Related provisions for SYSC 22.5.17
1Paragraph 7BA – Position management |
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(1) |
A [UK RIE] operating a trading venue which trades commodity derivatives must apply position management controls on that venue, which must at least enable the [UK RIE] to - |
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(a) |
monitor the open interest positions of persons; |
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(b) |
access information, including all relevant documentation, from persons about- |
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(i) |
the size and purpose of a position or exposure entered into; |
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(ii) |
any beneficial or underlying owners; |
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(iii) |
any concert arrangements; and |
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(iv) |
any related assets or liabilities in the underlying market; |
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(c) |
require a person to terminate or reduce a position on a temporary or permanent basis as the specific case may require and to unilaterally take appropriate action to ensure the termination or reduction if the person does not comply; and |
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(d) |
where appropriate, require a person to provide liquidity back into the market at an agreed price and volume on a temporary basis with the express intent of mitigating the effects of a large or dominant position. |
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(2) |
The position management controls must take account of the nature and composition of market participants and of the use they make of the contracts submitted to trading and must- |
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(a) |
be transparent; |
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(b) |
be non-discriminatory; and |
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(c) |
specify how they apply to persons. |
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(3) |
A [UK RIE] must inform the FCA of the details of the position management controls in relation to each trading venue it operates. |
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Paragraph 7BB – Position reporting |
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(1) |
This paragraph applies to a [UK RIE] operating a trading venue which trades commodity derivatives, emission allowances, or emission allowance derivatives. |
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(2) |
The [UK RIE] must - |
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(a) |
where it meets the minimum threshold, as specified in article 83 (position reporting) of Commission Delegated Regulation (EU) 2017/565 of 25 April 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive2, make public a weekly report with the aggregate positions held by the different categories of persons for the different commodity derivatives, emission allowances, or emission allowance derivatives traded on the trading venue specifying - |
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(i) |
the number of long and short positions by such categories; |
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(ii) |
changes of those positions since the previous report; |
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(iii) |
the percentage of the total open interest represented by each category; and |
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(iv) |
the number of persons holding a position in each category; and |
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(b) |
provide the FCA with a complete breakdown of the positions held by all persons, including the members and participants and their clients, on the trading venue on a daily basis, or more frequently if that is required by the FCA. |
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(3) |
For the weekly report mentioned in sub-paragraph (2)(a) the [UK RIE] must - |
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(a) |
categorise persons in accordance with the classifications required under sub-paragraph (4); and |
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(b) |
differentiate between positions identified as- |
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(i) |
positions which in an objectively measurable way reduce risks directly relating to commercial activities; or |
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(ii) |
other positions. |
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(4) |
The [UK RIE] must classify persons holding positions in commodity derivatives, emission allowances, or emission allowance derivatives according to the nature of their main business, taking account of any applicable authorisation or registration, as - |
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(a) |
an investment firm or qualifying2 credit institution; |
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(b) |
an investment fund, either as an undertaking for collective investment in transferrable securities within the meaning of section 236A of the Act, an AIF or an AIFM within the meaning of regulations 3 and 4 respectively of the Alternative Investment Fund Managers Regulations 2013 (SI 2013/1773)2; |
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(c) |
another financial institution, including an insurance undertaking within the meaning of section 417 of the Act, a reinsurance undertaking within the meaning of section 417 of the Act, and an occupational pension scheme within the meaning of section 1(1) of the Pension Schemes Act 1993;2 |
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(d) |
a commercial undertaking; or |
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(e) |
in the case of emission allowances, or emission allowance derivatives, an operator with compliance obligations under Directive 2003/87/EC of the European Parliament and the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community. |
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[Note: 1993 c.48. Section 1 was amended by section 239 of the Pension Schemes Act 2004 (c. 35) and S.I. 2007/3014.]2 |
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(5) |
The [UK RIE] must communicate the weekly report mentioned in sub-paragraph (2)(a) to the FCA2. |
Explanatory table: This table belongs to COLL 6.2.2 G (4) (Purpose).
