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MCOB 1.3 General application: where?

Location of the customer

MCOB 1.3.1R

Except as set out in this section, MCOB applies if the customer of a firm carrying on home finance activities2 is resident in:

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  1. (1)

    the United Kingdom; or

  2. (2)

    another EEA State where7 the activity is carried on from an establishment maintained by the firm (or its appointed representative) in the United Kingdom;

at the time that the home finance activity2 is carried on.

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MCOB 1.3.1AR
  1. (1)

    7The provisions of MCOB listed in MCOB 1.3.1AR(2) apply to a UK firm where it carries on MCD credit intermediation activity for a customer who is resident in another EEA State through an establishment maintained by the firm in that State.

  2. (2)

    The provisions mentioned in MCOB 1.3.1AR(1) are:

    1. (a)

      MCOB 2A.1.1R(2);

    2. (b)

      MCOB 2A.1.4R;

    3. (c)

      MCOB 2A.2.1R and 2A.2.2G; and

    4. (d)

      MCOB 7.6.28R.

[Note: article 34(2) of the MCD]

Incoming EEA credit intermediaries

MCOB 1.3.1BR
  1. (1)

    7The application of MCOB to an incoming EEA firm that is an MCD credit intermediary is modified to the extent necessary to be compatible with European law.

  2. (2)

    MCOB 1.3.1BR(1) overrides every other rule in this sourcebook.

[Note: article 34 of the MCD]

MCOB 1.3.1CG

7Guidance on MCOB 1.3.1AR and MCOB 1.3.1BR is in MCOB 1 Annex 5. For applicable rules in relation to knowledge and competence requirements for staff, incoming EEA firms should also refer to TC 2.1.5AR to TC 2.1.5FG and to the territorial application rules in TC Appendices 1 and 2.

Financial Promotion

MCOB 1.3.2R

The territorial scope of MCOB 3A Financial promotions and communications with customers) is set out in MCOB 3A.1.13R to MCOB 3A.1.16R (Territorial scope and Exceptions to territorial scope),6 rather than in this section.

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Electronic commerce activities and communications

MCOB 1.3.3R

This sourcebook does not apply to an incoming ECA provider acting as such.3

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Distance contracts entered into from an establishment in another EEA State

MCOB 1.3.4R
  1. (1)

    The rules in (2) do not apply to a firm with respect to a regulated mortgage activity or a home purchase activity2 exclusively concerning a distance contract if the following conditions are satisfied:

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    1. (a)

      the firm carries on the activity from an establishment maintained by the firm in an EEA State other than the United Kingdom; and

    2. (b)

      either the EEA State:

      1. (i)

        has implemented the Distance Marketing Directive3; or

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      2. (ii)

        has obligations in its domestic law corresponding to those provided for by the Distance Marketing Directive3;

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      and, in either case, with the result that the obligations provided for by the Distance Marketing Directive3 (or corresponding obligations) are applied by that State when the firm carries on that activity; and

    3. (c)

      the firm is a national of an EEA State or a company or firm mentioned in article 544 of the Treaty.

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  2. (2)

    The rules which do not apply are:

    1. (a)

      initial disclosure requirements in MCOB 4.4A5 (in respect of regulated mortgage contracts) and MCOB 4.10 (in respect of home purchase plans);2

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    2. (b)

      MCOB 4.5 (Additional disclosure for distance mortgage mediation contracts and distance home purchase mediation contracts 2with consumers3);

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    3. (c)

      MCOB 4.6 (Cancellation of distance mortgage mediation contracts) and distance home purchase mediation contracts)2;

    4. (d)

      MCOB 5 (Pre-application disclosure);

    5. (e)

      MCOB 6 (Disclosure at offer stage);

    6. (f)

      MCOB 7.6.7 R to MCOB 7.6.17 R (Further advances);

    7. (g)

      MCOB 8.3 (Application of rules in MCOB 4) to the extent that it applies 5MCOB 4.4A5 to MCOB 4.6;

    8. (h)

      [deleted]2

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    9. (i)

      MCOB 9.3 (Pre-application disclosure);

    10. (j)

      MCOB 9.4 (Content of illustrations); and

    11. (k)

      MCOB 9.5 (Disclosure at offer stage for equity release transactions).2

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Distance contracts with retail customers

MCOB 1.3.5G

Parts of MCOB relate to distance contracts (or distance mortgage mediation contracts and distance home purchase mediation contracts2) with consumers3. These expressions are derived from the Distance Marketing Directive, and the following paragraphs provide some guidance to firms on their meaning:

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  1. (1)

    consumer3

    The Distance Marketing Directive applies for distance contracts with 'any natural person who is acting for purposes which are outside his trade, business or profession', for which the term 'consumer' has been adopted. Examples of individuals who would be regarded as consumers 3include:

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    1. (a)

      personal representatives, including executors, unless they are acting in a professional capacity, for example a solicitor acting as executor; or

    2. (b)

      private individuals acting in personal or other family circumstances, for example, a trustee of a family trust.

  2. (2)

    Distance contract

    To be a distance contract, a contract must be concluded under an 'organised distance sales or service-provision scheme' run by the contractual provider of the service who, for the purpose of the contract, makes exclusive use (directly or through an intermediary) of one or more means of distance communication 3up to and including the time at which the contract is concluded. So:

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    1. (a)

      the firm must have put in place facilities designed to enable a customer to deal with it exclusively at a distance, such as facilities for a customer to deal with it purely by post, telephone, fax or the Internet. If a firm normally operates face-to-face and has no facilities in place enabling a customer to deal with it customarily by distance means, the Distance Marketing Directive3 will not apply. A one-off transaction effected exclusively by distance means to meet a particular contingency or emergency will not be a distance contract; and

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    2. (b)

      there must have been no simultaneous physical presence of the firm and the other party to the contract throughout the offer, negotiation and conclusion of the contract. So, for example, contracts offered, negotiated and concluded over the Internet, through a telemarketing operation, or by post will normally be distance contracts.

Use of intermediaries

MCOB 1.3.6G

The mere fact that an intermediary (acting for the supplier or for the consumer3) is involved, does not make the sale of a financial product or service a distance contract. There will not be a distance contract if there has been simultaneous physical presence of the intermediary and the consumer3 at some stage in the offer, negotiation and conclusion of the contract.1

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