Related provisions for CONC 8.7.7
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30This chapter contains rules and guidance on how respondents should deal promptly and fairly with complaints in respect of business:3030(1) carried on from establishments in the United Kingdom; or3030(2) carried on from establishments in an EEA State, in the case of a TP firm, a TA EMI firm, a TA PI firm or a TA RAISP firm with respect to services provided into the United Kingdom; or3030(3) carried on in Great Britain, in respect of regulated claims management activities, (see
(-1) This chapter applies to a TP firm. This rule demonstrates the contrary intention under GEN 2.2.26R.30(1) Subject to DISP 1.1.5 R, this15 chapter applies to a firm in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by it or its appointed representative:3015(a) in the United Kingdom; or30(b) in an EEA State, in the case of a TP firm with respect to services provided into the United Kingdom.30(1A) This chapter
8This chapter (except 24 the complaints reporting rules and the complaints data publication rules9) applies to payment service providers that are not firms24 in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by that payment service provider24 or its agent in the United Kingdom (or in an EEA State, in the case of a TA PI firm or a TA RAISP firm with respect to services provided into the United Kingdom)30.99
1340This chapter (except 24the complaints reporting rules, and the complaints data publication rules) applies to an electronic money issuer that is not a firm24 in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by that electronic money issuer24 or its agent in the United Kingdom (or in an EEA State, in the case of a TA EMI firm with respect to services provided into the United Kingdom)30.
11For complaints related to collective portfolio management services of a UK UCITS management company for a UCITS scheme or a scheme which, immediately before IP completion day31, was30 an EEA UCITS scheme, DISP 1.1.3R (1) applies, except where modified as follows:(1) the consumer awareness rules, complaints handling rules and complaints record rule apply in respect of complaints from Unitholders rather than from eligible complainants; and(2) [deleted]30
20This chapter (except the complaints record rule, the complaints reporting rules and the complaints data publication rules) applies to a designated credit reference agency in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by it or its agent in the United Kingdom.
20Although designated credit reference agencies are not required to comply with the complaints record rule, they must retain records in accordance with regulation 24 of the Small and Medium Sized Business (Credit Information) Regulations and these can be used to assist the Financial Ombudsman Service should this be necessary.
22This chapter (except the complaints record rule, the complaints reporting rules, and the complaints data publication rules) applies to a designated finance platform in respect of complaints from eligible complainants concerning activities carried on from an establishment maintained by it or its agent in the United Kingdom.
22Although designated finance platforms are not required to comply with the complaints record rule, they must retain records in accordance with regulation 21 of the Small and Medium Sized Business (Finance Platforms) Regulations and these can be used to assist the Financial Ombudsman Service should this be necessary.
Where the subject matter of a complaint is subject to a review directly or indirectly under the terms of the policy statement for the review of specific categories of FSAVC business issued by the FSA on 28 February 2000, the complaints resolution rules, the complaints time limit rules, the complaints record rule,9 the complaints reporting rules and the complaints data publication rules9 will apply only if the complaint is about the outcome of the review.9
(1) A firm, payment service provider20, electronic money issuer, 22designated credit reference agency20 or designated finance platform22 falling within the Compulsory Jurisdiction which does not conduct business with eligible complainants and has no reasonable likelihood of doing so, can, by written notification to the
FCA
, claim exemption from the rules relating to the funding of the Financial Ombudsman Service, and from the remainder of this chapter.134081340(2) Notwithstanding
(1) A firm that receives or holds money to which this chapter applies in relation to:(a) its MiFID business; or (b) its MiFID business and its designated investment business which is not MiFID business; and holds money in respect of which CASS 5 applies, may elect to comply with the provisions of this chapter in respect of all such money and if it does so, this chapter applies as if all such money were money that the firm receives and holds in the course of, or in connection with,
(1) 4If both the conditions in (a) and (b) below are met in respect of a firm, or the firm reasonably expects that they will all be met in the future, then the firm has the option to elect to comply with this chapter for all of the money described in those conditions: (a) the firm receives or holds money for one or more persons in the course of, or in connection with, the firm’s activity of operating an electronic system in relation to non-P2P agreements; and(b) those persons
(1) 4When a firm makes an election under CASS 7.10.7AR it must write to any customer (“C”) with whom it has agreed to provide relevant electronic lending services in C’s capacity as a lender or prospective lender, informing C at least one month before it will start to hold the money in accordance with the client money rules:(a) that all the money it holds in the course of, or in connection with, operating an electronic system in relation to non-P2P agreements for lenders and
4Once an election made by a firm under CASS 7.10.7AR becomes effective, and until it ceases to be effective:(1) the firm must treat all the money referred to under CASS 7.10.7AR(1) in accordance with the election; and (2) for the purposes of (1), this chapter applies to the firm in the same way that it applies to a firm that receives and holds money in the course of or in connection with its designated investment business, except that:(a) CASS 7.10.10R will not apply to the money
4If a firm that has made an election under CASS 7.10.7AR subsequently decides to cancel that election:(1) it can only do so by writing to the FCA, at least one month before the date the election ceases to be effective; (2) it must write to any customer with whom, as at the time of the cancellation, it has agreed to operate an electronic system in relation to non-P2P agreements in their capacity as a lender or prospective lender, informing them at least one month before the date
Subject to CASS 7.10.12 R, money is not client money when a firm (other than a sole trader) holds that money on behalf of, or receives it from, a professional client, other than in the course of insurance distribution activity10, and the firm has obtained written acknowledgement from the professional client that:(1) money will not be subject to the protections conferred by the client money rules;(2) as a consequence, this money will not be segregated from the money of the firm
For a firm whose business is not governed by the IDD10, it is possible to 'opt out' on a one-way basis. However, in order to maintain a comparable regime to that applying to MiFID business, all 'MiFID type' business undertaken outside the scope of MiFID should comply with the client money rules or be 'opted out' on a two-way basis.
In relation to the application of the client money rules (and any other rule in so far as it relates to matters covered by the client money rules) to the firms referred to in (1) and (2), the following is not client money:(1) any deposits within the meaning of the CRD held by a CRD credit institution; and[Note: article 16(9)7 of MiFID and article 4(1)7 of the MiFID Delegated Directive7](2) any money held by an approved bank that is not a CRD credit institution in an account with
A firm holding money in either of the ways described in CASS 7.10.16 R must, before providing designated investment business services to the client in respect of those sums, notify the client that:(1) the money held for that client is held by the firm as banker and not as a trustee under the client money rules; and(2) if the firmfails, the client money distribution and transfer rules8 will not apply to these sums and so the client will not be entitled to share in any distribution
A firm holding money in either of the ways described in CASS 7.10.16 R in respect of a client and providing the services to it referred to in CASS 7.10.19 R must:(1) explain to its clients the circumstances, if any, under which it will cease to hold any money in respect of those services as banker and will hold the money as trustee in accordance with the client money rules; and(2) set out the circumstances in (1), if any, in its terms of business so that they form part of its
If a CRD credit institution or an approved bank that is not a CRD credit institution wishes to hold client money for a client (rather than hold the money in either of the ways described in CASS 7.10.16 R) it must, before providing designated investment business services to the client, disclose the following information to the client:(1) that the money held for that client in the course of or in connection with the business described under (2) is being held by the firm as client
(1) An authorised professional firm regulated by the Law Society (of England and Wales), the Law Society of Scotland or the Law Society of Northern Ireland that, with respect to its regulated activities, is subject to the following rules of its designated professional body, must comply with those rules and, where relevant paragraph (3), and if it does so, it will be deemed to comply with the client money rules.(2) The relevant rules are: (a) if the firm is regulated by the Law
(1) Provided it complies with CASS 1.2.11 R, a firm that receives or holds client money in relation to contracts of insurance may elect to comply with the provisions of the insurance client money chapter, instead of this chapter, in respect of all such money.(2) This rule is subject to CASS 1.2.11 R.
