Related provisions for CONC 11.2.4
1 - 20 of 59 items.
(1) 1This section applies to:24(a) a firm which is a retail investment product provider; 114(b) in relation to COBS 6.1B.9 R, COBS 6.1B.10 G and COBS 6.1B.11 G, a platform service provider; 11and4(c) 11a firm which is an operator of an electronic system in relation to lending; in circumstances where a retail client receives a personal recommendation in relation to a retail investment product or P2P agreement11 and also where a retail investment product transaction is executed
5A firm and its associates may:(1) offer and pay a commission, remuneration or benefit of any kind in the circumstances set out in COBS 6.1B.5 R if:(a) the personal recommendation was made on or before 30 December 2012;(b) the offer and payment was permitted by the rules in force on 30 December 2012;(c) the contract under which the right to receive the commission, remuneration or benefit of any kind was entered into on or before 30 December 2012; (d) the terms of that contract
10A retail investment product provider may maintain retail investment product charges at a level such that a cash rebate is payable to the retail client if:(1) the retail investment product transaction was agreed on or before 5 April 2014 and executed within a reasonable time of that agreement; and (2) the retail client's right to receive the cash rebate arose on or before 5 April 2014; and(3) on or after 6 April 2014 no change is made to that product, or, where there is such
10The following examples do not entail changes to the retail investment product: (1) no change is made to the retail client's investment in the relevant product or to the level of the retail client's regular contributions into that product;(2) the retail client's investment in, or regular contribution to, the relevant product is reduced: the retail investment product provider may continue to pay the cash rebate associated with the reduced investment amount;(3) the retail client's
6A firm may facilitate the payment of adviser charges for the purposes of COBS 6.1B.9 R by:(1) selling all or part of the retail client'sretail investment product to pay the adviser charge; or(2) disposing of or reducing all or part of the retail client's rights under the retail investment product (for example, by way of a part disposal which creates benefits under a life policy) to pay the adviser charge; or(3) separating out an amount or amounts for the payment of the adviser
COBS 6.1B.9R(3) does not prevent a firm, if this is in the retail client's best interests, from entering into an agreement with another firm which is providing a personal recommendation to a retail client, or with a retail client of such a firm, to provide it with credit separately in accordance with the rules and guidance13 on providing credit and other benefits to firms that provide personal recommendations13 on retail investment products or P2P agreements11(see13COBS 2.3.12
(1) Subject to (2), this section does not apply where the P2P agreement provides for credit of less than £50.(2) Paragraph (1) does not apply where two or more P2P agreements in relation to the same borrower (but whether or not with the same lender) are entered into at or about the same time.(3) Where (2) applies, the firm's obligation in CONC 7.19.4 R applies as if all of the P2P agreements made with a borrower at or about the same time were a single agreement.
(1) In this section "default sum" means in relation to the borrower under a P2P agreement, a sum (other than a sum of interest) which is payable by the borrower under the agreement in connection with a breach of the agreement by the borrower.(2) But a sum is not a default sum in relation to the borrower simply because as a consequence of the breach of the agreement the borrower is required to pay the sum earlier than would otherwise have been the case.
Firms should ensure that those supervising employees carrying on an activity in TC Appendix 1 have the necessary coaching and assessment skills as well as technical knowledge and experience17 to act as a competent supervisor and assessor. In particular firms should consider whether it is appropriate to require those supervising employees not assessed as competent to attain 16an appropriate qualification 16as well (2729except where2729TC 2.1.5R applies)2729.
