Related provisions for PERG 4.6.8
21 - 40 of 164 items.
The exclusion in article 67 of the Regulated Activities Order (Activities carried on in the course of a profession or non-investment business) applies to the regulated activities of arranging (bringing about), making arrangements with a view to and advising on regulated mortgage contracts. PERG 4.14 contains further guidance on mortgage activities carried on by professional firms.)
(1) 3The exclusion in article 67 of the Regulated Activities Order (Activities carried on in the course of a profession or non-investment business) does not apply if applying the exclusion would take activities within the scope of the MCD (or which would be within such scope if carried out in an EEA State, or in relation to a customer in an EEA State or an agreement secured on residential land in an EEA State)5 outside the definition of certain regulated mortgage activities. (2)
There are exclusions that apply, in certain circumstances, in relation to each of the regulated mortgage activities if the person carrying on the activity is acting in the capacity of trustee or personal representative. Article 66 of the Regulated Activities Order (Trustees, nominees and personal representatives) sets out the circumstances in which the exclusions apply. The terms of these differ slightly depending on the regulated activity.
(1) 3The exclusion in article 66 of the Regulated Activities Order (Trustees, nominees and personal representatives) does not apply if applying the exclusion would take activities within the scope of the MCD (or which would be within such scope if carried out in an EEA State, or in relation to a customer in an EEA State or to an agreement secured on residential land in an EEA State)5 outside the definition of certain regulated mortgage activities. (2) Please see PERG 4.10A (Activities
1There are exclusions that apply, in relation to each of the regulated mortgage activities and to advising on regulated credit agreements for the acquisition of land,6 if the person carrying on the activity is a local authority or a wholly owned subsidiary of a local authority. They can be found in article 72G of the Regulated Activities Order, but only apply where:63(a) the relevant agreement was entered into before 21 March 2016; or6(b) the relevant agreement is entered into
The exemptions in Part VI apply to different types of financial promotion, and the exemption available may be based on a number of facts. These may be the identity of the maker of the financial promotion, the identity of the recipient of the financial promotion, the subject matter of the financial promotion or the nature of the financial promotion itself. Some of these exemptions apply to non-real time financial promotions, others to solicited real time financial promotions and
11A local authority (in the United Kingdom or elsewhere) is exempt from the financial promotion restriction (that is, the restriction in section 21 of the Act) for a communication which is a non-real time financial promotion or a solicited real time financial promotion. However, this exemption does not apply to a communication which relates to a regulated credit agreement, where entering into the agreement or exercising, or having the right to exercise, the lender’s rights and
Article 39 of the Financial Promotion Order exempts a financial promotion that:(1) is communicated by one participator or potential participator in a joint enterprise to another; and(2) is in connection with or for the purposes of that enterprise.A joint enterprise means, in general terms, arrangements entered into by two or more persons for commercial purposes related to a business that they carry on. The business must not involve a controlled activity or a controlled claims
This exemption disapplies the restriction in section 21 of the Act from non-real time financial promotions or solicited real time financial promotions which are made to a person who the communicator believes on reasonable grounds to be a certified high net worth individual and which relate to certain investments. These investments must be either:7(1) shares in or debentures or alternative debentures7 of an unlisted company; or(2) warrants,certificates representing certain securities,
A certified high net worth individual is an individual who has signed a statement in the form prescribed in Part I (Statement for certified high net worth individuals) of Schedule 5 to the Financial Promotion Order. This requires the individual to certify that he has earned at least £100,000 or have held net assets to the value of more than £250,000 throughout the financial year before the date of the certificate. Where the financial promotion is an outgoing electronic commerce
11The financial promotion restriction (that is, the restriction in section 21 of the Act) does not apply to a communication which is a non-real time financial promotion or a solicited real time financial promotion by an insolvency practitioner who acts in that capacity (see the definition of “acting as an insolvency practitioner” in article 3 of the Regulated Activities Order). The exemption only applies where the communication is made in the course of carrying on an activity
9Article 72F exempts any financial promotion which is made to an employee by or on behalf of a person in relation to an exempt staff loan. An exempt staff loan is defined as a credit agreement which is:(1) offered by a lender to a borrower as an incident of employment with the lender, or with an undertaking in the same group as the lender11; and(2) an exempt agreement under a provision of article 60G (exempt agreements: exemptions relating to the total charge for credit) of the
The various exclusions outlined below deal with a range of different circumstances. (1) Within each set of circumstances, the Regulated Activities Order, in Chapter XVII of Part II of the Order, makes separate provision for each regulated activity affected. This is necessary because each exclusion has to be tailored to reflect the different nature of the regulated activity involved and the different language required (for example, some activities involve entering directly into
The exclusions grouped together in the Regulated Activities Order are described below in this chapter in general terms. The exact terms of each exclusion will need to be considered by any person who is considering whether they need authorisation. Each description is accompanied by an indication of which regulated activities are affected.
