Related provisions for PERG 6.5.2

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COLL 7.3.1GRP
(1) The winding up of an ICVC may be carried out under this section instead of by the court provided the ICVC is solvent and the steps required under regulation 21 the OEIC Regulations (The Authority's approval for certain changes in respect of a company) are fulfilled. This section lays down the procedures to be followed and the obligations of the ACD and any other directors of the ICVC. (2) The termination of a sub-fund may be carried out4 under this section, instead of by the
COLL 7.3.3GRP

This table belongs to COLL 7.3.1 G (4) (Explanation of COLL 7.3)3

3

Summary of the main steps in winding up a solvent ICVC or terminating a sub-fund3 under FCArules, assuming FCA approval.

Notes: N = Notice to be given to the FCA under regulation 21 of OEIC Regulations

E = commencement of winding up or termination

W/U = winding up

FAP = final accounting period (COLL 7.3.8 R(4))

Step number

Explanation

When

COLL rule (unless stated otherwise)

1

Commence preparation of solvency statement

N-28 days

7.3.5 (2)

2

Send audited solvency statement to the FCA with copy to depositary

By N + 21 days

7.3.5 (4) and (5)

3

Receive the FCA approval

N + one month

Regulation 21 of OEIC Regulations

4

Normal business ceases; notify unitholders3

3

E

7.3.6

5

Realise proceeds, wind up, instruct depositary accordingly

ASAP after E

7.3.7

6

Prepare final account or termination account & have account audited

On completion of W/U or termination

7.3.8

7

Send final account or termination account and auditor's report to the FCA & unitholders

Within 43months of FAP

3

7.3.8(6)

8

Request FCA to revoke relevant authorisation order or update its records4

On completion of W/U or termination4

7.3.7(9)

COLL 7.3.4RRP
(1) An ICVC must not be wound up except:44(a) under this section; or4(b) as an unregistered company under Part V of the Insolvency Act 1986.4(1A) 4A sub-fund must not:(a) be terminated except under this section; or(b) wound up except under Part V of the Insolvency Act 1986 (as modified by regulation 33C of the OEIC Regulations) as an unregistered company.(2) An ICVC must not be wound up or a sub-fund terminated4 under this section if there is a vacancy in the position of ACD.
COLL 7.3.5RRP
(1) Before notice is given to the FCA under regulation 21 of the OEIC Regulations of the proposals referred to in COLL 7.3.4 R (3), the directors must make a full enquiry into the ICVC's or, in the case of termination of a sub-fund, the sub-fund's4 affairs, business and property4 to determine whether the ICVC or the sub-fund4 will be able to meet all its liabilities. (2) The ACD must then, based on the results of this enquiry, prepare a statement either: (a) confirming that the
COLL 7.3.7RRP
(1) [deleted]44(2) The ACD must, as soon as practicable after winding up or termination has commenced, cause the scheme property to be realised and the liabilities of the ICVC or the sub-fund to be met out of the proceeds.(3) The ACD must instruct the depositary how such proceeds (until utilised to meet liabilities or make distributions to unitholders) must be held and those instructions must be prepared with a view to the prudent protection of creditors and unitholders against
COLL 7.3.8RRP
(1) Once the ICVC's affairs are wound up or termination of the sub-fund has been completed (including distribution or provision for distribution in accordance with COLL 7.3.7 R (5)),3 the ACD must prepare an account of the winding up or termination showing: 3(a) how it has been conducted; and(b) how the scheme property has been disposed of. (2) The account in (1) must be, if there is: (a) more than one director, approved by the board of directors and be signed on their behalf
COLL 7.3.13RRP
(1) If: (a) during the course, or as a result, of the enquiry referred to in COLL 7.3.5 R (1) (Solvency statement), the directors become of the opinion that it will not be possible to provide the confirmation referred to in (2)(a) of that rule; or(b) after winding up or termination has commenced, the ACD becomes of the opinion that the ICVC or the sub-fund4 will be unable to meet all its liabilities within twelve months of the date of the statement provided under (a) of COLL 7.3.5
SYSC 18.3.1RRP
(1) A firm must establish, implement and maintain appropriate and effective arrangements for the disclosure of reportable concerns by whistleblowers.(2) The arrangements in (1) must at least:(a) be able effectively to handle disclosures of reportable concerns including: (i) where the whistleblower has requested confidentiality or has chosen not to reveal their identity; and(ii) allowing for disclosures to be made through a range of communication methods; (b) ensure the effective
SYSC 18.3.2GRP
(1) When establishing internal arrangements in line with SYSC 18.3.1R a firm may:(a) draw upon relevant resources prepared by whistleblowing charities or other recognised standards setting organisations; and (b) consult with its UK-based employees or those representing these employees.(2) In considering if a firm has complied with SYSC 18.3.1R the FCA will take into account whether the firm has applied the measures in (1).(3) A firm may wish to clarify in its written procedures
SYSC 18.3.6RRP
This rule applies to an EEA SMCR banking firm3 and a third-country SMCR banking firm3.2(1) A person subject to this rule (‘P’) 2must, in the manner described in (2), communicate to its UK-based employees that they may disclose reportable concerns to the PRA or the FCA and the methods for doing so. P 2must make clear that:(a) reporting to the PRA or to the FCA is not conditional on a report first being made using P’s 2internal arrangements; (b) it is possible to report using P’s
SYSC 18.3.6AGRP
[deleted]4
SYSC 18.3.7RRP
Firms must ensure that their appointed representatives or, where applicable, their tied agents, inform any of their UK-based employees who are workers that, as workers, they may make protected disclosures to the FCA.
SYSC 18.3.9GRP
The FCA would regard as a serious matter any evidence that a firm had acted to the detriment of a whistleblower. Such evidence could call into question the fitness and propriety of the firm or relevant members of its staff, and could therefore, if relevant, affect the firm’s continuing satisfaction of threshold condition 5 (Suitability) or, for an approved person or a certification employee, their status as such.
REC 2.6.6UKRP

