Related provisions for CONC 11.2.4

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COBS 6.2A.1BGRP
7P2P agreements are not retail investment products. This section does not apply to a firm when it is advising on P2P agreements.
COBS 6.2A.3RRP
(1) A firm must not hold itself out to a retail client as acting independently unless the only personal recommendations in relation to retail investment products it offers to that retail client are:(a) based on a comprehensive and fair analysis of the relevant market; and(b) unbiased and unrestricted.(2) Paragraph (1) does not apply to group personal pension schemes if a firm discloses information to a client in accordance with the rule on group personal pension schemes (COBS
COBS 6.2A.4GRP
(1) A firm that provides both independent advice and restricted advice should not hold itself out as acting independently for its business as a whole. 6(1A) 6A firm that offers an unlimited range of regulated mortgage contracts, or gives advice in relation to contracts of insurance on the basis of a fair analysis, but offers restricted advice on retail investment products should not hold itself out as acting independently for its business as a whole, for example by holding itself
COBS 6.2A.4ARRP
5In complying with COBS 6.2A.3 R, a firm which: (1) holds itself out to a retail client as acting independently; and(2) relies upon a single platform service to facilitate the majority of its personal recommendations in relation to retail investment products;must take reasonable steps to ensure that, as appropriate, the platform service provider bases its selection of retail investment products on a comprehensive, fair and unbiased analysis of the relevant market.
COBS 6.2A.4BGRP
5When a firm considers whether a platform service provider's selection of retail investment products is based on an unbiased analysis of the relevant market, a firm should take into account any fees, commission or non-monetary benefits the platform service provider receives in relation to those retail investment products.
COBS 6.2A.5RRP
A firm must disclose in writing to a retail client, in good time before the provision of its services in respect of a personal recommendation or basic advice in relation a retail investment product, whether its advice will be:(1) independent advice; or(2) restricted advice.
COBS 6.2A.6RRP
(1) A firm must include the term “independent advice” or “restricted advice” or both, as relevant, in the disclosure.(2) If a firm provides independent advice in respect of a relevant market that does not include all retail investment products, a firm must include in the disclosure an explanation of that market, including the types of retail investment products which constitute that market.(3) If a firm provides restricted advice, its disclosure must explain the nature of the
COBS 6.2A.7RRP
A firm must provide the disclosure information required by the rule on describing the breadth of a firm's advice service (COBS 6.2A.5 R) in a durable medium or through a website (if it does not constitute a durable medium) provided the website conditions are satisfied.
COBS 6.2A.8GRP
A firm may meet the disclosure requirements in the rule on describing the breadth of a firm's advice service (COBS 6.2A.5 R) and the rule on content and wording of disclosure (COBS 6.2A.6R) by using a services and costs disclosure document or a combined initial disclosure document (COBS 6.3 and COBS 6 Annex 1G or COBS 6 Annex 2).
COBS 6.2A.9RRP
If a firm provides restricted advice and engages in spoken interaction with the retail client, a firm must disclose orally in good time before the provision of its services in respect of a personal recommendation that it provides restricted advice and the nature of that restriction.
COBS 6.2A.11GRP
A relevant market should comprise all retail investment products which are capable of meeting the investment needs and objectives of a retail client.
COBS 6.2A.12GRP
A relevant market can be limited by the investment needs and objectives of the retail client. For example, ethical and socially responsible investments or Islamic financial products could both be relevant markets. However, a firm would be expected to consider all retail investment products within those investment parameters.
COBS 6.2A.13GRP
For a firm not specialising in a particular market, the relevant market will generally include all retail investment products.
COBS 6.2A.14GRP
A personal recommendation on a retail investment product that invests in a number of underlying investments would not of itself meet the requirements for providing unbiased and unrestricted advice even if the retail investment product invests in a wide range of underlying investments.
COBS 6.2A.15GRP
In order to satisfy the rule on firms holding themselves out as independent (COBS 6.2A.3 R) a firm should ensure that it is not bound by any form of agreement with a retail investment product provider that restricts the personal recommendation the firm can provide or imposes any obligation that may limit the firm's ability to provide a personal recommendation which is unbiased and unrestricted.
COBS 6.2A.16GRP
A firm may be owned by, or own in whole or part, or be financed by or provide finance to, a retail investment product provider without contravening the ‘unbiased, unrestricted’ requirement provided the firm ensures that that ownership or finance does not prevent the firm from providing a personal recommendation which is unbiased and unrestricted.
COBS 6.2A.17GRP
In providing unrestricted advice a firm should consider relevant financial products other than retail investment products which are capable of meeting the investment needs and objectives of a retail client, examples of which could include national savings and investments products and cash deposit ISAs.
