Related provisions for PERG 8.3.4
161 - 180 of 958 items.
Energy market participants should bear in mind that3sections 138A and 138B of the Act requires that in order to give a waiver of particular rules, the FCA4 must be satisfied that:4344(1) compliance with the rules, or with the rules as unmodified, 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 FCA's operational objectives.44
In particular, clause 4 of the form of waiver in SUP 21 Annex 1 will not ordinarily be inserted in waivers for energy market participants that will not, at the time the waiver will take effect, clearly satisfy the conditions set out in that clause. For these purposes the FCA will take into account the relative proportions of the energy market participant's assets and revenues that are referable to the various parts of its business, as well as to any other factor that the FCA considers
1When determining whether to take action to impose a penalty or to issue a public censure in relation to the contraventions of a CCA Requirement, the FCA's policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. When determining the level of financial penalty, the FCA's policy includes having regard to relevant principles and factors in DEPP 6.5 to DEPP 6.5B, DEPP 6.5D and DEPP 6.7.
1When determining whether to take action to impose a suspension or restriction in relation to the contraventions of CCA Requirements, the FCA's policy includes having regard to the relevant factors in DEPP 6A.2 and DEPP 6A.4. When determining the length of the period of suspension or restriction, the FCA's policy includes having regard to relevant principles and factors in DEPP 6A.3.
1The FCA considers that in general, the earlier settlement discussions can take place the better this is likely to be from a public interest perspective. However, the FCA will only engage in such discussions once it has a sufficient understanding of the nature and gravity of the suspected misconduct or issue to make a reasonable assessment of the appropriate outcome. At the other end of the spectrum, the FCA expects that settlement discussions following a decision notice or second
1In the interests of efficiency and effectiveness, the FCA will set clear and challenging timetables for settlement discussions to ensure that they result in a prompt outcome and do not divert resources unnecessarily from progressing a case through the formal process. To this end, the FCA will aim to organise its resources so that the preparation for the formal process continues in parallel with any settlement discussions. The FCA will expect firms and others to give it all reasonable
The decision maker will:(1) consider whether the material on which the recommendation is based is adequate to support it; the decision maker may seek additional information about or clarification of the recommendation, which may necessitate additional work by the relevant FCA2 staff;2(2) satisfy itself that the action recommended is appropriate in all the circumstances;(3) decide whether to give the notice and the terms of any notice given.
1In using its powers to seek insolvency orders the FCA takes full account of: the principle adopted by the courts that recourse to insolvency regimes is a step to be taken for the benefit of creditors as a whole; and the fact that the court will have regard to the public interest when considering whether to wind up a body on the grounds that it is just and equitable to do so.
1The FCA will consider the facts of each particular case when it decides whether to use its powers and exercise its rights. The FCA will also consider the other powers available to it under the Act and to consumers under the Act and other legislation, and the extent to which the use of those other powers meets the needs of consumers as a whole and the FCA'sstatutory objectives. The FCA may use its powers to seek insolvency orders in conjunction with its other powers, including
1The FCA wishes to encourage firms to exercise judgement about, and take responsibility for, what the Principles mean for them in terms of how they conduct their business. But we also recognise the importance of an environment in which firms understand what is expected of them. So we have indicated that firms must be able reasonably to predict, at the time of the action concerned, whether the conduct would breach the Principles. This has sometimes been described as the “reasonable
1To determine whether there has been a failure to comply with a Principle, the standards we will apply are those required by the Principles at the time the conduct took place. The FCA will not apply later, higher standards to behaviour when deciding whether to take enforcement action for a breach of the Principles. Importantly, however, where conduct falls below expected standards the FCA considers that it is legitimate for consequences to follow, even if the conduct is widespread
If a certificate is granted then, until it is revoked, it is conclusive evidence that the exclusion under article 54 of the Regulated Activities Order applies. A person to whom a certificate is given should notify the FCA of any significant changes to the purpose or nature of the content of the relevant publication or service. The FCA will need to keep the content of the publication or service in question under review.