(1)7

The rules of the [UK RIE] must provide that the [UK RIE] must not exercise its power to suspend or remove from trading on a trading venue operated by it any financial instrument which no longer complies with its rules, where such step would be likely to cause significant damage to the interests of investors or the orderly functioning of the financial markets.

7(2)

Where the [UK RIE] suspends or removes any financial instrument from trading on a trading venue it operates it must also suspend or remove from trading on that venue any derivative that relates to or is referenced to that financial instrument where that is required to support the objectives of the suspension or removal of trading of that financial instrument.

7(3)

Where the [UK RIE] suspends or removes any financial instrument from trading on a trading venue it operates, including any derivative in accordance with sub-paragraph (2), it must make that decision public and notify the FCA.

7(4)

Where following a decision made under sub-paragraph (2) the [UK RIE] lifts a suspension or re-admits any financial instrument to trading on a trading venue it operates, including any derivative suspended or removed from trading in accordance with that sub-paragraph , it must make that decision public and notify the FCA.

[Note: MiFID RTS 18 contains requirements on the suspension and removal of financial instruments from trading]7

REC 2.6.26GRP
2In determining whether:(1) business conducted by means of a UK RIE'sfacilities is conducted so;5(2) [deleted]55as to afford proper protection to investors, the FCA5 may, in addition to the matters dealt with in REC 2.7 to REC 2.12, have regard to all the arrangements made by the UK recognised body concerning the operation of its facilities.5
REC 2.6.27GRP
2The FCA5 may also have regard to the extent to which the UK recognised body's rules, procedures and the arrangements for monitoring and overseeing the use of its facilities:5(1) include appropriate measures to prevent the use of its facilities for abusive or improper purposes;(2) provide appropriate safeguards for investors against fraud or misconduct, recklessness, negligence or incompetence by users of its facilities;(3) provide appropriate information to enable users of its
REC 2.6.28GRP
2In determining whether a UK RIE is ensuring that business conducted by means of its facilities is conducted in an orderly manner (and so as to afford proper protection to investors), the FCA5 may have regard to the extent to which the UK RIE's rules and procedures:5(1) are consistent with the Market Abuse Regulation6;6(2) prohibit abusive trading practices or the deliberate reporting or publication of false information about trades; and(3) prohibit or prevent:(a) trades in which
REC 2.6.29GRP
2In determining whether a UK RIE is ensuring that business conducted by means of its facilities is conducted in an orderly manner (and so as to afford proper protection to investors), the FCA5 may have regard to whether the UK RIE's arrangements and practices: 5(1) enable members and clients for whom they act to obtain the best price available at the time for their size and type of trade;(2) demonstrate that the UK RIE is able to satisfy:7(a) either or both of the following:7(i)
REC 2.6.29AGRP
7In addition to the matters set out in REC 2.6.29G, the FCA may have regard to the UK recognised body’s compliance with relevant requirements of MiFID RTS 7 on the prevention of disorderly trading conditions.
REC 3.6.1RRP
Where a UK recognised body is to circulate any notice or other document proposing any amendment to its memorandum or articles of association (or other similar agreement or document relating to its constitution) to:(1) its shareholders (or any group or class of them); or(2) its members (or any group or class of them); or(3) any other group or class of persons which has the power to make that amendment or whose consent or approval is required before it may be made;that UK recognised
REC 3.6.4RRP
Where a UK recognised body makes an amendment to its memorandum or articles of association (or other similar agreement or document relating to its constitution), that UK recognised body must immediately give the FCA1notice of that event, and give written particulars of that amendment and of the date on which it is to become or became effective.1
REC 3.6.6RRP
Where any change is made to an agreement which relates to the constitution or governance of a UK recognised body:(1) between that UK recognised body and another person; or(2) between the owners of that UK recognised body; or(3) between the owners of that UK recognised body and another person; or(4) between other persons; that UK recognised body must give the FCA1notice of that event as soon as it is aware of it, and give written particulars of that change and of the date on which
REC 3.6.7GRP
The purpose of REC 3.6.6 R is to ensure that the FCA1is informed of changes to agreements which specify the arrangements by which a UK recognised body will be governed or by which important decisions will be taken within that body. It is not intended to cover any agreement by which someone is appointed to be a key individual or which covers the terms and conditions of service in such an appointment.1
EG 1.1.1RP
3This guide describes the FCA's approach to exercising the main enforcement powers given to it by the Financial Services and Markets Act 2000 (the Act) and by other legislation. It is broken down into two parts. The first part provides an overview of enforcement policy and process, with chapters about the FCA's approach to enforcement (chapter 2), the use of its main information gathering and investigation powers under the Act and the CRA (chapter 3), the conduct of investigations
