Related provisions for DEPP 1.2.4E

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DEPP 3.2.11GRP
The RDC has no power under the Act to require persons to attend before it or provide information. It is not a tribunal and will make a decision based on all the relevant information available to it, which may include views of FCA1 staff about the relative quality of witness and other evidence.1
DEPP 3.2.14GRP
If the RDC decides that the FCA1 should give a warning notice4: 1(1) the RDC will settle the wording of the warning notice4and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions;(3) the RDC staff will make appropriate arrangements for the notice to be given; and(4) the RDC staff will make appropriate arrangements for the disclosure of the substantive communications between the RDC
DEPP 3.2.24GRP
If the RDC decides that the FCA1 should give a decision notice4: 1(1) the RDC will settle the wording of the notice which will include a brief summary of the key representations made and how they have been dealt with, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions, including whether the FCA1 is required to give a copy of the notice to a third party; and1(3) the RDC staff
REC 4.8.2GRP
The FCA's4 internal arrangements provide for any of these decisions to be taken at an appropriately senior level.4
REC 4.8.9GRP

3Key steps in the section 298 procedure4

The FCA4 will:

4

Guidance

(1)

give written notice to theRIE4 (or applicant);

4

The notice will state why the FCA4 intends to take the action it proposes to take, and include an invitation to make representations, and the period within which representations should be made (unless subsequently extended by the FCA)4.

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(2)4

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receive representations from the RIE or applicant concerned;4

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The FCA4 will not usually consider oral representations without first receiving written representations from theRIE (or applicant)4. It will normally only hear oral representations from the RIE4 on request.

444

(3)4

4

write promptly to RIE (or applicant)4 who requests the opportunity to make oral representations if it decides not to hear that person's representations;

4

The FCA4 will indicate why it will not hear oral representations and the FCA4 will allow the RIE (or applicant)4 further time to respond.

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(4)4

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have regard to representations made;

(5)4

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(when it has reached its decision) notify the RIE4 (or applicant) concerned in writing.

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REC 4.8.10GRP

7For RAPs, key steps in the regulation 5 procedure

6

The FCA will:

Guidance

(1)

give written notice to the RAP (or applicant);

The notice will state why the FCA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made.

(2)

take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the RAP or of the applicant, as the case may be;

The FCA will also notify persons individually (as far as it considers it reasonably practicable to do so) if it considers that the action it proposes to take would affect them adversely in a way which would be different from its effect on other persons of the same class.

(3)

publish the notice so as to bring it to the attention of other persons likely to be affected;

(4)

receive representations from the RAP or applicant concerned, any member of the RAP or applicant, and any other person who is likely to be affected by the action the FCA proposes to take;

The FCA will not usually consider oral representations without first receiving written representations from the person concerned. It will normally only hear oral representations from the RAP (or applicant) itself or of a person whom it has notified individually, on request.

(5)

write promptly to any person who requests the opportunity to make oral representations if it decides not to hear that person's representations;

The FCA will indicate why it will not hear oral representations and the FCA will allow the person concerned further time to respond.

(6)

have regard to representations made;

(7)

(when it has reached its decision) notify the RAP (or applicant) concerned in writing;

(8)

(if it has decided to give a direction, or revoke or refuse to make a recognition order) take such steps as it considers reasonably practicable to bring its decision to the attention of members of the RAP or applicant and to other persons likely to be affected.