The FCA may revoke a certificate at the request of its holder or on the FCA's own initiative if the FCA considers that it is no longer justified. If the FCA revokes a certificate on its own initiative, it would normally expect to give advance notice to the holder of the certificate together with a statement of the reasons for the proposed revocation, and give the holder of the certificate an opportunity to make representations. Where a certificate is revoked, the holder of the
The fact of a person holding a certificate granted under article 54(3) is information which may be of relevance to other persons (including investors or potential investors). For this reason, the FCA considers it appropriate that details of certificates granted under article 54(3) should be included in a list on the public record which the FCA is required to maintain under section 347 of the Act (The record of authorised persons, etc).
(1) When deciding whether to take enforcement
action under Part 7 of the RCB Regulations,
and what form that enforcement action should take, the FCA will consider all relevant factors,
including:(a) the relevant factors on decisions to take action set out in DEPP 6.2.1 G;(b) whether any contractual or other arrangements agreed between the
parties can be used effectively to address any perceived failure under the RCB Regulations; and(c) the interests of investors in the relevant
When considering whether to impose
a financial penalty, the amount of penalty, and whether to impose the penalty
on the issuer or the owner, the FCA will have regard, where relevant,1 to:(1) the statement on determining the appropriate level of a financial
penalty set out 1in DEPP 6.5 to DEPP 6.5D1;(2) the particular arrangements between the issuer and
the owner; (3) the likely impact of the penalty on the interests of investors
in a regulated covered bond;
and(4) the conduct
(1) The FCA may dispense with, or modify, a requirement in DTR 8 in such cases and by reference to such circumstances as it considers appropriate (subject to the Act).(2) A dispensation or modification may be either unconditional or subject to specified conditions.(3) If a primary information provider or a person that is applying for approval as a primary information provider has applied for, or been granted, a dispensation or modification, it must notify the FCA immediately it
(1) An application to the FCA to dispense with or modify a requirement in DTR 8 must be in writing.(2) The application must:(a) contain a clear explanation of why the dispensation or modification is requested;(b) include details of any special requirements, for example, the date by which the dispensation or modification is required;(c) contain all relevant information that should reasonably be brought to the FCA's attention;(d) contain any statement or information that is required
A primary information provider or a person applying for approval as a primary information provider must consult with the FCA at the earliest possible stage if they:(1) are in doubt about how a requirement in DTR 8 applies in a particular situation; or(2) consider that it may be necessary for the FCA to dispense with or modify a requirement in DTR 8.
Where a requirement in DTR 8 refers to consultation with the FCA, submissions must be made in writing other than in circumstances of exceptional urgency.Address for correspondenceNote: The FCA's address for correspondence in relation to DTR 8 is:Primary Market Monitoring2Enforcement and Market Oversight Division2The Financial Conduct Authority212 Endeavour Square2London, E20 1JN2https://www.fca.org.uk/markets/primary-markets/contact/request-individual-guidance211
(1) The5 exclusion for groups and joint enterprises in article 69 of the Regulated Activities Order (Groups and joint enterprises) does not apply to transactions relating to contracts of insurance. This will affect5 a company providing services for:(a) other members of its group; or(b) other participants in a joint enterprise of which it is a participant.(2) Such companies might typically provide risk or treasury management or administration services which may include regulated
Article 67 excludes from the activities of dealing as agent, arranging (bringing about) deals in investments, making arrangements with a view to transactions in investments, assisting in the administration and performance of a contract of insurance and advising on investments, any activity which:(1) is carried on in the course of carrying on any profession or business which does not otherwise consist of the carrying on of regulated activities in the United Kingdom; and(2) may
Article 67 may also apply to activities relating to assignments of insurance policies, as, in the FCA'sview, article 2.1(1) of the IDD5 applies essentially to the creation of new contracts of insurance and not the assignment of rights under existing policies. As such, where a solicitor or licensed conveyancer arranges an assignment of a contract of insurance, the exclusion in article 67 remains of potential application. For similar reasons, trustees advising on or arranging assignments
Article 72B (see also PERG 5.3.7 G (Connected contracts of insurance)) may be of relevance to persons who supply non-motor goods or services5 or provide services related to travel in the course of carrying on a profession or business which does not otherwise consist of carrying on regulated activities. In the FCA's view, the fact that a person may carry on regulated activities in the course of the carrying on of a profession or business does not, of itself, mean that the profession
In the FCA's view, the liability risks referred to in PERG 5.11.13G (5) cover risks in relation to liabilities that the policyholder might have to others (that is, third party claims). Many policies will provide this sort of cover and so fall outside the scope of the exclusion. For example, a policy that covers the cost of unauthorised calls made when a mobile telephone is stolen includes 'liability risks' and would not be a 'connected contract of insurance'. By contrast, travel
SYSC 22 (Regulatory references) says that if1 a firm (A):3(1) is considering appointing a person (P)1 to perform any1controlled function or certain other functions1;311(2) requests a reference from a firm (B) that is P’s1 current or former employer1; and31(3) indicates to B the purpose of the request;3B should1, as soon as reasonably practicable, give a reference1 to A13
(1) The obligations to supply information to:(a) the FCA under this chapter;(b) [deleted]1apply notwithstanding any:(c) agreement (for example a 'COT 3' Agreement settled by the Advisory, Conciliation and Arbitration Service (ACAS)); or(d) any other arrangements entered into by a firm and an employee upon termination of the employee’s employment.(2) A firm should not enter into any such arrangements or agreements that could conflict with its obligations under this chapter.