EG 1.1.2RP
3In the areas set out below, the Act expressly requires the FCA to prepare and publish statements of policy or procedure on the exercise of its enforcement and investigation powers and in relation to the giving of statutory notices. (1) section 63C requires the FCA to publish a statement of its policy on the imposition, and amount, of financial penalties on persons that perform a controlled function without approval; (1-A) 1section 63ZD requires the FCA, among other things, to
EG 1.1.3RP
3This guide includes material on the investigation, disciplinary and criminal prosecution powers that are available to the FCA when it is performing functions as the competent authority under Part VI of the Act (Official listing). The Act provides a separate statutory framework within which the FCA must operate when it acts in that capacity. When determining whether to exercise its powers in its capacity as competent authority under Part VI, the FCA will have regard to the matters
EG 1.1.4RP
3The FCA has a range of enforcement powers, and in any particular enforcement situation, the FCA may need to consider which power to use and whether to use one or more powers. So in any particular case, it may be necessary to refer to a number of chapters of the guide.
EG 1.1.5RP
3Since most of the FCA’s enforcement powers are derived from it, this guide contains a large number of references to the Act. Users of the guide should therefore refer to the Act as well as to the guide where necessary. In the event of a discrepancy between the Act, or other relevant legislation, and the description of an enforcement power in the guide, the provisions of the Act or the other relevant legislation prevail. Defined terms used in the text are shown in italic type.
COCON 4.2.16GRP
The following is a non-exhaustive list of examples of conduct that would be in breach of rule SC2.(1) Failing to take reasonable steps to implement (either personally or through a compliance department or other departments) adequate and appropriate systems of control to comply with the relevant requirements and standards of the regulatory system for the activities of the firm.(2) Failing to take reasonable steps to monitor (either personally or through a compliance department
COCON 4.2.19GRP
The FCA recognises that a senior conduct rules staff member will have to exercise their own judgement in deciding how issues are dealt with and sometimes that judgement will, with the benefit of hindsight, be shown to have been wrong. The senior conduct rules staff member will not be in breach of rule SC3 in COCON 2.2.3R unless they fail to exercise due and reasonable consideration before they delegate the resolution of an issue or authority for dealing with a part of the business
COCON 4.2.20GRP
Senior conduct rules staff members will not always manage the business on a day-to-day basis themselves. The extent to which they do so will depend on a number of factors, including the nature, scale and complexity of the business and their position within it. The larger and more complex the business, the greater the need for clear and effective delegation and reporting lines, which may involve documenting the scope of that delegation and the reporting lines in writing. The FCA
COCON 4.2.24GRP
In determining whether or not the conduct of a senior conduct rules staff member complies with rule SC3 in COCON 2.2.3R, the factors which the FCA would expect to take into account include:(1) the competence, knowledge or seniority of the delegate; and (2) the past performance and record of the delegate.
COCON 4.2.25GRP
For the purpose of rule SC4 in COCON 2.2.4R, regulators in addition to the FCA and the PRA are those which have recognised jurisdiction in relation to activities to which COCON applies and have a power to call for information from the relevant person in connection with their function or the business for which they are responsible. This may include an exchange or an overseas regulator.
COCON 4.2.28GRP
(1) If a senior conduct rules staff member comes across a piece of information that is something of3 which they think the FCA or PRA could reasonably expect notice, they should determine whether that information falls within the scope of their responsibilities.5 For an SMF manager those responsibilities will be set out in that person’sstatement of responsibilities.52(2) If it does, then they should ensure that, if it is otherwise appropriate to do so, it is disclosed to the appropriate
COCON 4.2.29GRP
In determining whether or not a person's conduct complies with rule SC4 in COCON 2.2.4R, the factors which the FCA would expect to take into account include:(1) whether it would be reasonable for the individual to assume that the information would be of material significance to the regulator concerned; (2) whether the information related to the individual themselves or to their firm; and(3) whether any decision not to report the matter was taken after reasonable enquiry and analysis
DEPP 6A.2.1GRP
The FCA1 will consider the full circumstances of each case and determine whether it is appropriate to impose a suspension, restriction, condition,3 limitation or disciplinary prohibition3.2 The FCA1 will usually make this decision at the same time as it determines whether or not to impose a financial penalty or a public censure.11
DEPP 6A.2.2GRP
