Related provisions for PERG 7.5.2
Typical recommendations and whether they will be regulated as advice under article 53A of the Regulated Activities Order
This table belongs to PERG 4.6.5 G and PERG 4.6.6 G.
Recommendation |
Regulated or not? |
I recommend you take out the ABC Building Society 2 year fixed rate mortgage at 5%. |
Yes. This is advice which steers the borrower in the direction of a particular mortgage which the borrower could enter into. |
I recommend you do not take out the ABC Building Society 2 year fixed rate mortgage at 5%. |
Yes. This is advice which steers the borrower away from a particular mortgage which the borrower could have entered into. |
I recommend that you take out either the ABC Building Society 2 year fixed rate mortgage at 5% or the XYZ Bank standard variable rate mortgage. |
Yes. This is advice which steers the borrower in the direction of more than one particular mortgage which the borrower could enter into. |
I recommend you take out (or do not take out) an ABC Building Society fixed rate mortgage. |
This will depend on the circumstances. If, for example, the society only offers one such mortgage, this would be a recommendation intended implicitly to steer the borrower in the direction of that particular mortgage which the borrower could enter into and therefore would be advice. |
I suggest you take out (or do not take out) a mortgage with ABC Building Society. |
No. This is not advice which steers the borrower in the direction of a particular mortgage which the borrower could enter into. However, if the society only offers one mortgage, this would be a recommendation intended implicitly to steer the borrower in the direction of that particular mortgage which the borrower could enter into and therefore would be advice. |
I suggest you change (or do not change) your current mortgage from a variable rate to a fixed rate. |
No in respect of the advice about rate type, as this does not steer the borrower in the direction of a particular mortgage which the borrower could enter into. Yes in respect of the advice about varying the terms of the particular mortgage that the borrower had already entered into. |
I suggest you take out (or do not take out) a variable rate mortgage. |
No. This is not advice which steers the borrower in the direction of a particular mortgage which the borrower could enter into. |
I recommend you take out (or do not take out) a mortgage. |
No. This is not advice which steers the borrower in the direction of a particular mortgage which the borrower could enter into. |
I would always recommend buying a house and taking out a mortgage as opposed to renting a property. |
No. This is an example of generic advice which does not steer the borrower in the direction of a particular mortgage that he could enter into. |
I recommend you do not borrow more than you can comfortably afford. |
No. This is an example of generic advice. |
If you are looking for flexibility with your mortgage I would recommend you explore the possibilities of either a flexible mortgage or an off-set mortgage. There are a growing number of lenders offering both. |
No. This is an example of generic advice. |
Typical recommendations and whether they will be regulated as advice on contracts of insurance under article 53 of the Regulated Activities Order. This table belongs to PERG 5.8.4 G
Recommendation |
Regulated under article 53 or not? |
I recommend you take the ABC Insurers motor insurance policy |
Yes |
I recommend that you take out the GHI Insurers life insurance policy |
Yes |
I recommend that you do not take out the ABC Insurers motor insurance policy |
Yes |
I recommend that you do not take out the GHI Insurers life insurance policy |
Yes |
I recommend that you take out either the ABC Insurers motor insurance policy or the DEF Insurers motor insurance policy |
Yes |
I recommend that you take out either the GHI Insurers life insurance policy or the JKL Insurers life insurance policy |
Yes |
I recommend that you take out (or do not take out) insurance with ABC Insurers |
Possibly (depending on whether or not the circumstances relating to the recommendation, including the range of possible products, is such that this amounts to an implied recommendation of a particular policy) |
I recommend that you take out (or do not take out) contents insurance |
No, unless a specific insurance policy is implied by the context |
I recommend that you take out (or do not take out) life insurance |
No, unless a specific insurance policy is implied by the context |
Activities set out in Annex I of the BCD1
Table 1: BCD activities |
Part II RAO Activities |
Part III RAO Investments |
|
1. |
Acceptance of deposits and other repayable funds from the public |
Article 5 |
Article 74 |
2. |
Lending |
Article 61, 64 |
Article 88 |
3. |
Financial leasing |
||
4. |
Money transmission services |
||
5. |
Issuing and administering means of payment (eg credit cards, travellers' cheques and bankers' drafts) |
||
6. |
Guarantees and commitments |
||
7. |
Trading for own account or for account of customers in: (a) money market instruments (b) foreign exchange (c) financial futures and options (d) exchange and interest rate instruments (e) transferable securities |
Article 14, 21, 25 (see Note 1), 64 Article 14, 21, 25, 64 Article 14, 21, 25, 64 Article 14, 21, 25, 64 Article 14, 21, 25, 64 |
Article 77, 78, 80, 83-85, 89 Article 83-85, 89 Article 83-85, 89 Article 83-85, 89 Article 76-81, 89 |
8. |
Participation in share issues and the provision of services relating to such issues |
Article 14, 21, 25, 53, 64 |
Article 76-81, 89 |
9. |
Advice to undertakings on capital structure, industrial strategy and related questions and advice and services relating to mergers and the purchase of undertakings |
Article 14, 21, 25, 53, 64 |
Article 76-80, 83-85, 89 |
10. |
Money broking |
Article 25, 64 |
Article 77, 78, 89 |
11. |
Portfolio management and advice |
Article 14, 21, 25, 37, 53, 64 |
Article 76-81, 83-85, 89 |
12. |
Safekeeping and administration of securities |
Article 40, 45, 64 |
Article 76-81, 83-85, 89 |
13. |
Credit reference services |
||
14. |
Safe custody services |
1 | 1 | 1
