Related provisions for DEPP 3.1.1

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DEPP 3.2.5GRP
(1) If a member of the RDC has a potential conflict of interest in any matter in which he is asked to participate he will disclose the conflict to the RDC Office, and disclose it:(a) in the case of the Chairman of the RDC, to the Chairman or Deputy Chairman of the FCA1; or1(b) in the case of a Deputy Chairman of the RDC, to the Chairman of the RDC, or if he is unavailable to the Chairman or Deputy Chairman of the FCA1; or1(c) in the case of any other member, to the Chairman or
DEPP 3.2.10GRP
If the RDC considers it relevant to its consideration, it may ask FCA1 staff to explain or provide any or all of the following:1(1) additional information about the matter (which FCA1 staff may seek by further investigation); or1(2) further explanation of any aspect of the FCA1 staff recommendation or accompanying papers; or1(3) information about FCA1 priorities and policies (including as to the FCA's view on the law or on the correct legal interpretation of provisions of the
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 3.2.12GRP
If FCA1 staff consider that action is appropriate in a matter for which the RDC is the decision maker, they will make a recommendation to the RDC that a warning notice4should be given.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 3.2.14AGRP
1If FCA staff consider that it is appropriate to publish information about the matter to which a warning notice falling within section 391(1ZB) of the and given by the RDC3Act relates, they will make a recommendation to the RDC that such information should be published.
DEPP 3.2.14BGRP
1The RDC will then 3consider whether it is appropriate in all the circumstances to publish information about the matter to which the3warning notice falling within section 391(1ZB) of the Act relates. The FCA's policy on publishing such information is set out in EG 6.
DEPP 3.2.14CGRP
1If the RDC proposes that the FCA should publish information about the matter to which a warning notice falling within section 391(1ZB) of the Act relates:(1) the RDC will settle the wording of the statement it proposes the FCA should publish (warning notice statement);(2) the RDC staff will make appropriate arrangements for the warning notice statement it proposes the FCA should publish to be given to the persons to whom the warning notice was given or copied;(3) the proposed
DEPP 3.2.14FGRP
1If the RDC decides that the FCA should publish a warning notice statement:(1) the RDC will notify the relevant parties (including the relevant FCA staff) in writing of that decision;2(2) the RDC will settle the wording of the warning notice statement; and(3) the FCA will make appropriate arrangements for the warning notice statement to be published.
DEPP 3.2.14GGRP
1If the RDC decides that the FCA should not publish a warning notice statement the RDC staff will notify the relevant parties (including the relevant FCA staff) in writing of that decision.
DEPP 3.2.16GRP
(1) The recipient of a warning notice4may request an extension of the time allowed for making representations. Such a request must normally be made within seven days3of the notice being given.11(2) If a request is made, the Chairman or a Deputy Chairman of the RDC will decide whether to allow an extension, and, if so, how much additional time is to be allowed for making representations. In reaching their 3decision they will take into account all relevant factors including the
DEPP 3.2.17GRP
(1) If the recipient of a warning notice4indicates that he wishes to make oral representations, the RDC staff, in conjunction with the Chairman or a Deputy Chairman of the RDC, will fix a date or dates for a meeting at which the relevant RDC members will receive those representations.(2) In making those arrangements the RDC staff will draw the Chairman's or Deputy Chairman's attention to any particular issues about the timing of the meeting which have been raised by the recipient
DEPP 3.2.18GRP
The chairman of the relevant meeting will ensure that the meeting is conducted so as to enable:(1) the recipient of the warning notice4to make representations;(2) the relevant FCA1 staff to respond to those representations;1(3) the RDC members to raise with those present any points or questions about the matter (whether in response to particular representations or more generally about the matter); and(4) the recipient of the notice to respond to points made by FCA1staff or the
DEPP 3.2.21GRP
The RDC will not, after the FCA1 has given a warning notice4 meet with or discuss the matter whilst it is still ongoing with the FCA1 staff responsible for the case without other relevant parties being present or otherwise having the opportunity to respond.11
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
DEPP 3.2.25GRP
If the RDC decides that the FCA1 should not give a decision notice4the RDC staff will notify the relevant parties (including the relevant FCA1 staff) in writing of that decision.11
DEPP 3.2.26GRP
