- (1)
3The restriction in COBS 4.12.3 R does not apply if the promotion falls within an exemption in the table in (5) below in accordance with (3)13.
- (2)
A firm13 may communicate an invitation or inducement to participate in an unregulated collective investment scheme without breaching the restriction on promotion in section 238 of the Act if the promotion falls within an exemption in the table in (5) below in accordance with (3)13.
- (3)
A promotion falls within an exemption in the table in (5) below if13:
- (a)
it is made to or directed at only those recipients whom the firm has taken reasonable steps to establish are persons in the middle column of the table; and13
- (b)
where the third column of the table refers to the need for a preliminary assessment of suitability, that assessment is undertaken before the promotion is made to or directed at the recipient13.
- (a)
- (4)
A firm may rely on more than one exemption in relation to the same invitation or inducement.
- (5)
Title of Exemption
Promotion to:
Promotion of a non-mainstream pooled investment which is:
1. Replacement products and rights issues
A person who already participates in, owns, holds rights to or interests in, a non-mainstream pooled investment that is being liquidated or wound down or which is undergoing a rights issue. [See Note 1.]
1. A non-mainstream pooled investment which is intended by the operator or manager to absorb or take over the assets of that non-mainstream pooled investment, or which is being offered by the operator or manager of that non-mainstream pooled investment as an alternative to cash on its liquidation;
or
2. Securities offered by the existing non-mainstream pooled investment as part of a rights issue.
2. Certified high net worth investors
An individual6 who meets the requirements set out in COBS 4.12.6 R, or a person (or persons) legally empowered to make investment decisions on behalf of such individual6.
Any non-mainstream pooled investment the firm considers is likely to be suitable for that individual6, based on a preliminary assessment of the client's profile and objectives.
[See COBS 4.12.5G (2).]
3. Enterprise and charitable funds
A person who is eligible to participate or invest in an arrangement constituted under:
(1) the Church Funds Investment Measure 1958;
(2) section 96 5or 100 of the Charities Act 2011;
(3) section 25 of the Charities Act (Northern Ireland) 1964;
(4) the Regulation on European Venture Capital Funds (‘EuVECAs’) or the RVECA Regulation (‘RVECAs’)1112; or
(5) the Regulation on European Social Entrepreneurship Funds (‘EuSEFs’) or the SEF Regulation (‘SEFs’)1112.
Any non-mainstream pooled investment which is such an arrangement.
4. Eligible employees
An eligible employee, that is, a person who is:
(1) an officer;
(2) an employee;
(3) a former officer or employee; or
(4) a member of the immediate family of any of (1) - (3), of an employer which is (or is in the same group as) the firm, or which has accepted responsibility for the activities of the firm in carrying out the designated investment business in question.
1. A non-mainstream pooled investment, the instrument constituting which:
A. restricts the property of the non-mainstream pooled investment, apart from cash and near cash, to:
(1) (where the employer is a company) shares in and debentures of the company or any other connected company; [See Note 2.]
(2) (in any case), any property, provided that the non-mainstream pooled investment takes the form of:
(i) a limited partnership, under the terms of which the employer (or connected company) will be the unlimited partner and the eligible employees will be some or all of the limited partners; or
(ii) a trust which the firm reasonably believes not to contain any risk that any eligible employee may be liable to make any further payments (other than charges) for investment transactions earlier entered into, which the eligible employee was not aware of at the time he entered into them; and
B. (in a case falling within A(1) above) restricts participation in the non-mainstream pooled investment to eligible employees, the employer and any connected company.
2. Any non-mainstream pooled investment, provided that the participation of eligible employees is to facilitate their co-investment:
(i) with one or more companies in the same group as their employer (which may include the employer); or
5. Members of the Society of Lloyd’s
A person admitted to membership of the Society of Lloyd's or any person by law entitled or bound to administer his affairs.
A scheme in the form of a limited partnership which is established for the sole purpose of underwriting insurance business at Lloyd's.
6. Exempt persons
An exempt person (other than a person exempted only by section 39 of the Act (Exemption of appointed representatives)) if the financial promotion relates to a regulated activity in respect of which the person is exempt from the general prohibition.
7. Non-retail clients
An eligible counterparty or a professional client.
Any non-mainstream pooled investment in relation to which the client is categorised as a professional client or eligible counterparty.
[See Note 4.]
8. Certified sophisticated investors
An individual6 who meets the requirements set out in COBS 4.12.7 R, including an individual who is legally empowered (solely or jointly with others) to make investment decisions on behalf of another person who is the firm'sclient6.
9. Self-certified sophisticated investors
An individual6 who meets the requirements set out in COBS 4.12.8 R, including an individual who is legally empowered (solely or jointly with others) to make investment decisions on behalf of another person who is the firm'sclient6.
Any non-mainstream pooled investment the firm considers is likely to be suitable for that client, based on a preliminary assessment of the client's profile and objectives.
[See COBS 4.12.5G (2)]
10. Solicited advice
Any person.
Any non-mainstream pooled investment, provided the communication meets all of the following requirements:
(a) the communication only amounts to a financial promotion because it is a personal recommendation on a non-mainstream pooled investment;
(b) the personal recommendation is made following a specific request by that client for advice on the merits of investing in the non-mainstream pooled investment; and
(c) the client has not previously received a financial promotion or any other communication from the firm (or from a person connected to the firm) which is intended to influence the client in relation to that non-mainstream pooled investment. [See Note 3.]
11. Excluded communications
Any person.
Any non-mainstream pooled investment, provided the financial promotion is an excluded communication.[See COBS 4.12.12G, COBS 4.12.13G and COBS 4.12.13AG14.]
