Related provisions for PERG 6.4.3
461 - 480 of 1033 items.
As set out in DEPP 5, special decision-making arrangements apply in relation to settlement. The person concerned may agree all relevant issues with the FCA (in which case the settlement decision makers will give all relevant statutory notices). Alternatively, a focused resolution agreement may be agreed (in which case the settlement decision makers are responsible for giving the warning notice and the RDC for giving any decision notice).2 The FCA would expect to hold any settlement
1If the settlement negotiations result in a proposed settlement of the dispute, FCA staff will put the terms of the proposed settlement in writing and agree them with the person concerned. The settlement decision makers (and, as the case may be, the RDC)2 will then consider the matter2 under the procedures set out in DEPP 5. A settlement is2 likely to result in the giving of statutory notices (see EG 2.15.1 to EG 2.15.32).
1The FCA's power under section 56 of the Act to prohibit individuals who are not fit and proper from carrying out functions in relation to regulated activities helps the FCA to work towards achieving its statutory objectives. The FCA may exercise this power to make a prohibition order where it considers that, to achieve any of those objectives, it is appropriate either to prevent an individual from performing any function in relation to regulated activities, or to restrict the
1The FCA's effective use of the power under section 63 of the Act to withdraw approval from an approved person will also help ensure high standards of regulatory conduct by preventing an approved person from continuing to perform the controlled function to which the approval relates if he is not a fit and proper person to perform that function. Where it considers this is appropriate, the FCA may prohibit an approved person, in addition to withdrawing their approval.
2Recognised Auction Platforms Regulations, regulation 13
(1) In considering whether [a RAP] or applicant satisfies the [RAP recognition requirements], the [FCA] may: (a) treat compliance by the [RAP] or applicant with the [recognition requirements] applying to it as a [UK RIE] as conclusive evidence that the [RAP] or applicant satisfies any equivalent [RAP recognition requirements] applying to it under these [RAP regulations], taking into account any arrangements that would be necessary to meet the [RAP recognition requirements], and (b) take into account all relevant circumstances including the constitution of the person concerned. |
(2) Without prejudice to the generality of paragraph (1), [a RAP] or applicant may satisfy [RAP recognition requirements] by making arrangements for functions to be performed on its behalf by any other person. |
(3) Where [a RAP] or applicant makes arrangements of the kind mentioned in paragraph (2), the arrangements do not affect the responsibility imposed by these [RAP regulations] on the [RAP] or applicant to satisfy the [RAP recognition requirements], but it is in addition [a RAP recognition requirement] applying to the [RAP] or applicant that the person who performs (or is to perform) the functions is a fit and proper person who is able and willing to perform them. |
1This chapter applies to every firm which:(1) is subject to the requirements as to the form and content of regulated agreements under the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and the Consumer Credit (Agreements) Regulations (SI 2010/1014) made under section 60(1) of the CCA that wishes to apply for a direction from the FCA waiving or varying those requirements;(2) is subject to the requirement under section 64(1)(b) of the CCA to send debtors or hirers
This chapter explains how the regime works for obtaining: (1) a direction from the FCA waiving or varying the requirements as to the form and content of regulated agreements under the Consumer Credit (Agreements) Regulations 1983 (SI 1983/1553) and the Consumer Credit (Agreements) Regulations (SI 2010/1014) made under section 60(1) of the CCA;(2) a determination by the FCA that the requirement under section 64(1)(b) of the CCA to send debtors or hirers a notice of their rights
The principal purpose of imposing a financial penalty or issuing a public censure is to promote high standards of regulatory and/or market conduct by deterring persons who have committed breaches from committing further breaches, helping to deter other persons from committing similar breaches, and demonstrating generally the benefits of compliant behaviour. Financial penalties and public censures are therefore tools that the FCA3 may employ to help it to achieve its statutory
1Where the FCA applies to the court under section 380(3) or sections 381(3) and (4) of the Act, the FCA may ask the court to exercise its inherent jurisdiction to make orders on an interim basis, restraining a person from disposing of, or otherwise dealing with, assets. To succeed in an application for such interim relief, the FCA will have to show a good arguable case for the granting of the injunction. The FCA will not have to show that a contravention has already occurred or
1The FCA may request the court to exercise its inherent jurisdiction in cases, for example, where it has evidence showing that there is a reasonable likelihood that a person will contravene a requirement of the Act and that the contravention will result in the dissipation of assets belonging to investors.
Where the FCA1 considers that it is unlikely to make a recognition order, it will discuss its concerns with the applicant with a view to enabling the applicant to make changes to its rules or guidance, or other parts of the application. If the FCA1 decides to refuse to make a recognition order, it will follow the procedure set out in section 298 of the Act (Directions and revocation: procedure) (which applies in consequence of section 290(5) of the Act (Recognition orders)) which
FCA2 staff responsible for the taking of a statutory notice decision under executive procedures may refer the matter to the RDC for the RDC to decide whether to give the statutory notice if:2(1) the RDC is already considering, or is shortly to consider, a closely related matter; and(2) the relevant FCA2 staff believe, having regard to all the circumstances, that the RDC should have responsibility for the decision. The relevant considerations might include: 2(a) the desirability
1Where a person who is a shareholder has contravened one or more relevant transparency provisions (as defined in section 89NA(11) of the Act) in respect of shares in a company admitted to trading on a regulated market and the FCA considers the breach to be serious, the FCA may apply to the Court for an order suspending that person’s voting rights as set out in section 89NA of the Act.