Subject to CASS 7.10.35 R only the client money rules listed in the table below apply to a trustee firm in connection with money that the firm receives, or holds for or on behalf of a client in the course of or in connection with its designated investment business which is not MiFID business.
Reference |
Rule |
CASS 7.10.1 R to CASS 7.10.6 G, and CASS 7.10.16 R to CASS 7.10.27 R |
Application |
Trustee firms |
|
General purpose |
|
Depositing client money |
|
Selection, appointment and review of third parties |
|
Client bank accounts |
|
Diversification of client money |
|
Qualifying money market funds |
|
CASS 7.15.5 R (3), CASS 7.15.7 R and CASS 7.15.12 R to CASS 7.15.34 G |
Reconciliation of client money balances |
The standard methods of internal client money reconciliation |
|
Requirement |
(1) A trustee firm to which CASS 7.10.34 R applies may, in addition to the client money rules set out at CASS 7.10.34 R, also elect to comply with:(a) all the client money rules in CASS 7.13 (Segregation of client money); (b) CASS 7.14 (Client money held by a third party);(c) all the client money rules in CASS 7.15 (Records, accounts and reconciliations); or(d) CASS 7.18 (Acknowledgement letters).(2) A trustee firm must make a written record of any election it makes under this
A trustee firm to which CASS 7.10.34 R applies and which is otherwise subject to the client money rules should ensure that in designing its systems and controls it:(1) takes into account that the client money distribution rules will only apply in relation to any client money that the firm holds other than in its capacity as trustee firm; and(2) has regard to other legislation that may be applicable.
(1) Principle 10 (Clients' assets) requires a firm to arrange adequate protection for clients' assets when the firm is responsible for them. An essential part of that protection is the proper accounting and treatment of client money. The client money rules provide requirements for firms that receive or hold client money, in whatever form.(2) The client money rules also, where relevant, implement the provisions of MiFID which regulate the obligations of a firm when it holds client
The appropriate information rule applies: 6(1) at all of the different stages of a contract and includes pre-conclusion and post-conclusion, and also when mid-term changes and renewals are proposed;6(2) in the same way to any policy, regardless of whether that policy is sold on its own, in connection with another policy, or in connection with other goods or services; and6(3) to the price of the policy.6
The level of information required will vary according to matters such as:(1) the knowledge, experience and ability of a typical customer for the policy;(2) the policy terms, including its main benefits, exclusions, limitations, conditions and its duration;(3) the policy's overall complexity;(4) whether the policy is bought in connection with other goods and services including another policy (also see ICOBS 6A.3 (cross selling))6;(5) distance communication information requirements
To comply with the customer’s best interest rule and Principle 7 (communication with clients) a firm should:6(1) include consideration of the information needs of the customers including:6(a) what they need to understand the relevance of any information provided by the firm; and6(b) at which point in the sales process will the information be most useful to the customer to enable them to make an informed decision;6(2) provide evidence of cover promptly after inception of a policy,6taking
(1) If a policy is bought by a consumer in connection with other goods or services a firm must, before conclusion of the contract, disclose its premium separately from any other prices and whether buying the policy is compulsory.(2) In the case of a distance contract, disclosure of whether buying the policy is compulsory may be made in accordance with the timing requirements under the distance communication rules (see ICOBS 3.1.8 R, ICOBS 3.1.14 R and ICOBS 3.1.15 R).(3) 2This
Firms are reminded of the client'sbest interest rule, which requires a firm to act honestly, fairly and professionally in accordance with the best interests of its clients when structuring its business particularly in respect of the effect of that structure on firms' obligations under the client money rules.
(1) If a TTCA is terminated then, unless otherwise permitted under the client money rules and notified to the client under CASS 7.11.9R(3)(a), the firm must treat that money as client money from the start of the next business day following the date of termination as set out in the firm’s notification under CASS 7.11.9R (3)(a). 5(2) Where the firm’s notification under CASS 7.11.9R(3)(a) does not state when the termination of the arrangement will take effect, the firm must treat
(1) In line with CASS 7.11.14 R, where a firm receives money from the client in fulfilment of the client's payment obligation in respect of a delivery versus payment transaction the firm is carrying out through a commercial settlement system in respect of a client's purchase, and the firm has not fulfilled its delivery obligation to the client by close of business on the third business day following the date of the client's fulfilment of its payment obligation to the firm, the
A firm will not be in breach of the requirement under CASS 7.13.6 R to receive client money directly into a client bank account if it: (1) receives the money in question: (a) in accordance with CASS 7.11.14 R (1)(a) but it is subsequently required under CASS 7.11.14 R (2) to hold that money in accordance with the client money rules; or(b) in the circumstances referred to in CASS 7.11.18 G (2)(b); and(2) pays the money in question into a client bank account promptly, and in any
An authorised fund manager will not be in breach of the requirement under CASS 7.13.6R to receive client money directly into a client bank account if it received the money in accordance with CASS 7.11.21 R (1) and is subsequently required under CASS 7.11.21 R (2) to hold that money in accordance with the client money rules.