This group of exclusions applies, in specified circumstances, to the regulated activities of:(1) dealing in investments as principal;(2) arranging (bringing about) dealsininvestments and4making arrangements with a view to transactions in investments;44(2A) arranging a home finance transaction;4(3) managing investments;(4) assisting in the administration and performance of a contract of insurance;(5) safeguarding and administering investments;(6) sending dematerialised instructions;(7)
This group of exclusions applies, in specified circumstances, to the regulated activities of:(1) dealing in investments as agent;(2) arranging (bringing about) deals in investments, and4making arrangements with a view to transactions in investments;44(2A) arranging a home finance transaction;4(3) assisting in the administration and performance of a contract of insurance;(4) safeguarding and administering investments; and(5) advising on investments,15advising on regulated credit
(1) 18The exclusion for overseas persons described in PERG 2.9.17G does not apply to an investment firm or credit institution set up in a third country that has been found equivalent under article 46 or 47 of MiFIR, as described in more detail in the rest of this paragraph.(2) Article 46 of MiFIR has a mechanism under which the FCA20 may register a third country investment firm or a third country credit institution without a branch in the United Kingdom20. Registration allows
(1) 12Subject to (2), (3) and (4),15 the exclusions apply, in relation to any activity carried on by a local authority.15(2) The exclusion relating to the regulated activities of:(a) dealing in investments as agents;(b) arranging (bringing about) deals in investments;(c) making arrangements with a view to transactions in investments;(d) assisting in the administration and performance of a contract of insurance; and(e) advising on investments;applies to any activity carried on
CONC 8.10 (Conduct of business: providing credit information services) sets out that that section applies to every firm with respect to providing credit information services and with respect to operating an electronic system in relation to lending in relation to activities specified in article 36H(3)(e) to (h) of the Regulated Activities Order which are similar to providing credit information services.2
CONC 8 covers all firms with respect to debt counselling, debt adjusting and providing credit information services, which includes profit-seeking as well as not-for-profit bodies which hold such permissions and in that case include those bodies with permission by virtue of article 62 of the Regulated Activities Order.[Note: paragraph 1.10 of DMG]
Taking electronic commerce as an example, the use of electronic decision trees does not present any novel problems. The provider of the service will be giving advice for the purpose of article 53(1)1 only if the service results in something more than a generic recommendation, as with a paper version.
Some software services involve the generation of specific buy, sell or hold signals relating to particular investments. These signals are liable, as a general rule, to be advice for the purposes of article 53(1)1 (as well as financial promotions) given by the person responsible for the provision of the software. The exception to this is where the user of the software is required to use enough control over the setting of parameters and inputting of information for the signals
Generic advice will not be caught by article 53(1)1. Examples of generic advice may include:(1) financial planning;(2) advice on the merits of investing in Japan rather than Europe;(3) advice on the merits of investing in investment trusts as opposed to unit trusts or unit-linked insurance; and(4) advice on the merits of investing offshore, or in fixed income rather than floating rate bonds.
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)).
The Regulated Activities Order does not attempt an exhaustive definition of a 'contract of insurance'. Instead, article 3(1) of the order (Interpretation) makes some specific extensions and limitations to the general common law meaning of the concept. For example, article 3(1) expressly extends the concept to fidelity bonds and similar contracts of guarantee, which are not contracts of insurance at common law, and it excludes certain funeral plan contracts, which would generally
The Regulated Activities Order does not define a reinsurance contract. The essential elements of the common law description of a contract of insurance are also the essential elements of a reinsurance contract. Whilst the terms derived from the IDD3 address4 insurance and reinsurance separately, throughout this guidance the term 'contract of insurance' (italicised or otherwise) also applies to contracts of reinsurance.
