Related provisions for PERG 6.4.3
301 - 320 of 958 items.
(1) Section 55C of the Financial Services Act 2012 (Power to amend Schedule 6) gave HM Treasury the power to amend Schedule 6 of the Act. HM Treasury exercised this power by making The Financial Services and Markets Act 2000 (Threshold Conditions) Order 2013 which entered into force on 1 April 2013 (the "TC Order"). The TC Order's main result is the creation of four sets of threshold conditions, namely:(i) conditions for firms authorised and regulated by the FCA only (paragraphs
(1) As a result of the new legal framework for threshold conditions described in COND 1.1A.1G (1), PRA-authorised persons and firms seeking to become PRA-authorised persons are subject to two sets of threshold conditions:(i) the FCA-specific conditions referred to in COND 1.1A.1G (1)(ii)and(ii) one of the two PRA-specific conditions referred to in COND 1.1A.1G (1)(iii) or (iv), depending on the PRA-regulated activities which the PRA-authorised person or firm carries on, or is
(1) 2The FCAthreshold conditions apply to a person that carries on, or seeks to carry on, only relevant credit activities (within paragraph 2G of Schedule 6 to the Act) and which therefore has, or is applying for, limited permission with a number of modifications (see article 10(19) of the Regulated Activities Amendment Order). Regulated activities a person carries on in relation to which sections 20(1) and (1A) and 23(1A) of the Act do not apply as a result of section 39(1D)
Table: FCA-approved persons forms
Form |
Purpose |
Handbook requirement |
|
the relevant Form A |
311 | Application to perform controlled functions under the approved persons regime |
|
Form B |
Notice to withdraw an application to perform controlled functions under the approved persons regime |
||
Form C |
Notice of ceasing to perform controlled functions |
||
Form D |
Notification of changes in personal information or application details |
||
Form E |
113 | Internal transfer of an approved person |
|
| 5556 | |||
| 5 | |||
Copies of Forms A, B, C, D and E may be obtained from the FCA website. Credit unions can obtain copies from the FCA's Supervision Hub8. To contact the FCA's2 Supervision Hub8 for approved persons enquiries:22(1) telephone 0300 500 0597;2or2(2) e-mail firm.queries@fca.org.uk; or(3) fax 020 7066 0017; or(4) write to:Supervision Hub8The Financial Conduct Authority12 Endeavour Square4London4E20 1JN.4
(1) Firms should note that the list of options to consider set out at MCOB 13.3.4AR(1) is not exhaustive. The FCA would expect firms to be able to justify a decision to offer a particular option.7(2) Firms should take into account that customer circumstances will vary and should therefore:7(a) ensure they employ a sufficient range of options to help customers;7(b) offer to engage with customers through a range of channels, changing the channel if necessary to enable customers
3In the FCA's view, although firms must not automatically capitalise a payment shortfall where the impact would be material, it may be appropriate to agree to capitalise a payment shortfall if:44(1) the firm reasonably considers (taking into account the root cause of the payment shortfall) that the customer can afford the capitalised monthly payments;7(2) other options to repay the payment shortfall more quickly have been considered; and7(3) taking account of the customer’s individual
In relation to adopting a reasonable approach to the time over which the payment shortfall4 or sale shortfall should be repaid,1the FCA takes the view that the determination of a reasonable repayment period will depend upon the individual circumstances. In appropriate cases this will mean that repayments are arranged over the remaining term. 141
Firms that propose to outsource aspects of customer relationships (including collection of debts or any other sums due1) should note that and SYSC 8,2 a firm cannot contract out its regulatory obligations and1 the FCA will continue to hold them responsible for the way in which this work is carried on.11
Neither assisting in the administration nor assisting in the performance of a contract alone will fall within this activity. Generally, an activity will either amount to assisting in the administration or assisting in the performance but not both. Occasionally, however, an activity may amount to both assisting in the administration and performance of a contract of insurance. For example, where a person assists a claimant in filling in a claims form, in the FCA's view this amounts
Put another way, where an intermediary's assistance in filling in a claims form is material to whether performance takes place of the contractual obligation to notify claims, it is more likely to amount to assisting in the administration and performance of a contract of insurance. Conversely, in the FCA's view, a person who merely gives pointers about how to fill in the claims form or merely supplies information in support of a claim will not be assisting in the performance of
