Related provisions for PERG 7.7.5
221 - 240 of 1033 items.
Article 25(1) applies only where the arrangements bring about or would bring about the particular transaction in question. This is because of the exclusion in article 26. In the FCA's view, a person brings about or would bring about a transaction only if his involvement in the chain of events leading to the transaction is of enough importance that without that involvement it would not take place. The second limb (article 25(2)) is potentially much wider as it does not require
The ordinary business of a publisher or broadcaster can involve him in publishing or broadcasting financial promotions (for example, advertisements) on behalf of authorised or exempt persons. Journalists who write about investments or financial services may promote the services of an authorised or exempt person. In the FCA's opinion, such persons would not normally be regarded as making arrangements under article 25(2). This is the case even if any arrangements they may have made
The Regulated Activities Order contains an exclusion (article 27: Enabling parties to communicate) to bring a degree of certainty to this area. This applies to arrangements which might otherwise fall within article 25(2) merely because they provide the means by which one party to a transaction (or potential transaction) is able to communicate with other parties. In the FCA's view, the crucial element of the exclusion is the inclusion of the word ‘merely’. So that, where a publisher,
For example, in the FCA's view a publisher or broadcaster would be likely to be making arrangements within the meaning of article 25(2) and be unable to make use of the exclusion in article 27 if:(1) he enters into an agreement with a provider of investment services such as a broker or product provider for the purpose of carrying their financial promotion; and(2) as part of the arrangements, the publisher or broadcaster does one or more of the following:(a) brands the investment
Other persons who may benefit from the exclusion in article 27 include persons who provide the means for someone to route an order to another person. A person providing such order routing services would not, in the FCA's view, be merely facilitating communication (of the orders) if he provides added value. This added value could be in the form, for example, of such things as formatted screens, audit trails, checking completeness of orders or matching orders or reconciling tra
GEN 6.1.4A R,2GEN 6.1.5 R and GEN 6.1.6 R do not prevent a firm or member from entering into, arranging, claiming on or making any payment under a contract of insurance which indemnifies any person against all or part of the costs of defending FCA3 enforcement action or any costs they may be ordered to pay to the FCA3 .5555
Recognition Requirements Regulations, Regulation 6
2(1) In considering whether a [UK recognised body] or applicant satisfiesrecognition requirements applying to it under these [Recognition Requirements Regulations], the [FCA]3 may take into account all relevant circumstances including the constitution of the person concerned and its regulatory provisions within the meaning of section 300E3 of the Act. 33 |
(2) Without prejudice to the generality of paragraph (1), a [UK recognised body] or applicant may satisfyrecognition requirements applying to it under these [Recognition Requirements Regulations] by making arrangements for functions to be performed on its behalf by any otherperson. |
(3) Where a [UK recognised body] or applicant makes arrangements of the kind mentioned in paragraph (2), the arrangements do not affect the responsibility imposed by the Act on the [UK recognised body] or applicant to satisfy recognition requirements applying to it under these [Recognition Requirements Regulations ], but it is in addition a recognition requirement applying to the [UK recognised body] or applicant that the person who performs (or is to perform) the functions is a fit and proper person who is able and willing to perform them. |
The FCA3 will usually expect :3(1) the constitution, regulatory provisions and practices of the UK recognised body or applicant;(2) the nature (including complexity, diversity and risk) and scale of the UK recognised body's or applicant's business; (3) the size and nature of the market which is supported by the UK recognised body's or applicant's facilities; (4) the nature and status of the types of investor who use the UK recognised body's or applicant's facilities or have an
It is the UK recognised body's responsibility to demonstrate to the FCA3 that a person who performs a function on behalf of the UK recognised body is fit and proper and able and willing to perform that function. The recognition requirement referred to in Regulation 6(3) applies to the UK recognised body and not to any person who performs any function on its behalf. In this context, for a person to be "fit and proper" does not necessarily imply that they are5 an authorised person,
