Related provisions for GEN 1.1.2
221 - 240 of 592 items.
(1) SUP 10C.12 describes the regime for conditional and time-limited approvals.(2) In particular, SUP 10C.12 sets out the FCA's policies on giving approval under section 59 subject to conditions or for a limited period only, as required by section 63ZD of the Act (Statement of policy relating to conditional approval and variation).(3) (In the case of a PRA-authorised person) the3 policies described in SUP 10C.12 also apply when the FCA is considering whether to give its consent
The provisions in: (1) section 59 of the Act that say a firm should take reasonable care to ensure that no person performs a controlled function without approval (see SUP 10C.10.3G); and(2) section 63A of the Act, under which a person performing a controlled function without approval may be subject to a penalty (see SUP 10C.10.4G);apply not only to the performance of an FCA-designated senior management function by someone who has not been approved to perform that function but
Sections 59 and 63A of the Act show that failure to observe a condition does not in itself necessarily2 invalidate an approval. Instead, both the firm and the SMF manager may be subject to a penalty for breach of the Act. Such a failure may also:(1) involve a breach of FCArules by the firm and a breach by the SMF manager of COCON; and(2) call into question the fitness of the SMF manager.
4The FCA also has measures available to it where it considers it is appropriate to take protective or remedial action. These include: (1) where a firm's continuing ability to meet the threshold conditions or where an approved person's or other individual’s1 fitness and propriety1 are called into question: (a) varying and/or cancelling of permission and the withdrawal of a firm’s authorisation (see chapter 8); and (b) the withdrawal of an individual’s status as an approved person
2Where 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.
2In general, although the legislation governing transfers of engagements involves friendly societies is the Friendly Societies Act 1992, similar issues arise in these transfers as in insurance business transfers under Part VII of the Act and so the regulators would expect firms to be subject to a similar process followed under the Act. Accordingly, firms should usually first discuss the procedural aspects for dealing with friendly society transfers and amalgamations with the PRA.
For an amalgamation the successor society, and for a transfer the transferee, may need to apply for permission, or to vary its permission, under Part 4A2 of the Act. The regulators2 will need sufficient time before a transfer is confirmed2 to consider whether any necessary permission or variation should be given. If the transferee is 1a Swiss general insurance company, then confirmation will be needed from its regulator that it meets relevant1 solvency margin requirements (see
The criteria that the appropriate authority2 must use in determining whether to confirm a proposed amalgamation or transfer are set out in schedule 15 to the Friendly Societies Act 1992. These criteria include that:2(1) confirmation must not be given if the appropriate authority2 considers that:2(a) there is a substantial risk that the successor society or transferee will be unable lawfully to carry out the engagements to be transferred to it;(b) information material to the members'
1The FCA's approach to enforcing the Payment Services Regulations will mirror its general approach to enforcing the Act, as set out in EG 2. It will seek to exercise its enforcement powers in a manner that is transparent, proportionate, responsive to the issue, and consistent with its publicly stated policies. It will also seek to ensure fair treatment when exercising its enforcement powers. Finally, it will aim to change the behaviour of the person who is the subject of its
1The Payment Services Regulations, for the most part, mirror the FCA's investigative, sanctioning and regulatory powers under the Act. The FCA has decided to adopt procedures and policies in relation to the use of those powers akin to those it has under the Act. Key features of the FCA's approach are described below.
1BIPRU 1.3.10 G sets out the appropriate regulator approach to the granting of waivers. The conditions in BIPRU 9.5.1BD are minimum requirements. Satisfaction of those does not automatically mean the appropriate regulator will grant the relevant waiver. The appropriate regulator will in addition also apply the tests in section 138A (Modification or waiver of rules) of the Act.