More generally, an example of an activity that, in the FCA's view, is likely to amount to assisting a policyholder in both the administration and the performance of a contract of insurance is notifying a claim under a policy and then providing evidence in support of the claim, or helping negotiate its settlement on the policyholder's behalf. Notifying an insurance undertaking of a claim assists the policyholder in discharging his contractual obligation to do so (assisting in the
Where a person receives funds on behalf of a policyholder in settlement of a claim, in the FCA's view, the act of receipt is likely to amount to assisting in the performance of a contract. By giving valid receipt, the person assists the insurance undertaking to discharge its contractual obligation to provide compensation to the policyholder. He may also be assisting the policyholder to discharge any obligations he may have under the contract to provide valid receipt of funds,
2These guidelines concern the following bodies (the agencies): the Financial Conduct Authority (the FCA);the Serious Fraud Office (the SFO);the Department for Business, Innovation and Skills (BIS);the Crown Prosecution Service (the CPS);the Association of Chief Police Officers in England, Wales and Northern Ireland (ACPO);the Crown Office and Procurator Fiscal Service (COPFS);the Public Prosecution Service for Northern Ireland (the PPS);the Association of Chief Police Officers
2The guidelines are intended to assist the agencies when considering cases concerning financial crime and/or regulatory misconduct that are, or may be, of mutual interest to the FCA and one or more of the other agencies. Their implementation and wider points arising from them will be kept under review by the agencies who will liaise regularly.
2The following are indicators of whether action by the FCA or one of the other agencies is more appropriate. They are not listed in any particular order or ranked according to priority. No single feature of the case should be considered in isolation, but rather the whole case should be considered in the round.(a) 2 Tending towards action by the FCAWhere the suspected conduct in question gives rise to concerns regarding market confidence or protection of consumers of services regulated
2The agencies will consider, as necessary, and keep under review whether an investigation has reached the point where it is appropriate to commence proceedings. Where agencies are deciding whether to institute criminal proceedings, they will have regard to the usual codes or guidance relevant to that decision. For example, agencies other than the PPS or COPFS will have regard to the Code for Crown Prosecutors (Note: Different guidance applies to the PPS and COPFS. All criminal
General guidance on the perimeter is also contained in various FCA documents (mainly fact sheets and frequently asked questions) that are available on the FCA website at www.fca.org.uk.These documents, and the URL on which they may be accessed, include:(1) [deleted]612446(2) [deleted]212(3) [deleted](4) [deleted]313(5) [deleted]313(6) [deleted]313(7) guidance about the position under the Insurance Mediation Directive and the Regulated Activities Order of the company appointed
Any person who, having read relevant general guidance and, where appropriate, taken legal advice, remains uncertain about whether his activities amount to regulated activities or his communications will be subject to the restriction in section 21 of the Act, may seek individual guidance from the FCA. Requests for individual guidance should be made in line with SUP 9.
In addition, the FCA has established a team to provide general assistance and guidance to persons generally about the scope of the Act. Enquiries of this kind may be made:(1) by authorised firms, to either the Contact Centre (email firm.queries@fca.org.uk, Tel 0300 500 05977) or their normal supervisory contact; or77(2) by individuals or non-authorised firms, to the Consumer Contact Centre (email ccc@fca.org.uk, Tel 0800 111 6768 ).8
The CUA79 and CU(NI)O85 enable certain2 societies in Great Britain and Northern Ireland to be registered under CCBSA14 and CU(NI)O85 respectively. CUA79 and CU(NI)O85 also make2 provisions in respect of these societies. They give2 the FCA certain powers in addition to the powers that it has under the Act in respect of those credit unions which are authorised persons. The FCA's powers under CUA79, CCBSA14 and CU(NI)O852 include the power to:1(1) require the production of books,
The deterrent effect and impact
on a person of a combination of sanctions3 may
be greater than where only a single sanction3 is imposed. The FCA1 will consider the overall impact and deterrent effect of the
sanctions it imposes when determining the level of any3 penalty and the length
of suspension,3 restriction, condition, limitation or disciplinary prohibition3.212
The FCA1 expects usually to take the following approach in respect of
the interaction between sanctions3:12(1) The FCA1 will determine which sanction, or combination of sanctions, is
appropriate for the breach.1(2) If the FCA1, following the approach set out in DEPP 6.2, considers it appropriate
to impose a financial penalty, it will calculate the appropriate level of
the financial penalty, following the approach set out in DEPP 6.5 to DEPP 6.5D.1(3) If the FCA1, following the
The FCA1 may depart from the approach set out in DEPP 6A.4.2 G.