In determining whether the UK recognised body meets the recognition requirement in Regulation 6(3), the FCA3 may have regard to whether that body has ensured that the person who performs that function on its behalf:3(1) has sufficient resources to be able to perform the function (after allowing for any other activities);(2) has adequate systems and controls to manage that function and to report on its performance to the UK recognised body;(3) is managed by persons of sufficient
In determining whether a UK recognised body continues to satisfy the recognition requirements where it has made arrangements for any function to be performed on its behalf by any person , the FCA3 may have regard, in addition to any of the matters described in the appropriate section of this chapter, to the arrangements made to exercise control over the performance of the function, including:3(1) the contracts (and other relevant documents) between the UK recognised body and the
A listed company must not circulate or publish any of the following types of circular unless it has been approved by the5FCA:55(1) a class 1 circular; or5(2) a related party circular; or5(3) a circular that proposes the purchase by a listed company of its own shares which is required by LR 13.7.1R (2) to include a working capital statement; or5[Note: LR 12.4.10 G](4) a circular that proposes a reconstruction or a refinancing of a listed company which is required by LR 9.5.12
The following documents (to the extent applicable) must be lodged with the FCA in final form before it will approve a circular:(1) a Sponsors Declaration for the Production of a Circular completed by the sponsor;(2) for a class 1 circular or related party circular, a letter setting out any items of information required by this chapter that are not applicable in that particular case; and4(3) [deleted]4(4) any other document that the FCA has sought in advance from the listed company
The FCA will only approve a circular between 9a.m. and 5.30p.m. on a business day (unless alternative arrangements are made in advance).Note: LR 9.6.1R6 requires a company to forward to the FCA a copy6 of all circulars issued (whether or not they require approval) for publication, by uploading it to the national storage mechanism6.
Schedule to the Recognition Requirements Regulations, Paragraph 6
2(1) The [UK RIE] must be able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on of regulated activities by persons in the course of using the facilities provided by the [UK RIE]. |
(2) The [UK RIE] must be able and willing to cooperate by the sharing of information or otherwise, with the [FCA].4with any other authority, body or person having responsibility in the United Kingdom for the supervision or regulation of any regulated activity or other financial service, or with an overseas regulator within the meaning of section 195 of the Act. 4 |
In determining whether a UK recognised body is able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on of regulated activities, the FCA4 may have regard to the extent to which the UK recognised body seeks to promote and encourage, through its rules, practices and procedures, conduct in regulated activities which is consistent with the Market Abuse Regulation5 and with any5 codes of conduct, rules or principles relating to behaviour
In assessing the ability of a UK recognised body to cooperate with the FCA4 and other appropriate bodies, the FCA4 may have regard to the extent to which the constitution and rules of the UK recognised body and its agreements with its members enable it to obtain information from members and to disclose otherwise confidential information to the FCA4 and other appropriate bodies.444
In assessing the willingness of a UK recognised body to cooperate with the FCA4 and other appropriate bodies, the FCA4 may have regard to:44(1) the extent to which the UK recognised body is willing to provide information about it and its activities to assist the FCA4 in the exercise of its functions;4(2) the extent to which the UK recognised body is open with the FCA4 or other appropriate bodies in regulatory matters;4(3) how diligently the UK recognised body investigates or pursues
The report referred to in IPRU-INV 4.4.2D must reach the FCA1 within two months of the end of the relevant quarter and must state: (1) whether the Society has any information indicating or tending to indicate that, during the quarter to which the report relates, the members’ agents1 failed to meet the financial resource requirements referred to in IPRU-INV 4.4.1D; (2) whether, at the end of the quarter to which the report relates, the members’ agents1 failed to meet the financial
The report in IPRU-INV 4.4.4D must reach the FCA1 within seven months of that members’ agent's1 accounting reference date and must: (1) confirm that: (a) the Society has received from that members’ agent1 in respect of the financial year to which the report relates, all relevant attachments to the Annual Financial Return that the members’ agent1 is required to make to the Society under the requirements identified in IPRU-INV 4.4.1D; (b) that members’ agent1 met the applicable
The characteristics that a reasonable investor can be expected to have will inform the use of judgment required by the 'expectation test' and the 'satisfaction test'. These tests relate to the investor's ability to realise an investment within a reasonable period and to do so on the basis of the net value of its assets. In the FCA's view, the characteristics of the reasonable investor include:(1) sound judgment based on good sense;(2) some knowledge of, and possibly experience
