This chapter:

1. (1)

   contrasts "exempt regulated activities" with "non-mainstream regulated activities";

2. (2)

   sets out the conditions which must be satisfied for a regulated activity of an authorised professional firm to constitute a non-mainstream regulated activity;1

3. (3)

   refers to other parts of the Handbook in which provisions are disapplied or modified in relation to authorised professional firms when carrying on non-mainstream regulated activities;1

4. (4)

   gives effect to the Distance Marketing Regulations with respect to the non-mainstream regulated activities of authorised professional firms.1

1. (1)

   The FCA's policy is designed to provide so far as possible a level playing field for authorised and unauthorised members of the professions in relation to the carrying on of similar activities.

2. (2)

   Subject to conditions (see PROF 2), members of designated professional bodies that are not authorised can carry on particular regulated activities, known as exempt regulated activities, and obtain the benefit of the exemption under section 327 of the Act from the general prohibition.

3. (3)

   In contrast, non-mainstream regulated activities are particular regulated activities carried on by an authorised professional firm. If the professional firm were not authorised under the Act, these same activities would be exempt regulated activities which, if the firm could meet the necessary conditions in section 327, would enable it to benefit from the section 327 exemption.

4. (4)

   Therefore, a number of provisions of the Handbook (see PROF 5.3) have been disapplied or modified in respect of these non-mainstream regulated activities of authorised professional firms.

A "non-mainstream regulated activity" is defined in the Glossary as "a regulated activity of an authorised professional firm in relation to which the conditions in PROF 5.2.1 R are satisfied". Conditions (1) to (6)2 of PROF 5.2.1 R replicate section 327(1)(b)(i), (3), (4), (5) and (6) of the Act, as if those conditions applied to an authorised professional firm.

The parts of the Handbook in which provisions are disapplied or modified in relation to authorised professional firms when carrying on non-mainstream regulated activities include those described in PROF 5.3.1A G to PROF 5.3.9 G3521

4.3.5 R provides that 4.3.1 R (Disclosure in letters to private customers) does not apply to an authorised professional firm with respect to its non-mainstream regulated activities.

COBS 18.11 12 provides that COBS12 does not apply to an authorised professional firm with respect to its non-mainstream regulated activities, except for:7

1. (1)

   the fair, clear and not misleading rule;12

   12
2. (1A)

   12the financial promotion rules, but only in limited circumstances;

3. (2)

   (where these are insurance distribution activities) the parts of COBS set out in COBS 18.11.2R(3)(a) to (i) which implement the IDD apply19 unless:

   121212
   1. (a)

      the designated professional body of the firm has made rules which implement some or all of articles 1(4), 17, 18, 19, 20, 23, 24(1) to (4) and (6), 29, and 30 of the IDD19;

      12127
   2. (b)

      those rules have been approved by the FCA under section 332(5) of the Act; and7

   3. (c)

      the firm is subject to the rules in the form in which they were approved;7

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4. (3)

   COBS 8.1.3 R (Client agreements), except for the requirement to provide information on conflicts of interest; and1412

   1214
5. (4)

   COBS 5.2 (E-commerce).14

TC Appendix 3 11 provides that TC11, which imposes the substantive training and competence requirements for retail clients or customers11, does not apply to an authorised professional firm with respect to its non-mainstream regulated activities.

20The following provisions do not apply to authorised professional firms when carrying on non-mainstream regulated activities:

1. (1)

   SYSC 6.3 (Financial crime), in relation to money laundering;

2. (2)

   SYSC 10.1 (Application), in relation to conflicts of interest;

3. (3)

   SYSC 10.2 (Chinese walls);

4. (4)

   SYSC 19F.2 (IDD remuneration incentives) where the designated professional body of the firm has made rules, approved by the FCA, that implement article 17(3) of the IDD and that apply to the firm; and

5. (5)

   SYSC 28.2 ((Knowledge and ability requirements) except SYSC 28.2.1R(1)).

23 SUP 10A.1.17 R 23 provides that 23SUP 10A23 (Approved persons) does not apply (except in respect of the required functions) to an authorised professional firm in respect of its non-mainstream regulated activities. So a person such as a partner, whose only regulated activities are incidental to his professional services, in an authorised professional firm whose principal purpose is to carry on activities other than regulated activities, need not be an approved person.

DISP 1.1.5R (3) 10 provides that DISP 1 (Treating complainants fairly10) only applies 12to an authorised professional firm in so far as its mainstream regulated activities are12 concerned. DISP 2.3.4 R15 further provides that a complaint15 about an authorised professional firm cannot be handled under the Compulsory Jurisdiction of the Financial Ombudsman Service if it relates solely to non-mainstream regulated activity and can be handled by a designated professional body. This is because such a complaint15will be handled by the relevant professional body.

MAR 4.4.1 R (3) provides that MAR 4, which deals with the endorsement of the City Code on Takeovers and Mergers and the Rules Governing Substantial Acquisitions of Shares, does not have effect in relation to an authorised professional firm in respect of non-mainstream regulated activity.

3 MCOB 1.2.10 R 16 16 provides that MCOB does not apply to an authorised professional firm with respect to its non-mainstream regulated activities except for MCOB 3A (Financial promotions and communications with customers).18

4 CASS 1.2.4 R provides that with the exception of CASS 1 and the insurance client money chapter, CASS12 does12 not apply to authorised professional firms when carrying on non-mainstream regulated activities. CASS 1.2.5 R further provides that if the non-mainstream regulated activities are insurance distribution activity19, CASS 5 (the insurance client money chapter)12 does not apply to an authorised professional firm, if the firm's designated professional body has rules applicable to the firm which implement the IDD19 and which are in the form approved by the FCA under section 332(5) of the Act.4

1. (1)

   5ICOBS13 does not apply to an authorised professional firm with respect to its non-mainstream regulated activities (see ICOBS 1 Annex 1, Part 1, paragraph 3.1R19, except for:

   1313
   1. (a)

      the provisions on communications to clients and financial promotions (ICOBS 2.2);13

      13
   2. (b)

      the e-commerce provisions (ICOBS 3.2);13

      13
   3. (c)

      status disclosure requirements in relation to complaints procedures (ICOBS 4.1); and13

      13
   4. (d)

      provisions in ICOBS which implement articles 1(4), 17, 18, 19, 20, 23, and 24 of the IDD19 (see ICOBS 2.2.2R (communication to customers and financial promotions), ICOBS 2.2.2AR (marketing communications), ICOBS 2.5.-1R (the customer’s best interests rule), ICOBS 2.6 (Distribution of connected contracts through exempt persons), ICOBS 4.1 (Information about the firm, its services and remuneration), ICOBS 4.1A (Means of communicating to customers), ICOBS 4.3 (remuneration disclosure), ICOBS 5.2 (Demands and needs), ICOBS 5.3.3R (Advice on the basis of a fair analysis), ICOBS 5.3.4R (Personalised explanation), ICOBS 6A.1.4R (Ensuring the customer can make an informed decision) and ICOBS 6A.3 (Cross-selling)19), except to the extent that the firm is subject to equivalent rules of its designated professional body which have been approved by the FCA.

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2. (2)

   [deleted]13

   1213

The effect of PROF 5.4.1 R is that it allows designated professional bodies to make rules which allow an authorised professional firm to comply with the Distance Marketing Regulations in respect of its non-mainstream regulated activities in the same way as an exempt professional firm which is a member of the same designated professional body in respect of its exempt regulated activities.