Correction of box management errors |
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1 |
Controls by authorised fund managers |
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An authorised fund manager needs to be able to demonstrate that it has effective controls over: |
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(1) |
its calculations of what units are owned by it (its 'box'); and |
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(2) |
compliance with COLL 6.2.8 R which is intended to prevent a negative box. |
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2 |
Controls by depositaries |
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(1) |
Under COLL 6.6.4 (General duties of the depositary), a depositary should take reasonable care to ensure that a scheme2 is managed in accordance with COLL 6.2 (Dealing) and COLL 6.3 (Pricing and valuation). |
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(2) |
A depositary should therefore make a regular assessment of the authorised fund manager's box management procedures (including supporting systems) and controls. This should include reviewing the authorised fund manager's controls and procedures when the depositary assumes office, on any significant change and on a regular basis, to ensure that a series of otherwise minor changes do not have a cumulative and a significant effect on the accuracy of the controls and procedures. |
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3 |
Recording and reporting of box management errors |
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(1) |
An authorised fund manager should record all errors which result in a breach of COLL 6.2.8 R (Controls over the issue and cancellation of units) and as soon as an error is discovered, the authorised fund manager should report the fact to the depositary, together with details of the action taken, or to be taken, to avoid repetition of the error. |
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(2) |
A depositary should report material box management errors to the FCA immediately. Materiality should be determined by taking into account a number of factors including:
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(3) |
A depositary should also make a return to the FCA (in the manner prescribed by SUP 16.6.8 R) on a quarterly basis. |
In practice, private individuals may act in a number of capacities. The following table sets out a number of examples of how an individual acting in certain capacities should, in the FCA's view, be categorised.
Customer classification examples |
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Capacity |
Classification |
Personal representatives, including executors, unless they are acting in a professional capacity, for example, a solicitor acting as executor. |
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Private individuals acting in personal or other family circumstances, for example, as trustee of a family trust. |
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Trustee of a trust such as a housing or NHS trust. |
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Member of the governing body of a club or other unincorporated association such as a trade body and a student union. |
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Pension trustee. |
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Person taking out a policy covering property bought under a buy-to-let mortgage. |
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Partner in a partnership when taking out insurance for purposes related to his profession. |
Types of activity – are they regulated activities and, if so, why?
Type of activity |
Is it a regulated activity? |
Rationale |
MARKETING AND EFFECTING INTRODUCTIONS |
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Passive display of information -for example, medical insurance brochures in doctor’s surgery (whether or not remuneration is received for this activity) |
No. |
Merely displaying information does not constitute making arrangements under article 25(2) (see PERG 5.6.4 G). |
Providing a2 customer with contact details or information about a broker / insurance undertaking2 (whether by phone, fax, e-mail, face-to-face or any other means of communication) |
Yes, but articles 33B or2 72C may be available. |
This will constitute making arrangements under article 25(2). But, the exclusions in articles 33B or 72C2 will apply if all the intermediary does is supply information to the customer and the relevant conditions of those exclusions2 are otherwise met (see PERG 5.6.4AG2 to PERG 5.6.9 G). Generally, this will not amount to advice under article 53(1)1 unless there is an implied recommendation of a particular policy (see PERG 5.8.4 G), in which case articles 33B and 72C2 would not be available. |
Providing an insurance undertaking/broker with contact details of customer |
Yes, but article 33B may be available2. |
This will constitute making arrangements under article 25(2) when undertaken in the context of regular or ongoing arrangements for introducing customers. Article 33B applies to the provision of information about a potential policyholder to an insurance undertaking or an insurance or reinsurance intermediary, and so may apply here if the relevant conditions are met. It will only apply if the provider of the customer information does not take any step other than providing the information to assist in the conclusion of a contract of insurance.2 |