COBS 6.2A.18GRP
A firm may provide a personal recommendation on a comprehensive and fair analysis basis required by the rule on firms holding themselves out as independent (COBS 6.2A.3 R) by using ‘panels’. A firm would need to ensure that any panel is sufficiently broad in its composition to enable the firm to make personal recommendations based on a comprehensive and fair analysis, is reviewed regularly, and that the use of the panel does not materially disadvantage any retail client.
COBS 6.2A.19GRP
When using a panel a firm may exclude a certain type or class of retail investment product from the panel if, after review, there is a valid reason consistent with the client's best interests rule, for doing so.
COBS 6.2A.20GRP
If a firm chooses to use a third party to conduct a fair and comprehensive analysis of its relevant market, the firm is responsible for ensuring the criteria used by the third party are sufficient to meet the requirement. For example, criteria which selected retail investment product providers on the basis of payment of a fee (or facilitation of adviser charges), whilst excluding those not paying a fee (or such a facilitation) would not meet the comprehensive and fair analysis
COBS 6.2A.21GRP
Firms are reminded of the general record keeping requirements in SYSC 3.2 and SYSC 9. A firm should keep appropriate records of the disclosures required by this section.
COBS 6.2A.22GRP
(1) Firms are reminded of the systems and controls requirements in SYSC.(2) A firm providing restricted advice should take reasonable care to establish and maintain appropriate systems and controls to ensure that if there is no retail investment product in the firm's range of products which meets the investment needs and objectives of the retail client, no personal recommendation should be made.(3) A firm specialising in a relevant market should take reasonable care to establish
COBS 6.1B.1RRP
(1) 1This section applies to:24(a) a firm which is a retail investment product provider; 114(b) in relation to COBS 6.1B.9 R, COBS 6.1B.10 G and COBS 6.1B.11 G, a platform service provider; 11and4(c) 11a firm which is an operator of an electronic system in relation to lending; in circumstances where a retail client receives a personal recommendation in relation to a retail investment product or P2P agreement11 and also where a retail investment product transaction is executed
COBS 6.1B.2RRP
This section does not apply to a firm when a retail client receives basic advice in accordance with the basic advicerules.
COBS 6.1B.5ARRP
5A firm and its associates may:(1) offer and pay a commission, remuneration or benefit of any kind in the circumstances set out in COBS 6.1B.5 R if:(a) the personal recommendation was made on or before 30 December 2012;(b) the offer and payment was permitted by the rules in force on 30 December 2012;(c) the contract under which the right to receive the commission, remuneration or benefit of any kind was entered into on or before 30 December 2012; (d) the terms of that contract
COBS 6.1B.7ARRP
10A retail investment product provider may maintain retail investment product charges at a level such that a cash rebate is payable to the retail client if:(1) the retail investment product transaction was agreed on or before 5 April 2014 and executed within a reasonable time of that agreement; and (2) the retail client's right to receive the cash rebate arose on or before 5 April 2014; and(3) on or after 6 April 2014 no change is made to that product, or, where there is such
COBS 6.1B.7BGRP
10In the FCA's view, if the platform service provider retained any part of a rebate on or before 5 April 2014, the retail client is unlikely to have had a right to receive that part of the rebate.
COBS 6.1B.7CGRP
10The following examples do not entail changes to the retail investment product: (1) no change is made to the retail client's investment in the relevant product or to the level of the retail client's regular contributions into that product;(2) the retail client's investment in, or regular contribution to, the relevant product is reduced: the retail investment product provider may continue to pay the cash rebate associated with the reduced investment amount;(3) the retail client's
COBS 6.1B.9BGRP
6A firm may facilitate the payment of adviser charges for the purposes of COBS 6.1B.9 R by:(1) selling all or part of the retail client'sretail investment product to pay the adviser charge; or(2) disposing of or reducing all or part of the retail client's rights under the retail investment product (for example, by way of a part disposal which creates benefits under a life policy) to pay the adviser charge; or(3) separating out an amount or amounts for the payment of the adviser
COBS 6.1B.11GRP
COBS 6.1B.9R(3) does not prevent a firm, if this is in the retail client's best interests, from entering into an agreement with another firm which is providing a personal recommendation to a retail client, or with a retail client of such a firm, to provide it with credit separately in accordance with the rules on providing credit and other benefits to firms that advise on retail investment products or P2P agreements11(COBS 2.3.12 E and COBS 2.3.12A G).
CONC 7.19.1RRP
This section applies to a firm with respect to operating an electronic system in relation to lending in relation to a borrower under a P2P agreement.
