Related provisions for PERG 5.16.1
1 - 20 of 69 items.
A firm must provide the suitability report to the client:(1) in the case of a life policy, before the contract is concluded8; (2) in the case of a personal pension scheme or stakeholder pension scheme that is not a life policy8, where the rules on cancellation (COBS 15) require notification of the right to cancel, no later than the fourteenth day after the contract is concluded;11(2A) in the case of a pension transfer or pension conversion, in good time before the transaction
The suitability report must, at least:(1) specify, on the basis of the information obtained from the client,8 the client's demands and needs;(2) explain why the firm has concluded that the recommended transaction is suitable for the client having regard to the information provided by the client; 8(3) explain any possible disadvantages of the transaction for the client; and8(4) in the case of a life policy, include a personalised recommendation explaining why a particular life
Table Territorial issues relating to overseas insurance intermediaries carrying on insurance distribution activities5 in or into the United Kingdom
Needs Part 4A permission |
Overseas persons exclusion available |
||
Third country intermediary operating from branch in the UK |
Yes |
No |
|
Third country intermediary providing services in (or into) the UK |
Yes unless overseas persons exclusion applies |
Potentially available |
|
| 35 | |||
Section 418 of the Act extends the meaning that 'carry on regulated activity in the United Kingdom' would normally have by setting out additional cases in which a person who would not otherwise be regarded as carrying on the activity in the United Kingdom is to be regarded as doing so. Each of the following cases thus amounts to carrying on a regulated activity in the United Kingdom:(1) [deleted]6(2) where a UK-based person carries on a regulated activity and the day-to-day management
UK-based persons must obtain Part 4A permission in relation to their insurance distribution activities5 in the United Kingdom as one of the following:(1) a body corporate whose registered office is situated in the United Kingdom; or(2) a partnership or unincorporated association whose head office is situated in the United Kingdom; or(3) an individual (that is, a sole trader) whose residence is situated in the United Kingdom.5
The IDD4 imposes requirements upon EEA States relating to the regulation of insurance distribution and reinsurance distribution4. The IDD defines “insurance distribution”4 as including the activities of advising on4, proposing or carrying out other work preparatory to the conclusion of contracts of insurance4, or of concluding such contracts, or of assisting in the administration and performance of such contracts, in particular in the event of a claim. It includes the provision
The United Kingdom5implemented the IDD (and the IMD before it)4, in part, through secondary legislation, which applies4 pre-existing regulated activities (slightly amended) in the Regulated Activities Order to the component elements of the insurance distribution and reinsurance distribution definitions in the IDD4 (see PERG 5.2.5 G and the text of IDD articles 2.1(1), 2.1(2) and 2.24 in PERG 5.16.2G4).
It is the scope of the Regulated Activities Order rather than the IDD4 which will determine whether a person requires authorisation or exemption. However, the scope of the activities set out in the5IDD4 is relevant to the application of certain exclusions under the Regulated Activities Order (see, for example, the commentary on article 67 in PERG 5.11.9 G (Activities carried on in the course of a profession or non-investment business)).