Marketing on behalf of insurance undertaking to intermediaries only (for example, broker consultants) |
Yes. |
This amounts to work preparatory to the conclusion of contracts of insurance and so constitutes making arrangements under article 25(2). Article 33B does not apply because the information provided to the intermediary doesn’t relate to a potential policyholder, and isn’t provided to a policyholder.2 Article 72C is not available because this activity does not involve provision of information to the policyholder or potential policyholder only. |
Telemarketing services (that is, companies specialising in marketing an insurance undertaking's products/services to prospective customers) |
Yes. |
This amounts to introducing and/or other work preparatory to the conclusion of contracts of insurance and so constitutes making arrangements under article 25(2). This could also involve article 25(1) arranging where the telemarketing company actually sells a particular policy and could involve advising on investments. Article 33B is unlikely to apply, as the telemarketing company is likely to be actively persuading the customer rather than merely providing information.2 Article 72C will not be available where the provision of information is more than incidental to the telemarketing company’s main business. Articles 33B and 72C will not be available2 where the telemarketing company is advising on investments. |
PRE-PURCHASE DISCUSSIONS WITH CUSTOMERS AND ADVICE |
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Discussion with client about need for insurance generally/need to take out a particular type of insurance |
Generally, no. Articles 33B or2 72C available if needed. |
Not enough, of itself, to constitute making arrangements under article 25(2), but you should consider whether, viewed as a whole, your activities might amount to arranging. If so, articles 33B or2 72C might be of application (see PERG 5.6.5 G to PERG 5.6.9 G). |
Advising on the level of cover needed |
Generally, no. Articles 33B or2 72C available if needed. |
Not enough, of itself, to constitute making arrangements under article 25(2), but you should consider whether, viewed as a whole, your activities might amount to making arrangements under article 25(2) (see PERG 5.8.3 G). If so,articles 33B or2 72C might be of application (see PERG 5.6.4AG2 to PERG 5.6.9 G). |
Pre-purchase questioning in the context of filtered sales (intermediary asks a series of questions and then suggests several policies which suit the answers given) |
Yes. Subject to article 72 C exclusion where available. |
This will constitute arranging although article 72C may be of application (see PERG 5.6.4AG2 to PERG 5.6.9 G). If there is no express or implied recommendation of a particular policy, this activity will not amount to advice under article 53(1)1 (see PERG 5.8.15 G to PERG 5.8.19 G). |
Explanation of the terms of a particular policy or comparison of the terms of different policies |
Possibly. Article 72C available. |
This is likely to amount to making arrangements under article 25(2). In certain circumstances, it could involve advising on investments (except P2P agreements)1 (see PERG 5.8.8 G (Advice or information)). Where the explanation is provided to the potential policyholder, and does not involve advising on investments (except P2P agreements)1, article 72C may be of application (see PERG 5.6.5 G to PERG 5.6.9 G), and where information is provided by a professional in the course of a profession, article 67 may apply (see PERG 5.11.9 G to PERG 5.11.12 G). Article 33B will not be available where this involves taking steps other than the provision of information.2 |
Advising that a customer take out a particular policy |
Yes. |
This amounts to advice on the merits of a particular policy under article 53(1)1 (see PERG 5.8.4 G to PERG 5.8.5 G). |
Advising that a customer does not take out a particular policy |
Yes. |
This amounts to advice on the merits of a particular policy under article 53(1)1 (see PERG 5.8.4 G to PERG 5.8.5 G). |
Advice by journalists in newspapers, broadcasts etc. |
Generally, no because of the article 54 exclusion. |
Article 54 provides an exclusion for advice given in newspapers etc (see PERG 5.8.24 G to PERG 5.8.25 G). |
Giving advice to a customer in relation to2buying a consumer product, where insurance is a compulsory secondary purchase and/or a benefit that comes with buying the product |
Not necessarily but depends on the circumstances. |
Where the advice relates specifically to the merits of the consumer product, it is possible that references to the accompanying insurance may be seen to be information and not advice. If, however, the advice relates, in part, to the merits of the insurance element, then it will be regulated activity. |
ASSISTING CUSTOMERS WITH COMPLETING/SENDING APPLICATION FORMS |
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Providing information to customer who fills in application form |
Possibly. Subject to article 67 or 72C, and article 33B,2 exclusions where available. |
This activity may amount to arranging although the exclusions in article 67 (see PERG 5.11.9 G to PERG 5.11.12 G) and article 72C (see PERG 5.6.4AG2 to PERG 5.6.9 G) may be of application. Article 33B could also apply, depending on the type of information provided.2 |