FCA1 staff responsible for recommending action to the RDC will continue to assess the appropriateness of the proposed action in the light of new information or representations they receive and any material change in the facts or circumstances relating to a particular matter. It may be therefore that they decide to give a notice of discontinuance to a person to whom a warning notice or decision notice has been given. The decision to give a notice of discontinuance does not require
DEPP 2.5.2GRP
In some circumstances, the19 decision to give a warning notice and a decision notice in a particular matter will 19not be taken by the same decision maker. For example19, in enforcement cases the RDC might take the decision to give a warning notice,4 but the decision to give a decision notice could be taken by the settlement decision makers on the basis that the person concerned does not contest the action proposed (see DEPP 5).664
DEPP 2.5.6GRP
[deleted]196666666
DEPP 2.5.7GRP
FCA staff under executive procedures19 will take the decision to give a supervisory notice exercising the FCA's 6own-initiative powers (by removing a regulated activity, by imposing a limitation or requirement or by specifying a narrower description of regulated activity), including where the action involves a fundamental variation or requirement19 (see DEPP 2.5.8 G).666666666
DEPP 2.5.10GRP
FCA staff under executive procedures20 will take statutory notice decisions relating to the discontinuance of listing of securities on the FCA's6 own initiative.6
DEPP 2.5.11AGRP
6Under section 88(4)(aa) of the Act, if the FCA proposes to impose limitations or other restrictions on the services to which a sponsor's approval relates, it must give him a warning notice. If, after considering any representations made in response to the warning notice, the FCA decides to impose limitations or other restrictions on the services to which a sponsor's approval relates, it must give him a decision notice. 19FCA staff under executive procedures will take the decision
DEPP 2.5.11BGRP
6If the FCA is proposing or deciding to refuse a sponsor's application for the withdrawal or variation of a limitation or other restriction on the services to which a sponsor's approval relates under section 88(8)(d) of the Act, the decision maker will be FCA staff under executive procedures.19
DEPP 2.5.11CGRP
6Under section 89P(5)(b) of the Act, if the FCA proposes to impose limitations or other restrictions on the dissemination of regulated information to which a primary information provider's approval relates, it must give him a warning notice. If, after considering any representations made in response to the warning notice, the FCA decides to impose limitations or other restrictions on the dissemination of regulated information to which a primary information provider's approval
DEPP 2.5.11DGRP
6Under section 89P(9)(d) of the Act, if the FCA is proposing or deciding to refuse a primary information provider's application for the withdrawal or variation of a limitation or other restriction on the dissemination of regulated information to which a primary information provider's approval relates, the decision maker will be FCA staff under executive procedures.19
DEPP 2.5.12GRP
FCA6 staff will usually inform or discuss with the person concerned any action they contemplate before they recommend to FCA staff under executive procedures19 that the FCA6 takes formal action. The FCA6 may also be invited to exercise certain powers by the persons who would be affected by the exercise of those powers. In these circumstances such decisions, including those referred to in DEPP 2.5.13G, will be taken by FCA staff under executive procedures19 if the person concerned
DEPP 2.5.15GRP
A decision to give a warning notice or decision notice refusing an application for an authorisation order declaring a scheme7 to be an AUT, ACS7 or ICVC2 or an AUT, ACS or ICVC to be a money market fund12 will be taken by FCA staff under executive procedures, including if the application is by an authorised fund manager who is not the operator of an existing AUT, ACS or ICVC.776622
DEPP 2.5.18GRP
Some of the distinguishing features of notices given under enactments other than the Act are as follows: (1) [deleted]66(2) [deleted]66(3) Friendly Societies Act 1992, section 58A1: The warning notice and decision notice must set out the terms of the direction which the FCA6 proposes or has decided to give and any specification of when the friendly society is to comply with it. A decision notice given under section 58A(3) must give an indication of the society's right, given by
DEPP 5.1.1GRP
(1) 1A person subject to enforcement action may agree to a financial penalty or other outcome rather than contest formal action by the FCA.4Alternatively, they may enter into a focused resolution agreement and in this way partly contest the proposed action (see DEPP 5.1.8AG to DEPP 5.1.8DG).54(1A) 5Further, even if the person subject to enforcement action wishes to fully contest the proposed enforcement action, they may choose to do so by (i) agreeing to the FCA issuing the required
DEPP 5.1.4GRP
FCA4staff and the person concerned may agree that neither the FCA4 nor the person concerned would seek to rely against the other on any admissions or statements made in the course of their settlement discussions if the matter is considered subsequently by the RDC or the Tribunal.44