Article 72B of the Regulated Activities Order (Activities carried on by a provider of relevant goods or services) excludes from FCA regulation certain regulated activities carried on by providers of non-motor goods or services3 and services related to travel in relation to contracts of insurance that satisfy a number of conditions. Details about the scope of this exclusion can be found at PERG 5.11.13 G to PERG 5.11.14G (Activities carried on by a provider of relevant goods or
For an activity to be a regulated activity, it must be carried on in relation to 'specified investments' (see section 22 of the Act Regulated activities) and Part III of the Regulated Activities Order (Specified investments)). For the purposes of insurance distribution activity3, specified investments include the following 'relevant investments' defined in article 3(1) of the Regulated Activities Order (Interpretation):(1) rights under any contract of insurance (see article 75
For the purposes of article 53(1)3 of the Regulated Activities Order, a security or relevant investment is any one of the following:(1) shares;(2) debentures;(2A) alternative debentures;2(3) government and public securities;(4) warrants;(5) certificates representing certain securities;(6) units in collective investment schemes;(7) stakeholder pension schemes or personal pension schemes1;(7A) emission allowances;4(8) options;(9) futures;(10) contracts for differences;(11) contracts
Article 53(1)3 does not apply to advice given on any of the following:(1) deposit or other bank or building society accounts (but note the exceptions and points in PERG 8.25.3G)4;(2) interests under the trusts of an occupational pension scheme (but rights under an occupational pension scheme that is a stakeholder pension scheme will be securities);(3) mortgages or other loans (but note that advising on regulated mortgage contracts is a separate regulated activity under article
(1) 4There are some circumstances in which giving advice about a deposit is a regulated activity.(2) Providing basic advice on a stakeholder product is a separate regulated activity under article 52A of the Regulated Activities Order. A stakeholder product includes a stakeholder deposit account. See the guidance in PERG 2.7.14AG (Providing basic advice on stakeholder products) for more about this.(3) Article 53(1) does apply to advice on structured deposits.
Neither does advice on the merits of using a particular stockbroker or investment manager in his capacity as such amount to advice for the purpose of article 53(1)3. This is because it is not advice on the merits of buying or selling an investment and it is not advice on the merits of exchanging, redeeming or holding one4.
Without an explicit or implicit recommendation on the merits of buying, exchanging, redeeming, holding4 or selling an investment, advice will not be covered by article 53(1)3 if it is advice on:(1) the likely meaning of uncertain provisions in an investment agreement; or(2) how to complete an application form; or(3) the value of investments for which there is no ready market; or(4) the effect of contractual terms and their commercial consequences; or(5) how to structure a transaction
1Typical recommendations and whether they will be regulated as advising on investments (except P2P agreements)3 under article 53(1)3 of the Regulated Activities Order. This table belongs to PERG 8.29.1 G to PERG 8.29.6 G.2
Recommendation |
Regulated under article 53(1)3 or not? |
I recommend that you take out the ABC investment. |
Yes. This is advice which steers the client in the direction of a particular investment which the client could buy. |
I recommend that you do not take out the ABC investment. |
Yes. This is advice which steers the client away from a particular investment which the client could have bought. |
I recommend that you take out either the ABC investment or the DEF investment. |
Yes. This is advice which steers the client in the direction of more than one particular investment which the client could buy. |
I recommend that you sell your ABC investment. |
Yes. This is advice which steers the client in the direction of a particular investment which the client could sell. |
I recommend that you do not sell your ABC investment. |
Yes. This is advice which steers the client away from a particular investment which the client could have sold. |
I recommend that you transfer ownership of your ABC investment to your spouse. |
Advising the client to gift an investment to another person will not be advice because it does not involve advice on buying, selling, subscribing for or underwriting an investment. |
I recommend that you increase the regular payments you are making to your GHI fund*. |
Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund. |
I recommend that you decrease the regular payments you are making to your GHI fund*. |
Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund but advises against the client buying as many as he intended. |
I recommend that you keep making the same regular payments to your GHI fund*. |
Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund. |
I recommend that you stop making the regular payments you are making to the GHI fund*. |
Yes. This is advice which steers the client away from buying units in a particular fund which the client could have bought. |
I recommend that you pay a lump sum into your GHI fund*. |
Yes. This is advice which steers the client in the direction of acquiring further units in a particular fund. |
I recommend that you do not pay a lump sum into your GHI fund*. |
Yes. This is advice which steers the client away from buying units in a particular fund which the client could have bought. |
I recommend that you move part of your investment in the JKL investment from fund X into fund Y*. |
Yes. This is advice which steers the client in the direction of selling units in a particular fund and buying units in another specific fund. Where the two funds are sub-funds of the same main fund it is still advice. The terms ‘bought’ and ‘sold’ are given a wide meaning and include any acquisition or disposal for valuable consideration. |
I recommend that you move all of your investment in JKL investment from fund X into fund Y*. |
Yes, for the same reason. |
4I recommend that you keep your investment in fund X*. |
Yes. This is advice because it is advice to hold on to an investment and advice not to sell it. |
I recommend that you move your MNO investment from platform X and re-register it on platform Y. |
This is unlikely to be advice because normally it will not involve buying and selling the investment held on the platform. |
A client decides of his own accord to increase, decrease or temporarily suspend his regular payments or the payments are increased automatically into an investment without advice being given. |
No. No advice is being given. |
The firm is providing discretionary management services under a mandate and makes changes to a client'sinvestment without providing advice. |
No. No advice is being given. |
Dividends are re-invested into an investment without advice being given. |
No. No advice is being given. |
* The same answer would apply where the fund is a life policy as rights under a contract of insurance are regulated investments under the Act. The position under a personal pension scheme is similar, as explained in more detail in PERG 12.3. |
|
The FCA will form an overall view as to the purpose (or purposes) underlying the publication or service. It will then determine whether the principal purpose is neither of those referred to in article 54 of the Regulated Activities Order. Because the possible range of subject matter covered by different publications or services is very wide it is not possible to apply standard tests. The FCA will form a judgment as to the overall impression created by the publication or service.