(1) The5 exclusion for groups and joint enterprises in article 69 of the Regulated Activities Order (Groups and joint enterprises) does not apply to transactions relating to contracts of insurance. This will affect5 a company providing services for:(a) other members of its group; or(b) other participants in a joint enterprise of which it is a participant.(2) Such companies might typically provide risk or treasury management or administration services which may include regulated
Article 4(4A) of the Regulated Activities Order (Specified activities: general) disapplies certain exclusions where a person, for remuneration, takes up or pursues insurance distribution or reinsurance distribution5 (as defined in articles 2.1(1), 2.1(2) and 2.2 of the IDD5) and PERG 5.16.2G5) in relation to a risk or commitment located in the United Kingdom. In relation to a contract of insurance entered into before IP completion day, article 4(4A) applies in relation to a risk
Although the article 67 exclusion is disapplied (by article 4(4A) of the Regulated Activities Order (Specified investments: general)) when a person takes up or pursues insurance distribution or reinsurance distribution5 as defined by articles 2.1(1), 2.1(2) and 2.2 of the IDD5, there may be cases where a person is not carrying on activities that amount to insurance distribution5. For example, where a person's activities amount simply to the provision of information on an incidental
Article 67 may also apply to activities relating to assignments of insurance policies, as, in the FCA'sview, article 2.1(1) of the IDD5 applies essentially to the creation of new contracts of insurance and not the assignment of rights under existing policies. As such, where a solicitor or licensed conveyancer arranges an assignment of a contract of insurance, the exclusion in article 67 remains of potential application. For similar reasons, trustees advising on or arranging assignments
For the purposes of MIPRU 5.2.1 R, the person4, in relation
to the activity must:33(1) have3permission;
or3(2) be3 an exempt
person; or3(3) be3 an exempt
professional firm; or3(4) [deleted]533224(5) in relation to insurance distribution activity4, not be 3carrying this activity on in the UK5; or3(6) in relation to home finance mediation activity1, not be 3carrying this activity on in the United
Kingdom.13[Note: article 164 of theIDD4]22
(1) A firm should:(a) before using
the services of the intermediary, check:(i) the Financial Services Register;5(ii) [deleted]54for the status of the person4; and(b) use the services
of that person4 only if the relevant register indicates that the person4 is
registered for that purpose.(2) (a) Checking the Financial Services Register before using the services of the
intermediary and using the services of that person4 only if the Financial Services Register indicates that the person4
A firm must take out and maintain at all times professional indemnity insurance that is at least equal to the requirements in this section from: (1) an insurance undertaking which is authorised to transact professional indemnity insurance in the UK6(2) a person of equivalent status in: (a) a Zone A country; (b) the Channel Islands, Gibraltar, Bermuda or the Isle of Man. [Note: articles 10(4) and 10(5) of the IDD4
If the firm is not an IDD insurance intermediary,8 then the following limits of indemnity apply: 4(1) if the firm has relevant income of up to £3,000,000, no lower than £500,000 for a single claim against the firm and £500,000 in the aggregate; or (2) if the firm has relevant income of more than £3,000,000, no lower than £650,000 for a single claim against the firm and £1,000,000 in the aggregate.
1(1) The European Commission has not produced an interpretative communication on MiFID3. It is arguable, however, that the principles in the communication on the Second Banking Directive can be applied to investment services and activities3. This is because Chapter9 II of Title II of MiFID3 (containing provisions relating to operating conditions for investment firms3) also applies to the investment services and activities3 of firms operating under the Banking Consolidation Directive,
The E-Commerce Directive does not affect the responsibilities of Home State under the Single Market Directives. This includes the obligation of a Home State regulator to notify the Host State regulator of a firm's intention to establish a branch in, or provide cross border services into, the other EEA State.
1The Single Market Directives require credit institutions, insurance undertakings (other than reinsurance undertakings)5, MiFID investment firms3, AIFMs, 7UCITS management companies,8insurance intermediaries and MCD credit intermediaries8 to make a notification to the Home State before establishing a branch or providing cross border services.SUP 13.5 (Notices of intention) sets out the notification requirements for a firm seeking to establish a branch or provide cross border services.
