Related provisions for PERG 4.6.8
41 - 60 of 168 items.
(1) 2CONC does not apply to credit agreements secured on land, with some limited exceptions as set out in (3) and (4), below. (2) Agreements secured by a second or subsequent charge on the customer’s home are, where regulated, governed by MCOB from 21 March 2016 (subject to transitional provisions allowing for the earlier adoption of MCOB). For detailed guidance on the regulation of secured lending, see PERG 4.(3) The agreements secured on land to which CONC may apply include
(1) 2CONC 1.2.8R and the rules applied by CONC 1.2.8R do not apply to an MCD article 3(1)(b) creditor or MCD article 3(1)(b) credit intermediary where the MCD article 3(1)(b) credit agreement would be an exempt agreement pursuant to article 60H(1) of the Regulated Activities Order but for:(a) paragraph (1)(b)(ii)(bb) of article 60H of the Regulated Activities Order (which relates to high net worth borrowers); or(b) article 60HA of the Regulated Activities Order (exemptions not
2The purpose of CONC 1.2.10R(1)(a) is to enable a high net worth borrower under an MCD article 3(1)(b) credit agreement to waive the protections and remedies applicable to regulated credit agreements, except for those that transpose or implement the MCD. The MCD does not contain an exemption or derogation in respect of borrowing above a certain amount, unlike the Consumer Credit Directive: the EUR75,000 threshold in that Directive has been implemented in the form of the exemption
(1) Introductions may take many forms but typically involve an offer to make an introduction or action taken in response to an unsolicited request. An introduction may be an inducement if the introducer is actively seeking to persuade or incite the person he is introducing to do business with the person to whom the introduction is made. So it may fall under section 21 if its purpose is to lead to investment activity or controlled claims management activity8. For example, if a
A person ('P') may be engaged, typically by investment product companies, to provide telephone services. Where such services require P to seek to persuade or incite prospective customers to receive investment literature or a personal call or visit from a representative of his principal they will frequently involve inducements to engage in investment activity. This is so whether the inducement results from P making unsolicited calls or by his raising the issue during a call made
A personal illustration (for instance, of the costs of and benefits under a particular investment product) may or may not be an invitation or inducement. This will depend on the extent to which it seeks to persuade or incite the recipient to invest as opposed to merely providing him with information. A personal illustration may, however, be accompanied by an invitation or inducement to buy the investment in which case the exemptions for one-off financial promotions in articles
Employers and their contracted service providers 6may communicate with employees on matters which involve controlled investments. For example, work-related insurance, staff mortgages,6personal pension schemes (including stakeholder schemes) and other employee benefit schemes other than occupational pension schemes. Interests under the trusts of an occupational pension scheme are not a controlled investment (see paragraph 27 (2) of Schedule 1 to the Financial Promotion Order).In
Financial promotions made only to or directed only at certain types of person who are sophisticated enough to understand the risks involved are exempt. These are:(1) authorised persons;(2) exempt persons (where the financial promotion relates to a controlled activity which is a regulated activity for which the person is exempt);(3) governments and local authorities; and(4) persons whose ordinary business involves carrying on a controlled activity of the kind to which the financial
The Treasury, in making the Financial Promotion Order, noted that financial journalism has an important part to play in increasing consumer awareness of financial services and products. It further observed the need to strike the right balance between protecting consumers and ensuring that the level of regulation is as light as possible, while respecting the principle of the freedom of the press.
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
Article 20A provides a further exemption for certain financial promotionscommunicated by means of a service or broadcast which satisfies the principal purpose test in article 54 of the Regulated Activity Order (see PERG 8.12.25 G and PERG 7). Readers of this section should also refer to the guidance on company statements in PERG 8.21.1
The cumulative effect of article 20(3) of the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2013 (the 2013 Order) and Chapter 14A of Part 2 of the Regulated Activities Order is to essentially carve out regulated mortgage contracts from regulation under the CCA and from regulation as a credit-related regulated activity.11
2A number of Regulated Activities Order exclusions from the consumer credit regulated activities are relevant to lenders under loans secured on land. These include:(1) article 60C(2) (regulated mortgage contract is an exempt credit agreement, as summarised in PERG 2.7.19CG (1));(2) article 60C(3) (commercial lending, as summarised in PERG 2.7.19CG (2));(3) article 60D (loans secured on non-residential property, as summarised in PERG 2.7.19E G);(4) article 60F (loans with a limited
Under article 53(1)1 of the Regulated Activities Order, for anyone except a person in PERG 8.24.1AG,4advising on investments (except P2P agreements)1 covers advice which:(1) is given to a person in his capacity as an investor or potential investor, or in his capacity as agent for an investor or a potential investor; and(2) is advice on the merits of his (whether as principal or agent):42(a) 4buying, selling, subscribing for, exchanging, redeeming, holding4 or underwriting a particular
(1) 4Each of the requirements4 referred to in PERG 8.24.2G is considered in greater detail in PERG 8.25 to PERG 8.29.(2) 4PERG 8.30 and PERG 8.30A have further material about the definition of advising on investments (except P2P agreements) found in PERG 8.24.1G.(3) 4PERG 8.30B explains what a personal recommendation is.