Helping a potential policyholder fill in an application form |
Yes. |
This activity amounts to arranging. Articles 33B and2 72C will not apply because this activity goes beyond the mere provision of information to a policyholder or potential policyholder (see PERG 5.6.4AG2 to PERG 5.6.9 G). |
Receiving completed proposal forms for checking and forwarding to an insurance undertaking (for example, an administration outsourcing service provider that receives and processes proposal forms) |
Yes. |
This amounts to arranging. Articles 33B and 72C do2 not apply because this activity goes beyond the mere provision of information to a policyholder or potential policyholder (see PERG 5.6.4AG2 to PERG 5.6.9 G). |
Assisting in completion of proposal form and sending to insurance undertaking |
Yes. |
This activity amounts to arranging. Articles 33B and 72C do2 not apply because this activity goes beyond the mere provision of information (see PERG 5.6.4AG2 to PERG 5.6.9 G). |
NEGOTIATING AND CONCLUDING CONTRACTS OF INSURANCE |
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Negotiating terms of policy on behalf of a customer with the insurance undertaking |
Yes. |
This activity amounts to arranging (see PERG 5.6.2 G). |
Negotiating terms of policy on behalf of insurance undertaking with the customer and signing proposal form on his behalf |
Yes. |
These activities amount to both arranging and dealing in investments as agent. |
Concluding a contract of insurance on insurance company’s behalf, for example, motor dealer who has authority to conclude insurance contract on behalf of insurance undertaking when selling a car |
Yes. |
A person carrying on this activity will be dealing in investments as agent. He will also be arranging (as the article 28 exclusion only applies in the limited circumstances envisaged under article 28(3)) (see PERG 5.6.12 G). |
Agreeing, on behalf of a prospective policyholder, to buy a policy. |
Yes. |
A person who, with authority, enters into a contract of insurance on behalf of another is dealing in investments as agent under article 21, and will also be arranging. |
Providing compulsory insurance as a secondary purchase |
Yes. It will amount to dealing in investments as agent or arranging. |
The fact that the insurance is secondary to the primary product does not alter the fact that arranging the package involves arranging the insurance. |
COLLECTION OF PREMIUMS |
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Collection of cheque for premium from the customer at the pre-contract stage. |
Yes (as part of arranging). |
This activity is likely to form part of arranging. But the mere collection/receipt of premiums from the customer is unlikely, without more, to amount to arranging. |
Collection of premiums at post-contract stage |
No. |
The mere collection of premiums from policyholders is unlikely, without more, to amount to assisting in the administration and performance of a contract of insurance. |
MID-TERM ADJUSTMENTS AND ASSIGNMENTS |
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Solicitors or licensed conveyancers discharging client instructions to assign contracts of insurance. |
Not where article 67 applies. |
As the assignment of rights under a contract of insurance (as opposed to the creation of new contracts of insurance) does not fall within insurance distribution45, article 67 is of potential application (see PERG 5.11.9 G to PERG 5.11.12 G). |
Making mid-term adjustments to a policy, for example, property manager notifies changes to the names of the leaseholders registered as “interested parties” in the policy in respect of the property. |
Yes. |
Assuming the freeholder (as policyholder) is obliged under the terms of the policy to notify the insurance undertaking of changes to the identity of the leaseholders, the property manager is likely to be assisting in the administration and the performance of the contract of insurance. |
TRADED ENDOWMENT POLICIES (“TEPs”) |
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Making introductions for the purposes of selling TEPs |
Yes, unless article 72C applies. |
Making introductions for these purposes is arranging unless article 72C applies (see PERG 5.6.5 G to PERG 5.6.9 G). The exclusions in article 29 (Arranging deals with or through authorised persons) and 33 (Introducing) no longer apply to arranging contracts of insurance. |
Market makers in TEPs |
Yes, although the exclusion in article 28 may apply. |
Unauthorised market makers can continue to make use of the exclusions in articles 15 (Absence of holding out etc.) and 16 (Dealing in contractually based investments), where appropriate. In order to avoid the need for authorisation in respect of arranging they may be able to rely upon article 28 (see PERG 5.6.12 G). |
ASSISTING POLICYHOLDER WITH MAKING A CLAIM |
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Merely providing information to the insured to help him complete a claim form |
No. |
Of itself, this is likely to amount to assisting in the administration but not the performance of a contract of insurance. In the FCA's view, the provision of information in these circumstances is more akin to facilitating performance of a contract of insurance rather than assisting in the performance (see PERG 5.7.3 G to PERG 5.7.5 G) |
Completion of claim form on behalf of insured |
Potentially. |