Firms are reminded that, notwithstanding that money may be due and payable to them, they have a continuing obligation to segregate client money in accordance with the client money rules. In particular, in accordance with CASS 7.15.2 R, firms must ensure the accuracy of their records and accounts and are reminded of the requirement to carry out internal client money reconciliations either in accordance with the standard methods of internal client money reconciliation or the requirements
When a client's obligation or liability, which is secured by that client's asset, crystallises, and the firm realises the asset in accordance with an agreement entered into between the client and the firm, the part of the proceeds of the asset to cover such liability that is due and payable to the firm is not client money. However, any proceeds of sale in excess of the amount owed by the client to the firm should be paid over to the client immediately or be held in accordance
When commission rebate becomes due and payable to the client, the firm should: (1) treat it as client money; or(2) pay it out in accordance with the rule regarding the discharge of a firm's fiduciary duty to the client (see CASS 7.11.34 R); unless the firm and the client have entered into an arrangement under which the client has agreed to transfer full ownership of this money to the firm as collateral against payment of future professional fees (see CASS 7.11 (Title transfer
Subject to CASS 7.11.44 R, money ceases to be client money for a firm if:(1) it is transferred by the firm to another person as part of a transfer of business to that person where the client money relates to the business being transferred;(2) it is transferred on terms which require the other person to return a client's transferred sums to the client as soon as practicable at the client's request;(3) a written agreement between the firm and the relevant client provides that:(a)
Where a firm transfers client money belonging to its clients under either or both of CASS 7.11.42 R and CASS 7.11.44 R it must ensure that those clients are notified no later than seven days after the transfer taking place:(1) whether or not the sums will be held by the person to whom they have been transferred in accordance with the client money rules and if not how the sums being transferred will be held by that person;(2) the extent to which the sums transferred will be protected
Before acting in accordance with CASS 7.11.50 R to CASS 7.11.58 G, a firm should consider whether its actions are permitted by law and consistent with the arrangements under which the client money is held. For the avoidance of doubt, these provisions relate to a firm's obligations as an authorised person and to the treatment of client money under the client money rules.
(1) Taking reasonable steps in CASS 7.11.50 R (3) includes following this course of conduct:(a) determining, as far as reasonably possible, the correct contact details for the relevant client;(b) writing to the client at the last known address either by post or by electronic mail to inform it of the firm's intention to no longer treat the client money balance as client money and to pay the sums concerned to charity if the firm does not receive instructions from the client within
(1) Where a firm wishes to release a balance allocated to an individual client under CASS 7.11.50 R it must comply with either (a) or (b) and, in either case, (2):(a) the firm must unconditionally undertake to pay to the client concerned a sum equal to the balance paid away to charity in the event of the client seeking to claim the balance in future; or(b) the firm must ensure that an unconditional undertaking in the terms set out in (a) is made by a member of its group and there
A firm may pay away to a registered charity of its choice a client money balance which is allocated to a client and if it does so the released balance will cease to be client money under CASS 7.11.34 R (10):(1) the balance in question is (i) for a retail client, in aggregate, £25 or less, or (ii) for a professional client, in aggregate, £100 or less; (2) the firm held the balance concerned for at least six years following the last movement on the client's account (disregarding
(1) This section sets out rules and guidance for lenders and providers under regulated mortgage contracts and home purchase plans, in relation to the assessment of affordability for the customer of these contracts. Firms have the option of applying certain of the rules and guidance on a modified basis in relation to regulated mortgage contracts and home purchase plans which are solely for a business purpose or are with high net worth mortgage customers. This section also contains
A firm may wish to impose a limit, expressed as a multiple of the customer's income, on the amount it is prepared to advance under a regulated mortgage contract or home purchase plan. Such an approach is not, of itself, inconsistent with MCOB 11.6.2 R but, in accordance with the rules in this section, the firm must be able to demonstrate that the loan is affordable, having taken full account of the customer's income and expenditure, and (for a mortgage lender) the impact of future
(1) This rule applies where: (a) a purpose of a regulated mortgage contract or home purchase plan (or variation) is debt consolidation; and (b) for a first charge regulated mortgage contract, 4the customer is a credit-impaired customer.(2) Subject to (3), where each of the conditions in (1) is satisfied and, if the debts which are to be repaid using the sums raised by the regulated mortgage contract or home purchase plan (or variation) were not repaid, the transaction would not
(1) Under MCOB 11.6.5R (4), in taking account of likely future interest rate increases for the purposes of its assessment of whether the customer will be able to pay the sums due, a mortgage lender must consider the likely future interest rates over a minimum period of five years from the expected start of the term of the regulated mortgage contract (or variation), unless the interest rate under the regulated mortgage contract is fixed for a period of five years or more from that
A firm must put in place, and operate in accordance with, a written policy (which may be contained in more than one document), approved by its governing body, setting out the factors it will take into account in assessing a customer's ability to pay the sums due. The policy must address the following matters:(1) how income and expenditure is to be assessed, including (except as provided in MCOB 11.6.32R (1) and MCOB 11.6.39R (1)): (a) details of the types of income which are acceptable;
Where a firm chooses, in accordance with MCOB 11.6.25 R, to apply the provisions of MCOB 11.6.26 R to MCOB 11.6.31 R in place of MCOB 11.6.5 R to MCOB 11.6.19 G: (1) its policy in MCOB 11.6.20R (1) need not address each of the matters prescribed in sub-paragraphs (a) to (e) of that rule;(2) MCOB 11.6.23 G does not apply; and (3) in each case the record-keeping requirements in MCOB 11.6.60R (2)(a) to (d) apply only to the extent relevant, but the record in MCOB 11.6.60R (1) must
Where a firm chooses, in accordance with MCOB 11.6.33 R, to apply the provisions of MCOB 11.6.34 R to MCOB 11.6.38 R in place of MCOB 11.6.5 R to MCOB 11.6.19 G:(1) its policy in MCOB 11.6.20R (1) need not address each of the matters prescribed in sub-paragraphs (a) to (e) of that rule;(2) MCOB 11.6.23 G does not apply; and (3) in each case the record-keeping requirements in MCOB 11.6.60R (2)(a) to MCOB 11.6.60R (2)(d) apply only to the extent relevant, but the record in MCOB
Acceptance by a mortgage lender of any of the following repayment strategies for the purposes of MCOB 11.6.41R (1) may be relied upon as tending to show contravention of that rule:(1) an expectation that the value of the property which is the subject of the regulated mortgage contract will increase over its term sufficiently to enable the customer to sell the property to repay the capital borrowed and, where applicable, pay the interest accrued under the interest-only mortgage;
(1) This rule applies in relation to all interest-only mortgages which a mortgage lenderenters into on or after 26 April 2014 except:(a) lifetime mortgages7;(aa) retirement interest-only mortgages;7(b) bridging loans; and(c) any other case where the repayment of capital borrowed and, if applicable, interest accrued, is certain.(2) Except as set out in (3), a mortgage lender must carry out a review (as a minimum, once) during the term of the mortgage, in which contact is made with
(1) The controls in MCOB 11.6.50R (2) may include, where appropriate: maximum loan to value limits; minimum equity requirements; regional factors such as property prices; or other eligibility requirements.(2) The policy and procedures for safeguarding the interests of a customer under an interest-only mortgage should not permit the mortgage lender to change the interest-only mortgage to a repayment mortgage, extend the term or otherwise change the features of the interest-only
MCOB 11.6.50 R sets out requirements for mortgage lenders to have appropriate procedures for managing interest-only mortgages in order to safeguard the interests of customers. Firms are reminded of the rules and guidance in SYSC (notably SYSC 7.1) relating to systems and controls for the management of risks to which firms themselves are exposed. Firms will need to consider whether their systems and controls are adequate in relation to the management of risks arising from interest-only
For a bridging loan which is an interest-only mortgage, acceptance by a mortgage lender as a repayment strategy for the purposes of MCOB 11.6.41R (1) of an expectation that, by entering into the bridging loan, the customer's credit status will be sufficiently improved to enable him to refinance to a longer-term regulated mortgage contract (except where the mortgage lender has evidence of a guaranteed offer for such a longer-term contract) may be relied upon as tending to show
(1) A firm must make, in paper or electronic form, an adequate record of the steps it takes to comply with the rules in this chapter in relation to each customer.(2) The record in (1) must include the information taken into account in each affordability assessment, so that it is possible to understand from the record the basis of the mortgage lender's or home purchase provider's lending or financing decision, including (except as provided in MCOB 11.6.32R (3) and MCOB 11.6.39R
In assessing compliance with, or a breach of, a rule in COCON, the FCA will have regard to the context in which a course of conduct was undertaken, including: (1) the precise circumstances of the individual case; (2) the characteristics of the particular function performed by the individual in question; and (3) the behaviour expected in that function.
