar but more limited powers
under Part XIII of the Act in
relation to the permission
5In the case of a dual-regulatedPRA-authorised person, the FCA may exercise its own-initiative
variation power to add a new regulated
activity other than a PRA-regulated
activity to those activities already included in the firm'sPart
4A permission, or to widen the description of a regulated activity, only after consulting
with the PRA.
(1) An application should be made by the proprietor of the relevant publication or service using the appropriate form, accessible from our website (see Forms/ Perimeter Guidance manual forms). The form asks for general information about the applicant and gives guidance notes on completion and other details of how the FCA can help.(2) An applicant will be asked to state his own view of the principal purpose of the publication or service. This should include an explanation why the
The Act does not specify a time limit for processing the application but the FCA intends to deal with an application as quickly as possible. The more complete and relevant the information provided by an applicant, the more quickly a decision can be expected. But on occasion it may be necessary to allow time in which the FCA can monitor the content of the service. This might happen where, for example, a service is in a form that makes record keeping difficult (such as a large website
The FCA will form an overall view as to the purpose (or purposes) underlying the publication or service. It will then determine whether the principal purpose is neither of those referred to in article 54 of the Regulated Activities Order. Because the possible range of subject matter covered by different publications or services is very wide it is not possible to apply standard tests. The FCA will form a judgment as to the overall impression created by the publication or service.
If the FCA decides to grant the application it will issue a certificate. The certificate will normally be granted for an indefinite period. It will state what it is that the FCA considers constitutes the periodical or service in relation to which the FCA is satisfied that the exclusion in article 54 of the Regulated Activities Order applies. In many cases this will be self-evident. But it may sometimes be necessary to include further details in the certificate indicating what
An application may be refused on the grounds that the FCA is not satisfied that the principal purpose of the publication or service is neither of those mentioned in article 54(1)(a) or (b) of the Regulated Activities Order (see PERG 7.4.5 G). An application may also be refused on the grounds that the FCA considers that the vehicle through which advice is to be given is not a newspaper, journal, magazine or other periodical publication, a regularly updated news or information service
If an owner proposes to transfer the asset pool to a new owner it must provide the FCA as a minimum with the following information in writing at least three months before the proposed transfer date:(1) name, address and contact details of the proposed new owner;(2) proposed transfer date and reasons for the transfer;(3) an explanation of how the proposed new owner will comply with the requirements imposed on it by the RCB Regulations and RCB; and(4) confirmation that the existing
If an issuer proposes to make a material change to the contractual terms of a regulated covered bond, it must inform the FCA of the following information to the FCA at least 3 months before the proposed date of the change:(1) details of the proposed change including proposed date of change and the reasons for it;(2) an assessment of the impact of the change on the ability of the issuer and owner to continue to comply with their requirements under the RCB Regulations and RCB; and
The issuer or the owner, as the case may be, must notify the FCA immediately in writing by e-mail, or hand-delivered letter, if requirements relating to the relevant regulated covered bond under the RCB Regulations or RCB are, or are likely to be, materially breached, or of any other matter which the FCA should be made aware of.
6CBTL firms are subject to a duty to deal with the FCA in an open and co-operative manner under article 18(1)(d) of the MCD Order. SUP 2.3 applies to CBTL firms in relation to complying with that duty as though:(1) a reference to firm included a reference to a CBTL firm;(2) a reference to the regulatory system were a reference to the provisions of the MCD Order, rules, directions and guidance applicable to CBTL firms;(3) a reference to Principle 11 were a reference to the duty
Achieving the regulatory objectives involves the FCA informing itself of developments in firms and in markets. The Act requires the FCA to maintain arrangements for supervising authorised persons (section 1L(1)). 5 The Act also requires the FCA to take certain steps to cooperate with other relevant bodies and 3regulators (section 354A). For these purposes, the FCA needs to have access to a broad range of information about a firm's business.5
The FCA receives the information in SUP 2.1.3 G through a variety of means, including notifications by firms (see SUP 15) and regular reporting by firms (see SUP 16). This chapter is concerned with the methods of information gathering that the FCA may use on its own initiative in the discharge of its functions under the Act. This chapter does not deal with the information gathering powers that the FCA has under the Unfair Terms Regulations and the CRA. 7These are dealt with in
Part XI of the Act (Information Gathering and Investigations) gives the FCA10 statutory powers, including: 10(1) to require the provision of information (see sections 165 and 103EG 32);31032310(2) to require reports from skilled persons (see section 166 and SUP 5);(3) to appoint investigators (see sections 167, 168 and 169 of the Act and EG 32); and2(4) to apply for a warrant to enter premises (see section 176 of the Act and EG 42).2
The FCA prefers to discharge its functions by working in an open and cooperative relationship with firms. The FCA will look to obtain information in the context of that relationship unless it appears that obtaining information in that way will not achieve the necessary results, in which case it will use its statutory powers. The FCA has exercised its rule-making powers to make Principle 11 which requires that a firm must deal with its regulators in an open and cooperative way,
The purpose of SUP 2.3 is to amplify Principle 11 in the context of information gathering by the FCA on its own initiative in the discharge of its functions under the Act. SUP 2.3 therefore sets out, in guidance on Principle 11 and in rules, how the FCA expects firms to deal with the FCA in that context, including the steps that a firm should take with a view to ensuring that certain connected persons should also cooperate with the FCA.