This activity amounts to assisting in the administration of a contract of insurance. Whether this activity amounts to assisting in the administration and performance of a contract of insurance will depend upon whether a person's assistance in filling in a claims form is material to whether performance of the contractual obligation to notify a claim takes place (see PERG 5.7.2 G to PERG 5.7.3 G). |
Notification of claim to insurance undertaking and helping negotiate its settlement on the policyholder's behalf |
Yes. |
This activity amounts to assisting in the administration and performance of a contract of insurance (see PERG 5.7.4 G). |
ASSISTING INSURANCE UNDERTAKING WITH CLAIMS BY POLICYHOLDERS |
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Negotiation of settlement of claims on behalf of an insurance undertaking |
No. |
Managing claims3 on behalf of an insurance undertaking does not amount to assisting in the administration and performance of a contract of insurance by virtue of the exclusion in article 39B (see PERG 5.7.7 G). |
Providing information to an insurance undertaking in connection with its investigation or assessment of a claim |
No. |
This activity does not amount to assisting in the administration and performance of a contract of insurance. |
Loss adjusting and managing claims3 (for example, by administration outsourcing providers) |
Potentially. |
These activities may amount to assisting in the administration and performance of a contract of insurance. Article 39B excludes these activities, however, when undertaken on behalf of an insurance undertaking only (see PERG 5.7.7 G). |
Providing an expert appraisal of a claim |
No. |
This activity does not amount to assisting in the administration and performance of a contract of insurance whether carried out on behalf of an insurance undertaking or otherwise. |
Jeweller repairs customer’s jewellery pursuant to a policy which permits the jeweller to carry out repairs |
No. |
This activity does not amount to assisting in the administration and performance of a contract of insurance. It amounts to managing claims on behalf of an insurance undertaking and so falls within the exclusion in article 39B (see PERG 5.7.7 G). |
Applicable sections (see SUP 3.1.1 R)
This table and the provisions in SUP 3 should be read in conjunction with GEN 2.2.23 R to GEN 2.2.25 G. In particular, the PRA does not apply any of the provisions in SUP 3 in respect of FCA-authorised persons. SUP 3.10 and SUP 3.11 are applied by the FCA only.41 |
(1) Category of firm |
(2) Sections applicable to the firm |
(3) Sections applicable to its auditor |
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(1) |
Authorised professional firm which is required by IPRU(INV) 2.1.2R to comply with chapters 3, 519 or 13 of IPRU(INV) and which has an auditor appointed under or as a result of a statutory provision other than in the Act9 (Notes 1 and 6)23 23192323 |
SUP 3.1, SUP 3.2, SUP 3.8,19SUP 3.10 19 |
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(2) |
Authorised professional firm not within (1) to which the custody chapter or client money chapter applies22 172223 |
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(3) |
Authorised professional firm not within (1) or (2) which has an auditor appointed under or as a result of a statutory provision other than in the Act |
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(4) |
Bank, building society or dormant asset fund operator40 which in each case carries on designated investment business21(Notes 2A and 6)23 2123 |
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(5) |
Bank, building society or a dormant asset fund operator40 which in each case does not carry on designated investment business21 (Note 2A) 21 |
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(5A) |
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CASS debt management firm unless subject to a requirement imposed under section 55L of the Act stating that it must not hold client money or such a requirement to the same effect30 |
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33(5C) |
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36(5D) |
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(6) |
Insurer, the Society of Lloyd's, underwriting agent or members' adviser, UK ISPV11 (Note 5)7 |
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(7) |
Investment management firm,39personal investment firm (other than a small personal investment firm)39, 15securities and futures firm or collective portfolio management firm that is an external AIFM28 which, in each case, has an auditor appointed under or as a result of a statutory provision other than in the Act9(Notes 3 and 623)17 16239282820151723 |
SUP 3.1, SUP 3.2, SUP 3.8,19SUP 3.10 19 |
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9(7A) |
Investment management firm39, personal investment firm (other than a small personal investment firm39),28securities and futures firm39 or collective portfolio management firm that is an external AIFM28 not within (7) to which the custody chapter or client money chapter applies22 2015232815201722 |
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25 | |||
9(7B) |
Collective portfolio management firm that is a 28UCITS firm13or an internally managed AIF28 (Note 6)23 13 |
SUP 3.1, SUP 3.2, SUP 3.8,19SUP 3.10 19 |
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13(7C) |