12. [deleted]11
13. US persons
A person who is classified as a United States person for tax purposes under United States legislation or who owns a US qualified retirement plan.
Any investment company registered and operated in the United States under the Investment Company Act 1940.
The following Notes explain certain words and phrases used in the table above.
Note 1
Promotion of non-mainstream pooled investments to a category of person includes any nominee company acting for such a person.
Note 2
A company is 'connected' with another company if:
- they are both in the same group; or
- one company is entitled, either alone or with another company in the same group, to exercise or control the exercise of a majority of the voting rights attributable to the share capital, which are exercisable in all circumstances at any general meeting of the other company or of its holding company.
Note 3
A person is connected with a firm if it acts as an introducer or appointed representative for that firm or if it is any other person, regardless of authorisation status, who has a relevant business relationship with the firm.
Note 4
In deciding whether a promotion is permitted under the rules of this section or under section 238 of the Act, firms may use the client categorisation regime that applies to business other than MiFID or equivalent third country business. (This is the case even if the firm will be carrying on a MiFID activity at the same time as or following the promotion.)
Related provisions for PERG 8.14.28C
61 - 80 of 133 items.
(1) 3A firm which wishes to rely on one of the one-off promotion exemptions provided by the Promotion of Collective Investment Schemes or the Financial Promotion Order to promote a non-mainstream pooled investment to a retail client should have regard to its duties under the Principles and the client's best interests rule. In particular, the firm should consider whether the promotion of the non-mainstream pooled investment is in the interests of the client and whether it is fair
(1) 3A firm which wishes to rely on the excluded communications exemption in COBS 4.12.4R (5) to promote units in a qualified investor scheme to a retail client should have regard to its duties under the Principles and the client's best interests rule. (2) As explained in COLL 8.1, qualified investor schemes are intended only for professional clients and retail clients who are sophisticated investors. Firms should note that, in the FCA's view, promotion of units in a qualified
Under the Act and the Regulated Activities Order, the activities of effecting and carrying out contracts of insurance are treated as being carried on in the United Kingdom on the basis of legal tests under which the location of the risk is only one factor. If the risk is located in the United Kingdom, then (other relevant factors being taken into account) the activity will, in the vast majority of cases, also be viewed as carried on in the United Kingdom. There are exceptions,
This section applies:(1) to a financial promotion in relation to consumer credit lending, credit broking, debt counselling, debt adjusting, operating an electronic system in relation to lending1in relation to prospective borrowers or borrowers1under P2P agreements;1(2) in relation to the communication of a financial promotion that is not in writing.
A firm must not communicate a solicited or unsolicited financial promotion that is not in writing, to a customer outside the firm's premises, unless the personcommunicating it:(1) only does so at an appropriate time of the day; and(2) identifies that person and the firm represented at the outset and makes clear the purpose of the communication.[Note: paragraphs 3.9d of CBG and 3.12b of DMG]
1(1) This sourcebook3 applies to every firm that:113(a) carries on a home finance activity3 (subject to 31the business loan and loans to high net worth mortgage customers7 application provisions3); or3(b) communicates or approves a financial promotion of qualifying credit, of a home purchase plan,6of a home reversion plan3or of a regulated sale and rent back agreement.636(2) Where a firm has outsourced activities to a third party processor, any rule in MCOB which requires the
Authorised professional firms should be aware of the following:(1) PROF 5 (Non-mainstream regulated activities); and(2) MCOB 3A.1.3R8 (Authorised professional firms) and the exception in article 55 of the Financial Promotion Order (Communications by members of the professions) which applies in relation to financial promotion of qualifying credit or of a home reversion plan3 of authorised professional firms under MCOB 3A.1.9R(2)8 (Exemptions).838
3The following is a non-exhaustive list of rules and guidance in the Handbook that are relevant to a firm's management of operational risk: (1) COBS contains rules and guidance that can relate to the management of operational risk; for example, COBS 2 (Conduct of business obligations), COBS 4 (Communicating with clients, including financial promotions), COBS 6 (Information about the firm, its services and remuneration), COBS 7 (Insurance distribution2), COBS 9 (Suitability (including
12(1) The financial promotion rules in COBS apply to an ICVC, except that COBS 4.13 (UCITS) applies only to an ICVC that is a UCITS scheme.2(2) COBS 14.2 (Providing product information to clients) applies to an ICVC that is a UCITS scheme.2(3) 5COBS 2.2B (SRD requirements) applies to an ICVC that is a UCITS scheme without a separate management company.
Some software services involve the generation of specific buy, sell or hold signals relating to particular investments. These signals are liable, as a general rule, to be advice for the purposes of article 53(1)1 (as well as financial promotions) given by the person responsible for the provision of the software. The exception to this is where the user of the software is required to use enough control over the setting of parameters and inputting of information for the signals
1In investigations into possible
insider dealing,market abuse, misleading statements and practices offences, breaches of the general prohibition, the restriction on financial promotion, or the prohibition on promoting collective investment schemes, the investigator may not know the identity of the perpetrator or may be looking into market circumstances at the outset of the investigation rather than investigating a particular person. In those circumstances,
1A firm must make an adequate record of each non-real time financial promotion of qualifying credit, home reversion plan or regulated sale and rent back agreement which it has confirmed as complying with the rules in this chapter. The record must be retained for a year from the date at which the financial promotion was last communicated.
The purpose of this chapter is to establish the requirements for the proper calculation of the APR. As a cost measure which facilitates comparisons between similar mortgages offered on a similar basis, the APR is an integral element of the rules relating to financial promotions of qualifying credit1 and disclosure.1