Related provisions for SUP 10A.13.3
161 - 180 of 488 items.
1If an individual appears to be unable to pay a regulated activity debt, or to have no reasonable prospect of doing so, then section 372 of the Act permits the FCA to petition for the individual's bankruptcy, or in Scotland, for the sequestration of the individual's estate. The FCA will petition for bankruptcy or sequestration only if it believes that the individual is, in fact, insolvent. In determining this, as a general rule, the FCA will serve a demand requiring the individual
1If the FCA believes that the individual is insolvent, the factors it will consider when it decides whether to seek a bankruptcy order or sequestration award include: (1) whether others have taken steps to deal with the individual's insolvency, including a proposal by the individual of a voluntary arrangement, a petition by the individual for his own bankruptcy or sequestration, or a petition by a third party for the individual's bankruptcy or the sequestration of the individual's
1Section 365(6) of the Act makes it clear that the FCA may petition for the compulsory winding up of a company even if it is already in voluntary winding up. This power is already available to creditors and contributories of companies in voluntary winding up. For example, the court can be asked to direct the liquidator to investigate a transaction which the company undertook before the winding up. In some circumstances, this power may be used in respect of partnerships (section
1Factors which the FCA will consider when it decides whether to use this power (in addition to the factors identified in paragraphs 13.5.1 to 13.6.3 in relation to the FCA's decisions to seek compulsory winding up) include: (1) whether the FCA's concerns can properly and effectively be met by seeking a specific direction under section 365(2) of the Act;
(2) whether the affairs of the company require independent investigation of the kind which follows a compulsory
1Exceptionally, the FCA will consider making such a challenge using its powers in sections 356 and 357 of the Act after considering, in particular, the following matters: (1) The composition of the creditors of the company including the ratio of consumer to non-consumer creditors or the nature of their claims;
(2) whether the FCA has concerns, or is aware of concerns of creditors, about the regularity of the meeting or the identification of connected or associated
(1) Regulation 15(8)(f) of the OEIC Regulations (Requirements for authorisation) requires independence between the depositary, the ICVC and the ICVC's directors, as does section 243(4) of the Act (Authorisation orders) for the trustee and manager of an AUT, and section 261D(4) of the Act (Authorisation orders) for the depositary and authorised fund manager of an ACS6. COLL 6.9.3 G to COLL 6.9.5 G give the6FCA's view of the meaning of independence of these relationships. An ICVC,
(1) Regulation 15(9) of the OEIC Regulations, and sections 243(8) and 261D(10)6 of the Act require that an authorised fund's name must not be undesirable or misleading. This section contains guidance on some specific matters the FCA will consider in determining whether the name of an authorised fund is undesirable or misleading. It is in addition to the requirements of regulation 19 of the OEIC Regulations (Prohibition on certain names).6(2) The FCA will take into account whether
The FCA is under a duty, under section 59A of the Act (Specifying functions as controlled functions: supplementary), to exercise the power to specify any senior management function as an FCA controlled function in a way that it considers will minimise the likelihood that approvals need to be given by both the FCA and the PRA for the performance by a person of senior management functions in relation to the same PRA-authorised person.
1A firm3 assessing the continuing fitness and propriety of an approved person is required to notify the FCA under section 63(2A) of the Act if it forms the opinion that there are grounds on which the FCA could withdraw its approval (see SUP 10C.14.24R). In discharging its obligation to notify the FCA, a firm3 should take into account how relevant and how important the matter is that comes to its attention which suggests an approved person might not be fit and proper before determining
The Act does not specify a time limit for processing the application but the FCA intends to deal with an application as quickly as possible. The more complete and relevant the information provided by an applicant, the more quickly a decision can be expected. But on occasion it may be necessary to allow time in which the FCA can monitor the content of the service. This might happen where, for example, a service is in a form that makes record keeping difficult (such as a large website
(1) The explanation in SUP 10C.5B.2G of
the basis on which the group entity senior manager function is
included as a controlled function for an SMCR firm is also
relevant to7 the basis on which the director function and the non-executive director function are applied to persons who have a position with the appointed representative’s8parent undertaking or holding company under SUP 10A.6.8 R or SUP 10A.6.13 R.(2) The guidance in SUP 10C.5B.3G
to SUP 10C.5B.5G about when the group
(1) 21[deleted](2) An appointed representative must not commence an MCD credit intermediation activity until they are included on the Financial Services Register. (3) If an appointed representative's scope of appointment is to include MCD credit intermediation activity, the Act provides that that appointed representative'sprincipal may not be a tied MCD credit intermediary.
