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SUP 10A.1 Application

General

SUP 10A.1.1R

10This chapter applies to every:5

  1. (1)

    firm that is not a relevant authorised person; and5

  2. (2)

    relevant authorised person, but only to the extent required by SUP 10A.1.16BR (Appointed representatives).5

SUP 10A.1.1AG
SUP 10A.1.2G

This chapter is also relevant to every FCA-approved person:5

  1. (1)

    of a firm that is not a relevant authorised person; and5

  2. (2)

    of any appointed representative, including of an appointed representative of a relevant authorised person.5

SUP 10A.1.3G

The rules in this chapter specify descriptions of FCA controlled functions under section 59 of the Act (Approval for particular arrangements).

SUP 10A.1.4G

The directions in this chapter relate to the manner in which a firm must apply for the FCA's approval under section 59 of the Act and other procedures.

Overseas firms: UK services

SUP 10A.1.5R

This chapter does not apply to an overseas firm in relation to regulated activities which are carried on in the United Kingdom other than from an establishment maintained by it or its appointed representative in the United Kingdom.

Overseas firms: UK establishments

SUP 10A.1.6R

Only the following FCA controlled functions apply to an overseas firm which maintains an establishment in the United Kingdom from which regulated activities are carried on:

  1. (1)

    the director function where the person performing that function:

    1. (a)

      has responsibility for the regulated activities of a UK branch which are likely to enable him to exercise significant influence over that branch; or

    2. (b)

      is someone whose decisions or actions are regularly taken into account by the governing body of that branch;

  2. (2)

    the non-executive director function where the person performing one of those functions:

    1. (a)

      has responsibility for the regulated activities of a UK branch which is likely to enable him to exercise significant influence over that branch; or

    2. (b)

      is someone whose decisions or actions are regularly taken into account by the governing body of that branch;

  3. (3)

    the chief executive function;

  4. (4)

    the FCA required functions;

  5. (5)

    the systems and controls function;

  6. (6)

    the significant management function in so far as the function relates to:

    1. (a)

      designated investment business other than dealing in investments as principal, disregarding article 15 of the Regulated Activities Order; or

    2. (b)

      processing confirmations, payments, settlements, insurance claims, client money and similar matters in so far as this relates to designated investment business; and

  7. (7)

    the customer function.

Incoming EEA firms, incoming Treaty firms and UCITS qualifiers

SUP 10A.1.7R

This chapter does not apply to:

  1. (1)

    an incoming EEA firm; or

  2. (2)

    an incoming Treaty firm; or

  3. (3)

    a UCITS qualifier;

if and in so far as the question of whether a person is fit and proper to perform a particular function in relation to that firm is reserved, under any of the Single Market Directives, the Treaty, the UCITS Directive or the auction regulation, to an authority in a country or territory outside the United Kingdom.

SUP 10A.1.8G
  1. (1)

    SUP 10A.1.7 R reflects the provisions of section 59(8) of the Act and, in relation to an incoming Treaty firm and a UCITS qualifier, the Treaty and the UCITS Directive. It preserves the principle of Home State prudential regulation. In relation to an incoming EEA firm exercising an EEA right, or an incoming Treaty firm exercising a Treaty right, the effect is to reserve to the Home State regulator the assessment of the fitness and propriety of a person performing a function in the exercise of that right. A member of the governing body, or the notified UK branch manager, of an incoming EEA firm, acting in that capacity, will not therefore have to be approved by the FCA under the Act.5

  2. (2)

    For example, persons in Solvency II firms which are incoming EEA firms are not expected to be carrying out FCA functions to the extent that the person will be regarded as effectively running the firm or responsible for a Solvency II Directive ‘key function’.5

SUP 10A.1.9G

Notwithstanding SUP 10A.1.8 G, an incoming EEA firm (other than an EEA pure reinsurer) or incoming Treaty firm will have had to consider the impact of the Host State rules with which it is required to comply when carrying on a passported activity or Treaty activity through a branch in the United Kingdom. An incoming EEA firm (other than an EEA pure reinsurer) will have been notified of those provisions under Part II of Schedule 3 to the Act in the course of satisfying the conditions for authorisation in the United Kingdom.

SUP 10A.1.10G

An incoming EEA firm will have to consider, for example, the position of a branch manager based in the United Kingdom who may also be performing a function in relation to the carrying on of a regulated activity not covered by the EEA right of the firm. In so far as the function is within the description of an FCA controlled function, the firm will need to seek approval for that person to perform that FCA controlled function.

Incoming EEA firms: passported activities from a branch

SUP 10A.1.11R

Only the following FCA controlled functions apply to an incoming EEA firm with respect to its passported activities carried on from a branch in the United Kingdom:

  1. (1)

    the money laundering reporting function;

  2. (2)

    the significant management function, in so far as the function relates to:

    1. (a)

      designated investment business other than dealing in investments as principal, disregarding article 15 of the Regulated Activities Order; or

    2. (b)

      processing confirmations, payments, settlements, insurance claims, client money6 and similar matters, in so far as this relates to designated investment business; and6

    3. (c)

      [deleted]6

  3. (3)

    the customer function other than where this relates to the function in SUP 10A.10.7R (4) and (7).