For example, the FCA1 may
at the outset consider that a financial penalty is the only appropriate sanction
for a breach but, having determined
the appropriate level of financial penalty, may consider it appropriate to
reduce the amount of the financial penalty for serious financial hardship
reasons. In such a situation, the FCA1 may consider it appropriate to impose a suspension, restriction, condition,3 limitation
The FCA1 would not normally seek to gather information using the methods described in SUP 2.3 or SUP 2.4 in a situation where the FCA1 could not have obtained it under the powers in Part XI of the Act (Information Gathering and Investigations). In particular, the limitations in the following sections of the Act are relevant to this chapter:11(1) section 175(5) (Information and documents: supplementary powers) under which no person may be required under Part XI of the Act (Information
When the FCA1 obtains confidential information using the methods of information gathering described in SUP 2.3 or SUP 2.4, it is obliged under Part XXIII of the Act (Public Record, Disclosure of Information and Co-operation) to treat that information as confidential. The FCA1 will not disclose confidential information without lawful authority, for example if an exception applies under the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations
Within the legal constraints that apply, the FCA1 may pass on to a skilled person any information which it considers relevant to the skilled person's function. A skilled person, being a primary recipient under section 348 of the Act (Restrictions on disclosure of confidential information by Authority etc.), is bound by the confidentiality provisions in Part XXIII of the Act (Public record, disclosure of information and cooperation) as regards confidential information received1
2In respect of the appointment of a skilled person under section 166A (Appointment of skilled person to collect and update information) of the Act, a contractual or other requirement imposed on a person to keep any information confidential will not apply if:(1) the information is or may be relevant to anything required to be done as part of the skilled person's appointment under section 166A (Appointment of skilled person to collect and update information) of the Act;(2) a firm
2A firm may provide information that would otherwise be subject to a contractual or other requirement to keep it in confidence if it is provided for the purposes of anything required to be done in respect of the skilled person's collection or updating of information under section 166A (Appointment of skilled person to collect and update information) of the Act.
A domestic UCITS merger between two or more UCITS schemes6 is permissible provided:(1) it is effected in accordance with the requirements of:(a) the UCITS Regulations 2011, which include the need for the FCA to have made a prior order approving the proposed merger (which may be made subject to (2)); and(b) this chapter; and (2) in the case of a UCITS scheme that is:(a) a merging UCITS6, an extraordinary resolution is approved by unitholders in accordance with COLL 7.6.2 R (3)
(1) The requirements and the process which must be followed to give effect to a proposal for a domestic UCITS merger are in6 Part 4 of the UCITS Regulations 2011. The main features of the regime as set out in those provisions include:(a) the merger must be a domestic UCITS merger which takes the form of a scheme of arrangement;6(b) the need for the FCA to give prior approval to the proposed merger under regulation 9 (Application for authorisation) of the UCITS Regulations 2011;6(c)
(1) The authorised fund manager of a UCITS scheme that is a merging UCITS or a receiving UCITS in a proposed UCITS merger must ensure that a document containing appropriate and accurate information on the merger is provided to the unitholders of that scheme so as to enable them to:(a) make an informed judgment about the impact of the proposal on their investment;(b) exercise their rights under regulation 12 (Right of redemption) of the UCITS Regulations 2011; and(c) where applicable,
(1) In a domestic UCITS merger, the effective date of the merger will be the date specified by the FCA in its order authorising the proposed merger in accordance with regulation 9 of the UCITS Regulations 2011.(2) [deleted]6(3) For the receiving UCITS in a domestic UCITS merger6:(a) the date for calculating the exchange ratio of units of the merging UCITS into units of the receiving UCITS and, where applicable, for determining the relevant net asset value for cash will be the
The FCA5 recognises that there may be occasions when, because of a particular emergency, a person (generally a firm, but in certain circumstances, for example in relation to price stabilising rules, an unauthorised person) may be unable to comply with a particular rule in the Handbook. The purpose of GEN 1.3.2 R is to provide appropriate relief from the consequences of contravention of such a rule in those circumstances.1993