MiFID investment firm38, which has an auditor appointed under or as a result of a statutory provision other than in the Act (Notes 3B and 6)2320 2023 |
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17(7D) |
Sole trader or partnership that is a MiFID investment firm3839(Notes 3C and 6)2320 202023 |
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(8) |
Small personal investment firm or service company which, in either case, has an auditor appointed under or as a result of a statutory provision other than in the Act |
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(9)8 |
Home finance provider10 which has an auditor appointed under or as a result of a statutory provision other than in the Act9 10 |
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(10)8 |
Insurance intermediary (other than an exempt insurance intermediary) to which the insurance client money chapter17 (except for CASS 5.2 (Holding money as agent)) applies (see Note 4)8 17 |
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(11)8 |
Exempt insurance intermediary and insurance intermediary not subject to SUP 3.1.2 R(10) which has an auditor appointed under or as a result of a statutory provision other than in the Act |
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(12)8 |
Home finance intermediary10 or home finance administrator10 which has an auditor appointed under or as a result of a statutory provision other than in the Act. 1010 |
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Note 1 = This chapter applies to an authorised professional firm in row (1) (and its auditor) as if the firm were of the relevant type in the right-hand column of IPRU(INV) 2.1.4R. |
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Note 2 [deleted]23 171723 |
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Note 2A = For this purpose, designated investment business does not include either or both: (a) dealing which falls within the exclusion in article 15 of the Regulated Activities Order (Absence of holding out etc) (or agreeing to do so); and (b) dealing in investments as principal (or agreeing to do so): (i) by a firm whose permission to deal in investments as principal is subject to a limitation to the effect that the firm, in carrying on this regulated activity, is limited to entering into transactions in a manner which, if the firm was an unauthorised person, would come within article 16 of the Regulated Activities Order (Dealing in contractually based investments); and (ii) in a manner which comes within that limitation; having regard to article 4(4) of the Regulated Activities Order (Specified activities: general23). 18 |
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Note 3 = This note applies in relation to an oil market participant to which IPRU(INV) 3 does not apply and in relation to an energy market participant to which IPRU(INV) 3 does not apply. In SUP 3: (a) only SUP 3.1, SUP 3.2 and SUP 3.7 are applicable to such a firm; and (b) only SUP 3.1, SUP 3.2 and SUP 3.8 are applicable to its auditor; and, in each case, only if it has an auditor appointed under or as a result of a statutory provision other than in the Act. |
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23 | |||
20Note 3B = MiFID investment firms38 include firms that are eligible to be MiFID optional exemption firms but have chosen not to exercise the article 3 exemption. However, such firms may still benefit from the audit exemption for small companies in the Companies Act legislation39. 31 |
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17Note 3C20 = A sole trader or a partnership that is a MiFID investment firm38 to which the custody chapter22 or client money chapter applies2220 must have its annual accounts audited. 2020202222 |
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Note 4 = The client money audit requirement in SUP 3.1.2 R(10) therefore applies to all insurance intermediaries except:8 • those which do not hold client money or other client assets in relation to insurance distribution activities34; or 8 • those which only hold up to, but not exceeding, £30,000 of client money under a statutory trust arising under CASS 5.3.8 Insurance intermediaries which, in relation to insurance distribution activities34, hold no more than that amount of client money only on a statutory trust are exempt insurance intermediaries.8 |
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Note (5) = In row (6):7 |
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(a)7 |
SUP 3.1 - SUP 3.7 applies to a managing agent in respect of its own business and in respect of the insurance business of each syndicate which it manages; and7 |
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(b)7 |
SUP 3.1, SUP 3.2 and SUP 3.8 apply to the auditors of a managing agent and the auditors of the insurance business of each syndicate which the managing agent manages.1234567 |
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23Note 6 = Where SUP 3.11 applies to a firm, and SUP 3.10 applies to the auditor of that firm, those sections apply whether or not that firm'spermission prevents it from holding client money or custody assets and whether or not it holds client money or custody assets.A collective portfolio management firm that is an internally managed AIF is required to appoint an auditor under FUND 3.3.6R (2) (Annual report of an AIF) because the AIFM is also an AIF.28 |