Related provisions for BIPRU 7.5.12
Table: Examples of how the need for dual FCA and PRA approval in relation to PRA-authorised persons is reduced
1Example |
Whether FCA approval required |
Whether PRA approval required |
Comments |
(1) A is appointed as chief risk officer and an executive director. |
No. A4 is not treated as performing the executive director function.4 |
Yes |
Chief risk officer is a PRA-designated senior management function. A’s functions as a director will be included in the PRA-designated senior management function. To avoid the need for FCA approval, A’s appointment as director should not take effect before PRA approval for the chief risk officer role. |
(2) Same as example (1), except that A will take up the role as an executive director slightly later because 4approval is needed from the firm's shareholders or governing body. |
No |
Yes |
The answer for (1) applies. The arrangements in this section apply if the application to the PRA says that A will start to perform the potential FCA governing function around the time of the PRA approval as well as at that time. |
(3) Same as example (1) but the application to the PRA does not mention that it is also intended that A is to be an executive director. |
Yes, to perform the executive director function.4 |
Yes |
SUP 10C.9.8R does not apply if the application for PRA approval does not say that A will also be performing what would otherwise be an FCA governing function. |
(4) A is to be appointed as chief executive and an executive director. |
No. A is not treated as performing the executive director function.4 |
Yes |
Being a chief executive is a PRA-designated senior management function. A’s functions as a director will be included in the PRA controlled function. |
(5) A is appointed as chief risk officer. Later, A is appointed as an executive director while carrying on as chief risk officer. |
Yes, when A takes up the director role. The executive director function4 applies. |
Yes, when A takes up the chief risk officer role. |
SUP 10C.9.8R does not apply because, when the firm applied for approval for A to perform the PRA chief risk officer designated senior management function, there was no plan for A also to perform the executive director function4. |
(6) A is appointed as an executive director. Later, A takes on the chief risk officer function and remains as an executive director. |
Yes, when A is appointed as director. The executive director function4 applies. |
Yes, when A takes up the chief risk officer role. |
When A is appointed as chief risk officer, A is still treated as carrying on the executive director function4. A retains the status of an FCA-approved person. |
(7) A is appointed as chief risk officer. A then stops performing that role and for a while does not perform any controlled function for that firm. Later, A is appointed as an executive director with the same firm. |
Yes, when A is appointed as an executive director. The executive director function4 applies. |
Yes, when A takes up the chief risk officer role. |
SUP 10C.9.8R does not apply because there is no current PRA approval when A is being appointed as a director. |
(8) A is appointed as an executive director and chief risk officer at the same time. Later, A gives up the role as chief risk officer but remains as an executive director. |
No, on A’s first appointment (see example (1)). But when A gives up the role as chief risk officer, FCA approval is needed to perform the executive director function4. Form E should be used. The application should state that it is being made as a result of A ceasing to perform a PRA-designated senior management function. Form A should be used if there have been changes in A’s fitness (SUP 10C.10.9D(4)) |
Yes, on A’s first appointment. |
When A stops being a chief risk officer, A stops performing a PRA-designated senior management function. However, being an executive director requires FCA approval. A does not have that approval because A did not need it when A was first appointed. The combined effect of SUP 10C.9.8R and the relevant PRA rules is that the firm has three months to secure approval by the FCA. During that interim period, A keeps the status of a PRA approved person performing the director element of the PRA chief risk designated senior management function - which is included in that function under relevant PRA rules. The relevant PRA rules say that, during this transitional period, A is still treated as performing the PRA chief risk designated senior management function and SUP 10C.9.8R says that, for as long as A is performing a PRA-designated senior management function, A does not perform the executive director function4. |
(9) A is appointed as the chief finance officer and an executive director at the same time. Later, A switches to being chief risk officer while remaining as an executive director. |
No |
Yes |
The arrangements in SUP 10C.9.8R continue to apply, even though A switches between PRA-designated senior management functions4 after the PRA's first approval. |
(10) A is appointed chief risk officer and an executive director. A goes on temporary sick leave. A takes up their old job when A4 comes back. |
No, neither on A’s first appointment nor when A comes back from sick leave. |
Yes, on A’s first appointment.6 |
SUP 10C.9.8R still applies on A’s return because A does not cease to have approval for6 the PRA's chief risk function or permanently cease to perform6 what would otherwise have been the executive director function4 just because A goes on temporary sick leave. |
(11) A is appointed to be chair4 of the governing body and chair4 of the nomination committee at the same time. |
No. A does not need approval to perform the chair of the nomination committee function. |
Yes, on first appointment. |
Being chair4 of the governing body is a PRA-designated senior management function. Therefore, the answer for example (1) applies. |
2(12) ‘A’ is to be appointed to perform the Head of Overseas Branch PRA-designated senior management function (SMF19) for a an overseas SMCR firm that is not an EEA SMCR firm.4 A is also an executive director of that firm’sUKbranch. |
No. A is not treated as performing the executive director function4. 3 |
Yes |
A’s functions as a director will be included in the PRA controlled function. |
Note 1: The relevant PRA rules can be found in the parts of the PRA Rulebook listed in SUP 10C.9.6G.4 |
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Note 2: Where one of the examples in this table includes someone being chief risk or finance officer or chair of the governing body, the example assumes that the firm is of a type for which that function is a PRA-designated senior management function.4 |
This table belongs to COLL 8.2.5 R
1 |
Description of the authorised fund |
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Information detailing: |
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(1) |
the name of the authorised fund; |
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(2) |
that the authorised fund is a qualified investor scheme; and |
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(3) |
in the case of an ICVC, whether the head office of the company is situated in England and Wales or Wales or Scotland or Northern Ireland. |
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3Property Authorised Investment Funds |
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1A |
For a property authorised investment fund, a statement that: |
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(1) |
it is a property authorised investment fund; |