161625172417Where an employee has not been assessed as competent to do so and: 24(1) 24gives personal recommendations25 on retail investment products to retail clients24, the firm must ensure that the individual supervising and assessing that employee has attained an appropriate qualification24; or(2) 24gives advice on P2P agreements to retail clients, the firm must ensure that the individual supervising and assessing that employee has attained an appropriate qualification for giving personal
A firm must ensure that an employee does not carry on an activity in TC Appendix 1 (other than an overseeing activity) for which there is a qualification 16requirement without first attaining16 the relevant regulatory module of24: 16(1) 24(in respect of activities other than advising on P2P agreements (activity 9A in TC Appendix 1)) an appropriate qualification; or(2) 24(in respect of advising on P2P agreements (activity 9A in TC Appendix 1)) an appropriate qualification for giving
(1) If a firm is satisfied that an employee meets the conditions in this rule then the requirements to have attained 16each module of an appropriate qualification 16will only apply if that employee is carrying on one of the activities specified in this rule.1616(2) The conditions are that a firm should be satisfied that an employee:(a) has at least three years' up-to-date relevant experience in the activity in question obtained while employed outside the United Kingdom;(b) has
(1) Before entering into a regulated credit agreement or regulated consumer hire agreement, or before a P2P agreement is entered into, under which the customer may grant a continuous payment authority, the firm must provide the customer with an adequate explanation of the matters in (2).(2) The matters referred to in (1) are:(a) what a continuous payment authority is and how it works;(b) how the continuous payment authority will be applied by the firm, including where the firm
(1) 1This rule applies if:(a) a firm is to enter into a regulated credit agreement or a regulated consumer hire agreement, or is to facilitate the entry into a P2P agreement;(b) an individual other than the borrower or the hirer (in this rule referred to as “the guarantor”) is to provide a guarantee or an indemnity (or both) in relation to the regulated credit agreement, the regulated consumer hire agreement or the P2P agreement; and(c) the guarantor is to grant a continuous payment
A firm must ensure that a P2P agreement that the firm makes available to a borrower and a lender provides for the following contractual rights and obligations and procedure for and effect of the exercise of those rights and obligations:(1) a right for the borrower: (a) to withdraw from the agreement (“the right of withdrawal”);(b) without giving any reason; and(c) by giving oral or written notice of the withdrawal to the firm (on behalf of the lender) before the end of the period
In addition, certain other activities carried on in relation to rights under contracts of insurance are regulated activities. These are where the activity is carried on in relation to:(1) life policies, where the regulated activities concerned are:(a) dealing in investments as principal (see PERG 2.7.5 G);(b) managing investments (see PERG 2.7.8 G);(c) safeguarding and administering investments (see PERG 2.7.9 G); and(d) agreeing to carry on any of those activities (see PERG 2.7.21
(1) 15This activity is aimed at what are sometimes referred to as peer-to-peer lending platforms. A person ("A") will be operating an electronic system in relation to lending if he operates an electronic system which enables him to facilitate persons ("B" and "C") becoming the lender and borrower under an article 36H agreement. (2) To be caught, all of the following conditions must be met:(a) the electronic system operated by A must be capable of determining which agreements should
This activity covers advice in the form of a recommendation given to a retail consumer. The recommendation must relate to a stakeholder product and certain conditions must be met. These conditions are based on the need for the adviser to make an assessment of the consumer's needs based on the answers that the consumer provides to a series of pre-scripted questions. A fuller description of the activity is given in PERG 2.7.14B G and explains what is meant by "retail customer".
25There are two regulated activities which constitute advising on investments in article 53 of the Regulated Activities Order. These are:(1) advising on investments (except P2P agreements) (in article 53(1) of the Regulated Activities Order); and(2) advising on P2P agreements (in article 53(2) of the Regulated Activities Order).
The regulated activity of advising on investments (except P2P agreements)25 under article 53(1)25 of the Regulated Activities Order applies to advice on securities, structured deposits26 or relevant investments. It does not, for example, include giving advice about deposits (except structured deposits)26, or about things that are not specified investments for the purposes of the Regulated Activities Order. 19 Giving advice on certain other specified investments is, however, regulated
25The regulated activity of advising on P2P agreements under article 53(2) of the Regulated Activities Order applies to advice given to a person in their capacity as a lender or potential lender under a relevant article 36H agreement (defined in article 53(4) of the Regulated Activities Order), or as an agent for a lender or potential lender under such an agreement, where that advice is on the merits of their doing any of the following (whether as principal or agent):(1) entering
(1) 1This section applies to a firm which makes personal recommendations to retail clients in relation to retail investment products, pension transfers, pension conversions, pension opt-outs 1912or P2P agreements.1111(2) This section does not apply to a firm giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme.2
8PERG 8.30B (Personal recommendations) describes what is meant by a personal recommendation in the context of the definition of the regulated activity of advising on investments (except P2P agreements). That guidance is also relevant to the meaning of personal recommendation in this section in relation to a retail investment product.18 The guidance16 in PERG 8.24 to PERG 8.30B18 does not apply to the regulated activity of advising on P2P agreements. 121216161212
7‘Related service(s)’ for the purposes of COBS 6.1A includes:(1) arranging or executing a transaction which has been recommended to a retail client by the firm, an associate or another firm in the same group or conducting administrative tasks associated with that transaction; or(2) managing a relationship between a retail client (to whom the firm provides personal recommendations on retail investment products, pension transfers, pension conversions, pension opt-outs19 or P2P
11‘Other services’ in COBS 6.1A.6R (3) includes:(1) providing information relating to retail investment products, pension transfers, pension conversions, pension opt-outs,19P2P agreements or operators of electronic systems in relation to lending12 to the retail client, for example, general market research; or(2) passing on information from the discretionary investment manager to the retail client.