SUP 10A.1.12R

If an incoming EEA firm is an EEA pure reinsurer, then SUP 10A.1.11 R does not apply. Instead, none of the FCA controlled functions apply with respect to its passported activities carried on from a branch in the United Kingdom.

Incoming EEA firms etc with top-up permission activities from a UK branch

SUP 10A.1.13R

In relation to the activities of a firm for which it has a top-up permission, only the following FCA controlled functions apply:

  1. (1)

    the FCA required functions, other than the apportionment and oversight function and the compliance oversight function;

  2. (2)

    the significant management function, in so far as it relates to:

    1. (a)

      designated investment business other than dealing in investments as principal, disregarding article 15 of the Regulated Activities Order; or

    2. (b)

      processing confirmations, payments, settlements, insurance claims, client money and similar matters, in so far as this relates to designated investment business; and6

    3. (c)

      [deleted]6

  3. (3)

    the customer function.

SUP 10A.1.14R

A person does not perform the significant management function for a firm under SUP 10A.1.11 R or SUP 10A.1.13 R if that person would not have been treated as performing any FCA controlled function for that firm if that firm had been a UK firm.

Appointed representatives

SUP 10A.1.15R

The descriptions of the following FCA controlled functions apply to an appointed representative of a firm, except in relation to CBTL business or 4an introducer appointed representative, as they apply to an FCA-authorised person:

  1. (1)

    the FCA governing functions, subject to SUP 10A.1.16 R and except for a tied agent of an EEA MiFID investment firm; and

  2. (2)

    the customer function other than in relation to acting in the capacity of an investment manager (see SUP 10A.10.7R (6)).

SUP 10A.1.16R
  1. (1)

    SUP 10A.1.15 R is modified in relation to an appointed representative meeting the conditions in (2) so that only one of the following FCA governing functions:

    1. (a)

      director function; or

    2. (b)

      chief executive function; or

    3. (c)

      partner function; or

    4. (d)

      director of unincorporated association function;

    applies, as appropriate, to an individual within that appointed representative who will be required to be an FCA-approved person.

  2. (2)

    The conditions are that:

    1. (a)

      the scope of appointment of the appointed representative includes insurance mediation activity in relation to non-investment insurance contracts or credit-related regulated activity3, but no other regulated activity; and

    2. (b)

      the principal purpose of the appointed representative is to carry on activities other than regulated activities.

SUP 10A.1.16AR

3This chapter applies to an appointed representative that has a limited permission to carry on a regulated activity prescribed for the purposes of section 39(1E)(a) of the Act as follows:

  1. (1)

    FCA controlled functions apply to the appointed representative as set out in SUP 10A.1.15 R and SUP 10A.1.16 R in relation to the carrying on of the regulated activity, for which it does not have permission, comprised in the business for which its principal has accepted responsibility;

  2. (2)
    1. (a)

      unless it is a not-for-profit debt advice body, the apportionment and oversight function applies in relation to the carrying on of the regulated activity for which it has limited permission;

    2. (b)

      if it is a not-for-profit debt advice body and a CASS large debt management firm, the CASS operational oversight function applies in relation to the carrying on of debt management activity.

SUP 10A.1.16CG
  1. (1)

    5References in this chapter to a firm include a relevant authorised person, but only to the extent required by SUP 10A.1.16BR.

  2. (2)

    References in SUP 10A.1.15R and SUP 10A.1.16R to FCA governing functions and other controlled functions are to controlled functions in this chapter, not in SUP 10C (FCA senior management regime for approved persons in relevant authorised persons).

SUP 10A.1.16DG
  1. (1)

    5Under section 59(6A) of the Act, if the FCA is satisfied that, in relation to the carrying on of a regulated activity by a relevant authorised person, a controlled function is a senior management function, the FCA must designate the function in its rules as a senior management function.

  2. (2)

    Generally, the FCA does not think that a person performing a function in SUP 10A.1.16BR will have sufficient responsibility for managing the affairs of the appointed representative’s principal (as opposed to managing the affairs of the appointed representative itself) to perform a senior management function.

  3. (3)

    Therefore:

    1. (a)

      the FCA has not designated any of the functions in SUP 10A.1.16BR as a senior management function; and

    2. (b)

      none of the functions in SUP 10A.1.16BR are designated senior management functions.

  4. (4)

    SUP 10C.1.8G (Approved persons in relation to appointed representatives of relevant authorised persons) explains that it is unlikely that SUP 10C (FCA senior management regime for approved persons in relevant authorised persons) will apply to approved persons working in appointed representatives of relevant authorised persons in addition to this chapter.

Members of a profession

SUP 10A.1.17R
  1. (1)

    This chapter, except in respect of the FCA required functions, does not apply to an authorised professional firm in respect of its non-mainstream regulated activities, subject to (2).

  2. (2)

    Where the authorised professional firm has appointed FCA-approved persons to perform the FCA governing functions with equivalent responsibilities for the firm's non-mainstream regulated activities and other regulated activities, for the firm's non-mainstream regulated activities this chapter applies with respect to the FCA governing functions and the FCA required functions (other than the apportionment and oversight function) only.