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(2) |
no body corporate may seek to obtain or intentionally maintain a holding of more that 10% of the net asset value of the fund; and |
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(3) |
in the event that the authorised fund manager reasonably considers that a body corporate holds more than 10% of the net asset value of the fund, the authorised fund manager is entitled to delay any redemption or cancellation of units in accordance with 6A if the authorised fund manager reasonably considers such action to be: |
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(a) |
necessary in order to enable an orderly reduction of the holding to below 10%; and |
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(b) |
in the interests of the unitholders as a whole. |
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2 |
Constitution |
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The following statements: |
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(1) |
the scheme property of the scheme is entrusted to a depositary for safekeeping (subject to any exception permitted by the rules); |
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(2) |
if relevant, the duration of the scheme is limited and, if so, for how long; |
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(3) |
charges and expenses of the scheme may be taken out of scheme property; |
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(4) |
for an ICVC: |
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(a) |
what the maximum and minimum sizes of the scheme's capital are; and |
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(b) |
the unitholders are not liable for the debts of the company;5 6 |
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5(4A) |
for an ICVC which is an umbrella, a statement that the assets of a sub-fund belong exclusively to that sub-fund and shall not be used to discharge directly or indirectly the liabilities of, or claims against, any other person or body, including the umbrella, or any other sub-fund, and shall not be available for any such purpose;6 |
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6(4B) |
for a co-ownership scheme which is an umbrella, the property subject to a sub-fund is beneficially owned by the participants in that sub-fund as tenants in common (or, in Scotland, is the common property of the participants in that sub-fund) and must not be used to discharge any liabilities of, or meet any claims against, any person other than the participants in that sub-fund; |
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6(4C) |
for a limited partnership scheme, that the scheme prohibits pooling as is mentioned in section 235(3)(a) of the Act in relation to separate parts of the scheme property, with the effect that the scheme cannot be an umbrella; |
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(5) |
for an AUT: |
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(a) |
the trust deed: |
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(i) |
is made under and governed by the law of England and Wales, or the law of Scotland or the law of Northern Ireland; |
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(ii) |
is binding on each unitholder as if he had been a party to it and that he is bound by its provisions; and |
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(iii) |
authorises and requires the trustee and the manager to do the things required or permitted of them by its terms; |
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(b) |
subject to the provisions of the trust deed and all the rules made under section 247 of the Act (Trust scheme rules): |
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(i) |
the scheme (other than sums held to the credit of the distribution account) is held by the trustee on trust for the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of individual shares in the scheme property represented by the units held by each unitholder; and |
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(ii) |
the sums standing to the credit of any distribution account are held by the trustee on trust to distribute or apply in accordance with COLL 8.5.15 R (Income); |
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(c) |
a Unitholder is not liable to make any further payment after he has paid the price of his units and that no further liability can be imposed on him in respect of the units he holds; and |
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(d) |
payments to the trustee by way of remuneration are authorised to be paid (in whole or in part) out of the scheme property; and6 6 |
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(6)6 |
for an ACS: |
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(a) |
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(i) |
is made under and governed by the law of England and Wales, or the law of Scotland or the law of Northern Ireland; |
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(ii) |
is binding on each unitholder as if he had been a party to it and that he is bound by its provisions; |
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(iii) |
authorises and requires the depositary and the authorised contractual scheme manager to do the things required or permitted of them by its terms; and |
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(iv) |
states that units may not be issued to a person other than a person7: |
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(A) |
who 7is a: |
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(i) |
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(ii) |
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(iii) |
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(B) |
to whom units in a qualified investor scheme may be promoted under COBS 4.12B.7R11; 77 |
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(v) |
states that the authorised contractual scheme manager of an ACS must redeemunits as soon as practicable after becoming aware that those units are vested in anyone (whether as a result of subscription or transfer of units) other than a person meeting the criteria in (iv)(A) and (B); |
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(vi) |
states that for a co-ownership scheme: |
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(A) |
the scheme property is beneficially owned by the participants as tenants in common (or, in Scotland, is the common property of the participants); |
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(B) |
the arrangements constituting the scheme are intended to constitute a co-ownership scheme as defined in section 235A(2) of the Act; and |
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(C) |
the operator and depositary are required to wind up the scheme if directed to do so by the FCA in exercise of its power under section 261X (Directions) or section 261Z (Winding up or merger of master UCITS) of the Act; |
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(vii) |
states: |
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(A) |
whether the transfer of units in the ACS scheme or, for a co-ownership scheme which is an umbrella (sub-funds of which pursue differing policies in relation to transfer of units), in each particular sub-fund, is either: |
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(i) |
prohibited; or |
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(ii) |
allowed; |
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(B) |