The FCA1 will take into account relevant factors in deciding whether it is appropriate to impose a suspension, restriction, condition,3 limitation or disciplinary prohibition3.2 These may include factors listed in DEPP 6.2. There may also be other factors, not listed in DEPP 6.2, that are relevant.1
DEPP 6A.2.3GRP
The FCA1 will consider it appropriate to impose a suspension, restriction, condition,3 limitation3 or disciplinary prohibition3 where it believes that such action will be a more effective and persuasive deterrent than the imposition of a financial penalty alone. This is likely to be the case where the FCA1 considers that direct and visible action in relation to a particular breach is necessary. Examples of circumstances where the FCA1 may consider it appropriate to take such
DEPP 6A.2.4GRP
The FCA1 expects usually to impose a suspension, restriction, condition or limitation in relation to4 activities directly linked to the breach. However, in certain circumstances the FCA1 may also impose a suspension, restriction, condition or limitation in relation to4 activities that are not directly linked to the breach, for example, where an authorised person's relevant business area no longer exists or has been restructured.11
DEPP 6A.2.5GRP
1For the purposes of section 89S(1)(d) of the Act, the FCA expects usually to suspend the approval of a primary information provider.
SUP 15.4.1RRP
(1) An overseas firm7, must notify the FCA4 within 30 business days of any person taking up or ceasing to hold the following positions:88(a) the firm's worldwide chief executive (that is, the person who, alone or jointly with one or more others, is responsible under the immediate authority of the directors for the whole of its business) if the person is based outside the United Kingdom;(b) the person within the overseas firm with a purely strategic responsibility for UK operations
SUP 15.4.2GRP
SUP 15.4.1 R is not made under the powers conferred on the FCA4 by Part V of the Act (Performance of Regulated Activities). A person notified to the FCA4 under SUP 15.4.1 R is not subject to the Statements of Principle or Code of Practice for Approved Persons, unless he is also an approved person.8888
SUP 15.4.3GRP
(1) A firm other than a credit union must submit the form in SUP 15 Ann 2 R online 8 using the FCA's4online notification and application system6. 888552(2) A credit union must submit the form in SUP 15 Ann 2 R in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).2(3) Where a firm is obliged to submit an application online under (1), if the FCA's4 information technology systems fail and online submission is unavailable for 24 hours or more, until
SUP 15.4.3AGRP
(1) If the FCA's4 information technology systems fail and online submission is unavailable for 24 hours or more, the FCA4 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 15.4.3R(3) and SUP 15.7.4R to SUP 15.7.9G (Form and method of notification) should be used.28888(2) Where SUP 15.4.3R (3) applies to a firm, GEN 1.3.2 R (Emergency) does not apply.2
SUP 15.4.4GRP
If adverse information is revealed about a person notified to the FCA4 under SUP 15.4.1 R, the FCA4 may exercise its own-initiative power against the firm (see SUP 7 (Individual requirements)).8888
REC 2.14.3GRP
In determining whether a UK recognised body has appropriate procedures for it to make rules, for keeping its rules under review and for amending them, the FCA3 may have regard to:3(1) the arrangements made for taking decisions about making and amending rules in the UK recognised body, including the level at which the decisions are taken and any provision for the delegation of decisions by the governing body;(2) the arrangements made for determining whether or not it is appropriate
REC 2.14.4GRP
(1) In determining whether a UK recognised body's procedures include procedures for consulting users of its facilities in appropriate cases, the FCA3 may have regard to whether those procedures include provision for consulting users of those facilities before changes are made to any rules relating to its regulatory functions. 3(2) In the FCA's3 view, a UK recognised body's procedures may not need to contain provision for consulting users of its facilities before making minor changes
REC 2.14.5GRP
(1) In determining whether a UK recognised body's procedures for consulting members and other users of its facilities are appropriate, the FCA3 may have regard to the range of persons to be consulted by the UK recognised body under those procedures. 3(2) In the FCA's3 view, consultation with a smaller range of persons may be appropriate where limited, technical changes to a UK recognised body's rules are proposed.3(3) In the FCA's3 view, a UK recognised body's procedures may include
REC 2.14.6GRP
In determining whether a UK recognised body's procedures for consulting members and other users of its facilities are appropriate, the FCA3 may have regard to the extent to which the procedures include:3(1) informal discussions at an early stage with users of its facilities or appropriate representative bodies; (2) publication to users of its facilities of a formal consultation paper which includes clearly expressed reasons for the proposed changes and an appropriately detailed
REC 3.2.2RRP
Unless otherwise stated in the notification rule, a written notification required from a recognised body under any notification rule must be:(1) given to, or addressed for the attention of, the recognised body's usual supervisory contact at the FCA;11(2) delivered to the FCA1 by one of the methods in REC 3.2.3 R.1
REC 3.2.3RRP

