Content Options

View Options

Status: You are viewing the version of the handbook as on 2007-10-31.

MCOB 3.3 Application: where?

Territorial Scope

MCOB 3.3.1R

This chapter applies to a firm only in relation to:

  1. (1)

    the communication of a financial promotion3 to a person insidethe United Kingdom;

    3
  2. (2)

    the communication of anunsolicited real time financial promotion of qualifying credit or of a home reversion plan,3 unless:

    3
    1. (a)

      it is made from a place outside the United Kingdom; and

    2. (b)

      it is made for the purposes of a business which is carried on outside the United Kingdom and which is not carried on in the United Kingdom; and

  3. (3)

    the approval of a non-real time financial promotion of qualifying credit or a home reversion plan3 for communication to a person insidethe United Kingdom;

    3

subject to MCOB 3.3.3 R(Exceptions to territorial scope: rules without territorial limitation) and MCOB 3.3.5 R(Exceptions to territorial scope: distance contracts).

MCOB 3.3.2G
  1. (1)

    The application under MCOB 3.3.1 R is relevant both when a firm communicates a financial promotion3 itself and when a firm approves a non-real time financial promotion3 for communication by others. But see also MCOB 3.3.3 R(Exceptions to territorial scope: rules without territorial limitation) for approval of financial promotions).3

    333
  2. (2)

    The exemptions in MCOB 3.2.5 R (Application: what?; Exemptions) also incorporate some territorial elements. In particular, the exemption for financial promotions originating outside the United Kingdom (section 21(3) of the Act (Restrictions on financial promotion)) (see MCOB 3.2.5 R (4)) and the exemptions for overseas communicators (see MCOB 3.2.5 R (4)) and the exemption for incoming electronic commerce communications (see PERG 8.12.38G1 (Incoming electronic commerce communication (article 20B)).

    1
  3. (3)

    In the context of the provision of an electronic commerce activity to an EEA ECA recipient, the scope of MCOB 3 is extended by ECO 2.2.3 R (Financial promotion). This means that MCOB 3 will apply for communications to EEA ECA recipients.

Exceptions to territorial scope: rules without territorial limitation for approval of financial promotions3

MCOB 3.3.3R

Subject to MCOB 3.3.5 R the following parts of this chapter apply without any territorial limitation if a firm approves a financial promotion of qualifying credit or of a home reversion plan:3

3
  1. (1)

    MCOB 3.1to MCOB 3.5 (Application, Purpose and General);

  2. (2)

    rules requiring a financial promotion to be clear, fair and not misleading (see MCOB 3.6.3 R (1) in relation to qualifying credit and MCOB 3.8A.1 R in relation to a home reversion plan); and3

    3
  3. (3)

    the provisions regarding approval of financial promotions (except those relating to approval of financial promotions of qualifying credit provided by an overseas person) (see3 MCOB 3.11.1 G to MCOB 3.11.4 G and MCOB 3.8A.6 R).3

    3
MCOB 3.3.4G

There is no need for a financial promotion3 which is indicated in MCOB 3.3.1 R to be outside the territorial scope of the application of MCOB 3 to be approved before being communicated by an unauthorised person (because the restriction in section 21 of the Act (Restrictions on financial promotion) does not apply). If a firm nevertheless approves such a financial promotion,3 it must comply with the rules indicated. However, a firm must not approve a real time financial promotion3 (see MCOB 3.11.2 R (No approval of real time qualifying credit promotions) or MCOB 3.8A.6 R (No approval of real time financial promotions of a home reversion plan)).3

3333

Exceptions to territorial scope: financial promotions of qualifying credit relating to3 distance contracts

MCOB 3.3.5R
  1. (1)

    Notwithstanding MCOB 3.3.1 R and MCOB 3.3.3 R, where a firm which satisfies the conditions in (2) communicates a financial promotion of qualifying credit3, the rules in (3) do not apply.

    3
  2. (2)

    The conditions are that:

    1. (a)

      the firm communicates the financial promotion of qualifying credit3 from an establishment maintained by the firm in an EEA State other than the United Kingdom, and not from an establishment maintained by the firm in the United Kingdom or outside the EEA;

      3
    2. (b)

      either that EEA State:

      1. (i)

        has implemented the DMD; or

      2. (ii)

        has obligations in its domestic law corresponding to those provided for by the DMD;

    3. (c)

      the financial promotion of qualifying credit3 relates, exclusively, to a distance contract, for the conclusion of which the obligations provided for by the DMD (or corresponding obligations) are applied by that State; and

      3
    4. (d)

      the firm is a national of an EEA State or a company or firm mentioned in article 48 of the Treaty.

  3. (3)

    The rules which do not apply are:

    1. (a)

      MCOB 3.6.1 R (Name3 and contact point);

      3
    2. (b)

      MCOB 3.6.13 R (Required risk statements);

    3. (c)

      MCOB 3.6.15 R (Transient advertising);

    4. (d)

      MCOB 3.6.26 R (Multi-rate mortgages);

    5. (e)

      MCOB 3.6.27 R (Fees for advice or arranging); and

    6. (f)

      MCOB 3.8.2 R (3) and (4) (Form and content of real time qualifying credit promotions).

Meaning of 'communicated to a person inside or outside the United Kingdom'

MCOB 3.3.6R

For the purposes of this chapter:

  1. (1)

    a financial promotion3 is communicated to a person outside the United Kingdom if it is:

    3
    1. (a)

      made to a person who receives it outside the United Kingdom; or

    2. (b)

      directed only at persons outside the United Kingdom; and

  2. (2)

    a financial promotion3 is communicated to a person inside the United Kingdom if it is communicated to a person other than as described in (1);

    3

and see MCOB 3.3.7 R and MCOB 3.5.6 R which amplify this rule.

MCOB 3.3.7R

Meaning of "'directed only at persons outside the United Kingdom'

  1. (1)

    If the conditions set out in 4(a), (b), (c) and (d) are met, a financial promotion3 directed from a place inside the United Kingdom will be regarded as directed only at persons outside the United Kingdom.

    3
  2. (2)

    If the conditions set out in 4(c) and (d) are met, a financial promotion3 directed from a place outside the United Kingdom will be regarded as directed only at persons outside the United Kingdom.

    3
  3. (3)

    In any other case, where one or more of the conditions in 4(a) to (e) is met, that fact will be taken into account in determining whether a financial promotion3 is directed only at persons outside the United Kingdom (but a financial promotion3 may still be regarded as directed only at persons outside the United Kingdom even if none of these conditions is met).

    33
  4. (4)

    The conditions are that:

    1. (a)

      the financial promotion3 is accompanied by an indication that it is directed only at persons outside the United Kingdom;

      3
    2. (b)

      the financial promotion3 is accompanied by an indication that it must not be acted upon by persons in the United Kingdom;

      3
    3. (c)

      the financial promotion3 is not referred to in, or directly accessible from, any other financial promotion3 which is made to a person or directed at persons in the United Kingdom by the same person;

      332
    4. (d)

      there are in place proper systems and procedures to prevent recipients in the United Kingdom (other than those to whom the financial promotion3 might otherwise lawfully have been made) obtaining the product3 to which the financial promotion3 relates, from the person directing the financial promotion,3 a close relative of his or a member of the same group;

      3333
    5. (e)

      the financial promotion3 is included in:

      3
      1. (i)

        a website, newspaper, journal, magazine or periodical publication which is principally accessed in or intended for a market outside the United Kingdom; and

      2. (ii)

        a radio or television broadcast or teletext service transmitted principally for reception outside the United Kingdom.