Without prejudice to section 66A of the Act, a person will only be in breach of any of the rules in COCON where they are personally culpable. Personal culpability arises where: (1) a person's conduct was deliberate; or(2) the person's standard of conduct was below that which would be reasonable in all the circumstances.
In determining whether or not the particular conduct of a person complies with the rules in COCON, factors the FCA would expect to take into account include: (1) whether that conduct relates to activities that are subject to other provisions of the Handbook; (2) whether that conduct is consistent with the requirements and standards of the regulatory system relevant to the person'sfirm.
In determining whether or not the conduct of a senior conduct rules staff member complies with rules SC1 to SC4 in COCON, factors the FCA would expect to take into account include:(1) whether they exercised reasonable care when considering the information available to them;(2) whether they reached a reasonable conclusion upon which to act;(3) the nature, scale and complexity of the firm's business;(4) their role and responsibility as determined by reference to the relevant statement
In assessing whether a senior conduct rules staff member may have breached a rule in COCON, the nature, scale and complexity of the business and the role and responsibility of the individual undertaking the activity in question within the firm will be relevant in assessing whether that person's conduct was reasonable. For example, the smaller and less complex the business, the less detailed and extensive the systems of control need to be.
UK domestic firms with a premium listing1 are subject to the UK Corporate Governance Code, whose internal control Provisions1 are explained in the publication entitled ‘Guidance on Risk Management, Internal Control and Related Financial and Business Reporting (September 2014)’1 issued by the Financial Reporting Council. Therefore, firms in this category will be subject to that code, as well as to the rules in COCON. In forming an opinion as to whether a senior conduct rules staff
Under section 138A(4) of the Act, the appropriate regulator9 may not give a waiver unless it is satisfied that:99(1) compliance by the firm with the rules, or with the rules as unmodified, would be unduly burdensome, or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of, in the case of the PRA, any of its objectives and, in the case of the FCA, any of its operational objectives.99
9The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
In some cases, the appropriate regulator9 may give a modification of a rule rather than direct that the rule is not to apply. The appropriate regulator9 may also impose conditions on a waiver, for example additional reporting requirements. A waiver may be given for a specified period of time only, after which time it will cease to apply. A firm wishing to extend the duration of a waiver should follow the procedure in SUP 8.3.3 D. A waiver will not apply retrospectively.99
If the appropriate regulator9 believes that a particular waiver given to a firm may have relevance to other firms, it may publish general details about the possible availability of the waiver. For example, IPRU(INV) 3-80(10)G explains that a firm that wishes to use its own internal model to calculate its position risk requirement (PRR) will need to apply for a waiver of the relevant rules.9
Under section 138A(1) of the Act the appropriate regulator9 may give a waiver with the consent of a firm. This power may be used by the appropriate regulator9 in exceptional circumstances where the appropriate regulator9 considers that a waiver should apply to a number of firms (for example, where a rule unmodified may not meet the particular circumstances of a particular category of firm). In such cases the appropriate regulator9 will inform the firms concerned that the waiver
An application for a waiver of an evidential provision will normally be granted only if a breach of the underlying binding rule is actionable under section 138D9 of the Act. Individual guidance would normally be a more appropriate response (see SUP 9 (Individual Guidance)) if there is no right of action.29
For an application for a waiver of the presumption of contravention of a binding rule, which is actionable under section 138D9 of the Act, the appropriate regulator9 would normally wish to be satisfied that the evidential rule is itself unduly burdensome or does not achieve the purpose of the rule.299
In the case of an application for a waiver of a two-way evidential provision relating to an actionable binding rule, the policy in SUP 8.3.12 G would apply to the presumption of compliance and the policy in SUP 8.3.13 G would apply to the presumption of contravention. In other words, any modification is likely to be in relation to the second presumption only.2
The following is a non-exhaustive list of examples of conduct that would be in breach of rule SC1.(1) Failing to take reasonable steps to apportion responsibilities for all areas of the business under the approved person's control.(2) Failing to take reasonable steps to apportion responsibilities clearly among those to whom responsibilities have been delegated, which includes establishing confusing or uncertain:(a) reporting lines; or(b) authorisation levels; or(c) job descriptions
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
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
Delegating the authority for dealing with an issue or a part of the business to an individual or individuals (whether in-house or outside contractors) without reasonable grounds for believing that the delegate has the necessary capacity, competence, knowledge, seniority or skill to deal with the issue or to take authority for dealing with part of the business indicates a failure to comply with rule SC3 in COCON 2.2.3R.
The following is a non-exhaustive list of examples of conduct that would be in breach of rule SC3.(1) Failing to take reasonable steps to maintain an appropriate level of understanding about an issue or part of the business that the senior conduct rules staff member has delegated to an individual(s) (whether in-house or outside contractors) including:(a) disregarding an issue or part of the business once it has been delegated;(b) failing to require adequate reports once the resolution
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.
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.
SC4 applies to senior conduct rules staff members in addition to rule 3 in COCON 2.1.3R. Although, the rules have some overlap, they are different. Rule 3 normally relates to responses from individuals to requests from the regulator, whereas rule SC4 imposes a duty on a senior conduct rules staff member to disclose appropriately any information of which the appropriate regulator would reasonably expect, including making a disclosure in the absence of any request or enquiry from
Where a senior conduct rules staff member is responsible within the firm (individually or with other senior conduct rules staff members) for reporting matters to the regulator, failing promptly to inform the regulator concerned of information of which they are aware and which it would be reasonable to assume would be of material significance to the regulator concerned, whether in response to questions or otherwise, constitutes a breach of rule SC4 in COCON 2.2.4R.
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
In general a firm should calculate each consolidated requirement component using the appropriate regulator'srules, even in the case of group members who are subject to the capital requirements of an overseas regulator. However this section sets out certain circumstances in which a firm may use the capital requirements of an overseas regulator.