Examples of payments and benefits that should not be accepted under the requirement to be paid through adviser charges include:(1) a share of the retail investment product charges or platform service provider's charges, or5retail investment product provider’s or platform service provider's5 revenues or profits; 125(2) a commission set and payable by a retail investment product provider or an operator of an electronic system in relation to lending12 in any jurisdiction12; and(3)
9A firm must not make a personal recommendation to a retail client in relation to a retail investment product or P2P agreement12if it knows, or ought to know, that:(1) the product’s charges,12 the platform service provider's charges or the operator of the electronic system in relation to lending’s charges 12are presented in a way that offsets or may appear to offset any adviser charges or platform charges that are payable by that retail client; or(2) the product’s charges or other
A firm is likely to be viewed as operating a charging structure that conceals the amount or purpose of its adviser charges if, for example:(1) it makes arrangements for amounts in excess of its adviser charges to be deducted from a retail client's investments from the outset, in order to be able to provide a cash refund to the retail client later; or(2) it provides other services to a retail client (for example, advising on a home finance transaction or advising on an equity release
A firm must not pay or accept any fee or commission, or provide or receive any non-monetary benefit, in relation to designated investment business12 carried on for a client other than:(1) a fee, commission or non-monetary benefit paid or provided to or by the client or a person on behalf of the client; or(2) a fee, commission or non-monetary benefit paid or provided to or by a third party or a person acting on behalf of a third party, if:(a) the payment of the fee or commission,
5COBS 6.1A (Adviser charging and remuneration), COBS 6.1B (Retail investment product provider and operator of an electronic system in relation to lending and platform service provider 10requirements relating to adviser charging and remuneration), COBS 6.1C (Consultancy charging and remuneration) and COBS 6.1D (Product provider requirements relating to consultancy charging and remuneration) set out specific requirements as to when it is acceptable for a firm to pay or receive commissions,
(1) 1This evidential provision applies in relation to a holding in, or the provision of credit to, a firm which holds itself out as making personal recommendations to retail clients on retail investment products or P2P agreements10, except where the relevant transaction is between persons who are in the same immediate group.55(2) A retail investment product provider5 or operator of an electronic system in relation to lending10 should not take any step which would result in it:5(a)
5Where a retail investment product provider or operator of an electronic system in relation to lending, 10or its associate, provides credit to a retail client of a firm making personal recommendations in relation to retail investment products or P2P agreements10 or giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme6, this may create an indirect benefit for the firm and, to the extent that
(1) 3This rule applies if the lender, or the prospective lender, under a P2P agreement is, or would be, carrying on by way of business the regulated activity of entering into a regulated credit agreement as lender by entering into the agreement.(2) Any fee to be paid by the borrower to the operator of an electronic system in relation to lending must be agreed between the borrower and the operator, and that agreement must be recorded in writing or other durable medium before the
(1) Before a P2P agreement is made, the firm must:(a) provide the prospective borrower with an adequate explanation of the matters referred to in (2) in order to place the borrower in a position to assess whether the agreement is adapted to the borrower's needs and financial situation;(b) where the P2P agreement is not a non-commercial agreement, advise the prospective borrower:(i) to consider the information which is required to be disclosed under section 55(1) of the CCA; and(ii)
(1) 1This rule applies if:(a) a firm with permission to carry on the activity of operating an electronic system in relation to lending is to facilitate the entry into a P2P agreement; (b) the prospective borrower is an individual; and(c) an individual other than the borrower (in this rule referred to as “the guarantor”) is to provide a guarantee or an indemnity (or both) in relation to the P2P agreement.(2) The firm must, before the P2P agreement is made, provide the guarantor
(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