(1) 8A tied agent that is an appointed representative may not start to act as a tied agent until it is included on the applicable register (section 39(1A) of the Act). The19 register maintained by the FCA is the applicable register for these purposes. 13(2) A MiFID investment firm19 that appoints an FCA registered tied agent who is not registered with the FCA will, subject to certain conditions, be taken to have contravened a requirement imposed on it by or under the Act (see
5Under section 63E(1) of the Act, an SMCR firm6 (including a credit union) should take reasonable care to ensure that no employee of the firm performs an FCA certification function6 under an arrangement entered into by the firm in relation to the carrying on by that firm of a regulated activity, unless the employee has a valid certificate issued by that firm to perform the function to which the certificate relates. The definition of employee for these purposes goes beyond a conventional
1DEPP 8 sets out the FCA's statement of policy on the exercise of its power under section 63ZB of the Act to vary, on its own initiative, an approval given by the FCA or the PRA for the performance of a designated senior management function in relation to the carrying on of a regulated activity by an SMCR firm2. The FCA is required to publish this statement of policy by section 63ZD of the Act. [Note: the FCA’s statement of policy on the exercise of its power under section 63ZA
1When it decides whether to make an application for an order against debt avoidance pursuant to section 375 of the Act, the FCA will consider all relevant factors, including the following: (1) the extent to which the relevant transactions involved dealings in consumers' funds;
(2) whether it would be appropriate to petition for a winding up order, bankruptcy order, or sequestration award, in relation to the debtor and the extent to which the transaction could
1Paragraphs 13.12.2 to 13.13.1 contain information for insolvency practitioners and others about sending copies of petitions, notices and other documents to the FCA, and about making reports to the FCA. Insolvency practitioners and others have duties to give that information and those documents to the FCA under various sections in Part XXIV of the Act (Insolvency). Paragraphs 13.12.2 identifies the relevant sections of the Act that explain some of the duties.
2Under sections 176 and 122D1 of the Act, the FCA has the power to apply to a justice of the peace for a warrant to enter premises where documents or information is held. The circumstances under which the FCA may apply for a search warrant include: (1) where a person on whom an information requirement has been imposed fails (wholly or in part) to comply with it; or (2) where there are reasonable grounds for believing that if an information requirement were to be imposed, it would
2A warrant obtained pursuant to sections 176 and 122D1 of the Act authorises a police constable or an FCA investigator in the company, and under the supervision of, a police constable, to do the following, amongst other things: to enter and search the premises specified in the warrant and take possession of any documents or information appearing to be documents or information of a kind in respect of which the warrant was issued or to take, in relation to any such documents or
1This chapter describes many of the powers that the FCA has to enforce requirements imposed under legislation other than the Act. The chapter is ordered chronologically, ending with the most recent legislation. Where powers under different pieces of legislation are broadly the same, or apply to the same class of person, we have set out the relevant statements of policy in one section to avoid duplication.
1Where conduct may amount to a breach of more than one enactment, the FCA may need to consider which enforcement powers to use and whether to use powers from one or more of the Acts. Which power or powers are appropriate will vary according to the circumstances of the case. However, where appropriate, we have tried to adopt procedures in respect of our use of powers under legislation other than the Act which are akin to those used under the Act. We expect, for example, to provide