The reasonable investor is a hypothetical investor. The implications of this are that the test does not relate to actual investment by a particular person at a particular time or in relation to a particular issue of any class of shares or securities. In the FCA's view, what underlies the test is what a reasonable investor would think he was getting into if he were contemplating investment in a particular body corporate. In addition, because the investor is hypothetical, the investment
After an initial assessment, however, the FCA's view is that subsequent applications of the investment condition could produce a different result, but only if there is a change to the constitution or practice of the body corporate which is significant and sustained. For example, this may happen if there is a change in the body corporate's published intentions or regular practices. As the Economic Secretary to the Treasury said in parliamentary debate when commenting on the definition,
Section 236(3) uses the words "the investor would, if he were to participate in the scheme". This is consistent with the fact that the reasonable investor is hypothetical. But applying the test at this early stage makes it clear that there must be objectively justifiable grounds on which the reasonable investor could base the expectation in section 236(3)(a). And on which he could be satisfied on the matters in section 236(3)(b). In the FCA's view, this requires, for example,
(1) 1Once a year a credit institution that provides payment services or issues electronic money must provide the FCA with a complete report concerning complaints received about payment services and electronic money.(2) Once a year an electronic money institution, a payment institution or2 a registered account information service provider2must provide the FCA with a complete report concerning complaints received about payment services and electronic money.(3) The report required
Respondents that are part of a group may submit a joint report to the FCA. The joint report must contain the information required from all respondents concerned and clearly indicate the respondents on whose behalf the report is submitted. The obligation to provide a report, and the responsibility for the report, remains with each respondent in the group.
(1) If a respondent does not submit a complete report by the date on which it is due, in accordance with DISP 1.10B.10D, the respondent must pay an administrative fee of £250.(2) The administrative fee in (1) does not apply if the respondent has notified the FCA of a systems failure in accordance with DISP 1.10B.11R.
(1) To improve consumer awareness and to help respondents compare their performance against their peers, the FCA may publish: (a) complaints data about the payment services and electronic money sector as a whole; and(b) respondent level complaints data and information giving context to the complaints data for those respondents that provide appropriate consent in the electronic money and payment services complaints return form at DISP 1 Annex 1AD. (2) Although the complaints data
(1) 1The FCA may suspend, with effect from such time as it may determine, the listing of any securities if the smooth operation of the market is, or may be, temporarily jeopardised or it is necessary to protect investors. [Note: article 18(1) CARD](2) An issuer that has the listing of any of its securities suspended must continue to comply with all listing rules applicable to it.(3) If the FCA suspends the listing of any securities, it may impose such conditions on the procedure
Examples of when the FCA may suspend the listing of securities include (but are not limited to) situations where it appears to the FCA that:(1) the issuer has failed to meet its continuing obligations for listing; or(2) the issuer has failed to publish financial information in accordance with the listing rules; or(3) the issuer is unable to assess accurately its financial position and inform the market accordingly; or(4) there is insufficient information in the market about a
1In deciding whether to make a prohibition order and/or, in the case of an approved person, to withdraw its approval, the FCA will consider all the relevant circumstances including whether other enforcement action should be taken or has been taken already against that individual by the FCA. As is noted below, in some cases the FCA may take other enforcement action against the individual in addition to seeking a prohibition order and/or withdrawing its approval. The FCA will also
1The FCA has the power to make a range of prohibition orders depending on the circumstances of each case and the range of regulated activities to which the individual's lack of fitness and propriety is relevant. Depending on the circumstances of each case, the FCA may seek to prohibit individuals from performing any class of function in relation to any class of regulated activity, or it may limit the prohibition order to specific functions in relation to specific regulated activities.