(1) 4Where a firm has made an election under CASS 7.10.7AR: (a) it should treat money held for a client as client money both in the course of or in connection with: (i) operating an electronic system in relation to lending; and(ii) operating an electronic system in relation to non-P2P agreements;(b) (a) is regardless of whether, at the time the firm is holding the money, the client could or could not be a lender under a P2P agreement; and(c) under SYSC 4.1.8ER(2) it will be not
16(1) 26An operator of an electronic system in relation to lending must have arrangements in place to ensure that P2P agreements facilitated by it will have a reasonable likelihood of being26 managed and administered, in accordance with the contract terms between the firm and its relevant borrower and lender customers26, if at any time it ceases to manage and administer those P2P agreements26.(2) Under (1), and wherever the requirement in (1) is referenced in the FCA’s rules and
16Arrangements that are required to be put in place under SYSC 4.1.8AR26 may include any one or more of the following26:(1) entering into an arrangement with another firm that has the appropriate permissions26 to take over the management and administration of P2P agreements if the operator ceases to operate the electronic system in relation to lending and, where appropriate:26(a) obtaining prior and informed consent from lender clients to fund the continued cost of management
(1) When designing its arrangements, a firm should take into account the general 26law to ensure that the insolvency of the firm does not prejudice the operation of arrangements that the firm has put in place.26(2) A firm should consider the need to obtain professional advice on the adequacy of its arrangements. For example, a firm may benefit from obtaining legal advice or advice from a qualified insolvency practitioner on the likelihood of its arrangements securing the required
16(1) An operator of an electronic system in relation to lending must not accept, take, or receive the transfer of full ownership of money relating to P2P agreements.18(2) If an operator of an electronic system in relation to lending has made a client money election under CASS 7.10.7AR, when it is operating an electronic system in relation to non-P2P agreements it must also not accept, take, or receive the transfer of full ownership of money relating to non-P2P agreements.18
But the exclusion applies only if the principal purpose of the publication or service is not:(1) to advise on securities or structured deposits9 or relevant investments or P2P agreements or7home finance transactions1 or amounts to carrying9 on advising on conversion or transfer of pension benefits; 5 or15(2) to lead or enable persons:(a) to buy, sell, subscribe for or underwrite securities, structured deposits9 or relevant investments; or1(aa) to enter into a relevant article
The exclusion applies only if the principal purpose of the publication or service is not:(1) to give advice on securities, structured deposits,9relevant investments, P2P agreements7 or home finance transactions1or amounts to carrying on advising on conversion or transfer of pension benefits9; or1(2) to lead or enable persons6:(a) to6buy, sell, subscribe for or underwrite securities, structured deposits9 or relevant investments; or(aa) to enter into a relevant article 36H agreement
For the second disqualifying purpose, the focus switches to assessing whether the principal purpose of a publication or service is to lead a person to engage in a relevant transaction or enable him to do so. This disqualifying purpose is an alternative to the first. So it extends to material not covered by the first. In this respect:(1) material in a publication or service that invites or seeks to procure persons to engage in a relevant transaction can be said to "lead" to those
(1) Subject to (2), this section does not apply where the P2P agreement provides for credit of less than £50.(2) Paragraph (1) does not apply where two or more P2P agreements in relation to the same borrower (whether or not with the same lender) are entered into at or about the same time.(3) Where (2) applies, the firm's obligations in CONC 7.17 apply as if all of the P2P agreements made with a borrower at or about the same time were a single agreement.
(1) The duty of the firm to give the borrower notices under CONC 7.17.4 R will cease when either of the conditions mentioned in (2) is satisfied but, if either of those conditions is satisfied before the notice required by CONC 7.17.4R (1) is given, the duty will not cease until that notice is given.(2) The conditions referred to in (1) are:(a) that the borrower ceases to be in arrears;(b) that a judgment is given in relation to the agreement under which a sum is required to be
1This chapter applies, unless otherwise stated in or in relation to a rule, to:(1) a firm with respect to consumer credit lending;(2) a firm with respect to consumer hiring;(3) a firm with respect to operating an electronic system in relation to lending, in relation to a borrower under a P2P agreement;(4) a firm with respect to debt collecting.