The purpose of SUP 2.4 is to explain a particular method of information gathering used by the FCA, known as "mystery shopping". Information about how a firm sells products and services8 can be very difficult to obtain, and the purpose of this method is to obtain such information from individuals who approach a firm in the role of potential retail consumers on the FCA's initiative. The FCA may seek information about particular issues or the activities of individual firms by means
(1) Every firm will have one or more persons responsible for directing its affairs. These persons will be performing the FCA governing functions and will be required to be FCA-approved persons unless the application provisions in SUP 10A.1, or the particular description of an FCA controlled function, provide otherwise. For example, each director of a company incorporated under the Companies Acts will perform an FCA governing function.532(2) [deleted]5332(3) [deleted]5332
(1) The explanation in SUP 10C.5B.2G of
the basis on which the group entity senior manager function is
included as a controlled function for an SMCR firm is also
relevant to7 the basis on which the director function and the non-executive director function are applied to persons who have a position with the firm'sparent undertaking or holding company under SUP 10A.6.8 R or SUP 10A.6.13 R.(2) The guidance in SUP 10C.5B.3G
to SUP 10C.5B.5G about when the group entity senior manager
function
For a branch in the United Kingdom of an overseas firm, the FCA would not normally expect the overseas chief executive of the firm as a whole to be FCA-approved for this function where there is a senior manager under him with specific responsibility for those activities of the branch which are subject to the UKregulatory system. In some circumstances, the person within the firm responsible for UK operations may, if the function is likely to enable him to exercise significant influence
There is no definition in the Financial Promotion Order of what ‘proper systems and procedures’ are, and the matter will ultimately be for the courts to determine. This is unsurprising as systems and procedures may take many different forms depending upon the precise circumstances in which financial promotions are made. But it is clear that persons seeking conclusive proof that the exemption applies must consciously make arrangements to prevent their dealing with certain recipients
In any case, some but not all of the conditions referred to in PERG 8.12.5G (1) to PERG 8.12.5G (2) and PERG 8.12.7G (1) to PERG 8.12.7G (2) (or the additional condition that the communication is included in a website, newspaper or periodical publication which is principally accessed in or intended for a non-UK market or in a radio or television broadcast or teletext service transmitted principally for reception overseas) may be met. In these cases, those conditions being satisfied
This exemption applies to any financial promotion that is made with a view to or for the purposes of introducing the recipient to certain kinds of person. These are authorised persons who carry on the controlled activity to which the financial promotion relates, or exempt persons where the financial promotion relates to a controlled activity that is also a regulated activity in relation to which he is an exempt person. This is subject to the requirement that:11(1) the person making
The conditions in article 18(2) include a requirement that the person making the financial promotion does not select, modify or otherwise exercise control over its content before it is transmitted or received. Article 18(3) provides that a person is not selecting, modifying or exercising control merely as a result of having power to remove material which is illegal, defamatory or in breach of copyright or at the request of a regulatory body or where the law requires him to do
The conditions in article 18 also require that the person acting as the mere conduit must communicate in the course of an activity1 carried on by him the principal purpose of which is transmitting or receiving material provided to him by others. In the FCA's view, what matters is that the person is carrying on an activity1 which has the required principal purpose. Such an activity1 might represent but a part of a person’s overall business1 activities (however small), so long as
Article 19(4) sets out conditions which, if all are satisfied, offer conclusive proof that a financial promotion is directed only at investment professionals. These conditions relate to indications accompanying the financial promotion and the existence of proper systems and procedures. The guidance about proper systems and procedures in PERG 8.12.6 G applies equally to article 19. Article 19(6) specifically states that a financial promotion may be treated as made only to or directed
With this objective in mind, the exemption in article 20 applies to any non-real time financial promotion the contents of which are devised by a person acting as a journalist where the financial promotion is in:1(1) a newspaper, journal, magazine or other periodical publication;(2) a regularly updated news or information service (such as a website or teletext service); or(3) a television or radio broadcast or transmission.In addition, the publication, service or broadcast must
Provided the conditions in PERG 8.12.25 G are met, the exemption in article 20 applies to any non-real time financial promotion. However, there is an additional condition where the subject matter of the financial promotion is shares or options, futures or contracts for differences relating to shares and the financial promotion identifies directly a person who issues or provides such an investment, or the subject matter of the financial promotion is a controlled claims management
The effect of PERG 8.12.27G (1) is that a journalist will not breach section 21 by not disclosing a financial interest, providing that the publication, service or broadcast concerned operates proper systems and procedures. As with the exemption in article 12 of the Financial Promotion Order (see PERG 8.12.6 G), what proper systems and procedures are will be a matter ultimately for the courts to determine and may vary according to the medium used. It will depend upon all the circumstances