Oil market participants, service companies, energy market participants, subsidiaries of local authorities or registered social landlords and insurance intermediaries.

SUP 10A.1.18R

The descriptions of FCA significant-influence functions, other than the FCA required functions, and, if the firm is a MiFID investment firm, the FCA governing functions do not extend to activities carried on by a firm whose principal purpose is to carry on activities other than regulated activities and which is:

  1. (1)

    an oil market participant; or

  2. (2)

    a service company; or

  3. (3)

    an energy market participant; or

  4. (4)

    a wholly owned subsidiary of:

    1. (a)

      a local authority; or

    2. (b)

      a registered social landlord; or

  5. (5)

    a firm with permission to carry on insurance mediation activity in relation to non-investment insurance contracts but no other regulated activity (except advising on P2P agreements)7.

SUP 10A.1.19G

It will be a matter of fact in each case whether, having regard to all the circumstances, including in particular where the balance of the business lies, a firm's principal purpose is to carry on activities other than regulated activities. If a firm wishes to rely on SUP 10A.1.18 R, it should be in a position to demonstrate that its principal purpose is to carry on activities other than regulated activities.

Insolvency practitioners

SUP 10A.1.20R

This chapter does not apply to a function performed by:

  1. (1)

    a person acting as an insolvency practitioner within the meaning of section 388 of the Insolvency Act 1986; or

  2. (2)

    a person acting as a nominee in relation to a voluntary arrangement under Parts I (Company Voluntary Arrangements) and VIII (Individual Voluntary Arrangements) of the Insolvency Act 1986; or

  3. (3)

    a person acting as an insolvency practitioner within the meaning of Article 3 of the Insolvency (Northern Ireland) Order 1989; or

  4. (4)

    a person acting as a nominee in relation to a voluntary arrangement under Parts II (Company Voluntary Arrangements) and VIII (Individual Voluntary Arrangements) of the Insolvency (Northern Ireland) Order 1989.

Bidders in emissions auctions

SUP 10A.1.21G

For a firm that is exempt from MiFID under article 2(1)(i) and whose only permission is bidding in emissions auctions, the only FCA controlled functions that apply to it are:

  1. (1)

    the FCA governing functions;

  2. (2)

    the money laundering reporting function;

  3. (3)

    the customer function; and

  4. (4)

    (where it has exercised an opt-in to CASS in accordance with CASS 1.4.9 R and is a CASS medium firm or a CASS large firm) the CASS operational oversight function.

This is because the FCA-approved person regime specifies a number of functions by incorporation of requirements in SYSC; however, a firm carrying on auction regulation bidding is only subject to SYSC to a limited extent in relation to that activity. This means that the FCA required functions do not apply to auction regulation bidding, except for the money laundering reporting function. Similarly, the significant management function does not apply in relation to auction regulation bidding because, in carrying on that activity, a firm is not subject to SYSC 2.1.1 R or SYSC 4.1.1 R and is not undertaking proprietary trading.

Territorial scope of SUP 10A in relation to benchmark submission

SUP 10A.1.22R

1Notwithstanding anything to the contrary in SUP 10A.1.5 R, SUP 10A.1.6 R and SUP 10A.1.13 R the application of SUP 10A to the benchmark submission function is as set out in MAR 8.2.3 R.

SUP 10A.1.23G

1MAR 8.2.3 R says that the obligation on a benchmark submitter to appoint a benchmark manager applies if it maintains an establishment in the United Kingdom. Therefore, SUP 10A applies to the benchmark submission function whether or not the activity of providing information in relation to a specified benchmark (or any other regulated activity) or the benchmark submission function are carried on from that establishment.

Internally managed corporate AIFs

SUP 10A.1.24G

2In accordance with section 59(7C) of the Act this chapter does not apply to an internally managed AIF which is a body corporate and not a collective investment scheme9.

Credit firms with limited permission3

SUP 10A.1.25R
  1. (1)

    3Subject to (2) and (3), this chapter, except in respect of the apportionment and oversight function, does not apply to a firm that has limited permission in relation to the carrying on of the relevant credit activity (as defined in paragraph 2G of Schedule 6 to the Act) for which it has limited permission.

  2. (2)

    Subject to (3), this chapter does not apply to a not-for-profit debt advice body.

  3. (3)

    This chapter applies to a not-for-profit debt advice body that is a CASS large debt management firm with respect to the CASS operational oversight function only.

Swiss general insurers

SUP 10A.1.26R

8For Swiss general insurers, references in this chapter to parts of the PRA Rulebook for ‘Solvency II firms’ are to be read as references to the corresponding parts of the PRA Rulebook applying to non directive insurers.

SUP 10A.1.27G

8Swiss general insurers are in the large non directive insurers sector of the PRA Rulebook and the PRA applies to them, in relation to their controlled functions, provisions equivalent to those applying to third country branches in the Solvency II firms sector of the PRA Rulebook. The FCA includes them as third country undertakings of Solvency II firms and so they must follow the requirements for Solvency II firms set out in SUP 10A.