Table: Capital charges relating to consolidated requirement components
This table belongs to BIPRU 8.7.11 R
Rules on which the consolidated requirement component are based (the applicable risk capital requirement) |
|
(1) A firm must calculate a consolidated requirement component by using one of the methods in this rule.(2) Under the first method a firm must:(a) apply the risk capital requirement set out in BIPRU 8.7.12 R to each undertaking in the UK consolidation group or non-UK sub-group5; and(b) add the risk capital requirements together.(3) Under the second method a firm must:(a) treat the whole UK consolidation group or non-UK sub-group5 as a single undertaking; and(b) apply the risk
A firm may not apply the second method in BIPRU 8.7.13R (3) (accounting consolidation for the whole group) or apply accounting consolidation to parts of its UK consolidation group or non-UK sub-group5 under method three as described in BIPRU 8.7.13R (4)(a) for the purposes of the calculation of the consolidated market risk requirement unless the group or sub-group and the undertakings in that group or sub-group satisfy the conditions in this rule. Instead the firm must use the
BIPRU 8.7.21 R to BIPRU 8.7.26 R are generally examples of the application of the general principles in BIPRU 8.2.1 R (Main consolidation rule for UK consolidation groups) and BIPRU 8.3.1 R (Main consolidation rule for non-UK sub-groups5). BIPRU 8.7.20 R and BIPRU 8.7.25 R are exceptions to those principles.
In accordance with BIPRU 8.2.1 R and BIPRU 8.3.1 R (The basic consolidation rules for a UK consolidation group or non-UK sub-groups5), a firm may exclude that part of the risk capital requirement that arises as a result of:(1) (in respect of the consolidated credit risk requirement) intra-group balances; or(2) (in respect of the4consolidated fixed overheads requirement) intra-group transactions;with other undertakings in the UK consolidation group or non-UK sub-groups5.
(1) 2This rule applies to a firm if:(a) an institution in its UK consolidation group or non-UK sub-group5 is subject to any of the rules or requirements of, or administered by, a third-country competent authority applicable to its financial sector that correspond to the sectoral rules applicable to that financial sector (“corresponding sectoral rules”); or(b) a part of its UK consolidation group or non-UK sub-group5 constitutes the whole of a group subject to the consolidated
This table belongs to COLL 6.6.1 R.
Depositary of an ICVC |
Authorised fund manager of an AUT or ACS10 10 |
Depositary of an AUT or ACS10 10 |
||||
6.6.1R |
x |
x |
x |
x |
x |
x |
6.6.3R |
x |
x |
x |
x |
x |
|
106.6.3AR* |
x |
|||||
106.6.3BR* |
x |
|||||
186.6.3CR* |
x |
x |
||||
186.6.3DG* |
x |
x |
||||
186.6.3ER* |
x |
x |
||||
186.6.3FR* |
x |
x |
||||
6.6.4R |
x |
x |
||||
186.6.4BR* |
x |
x |
||||
186.6.4CR* |
x |
x |
||||
186.6.4DG* |
x |
x |
||||
6.6.5R |
x |
x |
x |
x |
x9 |
|
x |
x10 |
|||||
x |
x10 |
|||||
6.6.6R |
x |
x |
||||
6.6.7R |
x |
x |
||||
6.6.8R |
x |
x |
||||
6.6.9R |
x |
x |
||||
6.6.10R |
x |
x |
x |
x |
||
6.6.11G |
x |
x |
||||
6.6.12R |
x |
x |
||||
6.6.13R |
x |
x |
x |
x |
x |
|
6.6.14R |
x |
x |
x |
x |
||
6.6.15R |
x |
x |
x |
x |
8 | x |
86.6.15AR* |
x |
x |
||||
6.6.16G |
x |
x |
x |
x |
||
6.6.17R |
x |
x |
x |
x |
x |
|
6.6.18G |
x |
x |
x |
x |
x |
|
146.6.19R |
x |
x |
x |
|||
146.6.20R |
x |
x |
x |
|||
146.6.21R |
x |
x |
x |
|||
146.6.22G |
x |
x |
x |
|||
146.6.23E |
x |
x |
x |
|||
146.6.24G |
x |
x |
x |
|||
146.6.25R |
x |
x |
x |
|||
146.6.26G |
x |
x |
x |
|||
156.6.27R |
x |
x |
x |
|||
8Notes: |
(1) |
“x” means “applies”, but not every paragraph in every rule will necessarily apply. |
||||
8(2) |
* COLL 6.6.3A Rand COLL 6.6.3B R only apply to authorised contractual scheme managers of ACSs.10 10 |
|||||
10(3) |
* COLL 6.6.5A R and COLL 6.6.5B G only apply to ACDs of ICVCs which are umbrellas and authorised contractual scheme managers of co-ownership schemes which are umbrellas.10 |
|||||
10(4) |
* COLL 6.6.15A R has a special application as set out in COLL 6.6.15AR (1).10 |
|||||
14(5) |
COLL 6.6.20R to COLL 6.6.27R15 have a special application as set out in COLL 6.6.19R. |
|||||
18(6) |
*COLL 6.6.3CR, COLL 6.6.3DG, COLL 6.6.3ER and COLL 6.6.3FR apply only to the authorised fund manager of a FIIA. |
|||||
18(7) |
*COLL 6.6.4BR, COLL 6.6.4CR, and COLL 6.6.4DG apply only to the depositary of a FIIA. |
|||||
(1) The authorised fund manager must manage the scheme in accordance with:(a) the instrument constituting the fund;1111(b) the 13applicable rules13;(c) the most recently published prospectus; 16(d) for an ICVC, the OEIC Regulations; and16(e) where applicable, the Money Market Funds Regulation.16(2) The authorised fund manager must take such steps as necessary to ensure compliance with the rules13that impose obligations upon the ICVC.(3) The authorised fund manager must:(a) make
(1) The depositary of an authorised fund must take reasonable care to ensure that the scheme is managed by the authorised fund manager in accordance with:(a) COLL 5 (Investment and borrowing powers);(b) COLL 6.2 (Dealing);(c) COLL 6.3 (Valuation and pricing);(d) COLL 6.8 (Income: accounting, allocation and distribution); 16(e) any provision of the instrument constituting the fund11 or prospectus that relates to the provisions referred to in (a) to (d); and1611(e) where applicable,
(1) The duties and powers of the authorised fund manager, the directors of an ICVC and the depositary under the rules in this sourcebook and under the instrument constituting the fund11 are in addition to the powers and duties under the general law. 11(2) Paragraph (1) applies only in so far as the relevant general law is not qualified by the rules in this sourcebook, the16instrument constituting the fund, the OEIC Regulations, or the Money Market Funds Regulation16.1111
(1) The authorised fund manager must make and retain for six years such records as enable:(a) the scheme and the authorised fund manager to comply with the rules in this sourcebook and the OEIC Regulations; and(b) it to demonstrate at any time that such compliance has been achieved.(2) The authorised fund manager must make and retain for six years a daily record of the units in the scheme held, acquired or disposed of by the authorised fund manager, including the classes of such
(1) The authorised fund manager may give instructions to deal in the property of the scheme.(2) The authorised fundmanager must obtain the consent of the depositary for the acquisition or disposal of immovable property.(3) Where the depositary is of the opinion that a deal in property is not within the rules in this sourcebook and the instrument constituting the fund11, the depositary may require the authorised fund manager to cancel the transaction or make a corresponding disposal
SUP 15.3 (General notification requirements) contains rules and guidance on matters that should be notified to the FCA. Such matters include, but are not limited to, any circumstance that the depositary becomes aware of whilst undertaking its functions or duties in COLL 6.6.4 R (1) (General duties of the depositary) and (where applicable) COLL 6.6.4BR (Specific duties of a depositary: oversight of the liquidity management of a FIIA),18 that the FCA would reasonably view as