CONC 7.19.2RRP
(1) Subject to (2), this section does not apply where the P2P agreement provides for credit of less than £50.(2) Paragraph (1) does not apply where two or more P2P agreements in relation to the same borrower (but whether or not with the same lender) are entered into at or about the same time.(3) Where (2) applies, the firm's obligation in CONC 7.19.4 R applies as if all of the P2P agreements made with a borrower at or about the same time were a single agreement.
CONC 7.19.3RRP
(1) In this section "default sum" means in relation to the borrower under a P2P agreement, a sum (other than a sum of interest) which is payable by the borrower under the agreement in connection with a breach of the agreement by the borrower.(2) But a sum is not a default sum in relation to the borrower simply because as a consequence of the breach of the agreement the borrower is required to pay the sum earlier than would otherwise have been the case.
CONC 7.19.4RRP
Where a default sum becomes payable under a P2P agreement by the borrower, the firm must give notice to the borrower within 35 days of a default sum becoming payable by the borrower.
COBS 6.1A.1RRP
(1) 1This section applies to a firm which makespersonal recommendations to retail clients in relation to retail investment products12or P2P agreements.1111(2) This section does not apply to a firm giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme.2
COBS 6.1A.1AGRP
8Guidance on the regulated activity12of advising in relation to a new or existing investment can be found in PERG 8.24 to PERG 8.29. Although the guidance in PERG 8.29.7 G relates to advising on investments (except P2P agreements)12under article 53(1) 12of the Regulated Activities Order, exactly the same answers apply to a personal recommendation because the examples given relate to the relationship between a firm and a particular client and advice given to that specific client.
COBS 6.1A.6RRP
7‘Related service(s)’ for the purposes of COBS 6.1A includes:(1) arranging or executing a transaction which has been recommended to a retail client by the firm, an associate or another firm in the same group or conducting administrative tasks associated with that transaction; or(2) managing a relationship between a retail client (to whom the firm provides personal recommendations on retail investment products or P2P agreements) 12and a discretionary investment manager or providing
COBS 6.1A.6AGRP
11‘Other services’ in COBS 6.1A.6R (3) includes:(1) providing information relating to retail investment products, P2P agreements or operators of electronic systems in relation to lending12 to the retail client, for example, general market research; or(2) passing on information from the discretionary investment manager to the retail client.
COBS 6.1A.8GRP
Examples of payments and benefits that should not be accepted under the requirement to be paid through adviser charges include:(1) a share of the retail investment product charges or platform service provider's charges, or5retail investment product provider’s or platform service provider's5 revenues or profits; 125(2) a commission set and payable by a retail investment product provider or an operator of an electronic system in relation to lending12 in any jurisdiction12; and(3)
COBS 6.1A.14ARRP
9A firm must not make a personal recommendation to a retail client in relation to a retail investment product or P2P agreement12if it knows, or ought to know, that:(1) the product’s charges,12 the platform service provider's charges or the operator of the electronic system in relation to lending’s charges 12are presented in a way that offsets or may appear to offset any adviser charges or platform charges that are payable by that retail client; or(2) the product’s charges or other
COBS 6.1A.15GRP
A firm is likely to be viewed as operating a charging structure that conceals the amount or purpose of its adviser charges if, for example:(1) it makes arrangements for amounts in excess of its adviser charges to be deducted from a retail client's investments from the outset, in order to be able to provide a cash refund to the retail client later; or(2) it provides other services to a retail client (for example, advising on a home finance transaction or advising on an equity release
CONC 4.6.1RRP
(1) This section applies to:(a) a firm with respect to consumer credit lending; or(b) a firm with respect to consumer hiring; or(c) a firm with respect to operating an electronic system in relation to lending in relation to a prospective borrower under a P2P agreement.
CONC 4.6.2RRP
(1) Before entering into a regulated credit agreement or regulated consumer hire agreement, or before a P2P agreement is entered into, under which the customer may grant a continuous payment authority, the firm must provide the customer with an adequate explanation of the matters in (2).(2) The matters referred to in (1) are:(a) what a continuous payment authority is and how it works;(b) how the continuous payment authority will be applied by the firm, including where the firm
CONC 4.6.3RRP
A firm must include the terms of the continuous payment authority, in plain and intelligible language,1 as part of the credit agreement or consumer hire agreement presented to the customer or P2P agreement presented to the borrower. [Note: paragraph 3.9miii of DCG]
CONC 4.6.5RRP
(1) 1This rule applies if:(a) a firm is to enter into a regulated credit agreement or a regulated consumer hire agreement, or is to facilitate the entry into a P2P agreement;(b) an individual other than the borrower or the hirer (in this rule referred to as “the guarantor”) is to provide a guarantee or an indemnity (or both) in relation to the regulated credit agreement, the regulated consumer hire agreement or the P2P agreement; and(c) the guarantor is to grant a continuous payment
CONC 5.5.1RRP
This section applies to a firm with respect to operating an electronic system in relation to lending in relation to a prospective borrower under a P2P agreement.