Advice is excluded by article 54 of the Regulated Activities Order from the regulated activities of advising on investments, advising on regulated credit agreements for the acquisition of land2,3advising on a home finance transaction1and advising on conversion or transfer of pension benefits3 if:1(1) the advice is given in a publication or service that is in one of three formats (see PERG 7.4.3 G and PERG 7.4.4 G); and(2) the principal purpose of the particular format is neither
If a person would, but for the exclusion, be carrying on the regulated activities of advising on investments, advising on regulated credit agreements for the acquisition of land,3advising on a home finance transaction or advising on conversion or transfer of pension benefits3, or any or each of them1, and will be doing so as a business in the United Kingdom (see PERG 7.3), he may wish to apply to the FCA for a certificate that the exclusion applies (see PERG 7.6). However, a person
(1) Under section 155 of the CCA an individual has a right to a refund of the firm's fee (less £5) (or for that fee not to be payable) where the individual has not entered into an agreement to which section 155 applies within six months of an introduction:5(a) to a source of credit or of bailment (or in Scotland of hire); or5(b) to another firm that carries on credit broking of the kind specified in article 36A(1)(a) to (c) of the RAO disregarding the effect of paragraph (2) of
3If a customer has not entered into an agreement referred to in section 155(2) of the CCA within six months of the customer being introduced by the firm to a potential source of credit or of bailment (or in Scotland of hire), or to another firm that carries on credit broking of the kind specified in article 36A(1)(a) to (c) of the RAO (disregarding the effect of paragraph (2) of that article)5, as soon as reasonably practicable after the expiry of that six-month period a firm
In the Regulated Activities Order, shares in or securities of an open-ended investment company are treated differently from shares in other bodies corporate. They are treated as units in a collective investment scheme under article 81 of the Regulated Activities Order (Units in a collective investment scheme) rather than shares under article 76 (Shares etc).
7(1) A person carrying on the regulated activity of establishing, operating or winding up a collective investment scheme that is constituted as an open-ended investment company will need permission for those activities. In line with section 237(2) of the Act (Other definitions), the operator of a collective investment scheme that is an open-ended investment company is the company itself and therefore the starting point for an open-ended investment company that is incorporated
Securities falling within the same article in Part III of the Regulated Activities Order which may be given the same generic description (for example, shares admitted to the UKofficial list) will normally be regarded as being of the same type. Options in relation to the same type of security will normally be regarded as being options of the same type.
The FCA3does not need to be notified of proposals to offer (or to withdraw offers of) safeguarding and administration services for individual assets of the same type. Specified investments (other than securities) falling within the same article in Part III of the Regulated Activities Order will normally be regarded as being of the same type. Securities falling within the same article in Part III of the Regulated Activities Order which may be given the same generic description
Under article 64 of the Regulated Activities Order (Agreeing to carry on specified kinds of activity), in addition to the regulated activities of:(1) dealing in investments as agent;(2) arranging (bringing about) deals in investments;(3) making arrangements with a view to transactions in investments;(4) assisting in the administration and performance of a contract of insurance; and(5) advising on investments;agreeing to do any of these things is itself a regulated activity. In
To the extent that an exclusion applies in relation to a regulated activity, 'agreeing' to carry on an activity within the exclusion will not be a regulated activity. This is the effect of article 4(3) of the Regulated Activities Order (Specified activities: general). So, for example, a vet can, without carrying on a regulated activity, enter into an agreement with an insurance undertaking to distribute marketing literature provided that the vet can rely on the exclusion in article
For the purposes of the CMAR:(1) client money is that to which the client money rules in CASS 7 apply; and(2) safe custody assets are those to which the custody rules in CASS 6 apply4 but only in relation to:76(a) the holding of financial instruments (in the course of MiFID business);6(b) the safeguarding and administration of assets (without arranging) (in the course of business that is not MiFID business);6(c) acting as trustee or depositary of an AIF, and in this case also
For the avoidance of doubt, the effect of SUP 16.14.4 R is that the following are4 to be excluded from any calculations which the CMAR requires:444(1) any client money held by the firm in accordance with CASS 5;4(2) any safe custody assets in respect of which the firm is merely arranging safeguarding and administration of assets in accordance with CASS 6;46(2A) any safe custody assets for which a small AIFM is: 6(a) carrying on those excluded custody activities that would merely
(1) The Financial Services and Markets Act 2000 (the Act) is the UK legislation under which bodies corporate, partnerships, individuals and unincorporated associations are permitted by the FCA or PRA to carry on various financial activities which are subject to regulation (referred to as regulated activities).(2) The activities which are regulated activities are specified in the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (the Regulated Activities
2Except in PERG 2 and PERG 7, where PERG uses the defined term of advising on investments, this term refers only to the regulated activity (in article 53(1) of the Regulated Activities Order) of advising on investments (except P2P agreements) and related text should be read and construed accordingly.