If the FCA decides to grant the application it will issue a certificate. The certificate will normally be granted for an indefinite period. It will state what it is that the FCA considers constitutes the periodical or service in relation to which the FCA is satisfied that the exclusion in article 54 of the Regulated Activities Order applies. In many cases this will be self-evident. But it may sometimes be necessary to include further details in the certificate indicating what
An application may be refused on the grounds that the FCA is not satisfied that the principal purpose of the publication or service is neither of those mentioned in article 54(1)(a) or (b) of the Regulated Activities Order (see PERG 7.4.5 G). An application may also be refused on the grounds that the FCA considers that the vehicle through which advice is to be given is not a newspaper, journal, magazine or other periodical publication, a regularly updated news or information service
The Regulated Activities Order contains an exclusion which has the effect of preventing certain activities of trustees, nominees and personal representatives from amounting to entering into a regulated mortgage contract. There is also an exclusion for local authorities and their wholly-owned subsidiaries.21 These are1 referred to in PERG 4.10 (Exclusions applying to more than one regulated activity).In addition, there1are 3 exclusions 3 where both the lender and borrower are overseas,
Under article 64 of the Regulated Activities Order (Agreeing to carry on specific kinds of activity), in addition to the regulated activities of arranging (bringing about), making arrangements with a view to, advising on, entering into and administering regulated mortgage contracts, agreeing to do any of these things is itself a regulated activity. In the FCA's opinion, this activity concerns the entering into of a legally binding agreement to provide the services that it concerns.
2Prior to 21 March 2016, the definition of ‘regulated mortgage contract’ in article 61(3)(a) of the Regulated Activities Order was limited to mortgage contracts secured by a first legal mortgage (but not a second charge mortgage or an equitable mortgage) of land in the United Kingdom (rather than land in the EEA), and the regulated activity of administering a regulated mortgage contract was limited to mortgage contracts entered into on or after 31 October 2004, being the date
2When the Regulated Activities Order was amended to implement the MCD, the limitations mentioned in PERG 4.4A.1AG were removed: the legislative intention was to provide a single regulatory regime for mortgage contracts under MCOB from 21 March 2016, subject to a six month transitional period for first charge mortgages entered into before 31 October 2004. Mortgage contracts that were regulated mortgage contracts before that date did not cease to be regulated mortgage contracts.
(1) 2Mortgage contracts that potentially became regulated mortgage contracts on 21 March 2016 include, for example:(a) mortgages entered into before 31 October 2004;(b) second charge mortgages; and(c) equitable mortgages.(2) However: (a) a mortgage contract entered into before 21 March 2016, which was not already a regulated mortgage contract only became a regulated mortgage contract if it was a ‘consumer credit back book mortgage contract’ within the meaning of article 2 of
The regulated activity of assisting in the administration and performance of a contract of insurance (article 39A) relates, in broad terms, to activities carried on by intermediaries after the conclusion of a contract of insurance and for or on behalf of policyholders, in particular in the event of a claim. Loss assessors acting on behalf of policyholders in the event of a claim are, therefore, likely in many cases to be carrying on this regulated activity. By contrast, managing1
By article 39B of the Regulated Activities Order (Claims management on behalf of an insurer etc):(1) loss adjusting on behalf of a relevant insurer (see PERG 5.7.8 G);(2) expert appraisal; and(3) managing claims for a relevant insurer;are also excluded from the regulated activity of assisting in the administration and performance of a contract of insurance. This is where the activity is carried on in the course of carrying on any profession or business (see also PERG 5.14 (Exemptions)).