CONC 5.5.2GRP
(1) This section contains rules that apply to the person operating the electronic system that facilitates persons becoming lenders and borrowers under P2P agreements, in contrast to CONC 5.2 which applies to the lender.(2) A P2P agreement may also be a credit agreement or a regulated credit agreement in which case applicable provisions of the CCA or CONC will apply to such agreements. The extent to which CCA provisions apply to a lender will depend largely on whether the lender
CONC 5.5.3RRP
(1) Before a P2P agreement is made, a firm must undertake an assessment of the creditworthiness of the prospective borrower.(2) A firm carrying out the assessment in (1) must consider: (a) the potential for the commitments under the P2P agreement to adversely impact the prospective borrower's financial situation, taking into account the information of which the firm is aware at the time the P2P agreement is to be made; and (b) the ability of the prospective borrower to make repayments
CONC 5.5.6RRP
Before a P2P agreement is entered into under which a person takes an article in pawn, the firm must:(1) undertake the assessment referred to in CONC 5.2.2R (1) of the prospective borrower; and (2) comply with CONC 5.3.2 R, CONC 5.3.4 R, CONC 5.3.5 R, CONC 5.3.6 R and CONC 5.3.7 R to the same extent as if it were the lender under an agreement to which those rules apply, and should also take into account the guidance in CONC 5.2.3 G and CONC 5.2.4 G and CONC 5.3 to the same extent.
CONC 5.5.7RRP
(1) 1This rule applies if, in relation to a P2P agreement: (a) the prospective borrower is an individual;(b) an individual other than the borrower (in this rule referred to as “the guarantor”) is to provide a guarantee or an indemnity (or both); and(c) the firm is required to undertake an assessment of the prospective borrower under CONC 5.5.3R.(2) Before the P2P agreement is made, the firm must undertake an assessment of the potential for the guarantor’s commitments in respect
TC 2.1.4GRP
Firms should ensure that those supervising employees carrying on an activity in TC Appendix 1 have the necessary coaching and assessment skills as well as technical knowledge and experience17 to act as a competent supervisor and assessor. In particular firms should consider whether it is appropriate to require those supervising employees not assessed as competent to attain 16an appropriate qualification 16as well except where the employee is giving advice on retail investment
TC 2.1.5RRP
Where an employee has not been assessed as competent to do so and: 24(1) 24gives advice on retail investment products to retail clients24, the firm must ensure that the individual supervising and assessing that employee has attained an appropriate qualification24; or(2) 24gives advice on P2P agreements to retail clients, the firm must ensure that the individual supervising and assessing that employee has attained an appropriate qualification for giving advice on retail investment
TC 2.1.5GRRP
24TC 2.1.5HR applies to a firm advising on P2P agreements.
TC 2.1.5IGRP
24An employee who only carries on activity 9A in TC Appendix 1 is not a retail investment adviser. As such, the rules in this section applicable to retail investment advisers are not relevant to employees who only advise on P2P agreements.
TC 2.1.6RRP
A firm must ensure that an employee does not carry on an activity in TC Appendix 1 (other than an overseeing activity) for which there is a qualification 16requirement without first attaining16 the relevant regulatory module of24: 16(1) 24(in respect of activities other than advising on P2P agreements (activity 9A in TC Appendix 1)) an appropriate qualification; or(2) 24(in respect of advising on P2P agreements (activity 9A in TC Appendix 1)) an appropriate qualification for giving
TC 2.1.9RRP
(1) If a firm is satisfied that an employee meets the conditions in this rule then the requirements to have attained 16each module of an appropriate qualification 16will only apply if that employee is carrying on one of the activities specified in this rule.1616(2) The conditions are that a firm should be satisfied that an employee:(a) has at least three years' up-to-date relevant experience in the activity in question obtained while employed outside the United Kingdom;(b) has
CONC 11.2.1RRP
This section applies to a firm with respect to operating an electronic system in relation to lending in relation to a borrower under a P2P agreement.
CONC 11.2.2RRP
This section does not apply to a P2P agreement under which credit exceeding £60,260 is, was or would be provided unless the agreement is a residential renovation agreement1.