Methods of notification

Method of delivery

(1)

Post to the address in REC 3.2.4 R

(2)

Leaving the notification at the address in REC 3.2.4 R and obtaining a time-stamped receipt

(3)

Electronic mail to an address for the recognised body's usual supervisory contact at the FCA1 and obtaining an electronic confirmation of receipt

1

(4)

Hand delivery to the recognised body's usual supervisory contact at the FCA1

1

(5)

Fax to a fax number for the recognised body's usual supervisory contact at the FCA,1provided that the FCA1 receives a copy of the notification by one of methods (1) - (4) in this table within five business days after the date of the faxed notification

11
REC 3.2.4RRP
The address for a written notification to the FCA1 is:The Financial Conduct Authority112 Endeavour Square2London, E20 1JN211
REC 3.2.5RRP
If a notification rule requires notification within a specified period:(1) the recognised body must give the notification so as to be received by the FCA1 no later than the end of that period; and 1(2) if the end of that period falls on a day which is not a business day, the notification must be given so as to be received by the FCA1 no later than the first business day after the end of that period.1
LR 5.4.2RRP
The FCA may restore the listing of any securities that have been suspended if it considers that the smooth operation of the market is no longer jeopardised or if the suspension is no longer required to protect investors. The FCA may restore the listing even though the issuer does not request it.
LR 5.4.3GRP
(1) An issuer that has the listing of any of its securities suspended may request the FCA to have them restored.(2) The request should be made sufficiently in advance of the time and date the issuer wishes the securities to be restored.(3) Requests received for when the market opens should allow sufficient time for the FCA to deal with the request.(4) The request may be an oral request. The FCA may require documentary evidence that the events that lead to the suspension are no
LR 5.4.4RRP
The FCA will refuse a request to restore the listing of securities if it is not satisfied of the matters set out in LR 5.4.2 R.
LR 5.4.5GRP
(1) If an issuer has requested the FCA to restore the listing of any securities, it may withdraw its request at any time while the securities are still suspended. The withdrawal request should initially be made by telephone and then confirmed in writing as soon as possible.(2) Even if a request to restore has been withdrawn, the FCA may restore the listing of securities if it believes the circumstances justify it.
LR 5.4.6GRP
(1) If an underlying instrument is restored, the securitised derivative'slisting will normally be restored.(2) For a securitised derivative relating to a basket of underlying instruments that has been suspended, the securitised derivative's listing may be restored by the FCA, irrespective of whether or not the underlying instrument has been restored, if:(a) the issuer of the securitised derivative confirms to the FCA that despite the relevant underlying instrument(s) suspension
PERG 9.6.2GRP
Under the investment condition, the reasonable investor is looking to satisfy two criteria. Both of these are fundamental to his decision to invest. But the thresholds referred to in PERG 9.6.1 G (1) and PERG 9.6.1 G (2) are different. In the FCA's view, a person expects something where he regards it as likely to happen or anticipates that events will turn out in a particular way. A person is satisfied of something where he has made up his mind or is persuaded that it is the case.
PERG 9.6.3GRP
Section 236(3) of the Act states clearly that the investment condition must be met 'in relation to BC'. In the FCA's view, this means that the investment condition should not be applied rigidly in relation to specific events such as particular issues of shares or securities or in relation to particular points in time. The requirements of the investment condition must be satisfied in relation to the overall impression of the body corporate itself, having regard to all the circ
PERG 9.6.4GRP
In the FCA's view, and within limits, the investment condition allows for the possibility that a body corporate that is an open-ended investment company may issue shares or securities with different characteristics. Some shares or securities may clearly satisfy the condition whereas others may not. The FCA considers that a reasonable investor contemplating investment in such a body corporate may still take the view, looking at the body corporate overall, that the investment condition
PERG 9.6.6GRP
[deleted]2
PERG 9.6.7GRP
The FCA's views on the following three elements of the investment condition are explained separately:(1) the 'reasonable investor' (see PERG 9.7 (The investment condition: the 'reasonable investor'));(2) the 'expectation' test (see PERG 9.8 (The investment condition: the 'expectation test' (section 236(3)(a) of the Act))); and(3) the 'satisfaction' test (see PERG 9.9 (The investment condition: the 'satisfaction test' (section 236(3)(b) of the Act)).