1Where the FCA issues a prohibition order, it may indicate in the decision notice or final notice that it would be minded to revoke the order on the application of the individual in the future, in the absence of new evidence that the individual is not fit and proper. If the FCA gives such an indication, it will specify the number of years after which it would be minded to revoke or vary the prohibition on an application. However, the FCA will only adopt this approach in cases
1Paragraphs 9.3.1 to 9.3.7 set out additional guidance on the FCA's approach to making prohibition orders against approved persons and/or withdrawing such persons’ approvals. Paragraphs 9.5.1 to 9.5.2 set out additional guidance on the FCA's approach to making prohibition orders against other individuals.
2In some cases there will be instances of market misconduct that may arguably involve a breach of the criminal law as well as market abuse1. When the FCA decides whether to commence criminal proceedings rather than impose a sanction for market abuse in relation to that misconduct, it will apply the basic principles set out in the Code for Crown Prosecutors. When deciding whether to prosecute market misconduct which also falls within the definition of market abuse, application
2The factors which the FCA may consider when deciding whether to commence a criminal prosecution for market misconduct rather than impose a sanction for market abuse include, but are not limited to, the following: (1) the seriousness of the misconduct: if the misconduct is serious and prosecution is likely to result in a significant sentence, criminal prosecution may be more likely to be appropriate; (2) whether there are victims who have suffered loss as a result of the misconduct:
2It is the FCA's
policy not to impose a sanction for market abuse where a person is being prosecuted for market misconduct or has been finally convicted or acquitted of market misconduct (following the exhaustion of all appeal processes) in a criminal prosecution arising from substantially the same allegations. Similarly, it is the FCA's
policy not to commence a prosecution for market misconduct where the FCA has brought or is seeking to bring
Under section 60(3) of the CCA, if, on an application made to the FCA by a firm carrying on a consumer credit business or a consumer hire business, it appears to the FCA impracticable for the firm to comply with any requirement of the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) or the Consumer Credit (Agreements) Regulations (SI 2010/1014) in a particular case, it may direct that the requirement be waived or varied in relation to the regulated agreement and subject
The requirement under section 64(1)(b) of the CCA to send debtors or hirers a notice of their rights to cancel a cancellable agreement within the seven days following the making of that agreement does not apply in the case of the agreements described in SUP 8A.2.5 G, if: (1) on application by a firm to the FCA, the FCA has determined, having regard to:(a) the manner in which antecedent negotiations for the relevant agreements with the firm are conducted; and(b) the information
If on an application made to the FCA by a firm carrying on a consumer hire business, it appears to the FCA that it would be in the interests of hirers to do so, the FCA may direct that subject to such conditions (if any) as it may specify, section 101 of the CCA shall not apply to consumer hire agreements made by that firm.
Under article 53 of the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No 2) Order 2013, any of the following given or made by the Office of Fair Trading which were in effect immediately before 1 April 2014 have effect as if they had been given or made by the FCA:(1) a direction given under section 60(3) of the CCA (form and content of agreements);(2) a determination made under section 64(4) of the CCA (duty to give notice of cancellation rights) and
3Where an issuer or person is required to file regulated information under DTR 6.2.2R, the issuer or person must, at the same time, notify the following to the FCA: (1) the legal entity identifier (LEI) of the issuer concerned; and(2) the classifications relevant to the regulated information using the classes and sub-classes in DTR 6 Annex 1R.
The FSCS must allocate a compensation costs levy or specific costs levy, which has been allocated to the retail pool (under FEES 6.5.2-AR(2) or FEES 6.4.6AR32):(1) to classes whose levy limit3 has not been reached as at the date of the levy;(2) in proportion to the relative sizes of the levy limits3 of the classes in (1) and up to those levy limits32; and(3) in accordance with the table in FEES 6 Annex 2R; and32(4) a class’s share of a levy allocated to the retail pool must be
[deleted]2
(1) The FCA may dispense with or modify the listing rules in such cases and by reference to such circumstances as it considers appropriate (subject to 4the Act).(2) A dispensation or modification may be either unconditional or subject to specified conditions.(3) If an issuer or sponsor has applied for, or been granted, a dispensation or modification, it must notify the FCA immediately it becomes aware of any matter which is material to the relevance or appropriateness of the dispensation
(1) An application to the FCA to dispense with or modify a listing rule must be in writing.(2) The application must:(a) contain a clear explanation of why the dispensation or modification is requested;(b) include details of any special requirements, for example, the date by which the dispensation or modification is required;(c) contain all relevant information that should reasonably be brought to the FCA's attention;(d) contain any statement or information that is required by
If an issuer applies to the FCA to dispense with or modify a listing rule on the basis that it is in severe financial difficulty, the FCA would ordinarily expect the issuer to comply with the conditions in LR 10.8 (to the extent relevant to the particular rule for which the dispensation or modification is sought). In particular, the FCA would expect the issuer to comply with those conditions that are directed at demonstrating that it is in severe financial difficulty.