CONC 11.2.3RRP
A firm must ensure that a P2P agreement that the firm makes available to a borrower and a lender provides for the following contractual rights and obligations and procedure for and effect of the exercise of those rights and obligations:(1) a right for the borrower: (a) to withdraw from the agreement (“the right of withdrawal”);(b) without giving any reason; and(c) by giving oral or written notice of the withdrawal to the firm (on behalf of the lender) before the end of the period
PERG 2.7.4GRP
In addition, certain other activities carried on in relation to rights under contracts of insurance are regulated activities. These are where the activity is carried on in relation to:(1) life policies, where the regulated activities concerned are:(a) dealing in investments as principal (see PERG 2.7.5 G);(b) managing investments (see PERG 2.7.8 G);(c) safeguarding and administering investments (see PERG 2.7.9 G); and(d) agreeing to carry on any of those activities (see PERG 2.7.21
PERG 2.7.7HGRP
(1) 15This activity is aimed at what are sometimes referred to as peer-to-peer lending platforms. A person ("A") will be operating an electronic system in relation to lending if he operates an electronic system which enables him to facilitate persons ("B" and "C") becoming the lender and borrower under an article 36H agreement. (2) To be caught, all of the following conditions must be met:(a) the electronic system operated by A must be capable of determining which agreements should
PERG 2.7.14AGRP
This activity covers advice in the form of a recommendation given to a retail consumer. The recommendation must relate to a stakeholder product and certain conditions must be met. These conditions are based on the need for the adviser to make an assessment of the consumer's needs based on the answers that the consumer provides to a series of pre-scripted questions. A fuller description of the activity is given in PERG 2.7.14B G and explains what is meant by "retail customer".
PERG 2.7.14CGRP
25There are two regulated activities which constitute advising on investments in article 53 of the Regulated Activities Order. These are:(1) advising on investments (except P2P agreements) (in article 53(1) of the Regulated Activities Order); and(2) advising on P2P agreements (in article 53(2) of the Regulated Activities Order).
PERG 2.7.15GRP
The regulated activity of advising on investments (except P2P agreements)25 under article 53(1)25 of the Regulated Activities Order applies to advice on securities or relevant investments. It does not, for example, include giving advice about deposits, or about things that are not specified investments for the purposes of the Regulated Activities Order. 19 Giving advice on certain other specified investments is, however, regulated under other parts of the Regulated Activities
PERG 2.7.16AGRP
In certain circumstances, the activity of advising on investments (except P2P agreements)25 can also amount to providing basic advice on a stakeholder product (see PERG 2.7.14A G (Providing basic advice on stakeholder products)).
PERG 2.7.16AAGRP
25The regulated activity of advising on P2P agreements under article 53(2) of the Regulated Activities Order applies to advice given to a person in their capacity as a lender or potential lender under a relevant article 36H agreement (defined in article 53(4) of the Regulated Activities Order), or as an agent for a lender or potential lender under such an agreement, where that advice is on the merits of their doing any of the following (whether as principal or agent):(1) entering
CONC 4.3.3ARRP
(1) 3This rule applies if the lender, or the prospective lender, under a P2P agreement is, or would be, carrying on by way of business the regulated activity of entering into a regulated credit agreement as lender by entering into the agreement.(2) Any fee to be paid by the borrower to the operator of an electronic system in relation to lending must be agreed between the borrower and the operator, and that agreement must be recorded in writing or other durable medium before the
CONC 4.3.4RRP
(1) Before a P2P agreement is made, the firm must:(a) provide the prospective borrower with an adequate explanation of the matters referred to in (2) in order to place the borrower in a position to assess whether the agreement is adapted to the borrower's needs and financial situation;(b) where the P2P agreement is not a non-commercial agreement, advise the prospective borrower:(i) to consider the information which is required to be disclosed under section 55(1) of the CCA; and(ii)
CONC 4.3.6RRP
Before a P2P agreement which is secured on the borrower's home is made, a firm must in a prominent way give the following warning:“YOUR HOME MAY BE REPOSSESSED IF YOU DO NOT KEEP UP REPAYMENTS ON A MORTGAGE OR ANY OTHER DEBT SECURED ON IT”
CONC 4.3.8RRP
(1) 1This rule applies if:(a) a firm with permission to carry on the activity of operating an electronic system in relation to lending is to facilitate the entry into a P2P agreement; (b) the prospective borrower is an individual; and(c) an individual other than the borrower (in this rule referred to as “the guarantor”) is to provide a guarantee or an indemnity (or both) in relation to the P2P agreement.(2) The firm must, before the P2P agreement is made, provide the guarantor
SYSC 4.1.8ARRP
16An operator of an electronic system in relation to lending must take reasonable steps to ensure that arrangements are in place to ensure that P2P agreements facilitated by it will continue to be managed and administered, in accordance with the contract terms, if at any time it ceases to carry on the activity of operating an electronic system in relation to lending.