1In the event that the appropriate regulator decides that the possible reduction in risk weighted exposure amounts which the originatorcredit institution would achieve by the securitisation referred to in BIPRU 9.5.1R (6) is not justified by a commensurate transfer of credit risk to third parties, it will use its powers under section 55J (Variation etc on the Authority's own initiative) of the Act to require the firm to increase its risk weight exposure amount to an amount commensurate
1However, there may be circumstances in which the FCA will choose to use the powers under section 382 or section 383 of the Act to apply to the court for an order for restitution against a firm. Those circumstances may include, for example, where: (1) the FCA wishes to combine an application for an order for restitution with other court action against the firm, for example, where it wishes to apply to the court for an injunction to prevent the firm breaching a relevant requirement11;
1The exceptional circumstances referred to above may arise where the matters under investigation have become the subject of public concern, speculation or rumour. In this case it may be desirable for the FCA to make public the fact of its investigation in order to allay concern, or contain the speculation or rumour. Where the matter in question relates to a takeover bid, the FCA will discuss any announcement beforehand with the Takeover Panel. Any announcement will be subject
1The FCA will not normally publish details of the information found or conclusions reached during its investigations. In many cases, statutory restrictions on the disclosure of information obtained by the FCA in the course of exercising its functions are likely to prevent publication (see section 348 of the Act). In exceptional circumstances, and where it is not prevented from doing so, the FCA may publish details. Circumstances in which it may do so include those where the fact
(1) The Financial Services and Markets Act 2000 (the Act) is the UK legislation under which bodies corporate, partnerships, individuals and unincorporated associations are permitted by the FCA or PRA to carry on various financial activities which are subject to regulation (referred to as regulated activities).(2) The activities which are regulated activities are specified in the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (the Regulated Activities
(1) The Act, and the secondary legislation made under the Act, is complex. Although PERG gives guidance about regulated activities and financial promotions, it does not aim to, nor can it, be exhaustive.(2) References have been made to relevant provisions in the Act or secondary legislation. However, since reproducing an entire statutory provision would sometimes require a lengthy quotation, or considerable further explanation, many provisions of the Act, or secondary legislation
If it appears to the appropriate regulator3 that an auditor of a firm has failed to comply with a duty imposed on him under the Act, it may have the power to and3 may disqualify him under section 345 or 345A, respectively,3 of the Act.1 A list of persons who are disqualified may be found on the FCA's3 website (www.fca.org.uk).3313333
1The FCA anticipates that its powers under the Act will be adequate to address the majority of breaches which it would also be able to enforce under the Enterprise Act and that there will therefore be limited cases in which it would seek to use its powers as an Enterprise Act enforcer. Where the FCA does use its powers under the Enterprise Act, it will have regard to the enforcement guidelines which are published on the CMA’s website.2323www.gov.uk/governmentorganisations
In assessing whether to terminate a relationship with an appointed representative, a firm should have regard to the guidance in SUP 12.6.1-AG and 11be aware that the notification rules in SUP 15 require notification to be made immediately to the FCA if certain events occur. Examples include a matter having a serious regulatory impact or involving an offence or a breach of any requirement imposed by the Act or by regulations or orders made under the Act by the Treasury.
If a contract with an appointed representative is terminated, or if it is amended in a way which gives rise to a requirement to notify under SUP 12.8.1R, a firm must take all reasonable steps to ensure that:(1) if the termination is by the firm, the appointed representative is notified in writing before, or if not possible, immediately on, the termination of the contract and informed that it will no longer be an exempt person for the purpose of the Act because of the contract
However, where there is a market, the FCA does not consider that the test in section 236(3)(b) would be met if the price the investor receives for his investment is wholly dependent on the market rather than specifically on net asset value. In the FCA's view, typical market pricing mechanisms introduce too many uncertainties to be able to form a basis for calculating the value of an investment (linked to net asset value) of the kind contemplated by the satisfaction test. As a
Section 333T of the Act (Funding of action against illegal money lending) requires the Treasury to notify the FCA of the amount of the Treasury’s illegal money lending costs. The FCA must make rules requiring authorised persons, or any specified class of authorised person, to pay to the FCA the specified amounts or amounts calculated in a specified way, with a view to recovering the amounts notified to it by the Treasury.