(1) If any emergency arises which:(a) makes it impracticable for a person to comply with a particular rule in the Handbook; (b) could not have been avoided by the person taking all reasonable steps; and(c) is outside the control of the person, its associates and agents (and of its and their employees);the person will not be in contravention of that rule to the extent that, in consequence of the emergency, compliance with that rule is impracticable. (2) Paragraph (1) applies only
GEN 1.3.2 R operates on the FCA's5rules. It does not affect the FCA's5 powers to take action against a firm in an emergency, based on contravention of other requirements and standards under the regulatory system. For example, the FCA5 may exercise its own-initiative power in appropriate cases to vary a firm'sPart 4A permission9 based on a failure or potential failure to satisfy the threshold conditions (see SUP 7 (Individual9 requirements) and EG 8 (Variation and cancellation
(1) A firm must monitor the transactions made by clients using the service to identify:
(a) infringements of the rules of the trading venue; or
(b) disorderly trading conditions; or
(c) conduct which may involve market abuse and which is to be reported to the FCA.(2) A firm must have a binding written agreement with each client which:
(a) details the essential rights and obligations of both parties arising from the provision of the service; and
(b) states that the firm is responsible
A firm must provide the following, at the FCA’s request, within 14 days from receipt of the request:
(1) a description of the systems mentioned in MAR 7A.4.2R(1);
(2) evidence that those systems have been applied; and
(3) information stored in accordance with MAR 7A.4.6R.[Note: article 17(5) of MiFID]
1Where the FCA believes that a company or partnership to which sections 359(1) and 367(1) of the Act applies is, or is likely to become, unable to pay its debts, the FCA will consider whether it is appropriate to seek an administration order or a compulsory winding up order from the court. The FCA's approach will be in two stages: the first is to consider whether it is appropriate to seek any insolvency order; the second is to consider which insolvency order will meet, or is likely
1In determining whether it is appropriate to seek an insolvency order on this basis, the FCA will consider the facts of each case including, where relevant: (1) whether the company or partnership has taken or is taking steps to deal with its insolvency, including petitioning for its own administration, placing itself in voluntary winding up or proposing to enter into a company voluntary arrangement, and the effectiveness of those steps; (2) whether any consumer or other creditor
1After the FCA has determined that it is appropriate to seek an insolvency order, and there is no moratorium in place under Schedule A1 to the Insolvency Act 1986 (as amended by the Insolvency Act 2000) (hereafter referred to in this chapter as 'the 1986 Act'), it will consider whether this order should be an administration order or a compulsory winding up order.
Principle 4 requires a firm to maintain adequate financial resources. GENPRU 2 sets out provisions that deal specifically with the adequacy of that part of a firm's financial resources that consists of capital resources. The adequacy of a firm'scapital resources needs to be assessed both by that firm and the appropriate regulator. Through its rules, the FCA14 sets minimum capital resources requirements for firms. It also reviews a firm's own assessment of its capital needs,
For the purposes of GENPRU 2.1.9 R, a firm should have systems in place to enable it to be certain whether it has adequate capital resources to comply with14 the main BIPRU firm Pillar 1 rules14 at all times. This does not necessarily mean that a firm needs to measure the precise amount of its capital resources and its CRR on a daily basis. A firm should, however, be able to demonstrate the adequacy of its capital resources at any particular time if asked to do so by the FCA1
The FCA5 expects to maintain a close working relationship with certain
types of firm and expects that
routine supervisory matters arising can be resolved during the normal course
of this relationship by, for example, issuing individual guidance where
appropriate (see SUP 9.3). However,
where the FCA deems it appropriate,
it will exercise its own-initiative powers:55(1) in
circumstances where it considers it appropriate for the firm to
be subject to a formal requirement,
breach
The FCA 5 may also5 seek to exercise its own-initiative
powers in certain situations,5 including
the following:55(1) If
the FCA5 determines
that a firm's management, business
or internal controls give rise
to material risks that are not fully addressed by existing requirements,
the FCA5may
seek to use its own-initiative
powers.555(2) If
a firm becomes or is to become
involved with new products or selling practices which present risks not adequately
addressed by existing requirements,
Pursuant
to sections 55L, 55N, 55O, 55P and 55Q of the Act,
within the scope of its functions and powers, the FCA5may seek to impose requirements which