SYSC 4.1.8BRRP
16Any arrangements made under SYSC 4.1.8A R must be notified to lenders under P2P agreements:(1) when such arrangements are made; or(2) if later, when the lender first becomes a lender under a P2P agreement with that operator; or(3) if the arrangements are changed, when that change is made; and(4) if the arrangement involves another firm taking over the management and administration of P2P agreements if the operator ceases to operate the electronic system in relation to lending,
SYSC 4.1.8CGRP
16Arrangements to ensure P2P agreements facilitated by the firm continue to be managed and administered may include:(1) entering into an arrangement with another firm to take over the management and administration of P2P agreements if the operator ceases to operate the electronic system in relation to lending; or(2) holding sufficient collateral in a segregated account to cover the cost of management and administration while the loan book is wound down; or(3) entering into an
SYSC 4.1.8DGRP
16When designing its arrangements, a firm should take into account insolvency law to ensure that the insolvency of the firm does not prejudice the operation of arrangements that the firm has put in place.
SYSC 4.1.8ERRP
16(1) An operator of an electronic system in relation to lending must not accept, take, or receive the transfer of full ownership of money relating to P2P agreements.18(2) If an operator of an electronic system in relation to lending has made a client money election under CASS 7.10.7AR, when it is operating an electronic system in relation to non-P2P agreements it must also not accept, take, or receive the transfer of full ownership of money relating to non-P2P agreements.18
COBS 2.3.1RRP
A firm must not pay or accept any fee or commission, or provide or receive any non-monetary benefit, in relation to designated investment business or, in the case of its MiFID or equivalent third country business, another ancillary service, carried on for a client other than:(1) a fee, commission or non-monetary benefit paid or provided to or by the client or a person on behalf of the client; or(2) a fee, commission or non-monetary benefit paid or provided to or by a third party
COBS 2.3.6AGRP
5COBS 6.1A (Adviser charging and remuneration), COBS 6.1B (Retail investment product provider and operator of an electronic system in relation to lending and platform service provider 10requirements relating to adviser charging and remuneration), COBS 6.1C (Consultancy charging and remuneration) and COBS 6.1D (Product provider requirements relating to consultancy charging and remuneration) set out specific requirements as to when it is acceptable for a firm to pay or receive commissions,
COBS 2.3.11AGRP
5The following guidance and evidential provisions provide examples of arrangements the FCA believes will breach the client's best interests rule in relation to a personal recommendation of a retail investment product or P2P agreement10to a retail client.
COBS 2.3.12ERP
(1) 1This evidential provision applies in relation to a holding in, or the provision of credit to, a firm which holds itself out as making personal recommendations to retail clients on retail investment products or P2P agreements10, except where the relevant transaction is between persons who are in the same immediate group.55(2) A retail investment product provider5 or operator of an electronic system in relation to lending10 should not take any step which would result in it:5(a)
COBS 2.3.12AGRP
5Where a retail investment product provider or operator of an electronic system in relation to lending, 10or its associate, provides credit to a retail client of a firm making personal recommendations in relation to retail investment products or P2P agreements10 or giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme6, this may create an indirect benefit for the firm and, to the extent that
CONC 7.1.1RRP
1This chapter applies, unless otherwise stated in or in relation to a rule, to:(1) a firm with respect to consumer credit lending;(2) a firm with respect to consumer hiring;(3) a firm with respect to operating an electronic system in relation to lending, in relation to a borrower under a P2P agreement;(4) a firm with respect to debt collecting.
CONC 7.1.2GRP
The following sections provide otherwise for application:(1) CONC 7.12 (lenders' responsibilities in relation to debt) applies only to firms in respect of consumer credit lending;(2) CONC 7.17 to CONC 7.19 apply only to firms operating electronic systems in relation to lending in relation to borrowers under P2P agreements as set out in those sections.