In the opinion of the European Commission (and in the wording of the Single Market Directives) "only activities carried on within the territory of another Member State should be the subject of prior notification" (Commission interpretative communication: Freedom to provide services and the interests of the general good in the Second Banking Directive (97/C 209/04)). In determining, for the purposes of notification, whether a service is to be provided 'within' another EEA State,
The key distinction in relation to temporary activities is whether a firm should make its notification under the freedom of establishment in a Host State, or whether it should notify under the freedom to provide services into a Host State. It would be inappropriate to discuss such a complex issue in guidance of this nature. It is recommended that, where a firm is unclear on the distinction, it should seek appropriate advice. In either case, where a firm is carrying on activities
The FCA considers5 that, in order to comply with Principle 3:Management and control (see PRIN 2.1.1 R), a firm should have appropriate procedures to monitor the nature of the services provided to its customers. Where a UK firm has non-resident customers but has not notified the EEA State in which the customers are resident that it wishes to exercise its freedom to provide services, the FCA5 would expect the firm's systems to include appropriate controls. Such controls would
A firm must take out and maintain professional indemnity insurance that is at least equal to the requirements of this section from:(1) an insurance undertaking authorised to transact professional indemnity insurance in the UK7; or(2) a person of equivalent status in:(i) a Zone A country; or(ii) the Channel Islands, Gibraltar, Bermuda or the Isle of Man.[Note: articles 10(4) and 10(5)6 of theIDD6]22
If the firm is an insurance intermediary, then the minimum limits of indemnity per year6are:(1) for a single claim, €1,300,3809; and336(2) in aggregate, the higher of:633(a) €1,924,5609; and6(b) an amount equivalent to 10% of annual income (this amount being subject to a maximum of £30 million).6[Note: articles 10(4) and 10(5)6 of theIDD6]22
If a rule implemented6 a requirement of the IDD5, a Note (“Note:”)5 follows the rule indicating which provision was6 being implemented. COBS 2.1 (acting honestly fairly and professionally), COBS 2.6 (additional insurance distribution obligations, COBS 4 (communicating with clients), COBS 6 (information about the firm, its services and remuneration) and COBS 14 (product information) contains contain further rules which implemented6 the IDD5
In good time before4 the conclusion of an initial contract of insurance and, if necessary, on its amendment or renewal :4(1) a firm must provide the customer with at least the following information:4(a) its identity, address and whether it is an insurance intermediary or an insurance undertaking;4(b) whether it provides a personal recommendation about the insurance products offered;4(c) the procedures allowing customers and other interested parties to register complaints about
(1) Where an insurance intermediary proposes or advises on a contract of insurance then in good time before4 the conclusion of an initial contract of insurance (other than a connected travel insurance contract) and, if necessary, on its amendment or renewal an insurance intermediary4 must provide the customer with at least information on whether the firm4:2(a) gives a personal recommendation4, on the basis of a fair and personal4 analysis; or(b) is under a contractual obligation
(1) Text of article 2.1(1) of the Insurance Distribution Directive1
“‘Insurance distribution’ means the activities of advising on, proposing or carrying out other work preparatory to the conclusion of contracts of insurance, of concluding such contracts, or of assisting in the administration and performance of such contracts, in particular in the event of a claim, including the provision of information concerning one or more insurance contracts in accordance with criteria selected
(1) Prior to the conclusion of a contract of insurance2 a firm must specify,2 on the basis of information obtained from2 the customer, the demands and the needs of that customer2.(2) The details must be modulated according to the complexity of the contract of insurance2 proposed and the type of customer.2(3) 2A statement of the demands and needs must be communicated to the customer prior to the conclusion of a contract of insurance.[Note: articles 20(1) and 20(2) of the IDD2]
6Paragraph 2B(1) of Schedule 6 to the Act implements article 7(1)(d) of the UCITS Directive, paragraphs 2B(1) to 2B(23) of Schedule 6 to the Act implement article 5(4) of MiFID, paragraph 2B(4) of Schedule 6 to the Act implements article 2(1)(10) of the IDD7 and paragraph 2B(7) of Schedule 6 to the Act implements article 8(1)(e) of AIFMD, although the Act extends the threshold condition set out in paragraph 2B of Schedule 6 of the Act to authorised persons that are not PRA-authorised