where transfer of units is allowed by the scheme or, where appropriate the sub-fund, in accordance with (A)(ii), units may only be transferred in accordance with the conditions specified by FCArules, including that units may not be transferred to a person other than a person : 7 |
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(i) |
who 7is a: |
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(1) |
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(2) |
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(3) |
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(ii) |
to whom units in a qualified investor scheme may be promoted under COBS 4.12B.7R11; and 77 |
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(viii) |
states that for a limited partnership scheme, the scheme is not dissolved on any person ceasing to be a limited partner or nominated partner provided that there remains at least one limited partner; |
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(b) |
subject to the provisions of the contractual scheme deed and all the rules made under section 261I of the Act (Contractual scheme rules) and for the time being in force: |
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(i) |
the scheme property (other than sums standing to the credit of the distribution account) is held by, or to the order of, the depositary for and on behalf of the unitholders according to the number of units held by each unitholder or, where relevant, according to the number of individual shares in the scheme property represented by the units held by each unitholder; and |
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(ii) |
the sums standing to the credit of any distribution account are held by the depositary to distribute or apply them in accordance with COLL 8.5.15 R(Income); and |
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(c) |
a unitholder in a co-ownership scheme is not liable to make any further payment after he has paid the price of his units and that no further liability can be imposed on him in respect of the units he holds; |
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(d) |
a unitholder in a limited partnership scheme is not liable for the debts or obligations of the limited partnership scheme beyond the amount of the scheme property which is available to the authorised contractual scheme manager to meet such debts or obligations, provided that the unitholder does not take part in the management of the partnership business; |
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(e) |
the exercise of rights conferred on limited partners by FCA rules does not constitute taking part in the management of the partnership business; |
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(f) |
the limited partners, other than the nominated partner, are to be the participants in the scheme; and |
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(g) |
the operator of a co-ownership scheme is authorised to: |
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(i) |
acquire, manage and dispose of the scheme property; and |
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(ii) |
enter into contracts which are binding on unitholders for the purposes of, or in connection with, the acquisition, management or disposal of scheme property. |
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3 |
Investment objectives |
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A statement of the object of the scheme, in particular the types of investments and assets in which it and each sub-fund (where applicable) may invest and that the object of the scheme is to invest in property of that kind with the aim of spreading investment risk. |
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4 |
Units in the scheme |
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A statement of: |
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(1) |
the classes of units which the scheme may issue, indicating, for a scheme which is an umbrella, which class or classes may be issued in respect of each sub-fund; and |
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(2) |
the rights attaching to units of each class (including any provisions for the expression in two denominations of such rights). |
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5 |
Limitation on issue of and redemption of units |
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Details as to: |
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(1) |
the provisions relating to any restrictions on the right to redeem units in any class; and |
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(2) |
the circumstances in which the issue of the units of any particular class may be limited. |
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6 |
Income and distribution |
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Details of the person responsible for the calculation, transfer, allocation and distribution of income for any class of unit in issue during the accounting period. |
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3Redemption or cancellation of units on breach of law or rules |
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6A |
A statement that where any holding of units by a unitholder is (or is reasonably considered by the authorised fund manager to be) an infringement of any law, governmental regulation or rule, those units must be redeemed or cancelled. |
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7 |
Base currency |
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A statement of the base currency of the scheme. |
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8 |
Meetings |
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Details of the procedures for the convening of meetings and the procedures relating to resolutions, voting and the voting rights for unitholders. |
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9 |
Powers and duties of the authorised fund manager and depositary |
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Where relevant, details of any function to be undertaken by the authorised fund manager and depositary which the rules in COLL require to be stated in the instrument constituting the fund.8 8 |
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10 |
Termination and suspension |
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Details of: |
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(1) |
the grounds under which the authorised fund manager may initiate a suspension of the scheme and any associated procedures; and |
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(2) |
the methodology for determining the rights of unitholders to participate in the scheme property on winding up. |
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110A |
Investment in overseas2 property through an intermediate holding vehicle1 |
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If investment in an overseas2 immovable is to be made through an intermediate holding vehicle or a series of intermediate holding vehicles, a statement that the purpose of that intermediate holding vehicle or series of intermediate holding vehicles will be to enable the holding of overseas2 immovables by the scheme.1 |
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11 |
Other relevant matters |
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Details of those matters which enable the scheme, authorised fund manager or depositary to obtain any privilege or power conferred by the rules in COLL which is not otherwise provided for in the instrument constituting the fund.8 8 |