The following sections provide otherwise for application:(1) CONC 7.12 (lenders' responsibilities in relation to debt) applies only to firms in respect of consumer credit lending or in respect of activity that would be consumer credit lending but for article 60C(4A) of the Regulated Activities Order3;(2) CONC 7.17 to CONC 7.19 apply only to firms operating electronic systems in relation to lending in relation to borrowers under P2P agreements as set out in those sections.
(1) 2In this chapter, except for CONC 7.6.15AG:(a) a reference to a borrower, a customer or a hirer includes a reference to an individual other than the borrower or the hirer (in this chapter, referred to as “the guarantor”) who has provided a guarantee or an indemnity (or both) in relation to:(i) a regulated credit agreement; or(ii) a regulated consumer hire agreement; or(iii) a P2P agreement in respect of which the borrower is an individual;where it would not do so but for this
(1) A firm must not exercise its rights under a continuous payment authority (or purport to do so):(a) unless it has been explained to the customer that the continuous payment authority would be used in the way in question; and(b) other than in accordance with the terms specified in the credit agreement or the P2P agreement.(2) If a firm wishes a customer to change the terms of a continuous payment authority it must contact the customer and:(a) provide the customer with an adequate
A firm should not:(1) request a payment service provider to make a payment from the customer's payment account1 unless:(a) (i) the amount of the payment (or the basis on which payments may be taken) is specified in or permitted by the credit agreement or P2P agreement; and(ii) the amount of the payment (or the basis on which payments may be taken) was referred to in the adequate explanation required by CONC 4.6.2 R; or(b) the firm has complied in relation to such a request with
(1) 2This rule applies where the terms of a regulated credit agreement or a P2P agreement do not provide for a continuous payment authority and it is proposed that a customer will grant a continuous payment authority to:(a) a lender or a person who has permission to carry on the activity of operating an electronic system in relation to lending; or(b) a debt collector¸ provided that the debt collector is acting under an arrangement with the lender or the person who has permission
(1) 2Where a regulated credit agreement or a P2P agreement does not incorporate the terms of a continuous payment authority, CONC 7.6.2AR enables a continuous payment authority to be put in place (for example, for a repayment plan) without necessarily requiring an amendment to the agreement. But CONC 7.6.2AR applies only where the customer is in arrears or default, and the creation of the continuous payment authority supports the fair treatment of the customer and facilitates
6Under article 53(2) of the Regulated Activities Order (Advising on investments), advising a person is a specified kind of activity if:(1) the advice is given to the person in their capacity as a lender or potential lender under a relevant article 36H agreement (defined in article 53(4) of the Regulated Activities Order) or as an agent for a lender or potential lender under such an agreement; and(2) it is advice on the merits of their doing any of the following (whether as principal
In the FCA's view, for a person to be carrying on the business of advising on investments or advising on a home finance transaction1 he will usually need to be doing so with a degree of regularity and for commercial purposes – that is to say, he will normally be expecting to gain some kind of a direct or indirect financial benefit. But, in the FCA's view it is not necessarily the case that advice provided free of charge will not amount to a business. Advice is often given 'free'
But even if advice is given in the United Kingdom, the general prohibition will not be contravened if the giving of advice does not amount to the carrying on, in the United Kingdom, of the business of advising on investments, advising on regulated credit agreements for the acquisition of land4,9 or advising on conversion or transfer of pension benefits advising on a home finance transaction . Also, the general prohibition will not be contravened if the exclusion for overseas persons
(1) The firm must, when the firm next sends a statement to the borrower, give or send the borrower a notice including the information set out in CONC 7.18.5 R.(2) A firm must accompany the notice required by (1) with a copy of the current arrears information sheet under section 86A of the CCA with the following modifications:(-a) for the heading “Arrears” substitute “Arrears – peer-to-peer lending”;1(a) for the bullet point headed “Work out how much money you owe” substitute:“Work