CONC 7.1.4RRP
(1) 2In this chapter, except for CONC 7.6.15AG:(a) a reference to a borrower, a customer or a hirer includes a reference to an individual other than the borrower or the hirer (in this chapter, referred to as “the guarantor”) who has provided a guarantee or an indemnity (or both) in relation to:(i) a regulated credit agreement; or(ii) a regulated consumer hire agreement; or(iii) a P2P agreement in respect of which the borrower is an individual;where it would not do so but for this
CASS 7.10.7ARRP
(1) 4If both the conditions in (a) and (b) below are met in respect of a firm, or the firm reasonably expects that they will all be met in the future, then the firm has the option to elect to comply with this chapter for all of the money described in those conditions: (a) the firm receives or holds money for one or more persons in the course of, or in connection with, the firm’s activity of operating an electronic system in relation to non-P2P agreements; and(b) those persons
CASS 7.10.7BRRP
(1) 4When a firm makes an election under CASS 7.10.7AR it must write to any customer (“C”) with whom it has agreed to provide relevant electronic lending services in C’s capacity as a lender or prospective lender, informing C at least one month before it will start to hold the money in accordance with the client money rules:(a) that all the money it holds in the course of, or in connection with, operating an electronic system in relation to non-P2P agreements for lenders and
CASS 7.10.7CRRP
4Once an election made by a firm under CASS 7.10.7AR becomes effective, and until it ceases to be effective:(1) the firm must treat all the money referred to under CASS 7.10.7AR(1) in accordance with the election; and (2) for the purposes of (1), this chapter applies to the firm in the same way that it applies to a firm that receives and holds money in the course of or in connection with its designated investment business, except that:(a) CASS 7.10.10R will not apply to the money
CASS 7.10.7DRRP
4If a firm that has made an election under CASS 7.10.7AR subsequently decides to cancel that election:(1) it can only do so by writing to the FCA, at least one month before the date the election ceases to be effective; (2) it must write to any customer with whom, as at the time of the cancellation, it has agreed to operate an electronic system in relation to non-P2P agreements in their capacity as a lender or prospective lender, informing them at least one month before the date
CASS 7.10.7FGRP
(1) 4Where a firm has made an election under CASS 7.10.7AR: (a) it should treat money held for a client as client money both in the course of or in connection with: (i) operating an electronic system in relation to lending; and(ii) operating an electronic system in relation to non-P2P agreements;(b) (a) is regardless of whether, at the time the firm is holding the money, the client could or could not be a lender under a P2P agreement; and(c) under SYSC 4.1.8ER(2) it will be not
CONC 7.6.1RRP
(1) A firm must not exercise its rights under a continuous payment authority (or purport to do so):(a) unless it has been explained to the customer that the continuous payment authority would be used in the way in question; and(b) other than in accordance with the terms specified in the credit agreement or the P2P agreement.(2) If a firm wishes a customer to change the terms of a continuous payment authority it must contact the customer and:(a) provide the customer with an adequate
CONC 7.6.2GRP
A firm should not:(1) request a payment service provider to make a payment from the customer's payment account1 unless:(a) (i) the amount of the payment (or the basis on which payments may be taken) is specified in or permitted by the credit agreement or P2P agreement; and(ii) the amount of the payment (or the basis on which payments may be taken) was referred to in the adequate explanation required by CONC 4.6.2 R; or(b) the firm has complied in relation to such a request with
CONC 7.6.2ARRP
(1) 2This rule applies where the terms of a regulated credit agreement or a P2P agreement do not provide for a continuous payment authority and it is proposed that a customer will grant a continuous payment authority to:(a) a lender or a person who has permission to carry on the activity of operating an electronic system in relation to lending; or(b) a debt collector¸ provided that the debt collector is acting under an arrangement with the lender or the person who has permission
CONC 7.6.2BGRP
(1) 2Where a regulated credit agreement or a P2P agreement does not incorporate the terms of a continuous payment authority, CONC 7.6.2AR enables a continuous payment authority to be put in place (for example, for a repayment plan) without necessarily requiring an amendment to the agreement. But CONC 7.6.2AR applies only where the customer is in arrears or default, and the creation of the continuous payment authority supports the fair treatment of the customer and facilitates
CONC 6.7.1RRP
(1) This section applies to a firm with respect to consumer credit lending.(2) CONC 6.7.17 R to CONC 6.7.26 R also apply to a firm with respect to operating an electronic system in relation to lending in relation to a borrower under a P2P agreement and references in those provisions to a firm refinancing an agreement refer to any action taken by an operator of an electronic system in relation to lending which has the result that a P2P agreement is refinanced.