include but are not restricted to:55(1) requiring
a firm to submit regular reports
covering, for example, trading results, management accounts, customer complaints, connected party transactions;(2) where
appropriate, 5requiring a firm to
maintain prudential limits, for example on large exposures,
foreign currency exposures or
liquidity
The FCA5 will seek to give a firm reasonable
notice of an intent to vary its permission or impose a requirement5 and, except when exercising its additional own-initiative variation power,6 to agree with the firm an
appropriate timescale. However, if the FCA5 considers
that a delay may create a risk to any of the FCA's statutory objectives5,3 the FCA5 may need to act immediately using its powers under section 55J and/or 55L5 of the Act5 with
immediate effect.5535555
The purpose of this section is to direct CBTL firms in relation to:the information that they must provide to the FCA on their CBTL business and their compliance with requirements imposed by Schedule 2 to the MCD Order; andthe time at which, and the manner and form in which, they must provide that information.[Note: article 18(1)(c) of the MCD Order]
(1) A CBTL firm must submit a duly completed consumer buy-to-let return to the FCA.(2) The return referred to in (1) must be submitted:(a) in the format set out in SUP 16 Annex 39AD; guidance notes for the completion of the return are set out in SUP 16 Annex 39BG;(b) online through the appropriate systems accessible from the FCA’s website; and(c) within 30 business days following the end of the reporting period.(3) The reporting period is the four calendar quarters beginning on
1The FCA recognises that the use of its powers to disqualify auditors and actuaries will have serious consequences for the auditors or actuaries concerned and their clients; it will therefore exercise its power to impose a disqualification in a way that is proportionate to the particular breach of duty concerned. The FCA will consider the seriousness of the breach of duty when deciding whether to exercise its power to disqualify and the scope of any disqualification.
1Actuaries appointed by firms under rule 4.3.1 of the FCA's Supervision Manual are approved persons and as such will be subject to APER or COCON, as applicable2. When deciding whether to exercise its power to disqualify an actuary who is an approved person, the FCA will consider whether the particular breach of duty can be adequately addressed by the exercise of its disciplinary powers in relation to approved persons.
1In cases where the nature of the breach of duties imposed on the auditors and actuaries under the Act (and/or in the case of actuaries imposed by trust scheme
rules or contractual scheme rules) is such that the FCA has concerns about the fitness and propriety of an individual auditor or actuary, the FCA will consider whether it is appropriate to make a prohibition order instead of, or in addition to, disqualifying the individual.
A firm wishing to include a qualifying subordinated loan in its calculation of liquid capital must:(a) provide the FCA with a copy of the agreement not less than 10 business days before the loan is to be made; and(b) certify to the FCA that the loan agreement complies with the FCA'sprescribed subordinated loan agreement.
(1) 6A must be capable of being effectively supervised by the FCA having regard to all the circumstances including-(a) the nature (including the complexity) of the regulated activities that A carries on or seeks to carry on;(b) the complexity of any products that A provides or will provide in carrying on those activities;(c) the way in which A’s business is organised;(d) if A is a member of a group, whether membership of the group is likely to prevent the FCA’s effective supervision
(1) 6B must be capable of being effectively supervised by the FCA having regard to all the circumstances including-(a) the nature (including the complexity) of the regulated activities that B carries on or seeks to carry on;(b) the complexity of any products that B provides or will provide in carrying on those activities;(c) the way in which B’s business is organised;(d) if B is a member of a group, whether membership of the group is likely to prevent the FCA’s effective supervision
6The guidance in COND 2.3 should be read as applying to both paragraph 2C of Schedule 6 of the Act and, as far as relevant to the discharge by the FCA of its functions under the Act in respect of firms carrying on, or seeking to carry on, a PRA-regulated activity, paragraph 3B of Schedule 6 of the Act.
In assessing the threshold conditions set out in paragraphs 2C and 3B of Schedule 6 to the Act6, factors which the FCA6 will take into consideration include, among other things, whether: 6(1) it is likely that the FCA6 will receive adequate information from the firm, and those persons with whom the firm has close links, to enable it to determine whether the firm is complying with the requirements and standards under the regulatory system for which the FCA is responsible6 and to