A 'relevant insurer' for the purposes of article 39B means:(1) an authorised person who has permission for effectingand carrying out contracts of insurance; or(2) a member of the Society of Lloyd's or the members of the Society of Lloyd's taken together; or(3) [deleted]2(4) a reinsurer, being a person whose main business consists of accepting risks ceded by a person falling under (1) or (2)2 or a person who is established outside the United Kingdom and who carries on the activity
Under section 19 of the Act (The general prohibition) no person may, by way of business, carry on a regulated activity in the United Kingdom unless he is authorised or exempt. The meaning of regulated activity is set out in Part II of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (the Regulated Activities Order) (as amended). Any person who breaches section 19 of the Act commits a criminal offence for which the maximum penalty is two years’ imprisonment
The regulated activities which are likely to be conducted in the circumstances referred to in PERG 8.23.2 G are:(1) giving advice on certain investments (articles 53 (Advising on investments), 53A (Advising on regulated mortgage contracts), 53B (Advising on regulated home reversion plans), 53C (Advising on regulated home purchase plans), 53D (Advising on regulated sale and rent back agreements)2 and 56 (Advice on syndicate participation at Lloyd’s) of the Regulated Activities
3As explained inPERG 1.2.3AG, where the guidance that follows uses the defined term advising on investments, this term should be read as referring only to the regulated activity (in article 53(1) of the Regulated Activities Order) of advising on investments (except P2P agreements). Related text should be construed accordingly.
(1) 2CONC does not apply to credit agreements secured on land, with some limited exceptions as set out in (3) and (4), below. (2) Agreements secured by a second or subsequent charge on the customer’s home are, where regulated, governed by MCOB from 21 March 2016 (subject to transitional provisions allowing for the earlier adoption of MCOB). For detailed guidance on the regulation of secured lending, see PERG 4.(3) The agreements secured on land to which CONC may apply include
(1) 2CONC 1.2.8R and the rules applied by CONC 1.2.8R do not apply to an MCD article 3(1)(b) creditor or MCD article 3(1)(b) credit intermediary where the conditions in paragraph (2) are met.7(2) The conditions referred to in paragraph (1) are:7(a) the agreement is either secured on land or for credit which exceeds £60,260; (b) the agreement includes a declaration, made by the borrower, which provides that the borrower agrees to waive the protections and remedies applicable to
7The regulatory status of article 3(1)(b) credit agreements entered into with high net worth individuals is dependent on several factors due to the different treatment of these agreements over time.2(1) An article 3(1)(b) credit agreement is exempt under article 60H of the Regulated Activities Order: (a) if at the time it was entered into, the conditions set out in article 60H(1) were met; and(b) if entered into on or after 21 March 2016 (whether before or after 21 July 2022),
The table in PERG 5.15.4 G is designed as a short, user-friendly guide but should be read in conjunction with the relevant sections of the text of this guidance. It is not a substitute for consulting the text of this guidance or seeking professional advice as appropriate (see PERG 5.1.6 G on the effect of this guidance). References in this table to articles are to articles of the Regulated Activities Order. In this table, it is assumed that each of the activities described is
The article 55 exemption also requires that:(1) the financial promotion relates to an activity to which the Part XX exemption applies or which would be a regulated activity but for the exclusion in article 67 of the Regulated Activities Order (Activities carried on in the course of a profession or non-investment business) which concerns activities which are a necessary part of professional services; and(2) the activity to which the financial promotion relates would be undertaken
One of the effects of the requirements in PERG 8.15.2 G concerns financial promotions which relate to an activity which is not a regulated activity as the result of an exclusion in the Regulated Activities Order. In this case, a professional firm using the Part XX exemption cannot make a real time financial promotion relying on article 55 of the Financial Promotion Order unless the exclusion is provided by article 67 of the Regulated Activities Order. Neither can a professional
The article 55A exemption should enable professional firms to issue brochures, websites and other non-real time financial promotions without any need for approval by an authorised person. This is provided the financial promotion does not also contain an invitation or inducement relating to regulated activities other than those covered by the Part XX exemption. In this respect, it should be noted that, unlike article 55, the article 55A exemption does not extend to activities which