Persons such as experts or analysts may be approached to contribute at very short notice and may be overseas. In such cases, the systems and procedures referred to in PERG 8.12.29 G may not be practical. It is the FCA's opinion that, where occasional contributors are concerned, proper systems and procedures may include arrangements for ensuring that the need for disclosure (or the avoidance of financial interests) is drawn to the contributor’s attention before the communication
It appears to the FCA, however, that there will be situations when it may not be practical for the persons who are responsible for a publication, service or broadcast to apply proper systems and procedures to every person who may, whilst acting in the capacity of a journalist, communicate a financial promotion. For example where persons are asked to stand in at the last moment. In such cases, it is the FCA's opinion that the benefit of the exclusion will not be lost as respects
The exemption applies where the financial promotion:(1) comprises words which are spoken by the director or employee and not broadcast, transmitted or displayed in writing; or(2) is displayed in writing only because it is part of an interactive dialogue to which the director or employee is a party and in the course of which he is expected to respond immediately to questions put by a recipient of the communication.This is provided that the financial promotion is not part of an
The first part of the exemption (referred to in PERG 8.12.34G (1)) specifically precludes any form of written communication. However, the FCA understands that the Treasury did not intend to prohibit the use of written words in the form of subtitling. These may be an aid to those with hearing difficulties or to interpret a foreign language, or the use of captions which supplement a spoken communication by highlighting aspects of it without introducing anything new. The FCA cannot
1Under section 166 of the Act, the FCA has a power to require a firm and certain other persons to provide a report by a skilled person, or itself to appoint a skilled person to produce such a report. The FCA may use its section 166 power to require reports by skilled persons to support both its supervision and enforcement functions.
1The factors the FCA will consider when deciding whether to use the section 166 power include: (1) If the FCA's objectives for making further enquiries are predominantly for the purposes of fact finding i.e. gathering historic information or evidence for determining whether enforcement action may be appropriate, the FCA's information gathering and investigation powers under sections 167 and 168 of the Act are likely to be more effective and more appropriate than the power under
1Where it exercises this power, the FCA will make clear both to the firm and to the skilled person the nature of the concerns that led the FCA to decide to appoint a skilled person and the possible uses of the results of the report. But a report the FCA commissions for purely diagnostic purposes could identify issues which could lead to the appointment of an investigator and/or enforcement action.
1Under section 166A of the Act, the FCA also has a power to require a firm to appoint a skilled person to collect or update information, or itself to appoint a skilled person to do so, where it considers that the firm has failed to provide information required by the FCA or update information previously provided to the FCA.
1The FCA has a range of powers it can use to take remedial, protective and disciplinary action against a person who has contravened a relevant requirement or engaged in market abuse, as well as its powers to seek injunctions under sections 380 and 381 of the Act and under the courts' inherent jurisdiction. Where appropriate, the FCA may exercise these other powers before, at the same time as, or after it applies for an injunction against a person.
1When, in relation to firms, the FCA applies the broad test outlined in paragraph 10.2.2, it will consider the relative effectiveness of the other powers available to it, compared with injunctive relief. For example, where the FCA has concerns about whether a firm will comply with restrictions that the FCA could impose by exercising its own-initiative powers, it may decide it would be more appropriate to seek an injunction. This is because breaching any requirement imposed by
1The FCA'sown-initiative powers do not apply to unauthorised persons. This means that an application for an injunction is the only power by which the FCA may seek directly to prevent unauthorised persons from actual or threatened breaches or market abuse. The FCA will decide whether an application against an unauthorised person is appropriate, in accordance with the approach discussed in paragraph 10.2.2. The FCA may also seek an injunction to secure assets where it intends to
1In certain cases, conduct that may be the subject of an injunction application will also be an offence which the FCA has power to prosecute under the Act. In those cases, the FCA will consider whether it is appropriate to prosecute the offence in question, as well as applying for injunctions under section 380, section 381, or both.
1The issuer must send to the FCA loan-by-loan level data relating to the asset pool in the form set out in RCB 3 Annex 7A D within one month of the end of each quarter following any issuance of regulated covered bonds after 1 January 2013. Guidance on how to complete this form is set out in RCB 3 Annex 7B G.
1If the issuer or the owner (as the case may be) proposes to add or remove assets to or from the asset pool which change the level of over collateralisation by 5% or more, it must notify the FCA using the form set out in RCB 3 Annex 2 D (asset notification form) at least 5 business days prior to the proposed transfer, giving expected details of the size and composition of the transfer.