(1) The effect of section 59 of the Act is that if a person is to perform certain functions (which are known as controlled functions) for a credit union, the credit union should first apply for approval to:2(a) the FCA (if the controlled function is specified by the FCA in its rules); or2(b) the PRA (if the controlled function is specified by the PRA in its rules).2(2) The firm should not allow the person to perform that function until the firm receives the approval.2(3) A person
(1) The controlled functions specified by the FCA for credit unions and other SMCR firms3 can be found in the table in SUP 10C.4.3R.2 The table in SUP 10C Annex 1 3.2R sets out which of them apply to credit unions.311(2) The controlled functions specified by the PRA for credit unions and other SMCR firms3 can be found in the PRA’s Rulebook. They are not summarised in the Handbook.2
2(1) The FCA and the PRA have specified different functions.2(2) Sometimes a person’s job description means that they are performing an FCA controlled function and a PRA controlled function at the same time for the same firm. SUP 10C.9 has arrangements that reduce the need for the same person to be approved by both the FCA and the PRA.2
2As well as listing the FCA’sdesignated senior management functions for credit unions and other SMCR firms3, SUP 10C has other requirements about SMF managers:(1) SUP 10C sets out the procedures for applying for, granting, removing and varying approval as an SMF manager.(2) SUP 10C requires firms to give various types of reports to the FCA about their SMF managers.(3) SUP 10C explains that each firm must prepare a statement of responsibilities for each of its SMF managers. A statement
1The FCA resolves many enforcement cases by settlement. Early settlement has many potential advantages as it can result, for example, in consumers obtaining compensation earlier than would otherwise be the case, the saving of FCA and industry resources, messages getting out to the market sooner and a public perception of timely and effective action. The FCA therefore considers it is in the public interest for matters to settle, and settle early, if possible.
1The possibility of settlement does not, however, change the fact that enforcement action is one of the tools available to the FCA to secure our statutory objectives. The FCA seeks to change the behaviour not only of those subject to the immediate action, but also of others who will be alerted to our concerns in a particular area. There is no distinction here between action taken following agreement with the subject of the enforcement action and action resisted by a firm before
1Settlements in the FCA context are not the same as ‘out of court’ settlements in the commercial context. An FCA settlement is a regulatory decision, taken by the FCA, the terms of which are accepted by the firm or individual concerned. So, when agreeing the terms of a settlement, the FCA will carefully consider its statutory objectives and other relevant matters such as the importance of sending clear, consistent messages through enforcement action, and will only settle in appropriate
1In recognition of the value of early settlement, the FCA operates a scheme to award a discount2 for early settlement of cases involving financial penalties, suspensions, restrictions and disciplinary prohibitions2. Details of the scheme, which applies only to settlement of cases where investigators were appointed on or after 20 October 2005, are set out in DEPP 6.7. This chapter provides some commentary on certain practical aspects of the operation of the scheme.
Some decisions2 on settlements and statutory notices arising from them are taken by two members of the FCA's senior management, rather than by the RDC (DEPP refers to these individuals as the 'settlement decision makers'). Full details of the special decision making arrangements for settlements are set out in DEPP 5. 1