Note 1. The BCD activity of trading for account of customers does not extend to the regulated activity of making arrangements with a view to transactions in investments under article 25(2) of the Regulated Activities Order unless the arrangements bring about or would bring about particular transactions. |
Services set out in Annex to the ISD1
Table 2: ISD activities |
Part II RAO Activities |
Part III RAO Investments |
|
1. Core services |
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1. |
(a) Reception and transmission, on behalf of investors, of orders in relation to one or more of the relevant instruments (b) Execution of such orders other than for own account |
Article 25 (see Note 1), 64 Article 21, 64 |
Article 76-81, 83-85, 89 Article 76-81, 83-85, 89 |
2. |
Dealing in any of the relevant instruments for own account |
Article 14, 64 |
Article 76-81, 83-85, 89 |
3. |
Managing portfolios of investments in accordance with mandates given by investors on a discretionary, client-by-client basis where such portfolios include one or more of the relevant instruments |
Article 14, 21, 25, 37, 53, 64 |
Article 76-81, 83-85, 89 |
4. |
Underwriting in respect of issues of any of the relevant instruments and/or the placing of such issues |
Article 14, 21, 25, 64 |
Article 76-81, 83-85, 89 |
2. Non-core services |
|||
1. |
Safekeeping and administration services |
Article 40, 45, 64 |
Article 76-81, 89 |
2. |
Safe custody services |
||
3. |
Granting credits or loans to an investor to allow him to carry out a transaction in one or more of the relevant instruments where the firm granting the credit or loan is involved |
||
4. |
Advice to undertakings on capital structure, industrial matters and advice and services relating to mergers and the purchase of undertakings |
Article 14, 21, 25, 53, 64 |
Article 76-80, 83-85, 89 |
5. |
Services related to underwriting |
Article 25, 53, 64 |
Article 76-81, 83-85, 89 |
6. |
Investment advice concerning one or more of the relevant instruments |
Article 53, 64 |
Article 76-81, 83-85, 89 |
7. |
Foreign exchange services where these are connected with the provision of investment services |
Article 14, 21, 25, 53, 64 |
Article 83-85, 89 |
Note 1. The ISD activity of receiving and transmitting orders does not extend to the regulated activity of making arrangements with a view to transactions in investments under article 25(2) of the Regulated Activities Order unless the arrangements bring about or would bring about particular transactions. This is the case, whether or not the bringing about arises or would arise as a result of the person who makes the arrangements receiving and transmitting orders in relation to particular transactions or in any other way. |
1Activities set out in Article 5(2) and (3) of the UCITS Directive
Table 2A: UCITS Directive activities |
Part II RAO Activities |
Part III RAO Investments |
|
1. |
The management of UCITS in the form of unit trusts / common funds or of investment companies; this includes the function mentioned in Annex II of the UCITS Directive (see Note 2). |
Articles 14, 21, 25, 37, 51, 53, 64 |
Articles 76-81, 83-85, 89 |
2. |
Managing portfolios of investments, including those owned by pension funds, in accordance with mandates given by investors on a discretionary, client-by-client basis, where such portfolios include one or more of the instruments listed in Section Bof theAnnex to the ISD. |
Articles 14, 21, 25, 37, 53, 64 |
Articles 76-81, 83-85, 89 |
3. |
Investment advice concerning one or more of the instruments listed in Section Bof theAnnex to the ISD. |
Articles 53, 64 |
Articles 76-81, 83-85, 89 |
4. |
Safekeeping and administration services in relation to units of collective investment undertakings. |
Articles 40, 45, 64 |
Articles 76-81, 83-85, 89 |
Note 1. A UCITS management company can only exercise passport rights under the UCITS Directive (article 2(2)(h) of the ISD). A UCITS management company can only be authorised to carry on the non-core services set out in rows (3) and (4) of Table 2A if it is also authorised to carry on the activity set out in row (2) of the table. |
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Note 2. The functions set out in Annex 2 to the UCITS Directive are: |
|||
1. |
Investment management. |
||
2. |
Administration: |
||
a. |
legal and fund management accounting services; |
||
b. |
customer inquiries; |
||
c. |
valuation and pricing (including tax returns); |
||
d. |
regulatory compliance monitoring; |
||
e. |
maintenance of unit-holder register; |
||
f. |
distribution of income; |
||
g. |
unit issues and redemptions; |
||
h. |
contract settlements (including certificate dispatch); |
||
i. |
record keeping. |
||
3. |
Marketing. |
Table 2B: IMD Activities |
Part II RAO Activities |
Part III RAO Investments |
|
1. |
Introducing, proposing or carrying out other work preparatory to the conclusion of contracts of insurance. |
Articles 25, 53 and 64 |
Articles 75, 89 (see Note 1) |
2. |
Concluding contracts of insurance |
Articles 21, 25, 53 and 64 |
Articles 75, 89 |
3. |
Assisting in the administration and performance of contracts of insurance, in particular in the event of a claim. |
Articles 39A, 64 |
Articles 75, 89 |
Note 1. Rights to or interests in life policies are specified investments under Article 89 of the Regulated Activities Order, but rights to or interests in general insurance contracts are not. |
This is a guide only and should not be used as a substitute for legal advice
in individual cases.
Table 3: Insurance Directive activities |
Part II RAO Activities |
Part III RAO Investments |
|
1. Non-life insurance activities |
|||
1. |
Taking up and carrying on direct non-life insurance business |
Article 10 |
Article 75 |
2. |
Classes 1 to 18 of direct non-life insurance business in Point A of the Annex to the First Directive |
Corresponding paragraphs 1 to 18 of Schedule 1, Part I |
|
2. Consolidated Life Directive activities |
|||
1. |
Taking up and carrying on direct life insurance business |
Article 10 |
Article 75 |
2. |
Classes I to IX of direct life insurance business in the Annex 1 to the Consolidated Life Directive |
Corresponding paragraphs I to IX of Schedule 1, Part II |