An issuer or sponsor should consult with the FCA at the earliest possible stage if it:
- (1)
is in doubt about how the listing rules apply in a particular situation; or
- (2)
considers that it may be necessary for the FCA to dispense with or modify a listing rule.
2Where a listing rule refers to consultation with the FCA, submissions should be made in writing other than in circumstances of exceptional urgency or in the case of a submission from a sponsor in relation to the provision of a sponsor service.
Address for correspondence
Note:The FCA's address for correspondence is:
The Financial Conduct Authority |
12 Endeavour Square3 |
London, E20 1JN3 |
Tel: 020 7066 8333 |
https://www.fca.org.uk/markets/primary-markets/contact/request-individual-guidance5 |
1Under
section 312B of the Act, the FCA5 may
prohibit an EEA market operator from
making or, as the case may be, continuing arrangements in the United Kingdom, to facilitate access to,
or use of, a regulated market,6multilateral trading facility or organised trading facility6 operated by the operator if:5(1) the FCA5 has clear and demonstrable grounds for believing that the operator
has contravened a relevant requirement;6 and5(2) the FCA5 has first complied with sections 312B(3)
The operator's right to make
arrangements in the United Kingdom,
to facilitate access to, or use of, a regulated
market,6multilateral trading
facility or organised trading facility6, operated by the operator may be reinstated (together
with its exempt person status)
if the FCA5 is
satisfied that the contravention which led the FCA5 to exercise its prohibition power has been remedied.55
1The RCB Regulations provide a framework for issuing covered bonds in the UK.
Covered bonds issued under the RCB Regulations are subject to strict quality controls and both bonds and issuers must be registered with the FCA. The RCB Regulations give the FCA powers to enforce these Regulations. Where a person has failed, or is likely to fail, to comply with any obligation under the RCB Regulations, the FCA may make a direction that the person take
1The FCA's approach to the use of its enforcement powers, and its statement of policy in relation to imposing and determining financial penalties under the RCB Regulations, are set out in RCB 4.2. The FCA's penalty policy includes having regard, where relevant, DEPP 6.5 to DEPP 6.5D and such other specific matters as the likely impact of the penalty on the interests of investors in the relevant bonds. The FCA's statement of procedure in relation to giving warning notices or decision
1The FCA may agree to settle cases in which it proposes to impose a financial penalty under the RCB Regulations if the right regulatory outcome can be achieved. The settlement discount scheme set out in DEPP 6.7 applies to penalties imposed under the RCB Regulations. See DEPP 5 and EG 5 for further information about the settlement process.