DEPP 5.1.6GRP
The terms of any proposed settlement:(1) will be put in writing and be agreed by FCA4 staff and the person concerned;4(2) may refer to a draft of the proposed statutory notices setting out the facts of the matter and the FCA's4 conclusions; 4(3) may, depending upon the stage in the enforcement process at which agreement is reached, include an agreement by the person concerned to: (a) waive and not exercise any rights under sections 387 (Warning notices) and 394 (Access to Authority
DEPP 5.1.8GRP
(1) Where the settlement decision makers decline to issue a statutory notice despite the proposed settlement, they may invite FCA4 staff and the person concerned to enter into further discussions to try to achieve an outcome the settlement decision makers would be prepared to endorse.4(2) However, if the proposed action by the FCA4 has been submitted to the RDC for consideration, it will be for the RDC to decide:4(a) whether to extend the period for representations in response
DEPP 5.1.8BGRP
5The terms of any proposed focused resolution agreement:(1) will be put in writing and be agreed by FCA staff and the person concerned;(2) may refer to a draft of the proposed warning notice; and (3) may, depending upon the stage in the enforcement process at which agreement is reached, include an agreement by the person concerned to: (a) waive and not exercise any rights under sections 387 (Warning notices) and 394 (Access to Authority material) of the Act to notice of, or access
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 5.1.8JGRP
5Once a decision notice has been given as part of the expedited reference procedure (whether by the settlement decision makers or the RDC), it is the responsibility of the person subject to enforcement action to seek to refer the matter to the Tribunal under the Act if they so wish. If the matter is not referred to the Tribunal within the time required under section 390(1) of the Act, the FCA will, on taking the action to which the decision notice relates, give a final notice
DEPP 4.1.13GRP
The procedure for taking decisions under executive procedures will generally be less formal and structured than that for decisions by the RDC. Broadly, however, FCA3 staff responsible for taking statutory notice decisions under executive procedures will follow a procedure similar to that described at DEPP 3.2.7 G to DEPP 3.2.27 G for the RDC except that:3(-1) 5oral representations will not be permitted unless there are exceptional circumstances (DEPP 2.3.1A); (1) in a case where
DEPP 4.1.14GRP
3Broadly, FCA staff responsible for taking decisions referred to in DEPP 2.5.6A G will follow a procedure similar to that described at DEPP 3.2.7 G to DEPP 3.2.27 G for the RDC (subject to the exceptions in DEPP 4.1.13 G (1) to DEPP 4.1.13 G (5) which also reflects that these decisions are not statutory notice decisions.
DEPP 3.1.2GRP
(1) The RDC is separate from the FCA's2 executive management structure. Apart from its Chairman, none of the members of the RDC is an FCA2employee.22(2) All members of the RDC are appointed for fixed periods by the FCA2 Board. The FCA2 Board may remove a member of the RDC, but only in the event of that member's misconduct or incapacity.22
DEPP 3.1.3GRP
The RDC has its own legal advisers and support staff. The RDC staff are separate from the FCA2 staff involved in conducting investigations and making recommendations to the RDC.2
DEPP 1.2.5GRP
Decisions on whether to give a statutory notice will be taken by a 'decision maker'. The FCA's2 assessment of who is the appropriate decision maker is subject to the requirements of section 395 of the Act and will depend upon the nature of the decision, including its complexity, importance and urgency. References to the 'decision maker' in DEPP are to:2(1) FCA staff under executive procedures4; or(2) the Regulatory Decisions Committee (RDC)4; or22(3) FCA2 staff under the settlement
DEPP 1.2.9GRP
DEPP 2 to DEPP 5 set out:(1) which decisions require the giving of statutory notices and who takes them (DEPP 2);(2) the nature and procedures of the RDC (DEPP 3);(3) the procedure for decision making by FCA2 staff under executive procedures (DEPP 4);2(4) the procedure for decision making by FCA2 staff under the settlement decision procedure (DEPP 5).2
DEPP 2.1.3GRP
DEPP 2 Annex 1 and DEPP 2 Annex 2 identify the provisions of the Act or other enactment giving rise to the need for the relevant notice, and whether the decision maker is the RDC or FCA2 staff under executive procedures in each case.2
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
DEPP 6.2.9-AGRP
9The FCA is able to take action against an SMF manager under section 66A(5) of the Act where: (1) there has been (or continues to be) a contravention of a relevant requirement by the SMF manager’sfirm;(2) at the time of the contravention, the SMF manager was responsible for the management of any of the firm’s activities in relation to which the contravention occurred; and(3) the SMF manager did not take such steps as a person in their position could reasonably be expected to take