DEPP 6.6.1GRP
(1) The FCA2 attaches considerable importance to the timely submission by firms of reports. This is because the information that they contain is essential to the FCA's2 assessment of whether a firm is complying with the requirements and standards of the regulatory system and to the FCA2 understanding of that firm's business.222(2) DEPP 6.6.1 G to DEPP 6.6.5 G set out the FCA's2 policy in relation to financial penalties for late submission of reports and is in addition to the FCA's2
DEPP 6.6.2GRP
In addition to the factors considered in Step 2 for cases against firms (DEPP 6.5A) and cases against individuals (DEPP 6.5B),1 the following considerations are relevant.1(1) In general, the FCA's2 approach to disciplinary action arising from the late submission of a report will depend upon the length of time after the due date that the report in question is submitted.2(2) If the person concerned is an individual, it is open to him to make representations to the FCA2 as to why
DEPP 6.6.3GRP
In addition, in appropriate cases, the FCA2 may bring disciplinary action against the individuals3 within the firm's management who are ultimately responsible for ensuring that the firm's reports are completed and returned to the FCA2.22
DEPP 6.6.4GRP
In applying the guidance in this section, the FCA2 may treat a report which is materially incomplete or inaccurate as not received until it has been submitted in a form which is materially complete and accurate. For the purposes of the guidance, the FCA2 may also treat a report as not received where the method by which it is submitted to the FCA2 does not comply with the prescribed method of submission.222
DEPP 6.6.5GRP
In most late reporting cases, it will not be necessary for the FCA2 to appoint an investigator since the fact of the breach will be clear. It follows that the FCA2 will not usually send the firm concerned a preliminary findings letter for late-reporting disciplinary action.22
PERG 9.3.2GRP
Each of these aspects of the definition is considered in greater detail in PERG 9.4 (Collective investment scheme (section 235 of the Act)) to PERG 9.9 (The investment condition: the 'satisfaction test' (section 236(3)(b) of the Act)). Although the definition has a number of elements, the FCA considers that it requires an overall view to be taken of the body corporate. This is of particular importance in relation to the investment condition (see PERG 9.6.3 G and PERG 9.6.4 G (The
PERG 9.3.4GRP
In the FCA's view, all of the elements of the definition are clearly objective tests. In applying the definition to any particular case, a person would need to have regard to all the circumstances. This includes any changes in the way that the body corporate operates.
PERG 9.3.5GRP
The FCA understands that the aim of the definition in section 236 of the Act is to include any body corporate which, looked at as a whole, functions as an open-ended investment vehicle. The definition operates against a background that there is a wide range of different circumstances in which any particular body corporate can be established and operated. For example, the definition applies to bodies corporate wherever they are formed. So, in the application of the definition to
PERG 9.3.6GRP
For a body corporate formed outside the United Kingdom, there is an additional issue as to how the applicable corporate law and the definition of open-ended investment company in the Act relate to one another. The FCA understands this to operate as follows. The term 'body corporate' is defined in section 417(1) of the Act (Interpretation) as including 'a body corporate constituted under the law of a country or territory outside the United Kingdom'. So, whether or not any particular
FEES 3.1.3GRP
The purpose of this chapter is to set out the 9FCA fee paying requirements on the persons set out in FEES 1.1.2R (1).9519
FEES 3.1.5GRP
[deleted]15
FEES 3.1.5AGRP
17The fees for funds8 reflect the estimated costs to the FCA of assessing applications and notifications. The level of fees payable in respect of an application or a notification will vary depending upon the provision of the Act under which it is made. This fee is adjusted when the scheme concerned is an umbrella.8
FEES 3.1.6GRP
Applications for Part 4A permission15 other than in respect of credit-related regulated activities7 are categorised by the 9FCA for the purpose of fee raising as straightforward, moderately complex and complex7 as identified in FEES 3 Annex 1. This differentiation is based on the permitted activities sought and does not reflect the 9FCA's risk assessment of the applicant15.979
FEES 3.1.7GRP
A potential applicant for Part 4A permission1715has the opportunity to discuss its proposed application 15with the 9FCA before submitting it formally.2 If an applicant for Part 4A permission1715does so, the 9FCA will be able to use that dialogue to make an initial assessment of the fee categorisation and therefore indicate the authorisation fee that should be paid. 171717922171717179