The controlled activities also include providing consumer hire. A person provides consumer hire if he enters into a regulated consumer hire agreement (or an agreement that would be such an agreement were it not exempt under article 60O (exempt agreements: exemptions relating to the nature of the agreement) or 60Q (exempt agreement: exemptions relating to nature of hirer) of the Regulated Activities Order) as owner or exercises or has the right to exercise the rights of the owner
Operating an electronic system in relation to lending is a controlled activity. For the purposes of this controlled activity, the controlled investment of rights under a relevant credit agreement includes rights under an agreement within paragraph 4C(4) of Schedule 1 to the Financial Promotion Order (which is similar to an agreement within article 36H of the Regulated Activities Order, guidance on which is given in PERG 2.7.10 G).
Because opinions may differ in circumstances close to the borderline, giving rise to doubt as to whether or not the exclusion applies, the Regulated Activities Order makes provision for a certification process. The purpose of this process is not to provide certification for every publication or service to which the exclusion in article 54 applies.
It is only where there are grounds to think that there is a significant doubt as to the principal purpose of a publication or service that the question of whether or not to apply to the FCA for a certificate under article 54 of the Regulated Activities Order is expected to arise. For example, this may happen where a publication or service has several significant purposes and one of them is a disqualifying purpose referred to in the exclusion in article 54. It may on occasion be
There are six regulated mortgage activities requiring authorisation or exemption if they are carried on in the United Kingdom. These are set out in the Regulated Activities Order. They are:(1) arranging (bringing about) regulated mortgage contracts (article 25 A(1) and (2A)1 (Arranging regulated mortgage contracts));(2) making arrangements with a view to regulated mortgage contracts (article 25A(2) (Arranging regulated mortgage contracts));(3) advising on regulated mortgage contracts
The effect of article 28A of the Regulated Activities Order would normally mean that arrangements made by a party to a home finance transaction3 would not fall within the home finance activity3 of arranging. So in a direct sale, a home finance provider3 would not be carrying on the regulated activity of arranging but, where the transaction proceeds to completion, would instead be involved in a regulated activity comprising entering into a home finance transaction3. However, the
(1) 10By virtue of amendments to articles 60B, 60C and 61 of the Regulated Activities Order which came into force on 21 March 2016, certain regulated credit agreements became regulated mortgage contracts (but see the transitional provisions described in (3) below). The provisions of MCOB that apply to these regulated mortgage contracts include:(a) MCOB 7 (Disclosure at start of contract and after sale);(b) MCOB 12 (Charges); and(c) MCOB 13 (Arrears, payment shortfalls and repossessions:
It must be emphasised that activities which concern invitations to renew policies and the subsequent effecting of renewal of policies are likely to fall within insurance distribution activity2. Those considering the need for authorisation or variation of their permissions will wish to consider whether a process of tacit renewal operates: that is, where a policyholder need take no action if they wish to maintain their2 insurance cover by having their2policy 'renewed'. This process
(1) 1Subject to (2), (3) and (4)3, this2 chapter applies to a firm to which either or both of CASS 6 (Custody rules) and CASS 7 (Client money rules) applies.23(2) In relation to a firm to which CASS 5 (Client money: insurance distribution6 activity) and CASS 7 (Client money rules) apply, this chapter does not apply in relation to client money that a firm holds in accordance with CASS 5. (3) The rules and guidance in CASS 1A.2 apply to a firm even if at the date of the determination