The FCA will usually give notice of its decision to the same persons and in the same manner as it gave notice of its intention to act.
4
EG 19.22.1RP
1The RDC is the FCA's decision maker for some of the decisions under the Payment Services Regulations as set out in DEPP 2 Annex 1G. This builds a layer of separation into the process to help ensure not only that decisions are fair but that they are seen to be fair. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3 3.2
EG 19.22.3RP
1The Payment Service Regulations do not require the FCA to have published procedures to launch criminal prosecutions. However, in these situations the FCA expects that it will normally follow its decision-making procedures for the equivalent decisions under the Act.
EG 19.26.5RP
1The FCA will use the sanctioning powers where it is appropriate to do so and with regard to the relevant factors listed in DEPP 6.2.1G and DEPP 6.4. In determining the appropriate level of financial penalty, the FCA will have regard to the principles set out in DEPP 6.5, DEPP 6.5A, DEPP 6.5B, DEPP 6.5D and DEPP 6.7.
EG 19.26.7RP
1If it is proposing to publish a statement or impose a penalty under the OTC derivatives, CCPs and trade repositories regulation, the FCA's decision maker will be the RDC. The RDC will make its decisions following the procedure set out in DEPP 3.2 or where appropriate, DEPP 3.3.
EG 6.2.4RP
3The decisions on whether to exercise the power to publish information about a warning notice, and if so what information to publish, will (subject to EG 6.2.4AG)4 be taken by the RDC after it has consulted with the persons to whom the warning notice has been given or copied. The procedure the FCA will follow when making these decisions is set out in DEPP 3.
EG 6.2.4ARP
4Where the settlement decision makers decide to issue a warning notice, they shall also take the decision on whether to exercise the power to publish information about a warning notice and if so what information to publish. The settlement decision makers will consult with the persons to whom the warning notice has been given or copied. The FCA expects that the settlement decision makers are unlikely to decide it is appropriate to publish information about a warning notice where
EG 6.2.16RP
3Publishing notices is important to ensure the transparency of FCA decision-making; it informs the public and helps to maximise the deterrent effect of enforcement action. The FCA will upon request review warning notice statements, decision notices, final notices and related press releases that are published on the FCA's website. The FCA will determine at that time whether continued publication is appropriate, or whether notices and publicity should be removed or amended.
DEPP 2.3.1GRP
If a decision maker is asked to decide whether to give a decision notice or second supervisory notice, it will:(1) review the material before it;(2) consider any representations made (whether written, oral or both) and any comments by FCA1 staff or others in respect of those representations;1(3) decide whether to give the notice and the terms of any notice given.
DEPP 2.3.5GRP
Under section 388(3) of the Act, following the giving of a decision notice but before the FCA1 takes action to which the decision notice relates, the FCA1 may give the person concerned a further decision notice relating to different action concerning the same matter. Under section 388(4) of the Act, the FCA1 can only do this if the person receiving the further decision notice gives its consent. In these circumstances the following procedure will apply:111(1) FCA1staff will recommend
DEPP 2.1.4GRP
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
DTR 1.4.5GRP
The decision-making procedures to be followed by the FCA when it:(1) requires the suspension of trading of a financial instrument; or(2) refuses an application by an issuer to lift a suspension of trading of a financial instrument2;are set out in DEPP1.1
EG 19.6.1RP
1The RAO sets out those activities which are regulated for the purposes of the Act. Part V of the RAO also requires the FCA to maintain a register of all those people who are not authorised by the FCA but who carry on insurance distribution2 activities. Under article 95 RAO, the FCA has the power to remove from the register an appointed representative who carries on insurance distribution2 activities if it considers that he is not fit and proper. The FCA will give the person a
SUP 18.4.35GRP
The procedure will be informal. All participants will be expected to speak concisely and avoid repetition. The appropriate authority2 will, as far as practicable, help those who are not professionally represented. Those taking the hearing may question the participants. The sequence of events will normally be broadly:2(1) any preliminary matters (such as the admission of the public or other procedural questions) will be dealt with;(2) the chair of the hearing will introduce the
SUP 18.4.36GRP
The above procedure may be varied according to the circumstances at the hearing, and is intended only as a guide. The hearing may be adjourned if the appropriate authority's2 representatives consider that necessary to enable facts to be checked or additional information to be obtained.2
DEPP 5.1.8CGRP
5Where the proposed settlement is on the basis of a focused resolution agreement, the role of the settlement decision makers shall be as follows:(1) The settlement decision makers will decide whether or not to give a warning notice. (For the avoidance of doubt, the settlement decision makers may meet the relevant FCA staff or the person concerned in accordance with DEPP 5.1.5G and any such meeting shall not affect the settlement decision makers’ ability to decide whether or not
DEPP 5.1.8EGRP
(1) 5The purpose of this section is to define a procedure (the “expedited reference procedure”) enabling a person subject to enforcement action to challenge the proposed action before the Tribunal without engaging with the FCA’s internal decision-making process.(2) DEPP 5.1.8FG to DEPP 5.1.8IG set out the circumstances in which the expedited reference procedure is available, the steps a person must take to make use of the procedure, and how the procedure operates, depending on
SUP 6.3.39GRP
A decision to grant an application will be taken by appropriately experienced staff at the relevant regulator.27 However, if the staff dealing with the application recommend that a firm's application for variation of Part 4A permission27 be either refused or granted subject to limitations or requirements or a narrower description of regulated activities than applied for, the decision will be subject to the regulator's formal decision making process.272727272727
SUP 6.3.40GRP
DEPP9gives guidance on the FCA's27 decision making procedures including the procedures it will follow if it proposes to refuse an application for variation of Part 4A permission or for imposition or variation of a requirement27 either in whole or in part (for example, an application granted by the FCA27 but subject to limitations or requirements not applied for).92727
DEPP 6.2.1GRP
The FCA4 will consider the full circumstances of each case when determining whether or not to take action for a financial penalty or public censure. Set out below is a list of factors that may be relevant for this purpose. The list is not exhaustive: not all of these factors may be applicable in a particular case, and there may be other factors, not listed, that are relevant.4(1) The nature, seriousness and impact of the suspected breach, including:(a) whether the breach was deliberate
DEPP 6.2.13GRP
In deciding whether to take action, the FCA4 will consider the full circumstances of each case. Factors that may be relevant for this purpose include, but are not limited to, the factors at DEPP 6.2.1 G.4
RCB 4.2.3GRP
(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
EG 5.1.5RP
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
DTR 8.5.7GRP
The decision-making procedures that the FCA will follow when it uses its disciplinary powers in relation to a primary information provider are set out in DEPP.
EG 12.1.7RP
1Decisions about whether to initiate criminal proceedings under the Building Societies Act 1986, the Friendly Societies Acts 1974 and 1992, the Credit Unions Act 1979 and the Co-operative and Community Benefit Societies Act 20142 will3 be taken by the executive director of Enforcement or, in his or her absence, the acting executive director of Enforcement3. 2
EG 19.17.3RP
1The FCA's approach to the use of its enforcement powers, and its statement of policy in relation to imposing and determining financial penalties under the RCB Regulations, are set out in RCB 4.2. The FCA's penalty policy includes having regard, where relevant, DEPP 6.5 to DEPP 6.5D and such other specific matters as the likely impact of the penalty on the interests of investors in the relevant bonds. The FCA's statement of procedure in relation to giving warning notices or decision
EG 4.13.2RP
1The FCA recognises that preliminary findings letters serve a very useful purpose in focussing decision making on the contentious issues in the case. This in turn makes for better quality and more efficient decision making. However, there are exceptional circumstances in which the FCA may decide it is not appropriate to send out a preliminary findings letter. This includes: (1) where the subject consents to not receiving a preliminary findings letter; or (2) where it is not practicable