FEES 3.1.8AGRP
Application fees for applications for and variations of Part 4A permission in respect of credit-related regulated activities are also set out in FEES 3 Annex 1F. Applications for Part 4A permission in respect of credit-related regulated activities are categorised by the 9FCA for the purposes of fee raising as straightforward, moderately complex and complex as identified in FEES 3 Annex 1, unless the application is for a limited permission.799[Note: PRA-authorised persons may also
EG 13.9.1RP
1The FCA recognises that the bankruptcy of an individual or the sequestration of an individual's estate are significant measures which may have significant personal and professional implications for the individual involved. In considering whether to present a petition the FCA's principal considerations will be its statutory objectives including the protection of consumers.
EG 13.9.2RP
1The FCA is also mindful that whilst the winding up of an unauthorised company or partnership should bring an end to any unlawful activity, this is not necessarily the effect of bankruptcy or sequestration. The FCA may, in certain cases, consider the use of powers to petition for bankruptcy or sequestration in conjunction with the use of other powers to seek injunctions and other relief from the court. In particular, where the individual controls assets belonging
EG 13.9.3RP
1If an individual appears to be unable to pay a regulated activity debt, or to have no reasonable prospect of doing so, then section 372 of the Act permits the FCA to petition for the individual's bankruptcy, or in Scotland, for the sequestration of the individual's estate. The FCA will petition for bankruptcy or sequestration only if it believes that the individual is, in fact, insolvent. In determining this, as a general rule, the FCA will serve a demand requiring the individual
EG 13.9.4RP
1The FCA will consider the response of the individual to that demand on its own facts and in the light of information, if any, available to the FCA. Exceptionally, the FCA may not first proceed to serve a demand if: (1) the individual is already in default of a regulated activity debt which has fallen due and payable; and (2) the FCA is satisfied, either because the individual has confirmed it or on the information already available to the FCA, that the individual is insolvent
EG 13.9.5RP
1If the FCA believes that the individual is insolvent, the factors it will consider when it decides whether to seek a bankruptcy order or sequestration award include: (1) whether others have taken steps to deal with the individual's insolvency, including a proposal by the individual of a voluntary arrangement, a petition by the individual for his own bankruptcy or sequestration, or a petition by a third party for the individual's bankruptcy or the sequestration of the individual's
EG 13.7.1RP
1Section 365(6) of the Act makes it clear that the FCA may petition for the compulsory winding up of a company even if it is already in voluntary winding up. This power is already available to creditors and contributories of companies in voluntary winding up. For example, the court can be asked to direct the liquidator to investigate a transaction which the company undertook before the winding up. In some circumstances, this power may be used in respect of partnerships (section
EG 13.7.2RP
1Given the powers available to creditors (or contributories), the FCA anticipates that there will only be a limited number of cases where it will exercise the right under section 365(6) to petition for the compulsory winding up of a company already in voluntary winding up. The FCA will only be able to exercise this right where one or both of the grounds on which it can seek compulsory winding up are met.
EG 13.7.3RP
1Factors which the FCA will consider when it decides whether to use this power (in addition to the factors identified in paragraphs 13.5.1 to 13.6.3 in relation to the FCA's decisions to seek compulsory winding up) include: (1) whether the FCA's concerns can properly and effectively be met by seeking a specific direction under section 365(2) of the Act; (2) whether the affairs of the company require independent investigation of the kind which follows a compulsory
EG 13.7.4RP
[deleted]21
COND 1.2.1GRP
COND gives guidance on the threshold conditions. The FCA3threshold conditions represent the minimum conditions for which the FCA is responsible,3 which a firm is required to satisfy, and continue to satisfy, in order to be given and to retainPart 4A permission. A PRA-authorised person or, as appropriate, a firm seeking to become a PRA-authorised person must also satisfy, and continue to satisfy, the threshold conditions for which the PRA is responsible in order to be given and
COND 1.2.2GRP
(1) Under section 55B(3) of the Act3, in giving or varying a Part 4A permission,3 imposing or varying any requirement or giving consent3, the FCA3 must ensure that the firm concerned will satisfy, and continue to satisfy, the FCA3threshold conditions in relation to all of the regulated activities for which it has or will have permission.(2) [deleted]43333333