(1) The depositary of an authorised fund is responsible for the safekeeping of all of the scheme property (other than tangible movable property) entrusted to it and must:(a) take all steps and complete all documents needed to ensure completion of transactions properly entered into for the account of the scheme;(b) ensure that scheme property in registered form is, as soon as practicable, registered in the name of the depositary, its nominee, or (in the case of a non-UCITS retail
(1) The authorised fundmanager must avoid the scheme property being used or invested contrary to COLL 5, or any provision in the instrument constituting the fund11 or the prospectus as referred to in COLL 5.2.4 R (Investment powers:general), 16COLL 5.6.4 R (Investment powers: general) and, where the scheme is a regulated money market fund, the Money Market Funds Regulation16, except to the extent permitted by (3)(b).112(2) The authorised fund manager must, immediately upon becoming
(1) The directors of an ICVC may delegate to any one or more of their number any of the directors' powers or duties but remain responsible for the acts or omissions of any such directors.(1A) The directors of an ICVC have the power to retain the services of anyone to assist in the performance of their functions, subject to the duty of the ACD to comply with COLL 6.6.15A R.8(2) [deleted]8(3) [deleted]88(4) The depositary of a non-UCITS retail scheme managed by a small authorised
(1) 8This rule applies to:(a) an authorised fund manager17of an AUT, ACS10 or an ICVC where such AUT, ACS10 or ICVC is a UCITS scheme13; and17(aa) 13a small authorised UK AIFM that is the authorised fund manager of an AUT, ACS or an ICVC that is a non-UCITS retail scheme.17(b) [deleted]17(2) The authorised fund manager has the power to retain the services of any person to assist it in the performance of its functions, provided that:(a) a mandate in relation to managing investments
(1) Directors of an ICVC, authorised fund managers and depositaries should also have regard to SYSC 8 (Outsourcing).66SYSC 8.1.6 R4 states that a firm remains fully responsible for discharging 6all of its obligations under the regulatory system6 if it outsources crucial or important operational functions4 or any relevant services and activities.6646644(2) SUP 15.8.6 R (Delegation by UCITS management companies) requires the 8authorised fund manager of a UCITS scheme to inform the
(1) The authorised fund manager, any other director of an ICVC and the depositary must take reasonable care to ensure that a transaction within (a) to (f) is not carried out on behalf of the scheme:(a) putting cash on deposit with an affected person unless that person is an eligible institution or an approved bank and the arm's length requirement in (2) is satisfied;(b) lending money by an affected person to, or for the account of, the scheme, unless the affected person is an
Unless otherwise permitted by any other rule in this chapter2, a firm using the normal approach must ensure that all client money it receives is paid directly into a client bank account at an institution referred to in CASS 7.13.3 R (1) to CASS 7.13.3 R (3), rather than being first received into the firm's own account and then segregated.
(1) 6A firm need not comply with CASS 7.13.20R if, following an assessment, it is able to demonstrate that the requirement under that rule is not proportionate, in view of: (a) the small balance of client money that it holds; (b) the nature, scale and complexity of its business; and (c) the safety offered by the relevant third parties referred to under CASS 7.13.20R.(2) A firm must review any assessment it makes under (1) periodically. (3) A firm must notify its assessment under
(1) 6In relation to the requirement to take account of a firm’s “small balance” of client money at CASS 7.13.21AR(1)(a):(a) the FCA expects a firm that would not qualify to be a CASS small firm under the rules in CASS 1A.2, ignoring any safe custody assets that it holds, to have difficulty in justifying using the approach in CASS 7.13.21AR(1);(b) a firm should calculate its client money balance for these purposes in the same way required under CASS 1A.2.3R, and base its assessment
6Where a firm decides following an assessment under CASS 7.13.21AR(1) that it intends to use the approach under that rule, the firm must give the FCA notice of this upon reaching that decision and before it starts to use that approach.Where, following a review under CASS 7.13.21AR(2) a firm decides that it will either cease to use the approach under CASS 7.13.21AR(1) or continue to use it, it must give the FCA notice of this upon reaching that decision.
The rules in SUP 16.14 provide that CASS large firms and CASS medium firms must report to the FCA in relation to the identity of the entities with which they deposit client money and the amounts of client money deposited with those entities. The FCA will use that information to monitor compliance with the diversification rule in CASS 7.13.20 R.
If it is prudent to do so to prevent a shortfall in client money on the occurrence of a primary pooling event, a firm may pay money of its own into a client bank account and subsequently retain that money in the client bank account (prudent segregation). Money that the firm retains in a client bank account under this rule7 is client money for the purposes of the client money rules and the client money distribution and transfer rules7.
(1) 7Subject to paragraphs (2) and (3), CASS 7.13.59R, CASS 7.13.62R(3), CASS 7.13.62R(4) and CASS 7.13.63R to CASS 7.13.67R do not apply to a firm following its failure.(2) If, at the time of a primary pooling event, a firm has retained money in a client bank account for the purposes of alternative approach mandatory prudent segregation under CASS 7.13.65R, that money remains client money for the purposes of the client money rules and the client money distribution and transfer
(1) A firm that uses the alternative approach must, in addition to CASS 7.13.62 R, pay an amount (determined in accordance with this rule) of its own money into its client bank account and subsequently retain that money in its client bank account (alternative approach mandatory prudent segregation). The amount segregated by a firm in its client bank account under this rule is client money for the purposes of the client money rules and the client money distribution and transfer
(1) Where the circumstances described in CASS 7.13.72 R (1)(a) apply to a firm it must pay an amount (determined in accordance with this rule) of its own money into its client bank account and retain that money in its client bank account (clearing arrangement mandatory prudent segregation). The amount segregated by a firm in its client bank account under this rule will be client money for the purposes of the client money rules and the client money distribution and transfer rules7.
This table belongs to COLL 5.2.1 R.