1This
manual (DEPP) is relevant to firms, approved
persons and other persons,
whether or not they are regulated by the FCA.5 It sets out:5(1) the FCA's5 decision-making procedure for giving statutory
notices. These are warning
notices, decision notices and supervisory notices (DEPP 1.2 to DEPP 5);5(1A) the FCA's decision-making
procedure in cases where the PRA is
required to seek the FCA's consent
before approving an application (a) for Part
4A permission; (b) for the variation
(1) 7In SUP 6 the "relevant regulator" is the regulator to which a firm with a Part 4A permission has made or can make (in accordance with SUP 6) an application to vary or cancel its Part 4A permission or to have imposed on it a new requirement or to vary or cancel any existing requirement (see SUP 6.2.3A G to SUP 6.2.3E G).(2) Where the PRA can only determine an application with the consent of the FCA, the FCA may request further information as if it were the relevant regulator.(3)
This chapter gives guidance to a firm, which is considering appointing an appointed representative, on how the provisions of section 39 of the Act (Exemption of appointed representatives) work. For example, it gives guidance on the conditions that must be satisfied for a person to be appointed as an appointed representative. It also gives guidance to a firm on the implications, for the firm itself, of appointing an appointed representative.
2This chapter also sets out:5(1) guidance about section 39A of the Act, which is relevant to a MiFID investment firm6 that is considering appointing an FCA registered tied agent; and5(2) the FCA’s rules, and guidance on those rules, in relation to the appointment of:5(a) an FCA registered tied agent by a MiFID investment firm6;5(b) a MiFID optional exemption appointed representative; and5(c) a structured deposit appointed representative.5
In cases against individuals, including market abuse cases, the FCA3 may make a prohibition order under section 56 of the Act or withdraw an individual’s approval under section 63 of the Act, as well as impose a financial penalty. Such action by the FCA3 reflects the FCA's3 assessment of the individual’s fitness to perform regulated activity or suitability for a particular role, and does not affect the FCA's3 assessment of the appropriate financial penalty in relation to a breach.
2The FCA3 may withdraw a firm’s authorisation under section 33 of the Act, as well as impose a financial penalty. Such action by the FCA3 does not affect the FCA's3 assessment of the appropriate financial penalty in relation to a breach. However, the fact that the FCA3 has withdrawn a firm’s authorisation, as a result of which the firm may have less earning potential, may be relevant in assessing whether the penalty will cause the firm serious financial hardship.3333
If an approval is limited under MCOB 3A.4.6 R, and an unauthorised personcommunicates the financial promotion to persons not covered by the approval, the unauthorised person may commit an offence under section 21(1) of the Act (Restrictions on financial promotion). A firm giving a limited approval may wish to advise the unauthorised person accordingly.
A firm must not communicate or approve a financial promotion which relates to qualifying credit provided by an overseas person, unless:(1) the financial promotion of qualifying credit makes clear which firm has approved or communicated it and, where relevant, explains:(a) that the rules made under the Act for the protection of customers do not apply;(b) the extent and level to which the compensation scheme will be available or, if the scheme will not be available, a statement
As explained in SUP 8, under section 138A3 of the Act, the appropriate regulator may not grant a waiver to a firm unless it is satisfied that:3(1) compliance by the firm with the rules, or with the rules as modified, would be unduly burdensome or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of any of the appropriate regulator's objectives.33
The conditions relating to the use of an approach listed in BIPRU 1.3.2 G referred to in the relevant chapter of BIPRU are minimum standards. Satisfaction of those conditions does not automatically mean the appropriate regulator will grant a waiver referred to in those paragraphs. The appropriate regulator will in addition also apply the tests in section 138A of the Act.