COND 1.2.3GRP
(1) If, among other things, a firm is failing to satisfy any of the FCA3threshold conditions, or is likely to fail to do so, the FCA3 may exercise its own-initiative powers under either section 55J (Variation or cancellation on initiative of regulator) or section 55L (Imposition of requirements by FCA) of the Act3. Use of the FCA's own-initiative powers3 is explained in SUP 7 (Individual requirements), and EG 8 (Variation and cancellation of permission on the FCA's3 own initiative
COND 1.2.5GRP
(1) Under section 185 of the Act (Assessment: general) the FCA may, subject to consultation with the PRA where the conditions in section 187B of the Act are satisfied, object to an acquisition of an FCA-authorised person if there are reasonable grounds to do so on the basis of the matters set out in section 186 of the Act (Assessment: criteria) or if the information provided by the section 178 notice giver is incomplete. Section 186(d) of the Act (Assessment: criteria) specifies
LR 13.2.1RRP
A listed company must not circulate or publish any of the following types of circular unless it has been approved by the5FCA:55(1) a class 1 circular; or5(2) a related party circular; or5(3) a circular that proposes the purchase by a listed company of its own shares which is required by LR 13.7.1R (2) to include a working capital statement; or5[Note: LR 12.4.10 G](4) a circular that proposes a reconstruction or a refinancing of a listed company which is required by LR 9.5.12
LR 13.2.4RRP
The following documents (to the extent applicable) must be lodged with the FCA in final form before it will approve a circular:(1) a Sponsors Declaration for the Production of a Circular completed by the sponsor;(2) for a class 1 circular or related party circular, a letter setting out any items of information required by this chapter that are not applicable in that particular case; and4(3) [deleted]4(4) any other document that the FCA has sought in advance from the listed company
LR 13.2.7RRP
If a circular submitted for approval is amended, two copies of amended drafts must be resubmitted, marked to show changes made to conform with FCA comments and to indicate other changes.
LR 13.2.8GRP
The FCA will approve a circular if it is satisfied that the requirements of this chapter are satisfied.
LR 13.2.9GRP
The FCA will only approve a circular between 9a.m. and 5.30p.m. on a business day (unless alternative arrangements are made in advance).Note: LR 9.6.1 R requires a company to forward to the FCA two copies of all circulars issued (whether or not they require approval) for publication on the document viewing facility.
FIT 1.2.-1GRP
7Under section 60A(1) of the Act, before a firm16 may make an application for the FCA's approval of a controlled function14 the firm14 must be satisfied that the person for whom the application is made is a fit and proper person to perform that function.1488
FIT 1.2.1GRP
Under section 61(1) of the Act (Determination of applications), the FCA7 may grant an application for approval made under section 60 (Applications for approval) of the Act14 only if it is satisfied that the candidate is fit and proper to perform the controlled function to which the application relates.7
FIT 1.2.1BGRP
7Under sections 60A and 63F 7of the Act, in assessing whether a person is a fit and proper person to perform an FCA designated senior management function or an FCA certification function14, 7a firm16 must have particular regard to whether that person:7714(1) has obtained a qualification; or(2) has undergone, or is undergoing, training; or(3) possesses a level of competence; or(4) has the personal characteristics;required by general rules made by the FCA.
FIT 1.2.3AGRP
19Under section 63(1) of the Act (Withdrawal of approval), the FCA may withdraw an approval under section 59 given by the FCA or the PRA in relation to the performance by a person of a function if it considers that the person is not a fit and proper person to perform the function.
FIT 1.2.4GRP
The Act does not prescribe the matters which the FCA7 should take into account when determining fitness and propriety. However, section 61(2) states that the FCA7 may have regard (among other things) to whether the candidate or approved person:777(1) has obtained a qualification; or(2) has undergone, or is undergoing, training; or(3) possesses a level of competence; or(4) has the personal characteristics;required by general rules made by the FCA.7
FIT 1.2.4BGRP
6 Where the application relates to a function within a Solvency II firm and is for an FCA controlled function which is also a Solvency II Directive ‘key function’ as defined in the PRA Rulebook: Glossary, then the FCA will also have regard to the assessment made by the firm as required in article 273 of the Solvency II Regulation (EU) 2015/35 of 10 October 2014; Rules 2.1 and 2.2 of the PRA Rulebook: Solvency II Firms: Insurance - Fitness and Propriety, and other factors, as set