CONC 6.7.20RRP
Before a firm agrees to refinance high-cost short-term credit, it must: (1) give or send an information sheet to the customer; and(2) where reasonably practicable to do so, bring the sheet to the attention of the customer before the refinance;in the form of the arrears information sheet issued by the FCA referred to in section 86A of the CCA with the following modifications:(3) for the title and first sentence of the information sheet substitute:“High-cost short-term loansFailing
CONC 6.7.25ARRP
(1) 2Paragraph (2) applies if an individual other than the borrower (in this rule referred to as “the guarantor”) has: (a) provided a guarantee or an indemnity (or both) in relation to: (i) a regulated credit agreement; or(ii) a P2P agreement in respect of which the borrower is an individual; and(b) granted a continuous payment authority.(2) CONC 6.7.24R and CONC 6.7.25R apply in respect of the guarantor as if references to the customer were references to the guarantor.(3) For
PERG 7.4.2GRP
But the exclusion applies only if the principal purpose of the publication or service is not:(1) to advise on securities or relevant investments or P2P agreements or7home finance transactions1 or amounts to carry on advising on conversion or transfer of pension benefits; 5 or15(2) to lead or enable persons:(a) to buy, sell, subscribe for or underwrite securities or relevant investments; or1(aa) to enter into a relevant article 36H agreement (within the meaning of article 53(4)
PERG 7.4.5GRP
The exclusion applies only if the principal purpose of the publication or service is not:(1) to give advice on securities, relevant investments, P2P agreements7 or home finance transactions1(see PERG 7.3.1 G); or1(2) to lead or enable persons6:(a) to6buy, sell, subscribe for or underwrite securities or relevant investments; or(aa) to enter into a relevant article 36H agreement (within the meaning of article 53(4) of the Regulated Activities Order) as a lender, to assume the rights
PERG 7.4.9GRP
For the second disqualifying purpose, the focus switches to assessing whether the principal purpose of a publication or service is to lead a person to engage in a relevant transaction or enable him to do so. This disqualifying purpose is an alternative to the first. So it extends to material not covered by the first. In this respect:(1) material in a publication or service that invites or seeks to procure persons to engage in a relevant transaction can be said to "lead" to those
CONC 7.17.1RRP
This section applies to a firm with respect to operating an electronic system in relation to lending in relation to a borrower under a P2P agreement for fixed-sum credit.
CONC 7.17.2RRP
(1) Subject to (2), this section does not apply where the P2P agreement provides for credit of less than £50.(2) Paragraph (1) does not apply where two or more P2P agreements in relation to the same borrower (whether or not with the same lender) are entered into at or about the same time.(3) Where (2) applies, the firm's obligations in CONC 7.17 apply as if all of the P2P agreements made with a borrower at or about the same time were a single agreement.
CONC 7.17.5RRP
(1) The duty of the firm to give the borrower notices under CONC 7.17.4 R will cease when either of the conditions mentioned in (2) is satisfied but, if either of those conditions is satisfied before the notice required by CONC 7.17.4R (1) is given, the duty will not cease until that notice is given.(2) The conditions referred to in (1) are:(a) that the borrower ceases to be in arrears;(b) that a judgment is given in relation to the agreement under which a sum is required to be
PERG 7.3.1-AGRP
6Under article 53(2) of the Regulated Activities Order (Advising on investments), advising a person is a specified kind of activity if:(1) the advice is given to the person in their capacity as a lender or potential lender under a relevant article 36H agreement (defined in article 53(4) of the Regulated Activities Order) or as an agent for a lender or potential lender under such an agreement; and(2) it is advice on the merits of their doing any of the following (whether as principal
PERG 7.3.4GRP
In the FCA's view, for a person to be carrying on the business of advising on investments or advising on a home finance transaction1 he will usually need to be doing so with a degree of regularity and for commercial purposes – that is to say, he will normally be expecting to gain some kind of a direct or indirect financial benefit. But, in the FCA's view it is not necessarily the case that advice provided free of charge will not amount to a business. Advice is often given 'free'
PERG 7.3.7GRP
But even if advice is given in the United Kingdom, the general prohibition will not be contravened if the giving of advice does not amount to the carrying on, in the United Kingdom, of the business of advising on investments, advising on regulated credit agreements for the acquisition of land4 or advising on a home finance transaction1. Also, the general prohibition will not be contravened if the exclusion for overseas persons in article 72 of the Regulated Activities Order (Overseas
COBS 4.5.9GRP
4Examples of information about relevant risks (COBS 4.5.2R) that a firm should give a retail client in relation to an innovative finance ISA include:(1) an explanation of the tax consequences if:(a) the innovative finance component is a P2P agreement that is not repaid; and (b) an operator of an electronic system in relation to lending which facilitates a P2P agreement fails;(2) the procedure for, timing and tax consequences of:(a) withdrawing a P2P agreement from the innovative
COBS 4.5.10GRP
4Operators of electronic systems in relation to lending and firms which advise on P2P agreements should also have regard to the guidance in COBS 14.3.7AG and COBS 14.3.7BG regarding the types of information they should provide to clients to explain the specific nature and risks of P2P agreements.