Neither the UCITS Directive6, MiFID,3 the IDD7, AIFMD6 nor the Act define what is meant by a firm's 'head office'. This is not necessarily the firm's place of incorporation or the place where its business is wholly or mainly carried on. Although the FCA5 will judge each application on a case-by-case basis, the key issue in identifying the head office of a firm is the location of its central management and control, that is, the location of: 16(1) the directors and other senior
The following Tables 1, 2, 2ZA,12 2A and 2B1 provide an outline of the regulated activities and specified investments that may be of relevance to firms considering undertaking passported activities under the CRD6, 1MiFID3, AIFMD7, the UCITS Directive, the MCD9 and the IDD14. The tables may be of assistance to UK firms that are thinking of offering financial services in another EEA State and to EEA firms that may offer those services in the United Kingdom.1761311
The tables provide a general indication of the investments and activities specified in the Regulated Activities Order that may correspond to categories provided for in the CRD6, 1MiFID3, AIFMD7, the UCITS Directive, the MCD9 or the IDD14. The tables do not provide definitive guidance as to whether a firm is carrying on an activity that is capable of being passported, nor do the tables take account of exceptions that remove the effect of articles. Whether a firm is carrying on
Table 2B: Insurance Distribution14Directive2 Activities/Examples14 2 |
Part II RAO Activities |
Part III RAO Investments |
|
1. |
Proposing14 or carrying out other work preparatory to the conclusion of contracts of insurance or reinsurance14. |
Articles 25, 53(1)10 and 64 |
Articles 75, 89 (see Note 1) |
141A. |
Advising on contracts of insurance or reinsurance |
Articles 53(1) and 64 |
Articles 75, 89 |
2. |
Concluding contracts of insurance or reinsurance14 |
Articles 21, 25, 53(1)10 and 64 |
Articles 75, 89 |
3. |
Assisting in the administration and performance of contracts of insurance or reinsurance14, in particular in the event of a claim. |
Articles 39A, 64 |
Articles 75, 89 |
144 |
Provision of information concerning one or more insurance contracts in accordance with criteria selected by customers through a website or other media and the compilation of an insurance product ranking list, including price and product comparison, or a discount on the price of an insurance contract, when the customer is able to directly or indirectly conclude an insurance contract using a website or other media. |
Articles 21, 25, (where this involves the provision of advice) 53(1), and 64. |
Articles 75, 89 |
Note 1. Rights to or interests in life policies are specified investments under Article 89 of the Regulated Activities Order, but rights to or interests in general insurance contracts are not. |
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14Note 2. Row 4 in Table 2B includes text that appears in article 2.1(1) of the IDD. These activities are not considered to be separate, discrete activities under the IDD but rather are included by way of an example of what constitutes insurance distribution. They have been included in this table for completeness, together with an indication of the Part II RAO activities and Part III RAO investments that may be relevant. This is to indicate, including for firms considering undertaking passport activities under the IDD, how these examples may relate to regulated activities and specified investments. |
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(1) CASS 5.1 to CASS
5.6 apply, subject to (2), (3) and CASS 5.1.3 R to CASS 5.1.6 R, to a firm that receives
or holds money in the course
of or in connection with its insurance distribution activity8.(2) CASS 5.1 to CASS
5.6 do not, subject to (3), apply:(a) to
a firm to the extent that it
acts in accordance with the client
money chapter; or64(b) [deleted]8(c) to
an insurance undertaking in
respect of its permitted activities;
or(d) to
a managing agent when acting
as such; or(e)
(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 handling of client money.
The rules in CASS 5.1 to CASS
5.6 also give effect to the requirement in article 10.68 of the IDD8 that all necessary measures should
be taken to protect clients against
the inability of an insurance intermediary to
transfer premiums to an insurance
The purpose of this appendix is to give guidance:(1) to UK firms on some of the issues that arise when carrying on passported activities1(see SUP App 3.5and SUP App 3.6);111(2) to all firms on the relationship between regulated activities and activities passported under the Single Market Directives (see SUP App 3.9and SUP App 3.101).11