Rule |
Authorised fund manager of an AUT or ACS17 17 |
Depositary of an ICVC, AUT or ACS17 |
Authorised fund manager of an AUT or ACS, or ACD of an ICVC, that is a regulated money market fund23 |
17 | ||
5.2.3R 23 |
x |
x |
x23 |
|||
235.2.4R |
x |
x |
||||
235.2.4AG |
x |
|||||
235.2.5R to 5.2.9R |
x |
x |
||||
125.2.9AR |
x |
x |
||||
5.2.10R(1) |
x |
x |
||||
5.2.10R(2)(a)&(b) |
x |
x |
||||
5.2.10R(2)(c) |
x |
17 | ||||
5.2.10R(3) |
x |
x |
||||
5.2.10AR to 5.2.10EG7 |
x |
x |
||||
x |
x |
|||||
5.2.17AR and 5.2.17BG24 |
x |
x |
x |
|||
235.2.20AR |
x |
x |
x |
|||
235.2.20BG |
x |
x |
||||
235.2.21R |
x |
x |
x |
|||
5.2.22R |
x |
x |
x23 |
|||
135.2.22AG |
x |
x |
x |
x |
x23 |
17 |
5.2.23R(1) |
x |
x |
x |
x23 |
||
5.2.23R(2) to (4)7 |
x |
x |
x |
x |
17 | |
26x |
26x |
26x |
26x |
|||
135.2.23CR |
x |
x |
||||
5.2.26R |
x |
x |
||||
5.2.27R |
x |
|||||
5.2.28R |
x |
|||||
5.2.29R 23 |
x23 |
x23 |
x23 |
|||
235.2.30R |
x |
x |
x |
x |
||
235.2.31R to 5.2.33R |
x |
x |
x |
|||
135.2.34G |
x |
x |
||||
Note: x means "applies" |
7In addition to the parts of CESR's UCITS eligible assets guidelines specifically referred to in this section, the authorised fund manager of a UCITS scheme should have regard to the other parts of those guidelines when applying the rules in this section. CESR's UCITS eligible assets guidelines are available athttps://www.esma.europa.eu/sites/default/files/library/2015/11/07_044.pdf.20.
(1) An authorised fund manager must ensure that, taking account of the investment objectives and policy of the UCITS scheme as stated in the most recently published prospectus, the scheme property of the UCITS scheme aims to provide a prudent spread of risk.(2) The rules in this section relating to spread of investments do not apply until the expiry of a period of six months after the date of which the authorisation order, in respect of the UCITS scheme, takes effect or on which
7The scheme property of a UCITS scheme must, except where otherwise provided in the rules in this chapter, consist solely of any or all of:(1) transferable securities;(2) approved money-market instruments;(3) units in collective investment schemes;(4) derivatives and forward transactions; (5) deposits; and (6) (for an ICVC) movable and immovable property that is essential13 for the direct pursuit of the ICVC's business;13in accordance with the rules in this section.[Note: articles
(1) A market is eligible for the purposes of the rules in this sourcebook if it is:(a) a regulated market;(b) a market in the United Kingdom or25 an EEA State which is regulated, operates regularly and is open to the public; or(c) any market within (2).(2) A market not falling within (1)(a) and (b) is eligible for the purposes of the rules in this sourcebook if:(a) the authorised fund manager, after consultation with and notification to the depositary (and in the case of an ICVC,
(1) This rule does not apply in respect of a transferable security or an approved money-market instrument to which COLL 5.2.12R (Spread: government and public securities) applies21.(2) For the purposes of this rule companies included in the same group for the purposes of consolidated accounts as defined in accordance with section 399 of Companies Act 2006, Directive 2013/34/EU25 or, in the same group in accordance with international accounting standards, are regarded as a single
(1) This rule applies in respect of a transferable security or an approved money-market instrument (“such securities”) that is issued by:21(a) the United Kingdom or 2521an EEA State;(b) 21a local authority of the United Kingdom or 25 an EEA State;(c) 21a non-EEA State; or(d) 21a public international body to which the UK or25 one or more EEA States belong.(2) Where no more than 35% in value of the scheme property is invested in such securities issued by any one body, there is no
A UCITS scheme must not invest in units in a collective investment scheme ("second scheme") unless the second scheme satisfies all of the following conditions, and provided that no more than 30% of the value of the UCITS scheme is invested in second schemes within (1)(b) to (e):88(1) the second scheme must:(a) be a UCITS scheme or25 satisfy the conditions necessary for it to enjoy the rights conferred by the UCITS Directive as implemented in the EEA25; or(b) be a recognised scheme1825
(1) Where:(a) an investment or disposal is made under COLL 5.2.15 R; and(b) there is a charge in respect of such investment or disposal;the authorised fund manager of the UCITS scheme making the investment or disposal must pay the UCITS scheme the amounts referred to in (2) or (3) within four business days following the date of the agreement to invest or dispose. (2) When an investment is made, the amount referred to in (1) is either:14(a) any amount by which the consideration
(1) [deleted]77(2) A transferable security or an approved money-market instrument7on which any sum is unpaid falls within a power of investment only if it is reasonably foreseeable that the amount of any existing and potential call for any sum unpaid could be paid by the UCITS scheme, at the time when payment is required, without contravening the rules in this chapter.7
(1) A transaction in a derivative must:(a) be in an approved derivative; or(b) be one which complies with COLL 5.2.23 R (OTC transactions in derivatives).(2) The underlying of a transaction in a derivative must consist of any one or more of the following to which the scheme is dedicated:(a) transferable securities permitted under COLL 5.2.8 R (3)(a) to (c) and COLL 5.2.8 R (3)(e)7;(b) approved money-market instruments7 permitted underCOLL 5.2.8 R (3)(a) to COLL 5.2.8 R (3)(d)7;77(c)
A derivative or forward transaction which will or could lead to the delivery of property for the account of the UCITS scheme may be entered into only if:(1) that property can be held for the account of the UCITS scheme; and(2) the authorised fund manager having taken reasonable care determines that delivery of the property under the transaction will not occur or will not lead to a breach of the rules in this sourcebook.