Firms are also referred to SUP 15.6 (Inaccurate, false or misleading information). This requires, in SUP 15.6.4 R, a firm to notify the appropriate regulator1 if false, misleading, incomplete or inaccurate information has been provided. This would apply in relation to information provided in an application for a waiver.1
(1) The Supervision manual (SUP) and Decision Procedure and Penalties
manual (DEPP) form the Regulatory
Processes part of the Handbook.(2) SUP sets
out the relationship between the FCA and authorised persons (referred to in the Handbook as firms).
As a general rule, SUP contains
material that is of continuing relevance after authorisation.(3) DEPP is
principally concerned with and sets out the FCA's decision
making procedures that involve the giving of statutory
notices, the FCA's
For a firm which
undertakes business internationally (or is part of a group which
does), the FCA will have regard
to the context in which it operates, including the nature and scope of the
regulation to which it is subject in jurisdictions other than the United Kingdom. For a firm with
its head office outside the United Kingdom,
the regulation in the jurisdiction where the head office is located will be
particularly relevant. As part of its supervision of such a firm,
the FCA
1Section 59(1) is relevant where the firm directly employs the person concerned. Under the provision, a firm ('A') must take reasonable care to ensure that no person performs a controlled function under an arrangement entered into by A in relation to the carrying on by it of a regulated activity, unless the appropriate regulator (as defined in section 59(4) of the Act)
approves the performance by that person of the controlled function to which the approval relates.
Where a UK recognised body becomes aware that a person has been appointed by any regulatory body (other than the FCA2or a UK recognised body) to investigate:2(1) any business transacted by means of its facilities or12(2) any aspect of the clearing facilitation services2 which it provides;2it must immediately give the FCA2notice of that event.2
A UK recognised body need not give the FCA2notice of:2(1) routine inspections or visits undertaken in the course of regular monitoring, complaints handling or as part of a series of 'theme visits'; or(2) routine requests for information; or(3) investigations into the conduct of members of the UK recognised body or of other users of its facilities where the use of its facilities is a small or incidental part of the subject matter of the investigation.
(1) 1The FCA expects to have an open, cooperative and constructive relationship with data reporting services providers to enable it to understand and evaluate data reporting services providers’ activities and their ability to meet the requirements in the DRS Regulations. As part of that relationship the FCA expects a data reporting services provider to provide it with information about any proposed restructuring, reorganisation or business expansion which could have a significant
1The FCA will use a variety of tools to monitor whether a data reporting services provider complies with its regulatory requirements. These tools include (but are not limited to):(1) desk-based reviews;
(2) liaison with other regulators;
(3) meetings with management and other representatives of a data reporting services provider;
(4) on-site visits;
(5)
use of auditors;
(6) use of a skilled person;(7) reviews and analysis of periodic returns and notifications;
(8) transaction
1A firm should have regard to the urgency and significance of a matter and, if appropriate, should also notify its usual supervisory contact at the FCA by telephone by other prompt means of communication, before submitting written application. Oral notifications should be given directly to the firm’s usual supervisory contact at the FCA. An oral notification left with another person or on a voicemail or other automatic messaging service is unlikely to have been given appropriately.
If any civil or criminal legal proceedings are instituted against a UK recognised body, it must, unless REC 3.12.2 R applies, immediately give notice of that event and give the following information to the FCA:11(1) in the case of civil proceedings, the name of the claimant, particulars of the claim, the amount of damages and any other remedy sought by the claimant, and particulars of any allegation that any act or omission of that body was in bad faith; and(2) in the case of
A UK recognised body is not required to give notice of civil legal proceedings or information about them to the FCA1under REC 3.12.1 R, where:1(1) the amount of damages claimed would not significantly affect that UK recognised body's financial resources, if the claim were successful;(2) the claim would not have a significant adverse effect on the reputation and standing of that body, if that claim were successful; and (3) the claim does not relate to that body's regulatory fu
Rights conferred on third parties (such as a firm'sclients) cannot be affected by guidance given by the FCA. Guidance on rules, the Act or other legislation represents the FCA view, and does not bind the courts, for example in relation to an action for damages brought by a private person for breach of a rule (section 138D of the Act (Actions for damages)) or in relation to enforceability of a contract if the general prohibition is breached (sections 26 and 27 of the Act (Enforceability
1An important consideration before an enforcement investigation and/or enforcement action is taken forward is the nature of a firm’s overall relationship with the FCA and whether, against that background, the use of enforcement tools is likely to further the FCA's aims and objectives. So, for any similar set of facts, using enforcement tools will be less likely if a firm has built up over time a strong track record of taking its senior management responsibilities seriously and
1On its web site, the FCA gives2 anonymous examples of where it has decided not to investigate or take enforcement action in relation to a possible rule
breach because of the way in which the firm has conducted itself when putting the matter right. This is part of an article entitled ‘The benefits to firms and individuals of co-operating with the FCA2’. However, in those cases where enforcement action is not taken and/or a formal investigation is not commenced,