(1) Overseas investment exchanges which are considering whether to seek authorisation or recognition should first consider whether they will be carrying on regulated activities in the United Kingdom. Overseas investment exchanges which do not carry on regulated activities in the United Kingdom need take no action.33(2) Prospective applicants should discuss authorisation and recognition with the FCA3 before deciding whether to seek authorisation or recognition.3
Applicants for authorised person status should refer to the FCA3 website “Authorisation”: www.fca.org.uk/firms/authorisation1. Applications for recognition as an overseas recognised body should be addressed to:The Financial Conduct Authority3 (Infrastructure and Trading Firms Department)412 Endeavour Square5London, E20 1JN5133
There is no standard application form for application for recognition as an ROIE2. An application should be made in accordance with any direction the FCA3 may make under section 287 (Application by an investment exchange) of the Act and should include:333(1) the information, evidence and explanatory material necessary to demonstrate to the FCA3 that the recognition requirements (set out in REC 6.3) will be met;(2) the application fee (see REC 7);(3) the address of the applicant's
The FCA3 may require further information from the applicant and may need to have discussions with the appropriate authorities in the applicant's home territory. To allow sufficient time for applications to be processed and for the necessary contacts to be made with the appropriate home territory authorities, applications should be made not later than six months before the applicant wishes the recognition order to take effect. No guarantee can be given that a decision will be reached
(1) A firm16 other than:99(a) a credit union; or9(b) a firm which intends to appoint an appointed representative to carry on only credit-related regulated activity;9must submit the form in SUP 12 Annex 3 via16 online 9submission16 at the FCA’s website at16http://www.fca.org.uk or any of the methods set out in SUP 15.7.4R to SUP 15.7.5AR (Method of notification)16.1010(2) A credit union or a firm which intends to appoint an appointed representative to carry on only credit-related
(1) 20[deleted] [Editor’s note: This provision now appears at SUP 12.7.7AR.]34415881542(1A) 20[deleted] [Editor’s note: This provision now appears at SUP 12.7.7BR.]713137(1B) 20[deleted] [Editor’s note: This provision now appears at SUP 12.7.7CR.]11(2) Except where (4) applies, where 20there is a change in any of the information provided to the FCA under SUP 12.7.1R, a firm must complete and submit to the FCA the form in SUP 12 Annex 4R8 (Appointed representative or tied agent
(1) As soon as a firm has reasonable grounds to believe that any of the conditions in SUP 12.4.2 R,SUP 12.4.6 R,11SUP 12.4.8A R4, SUP 12.4.10A R or SUP 12.4.10B R11 (as applicable) are not satisfied, or are likely not to be satisfied, in relation to any of its appointed representatives, it must complete and submit to the FCA the form in SUP 12 Annex 4 R (Appointed representative notification form), in accordance with the instructions on the form.3(2) In its notification under
(1) 8Subject to (2A), a 9firm other than a credit union must submit the form as set out in SUP 12 Annex 4 R online at http://www.fca.org.uk using the FCA'sonline notification and application system12.91010(2) A credit union must submit the form in SUP 12 Annex 4 R in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).(2A) If the notification:9(a) relates to an appointed representative whose scope of appointment covers only credit-related regulated
8If the FCA's information technology systems fail and online submission is unavailable for 24 hours or more, the FCA will endeavour to publish a notice on its website confirming that online submission is unavailable and that firms, other than credit unions, should use the alternative methods of submission set out in SUP 12.7.1AR (3) and SUP 12.7.8AR (3) (as appropriate), and SUP 15.7.4 R to SUP 15.7.9 G, clearly marking 20applications as relating to appointed representatives.
1The FCA has investigation and sanctioning powers in relation to both criminal and civil breaches of the Payment Services Regulations. The Payment Services Regulations impose requirements including, amongst other things, obligations on payment service providers to provide users with a range of information and various provisions regulating the rights and obligations of payment service users and providers.
1The FCA's approach to enforcing the Payment Services Regulations will mirror its general approach to enforcing the Act, as set out in EG 2. It will seek to exercise its enforcement powers in a manner that is transparent, proportionate, responsive to the issue, and consistent with its publicly stated policies. It will also seek to ensure fair treatment when exercising its enforcement powers. Finally, it will aim to change the behaviour of the person who is the subject of its
1The regulatory powers which the Payment Services Regulations provide to the FCA include: the power to require information;powers of entry and inspection;power of public censure;the power to impose financial penalties;the power to prosecute or fine unauthorised providers; andthe power to vary an authorisation on its own initiative.
1The Payment Services Regulations, for the most part, mirror the FCA's investigative, sanctioning and regulatory powers under the Act. The FCA has decided to adopt procedures and policies in relation to the use of those powers akin to those it has under the Act. Key features of the FCA's approach are described below.