(1) 13For the purposes of COLL 5.2.23 R (2), an authorised fund manager of a UCITS scheme 25 must:(a) establish, implement and maintain arrangements and procedures which ensure appropriate, transparent and fair valuation of the exposures of a UCITS scheme 25 to OTC derivatives; and(b) ensure that the fair value of OTC derivatives is subject to adequate, accurate and independent assessment.(2) Where the arrangements and procedures referred to in (1) involve the performance of certain
(1) In relation to a UCITS scheme which is an umbrella, the provisions in COLL 5.2 to COLL 5.5 apply to each sub-fund as they would for an authorised fund, except the following rules which apply at the level of the umbrella only:(a) COLL 5.2.27 R (Significant influence for ICVCs);(b) COLL 5.2.28 R (Significant influence for authorised fund managers of AUTs or ACSs17); and17(c) COLL 5.2.29 R (Concentration).(2) A sub-fund may invest in or dispose of units of14 another sub-fund
19Authorised fund managers of UCITS schemes are advised that ESMA has issued guidelines which, in accordance with the UCITS implementing Directive, authorised fund managers should comply with in applying the rules in this section in relation to UCITS schemes:Guidelines concerning eligible assets for investment by UCITS: The classification of hedge fund indices as financial indices (CESR/07-434)20https://www.esma.europa.eu/sites/default/files/library/2015/11/07_434.pdf20Guidelines
The notification rules in this chapter which apply to a RAP are without prejudice to notification rules which apply to a UK RIE which operates the RAP. However, a UK RIE which operates a RAP may make a single notification where a notification is required both in its capacity as a UK RIE and a RAP.431
10For a common platform firm:
- (1)
the MiFID Org Regulation applies, as summarised in SYSC 1 Annex 1 3.2G, SYSC 1 Annex 1 3.2-AR and SYSC 1 Annex 1 3.2-BR; and
- (2)
the rules and guidance apply as set out in the table below:
Subject
Applicable rule or guidance
Competent employees rule, knowledge and competence and segregation11 of functions
SYSC 5.1.2G to SYSC 5.1.5AG, SYSC 5.1.5AAR, SYSC 5.1.5ABR, SYSC 5.1.5ACG to SYSC 5.1.5AEG,11SYSC 5.1.7R, SYSC 5.1.8G to SYSC 5.1.11G
Certification regime
10For a MiFID optional exemption firm and a third country firm:(a) the rules and guidance in this chapter apply to them as if they were rules or as guidance in accordance with SYSC 1 Annex 1 3.2CR(1); and(b) those articles of the MiFID Org Regulation in SYSC 1 Annex 1 2.8AR and SYSC 1 Annex 1 3.2CR apply to them as if they were rules or as guidance in accordance with SYSC 1 Annex 1 3.2CR(2).
2If a firm requires employees who are not subject to a qualification7 requirement in TC to pass a relevant examination from the list of appropriate qualifications11 maintained by the FCA, or for the purposes of meeting its obligations under SYSC 5.1.5ABR11, the FCA10 will take that into account when assessing whether the firm has ensured that the employee satisfies the knowledge component of the competent employees rule.7777
11A firm must ensure, and be able to demonstrate to the FCA, at the FCA’s request, that any relevant individuals possess the necessary knowledge and competence so as to ensure that the firm is able to meet its obligations under:(1) those rules which implement articles 24 and 25 of MiFID (including those rules which implement related provisions under the MiFID Delegated Directive); and(2) related provisions of the MiFID Org Regulation.[Note: article 25(1) of MiFID]
A firm must communicate to the consumer all the contractual terms and conditions and the information referred to in the distance marketing disclosure rules in writing or another durable medium available and accessible to the consumer in good time before conclusion of any distance contract.[Note: article 5(1) of the Distance Marketing Directive]
In the case of a distance contract comprising an initial service agreement, followed by successive operations or a series of separate operations of the same nature performed over time, the rules in this section only apply to the initial agreement.[Note: article 1(2) of the Distance Marketing Directive]
If there is no initial service agreement but the successive operations or separate operations of the same nature performed over time are performed between the same contractual parties, the distance marketing disclosure rules will only apply:(1) when the first operation is performed; and(2) if no operation of the same nature is performed for more than a year, when the next operation is performed (the next operation being deemed to be the first in a new series of operations).[Note:
(1) A firm must not enforce, or seek to enforce, any obligations under a distance contract against a consumer, in the event of an unsolicited supply of services, the absence of reply not constituting consent.(2) This rule does not apply to the tacit renewal of a distance contract.[Note: article 9 of the Distance Marketing Directive]
If a firm proposes to enter into a distance contract with a consumer that will be governed by the law of a country outside the United Kingdom3, the firm must ensure that the consumer will not lose the protection created by the rules in this section if the distance contract has a close link with the territory of the United Kingdom3.[Note: articles 12 and 16 of the Distance Marketing Directive]
Table: To whom does COCON apply? 9
9Persons to whom COCON applies |
Comments9 |
(1) An SMF manager.9 |
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(2) An employee (“P”) of an SMCR firm12 who:9 (a) performs the function of an SMF manager;9 (b) is not an approved person to perform the function in question; and9 (c) is required to be an approved person at the time P performs that function.9 |
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(3) An employee of an SMCR firm12 who would be performing an FCA-designated senior management function12 but for SUP 10C.3.13R (The 12-week rule). 9 |
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(4) A certification employee of an SMCR firm12.9 |
This applies even if the certification employee has not been notified that COCON applies to them or notified of the rules that apply to them.9 |
(5) An employee of an SMCR firm who would be performing an FCA certification function but for SYSC 27.5.1R (Emergency appointments) or SYSC 27.5.3R (Temporary12 UK role). 9 12 |
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(6) Any employee of an SMCR firm12 not coming within another row of this table, except one listed in column (2) of this row (6) of this table12. 9 |
(A)12 This row (6)12 does not apply to an employee of an SMCR firm12 who only performs functions falling within the scope of the following roles:9 (a) receptionists; (b) switchboard operators; (c) post room staff; (d) reprographics/print room staff; (e) property/facilities management; (f) events management; (g) security guards; (h) invoice processing; (i) audio visual technicians; (j) vending machine staff; (k) medical staff; (l) archive records management; (m) drivers; (n) corporate social responsibility staff; (o) taking part in following activities of the firm:14 14 (i) the firm’s activities as a data controller; or 14(ii) the firm’s activities of data processing; as defined in the data protection legislation, but subject to Note (1) of this table14;data protection legislation;10 (p) cleaners; (q) catering staff; (r) personal assistant or secretary; (s) information technology support (ie, helpdesk); and (t) human resources administrators /processors. 121417 |
(7) [deleted]12 9 |
9 |
(8) A board director of: a UK SMCR firm.12 9999 |
9 |
| 9 | |
14Note (1): A function is only within paragraph (o) of column (2) (Comments) of row (6) of this table if the function does not require the employee concerned to exercise a significant amount of discretion or judgment. |
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(1) Rules SC1 to SC4 in COCON 2.2 apply to all senior conduct rules staff members (subject to (2)).9(2) SC1 to SC3 in COCON 2.2 do not apply to a senior conduct rules staff member within paragraph (d) of the definition of senior conduct rules staff member (P)12 unless P also falls into paragraph (a) or (b) of that definition.129
(1) COCON applies to the conduct of 6conduct rules staff set out in (2) 6wherever it is performed.(2) 6This rule applies to:(a) a senior conduct rules staff member; and(b) a certification employee performing FCA certification function (6)12 (material risk takers) in the table in SYSC 27.7.3R for a UK SMCR firm12.12
(1) This rule applies to members of a firm’sconduct rules staff apart from conduct rules staff in COCON 1.1.9R. 6522(2) Subject to (3), COCON only applies to the conduct of persons to whom this rule applies (as set out in (1)) if that conduct:6(a) 6is performed from an establishment maintained in the United Kingdom by the SMCR firm; or12(b) 6involves dealing with a client of the firm in the United Kingdom from an establishment overseas.5(3) 6Paragraph (2)(b) only applies to a