Related provisions for PERG 8.14.32

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PERG 9.10.2GRP
The controls under the Act that apply to promotions of shares or securities by unauthorised persons are in section 21 of the Act (Restrictions on financial promotion). These controls apply where an unauthorised person makes a financial promotion in, or from, the United Kingdom that relates to the shares in or securities of any body corporate. The same controls apply regardless of whether the shares or securities being promoted are issued by a body corporate that is an open-ended
PERG 9.10.3GRP
Promotions made by authorised persons in the United Kingdom are generally subject to the controls inCOBS 4 (Communicating with clients, including financial promotions).3 However, in the case of shares in, or securities of, a body corporate which is an open-ended investment company, additional controls are imposed by Chapter II of Part XVII of the Act (Restrictions on promotion of collective investment schemes) (see PERG 8.20). Section 238 of the Act (Restrictions on promotion)
PERG 9.10.5GRP
There are a number of other exemptions in the Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001 (SI 2001/1060). In general terms, these exemptions are equivalent to the exemptions from section 21 of the Act that apply to units. There is guidance on those exemptions in PERG 8.20.3 G (Additional restriction on the promotion of collective investment schemes).
PERG 9.10.6GRP
The FSA has also made rules under section 238(5) which allow authorised persons to communicate or approve a financial promotion for an open-ended investment company that is an unregulated collective investment scheme (that is, one that does not fall within PERG 9.10.4 G). The circumstances in which such a communication or approval is allowed are explained inCOBS 4.12.1 R.33
Controlled activity and controlled investment are defined in Schedule 1 to the Financial Promotion Order and are listed in PERG 8.36.3 G and PERG 8.36.4 G. Broadly speaking, controlled activities and controlled investments are similar to regulated activities and specified investments under the Regulated Activities Order. However, with controlled activities, the exclusions set out in the Regulated Activities Order do not, in most cases, apply. It is important to note, however,
The overall effect is that a financial promotion must relate in some way to a controlled investment and may be summarised as the communication, in the course of business, of an invitation or inducement to:(1) acquire, dispose of or underwrite certain investments or exercise rights conferred by such an investment for such purpose or for the purpose of converting it; or(2) receive or undertake investment services such as dealing in investments as principal or as agent, managing
So a financial promotion will not include an invitation or inducement to:(1) refrain from doing any of the things in PERG 8.7.3 G; or(2) exercise rights conferred by an investment other than to acquire, dispose of, underwrite or convert an investment.This means that most invitations or inducements to exercise voting rights will not be financial promotions.
In the FSA's opinion, section 21 will apply to a communication (made in the course of business) if it contains an invitation or inducement to engage in investment activity which is addressed to a particular person or to persons generally. Where this is the case, it will not matter that the communication may be physically delivered to someone other than the person who is intended to engage in investment activity. PERG 8.6.10 G gives more guidance on this.
COBS 4.11.1RRP
(1) A firm must make an adequate record of any financial promotion it communicates or approves, other than a financial promotion made in the course of a personal visit, telephone conversation or other interactive dialogue.(2) For a telemarketing campaign, a firm must make an adequate record of copies of any scripts used.(3) A firm must retain the record in relation to a financial promotion relating to:(a) a pension transfer, pension opt-out or FSAVC, indefinitely;(b) a life policy,
COBS 4.11.2GRP
A firm should consider maintaining a record of why it is satisfied that the financial promotion complies with the financial promotion rules.
COBS 4.11.3GRP
If the financial promotion includes market information that is updated continuously in line with the relevant market, the record-keeping rules do not require a firm to record that information.
PERG 8.13.1GRP
The exemptions in Part V of the Financial Promotion Order concern financial promotions relating to deposits and contracts of insurance other than life policies. The exemptions may be combined with exemptions in Part IV and1 Part VI (see PERG 8.11.3 G (Types of exemption under the Financial Promotion Order).11
PERG 8.13.2GRP
Part V provides two kinds of exemption of a general nature and one specific exemption. The exemptions of a general nature are:(1) any form of real time financial promotion (articles 23 (Deposits: real time communications) and 26 (Relevant insurance activity; real time communications)); and(2) non-real time financial promotions containing certain specified information including the name, country of incorporation (if relevant) and principal place of business of the deposit-taker
PERG 8.13.3GRP
Article 25 (Relevant insurance activity: non-real time communications: reinsurance and large risks) exempts financial promotions concerning contracts of insurance which are either contracts of reinsurance or contracts covering certain large risks.
PERG 8.17.9GRP
The exemptions in Part IV of the Financial Promotion Order (Exempt communications: all controlled activities) will apply to financial promotions about qualifying credit . Some of the exemptions in Part VI of the Financial Promotion Order (Exempt communications: certain controlled activities) will also apply. Those of particular note are referred to in PERG 8.17.10 G to PERG 8.17.12 G.2
PERG 8.17.10GRP
Article 46 (Qualifying credit to bodies corporate) exempts any financial promotion about providing qualifying credit if it is:(1) made to or directed at bodies corporate only; or(2) accompanied by an indication that the qualifying credit to which it relates is only available to bodies corporate.
PERG 8.17.12GRP
Article 28B (Real time communications: introductions) exempts a real time financial promotion that relates to one or more of the controlled activities about regulated mortgage contracts, as well as home reversion plans, home purchase plans and regulated sale and rent back agreements3. The exemption is subject to the following conditions being satisfied:22(1) the financial promotion must be made for the purpose of, or with a view to, introducing the recipient to a person ('N')
This chapter applies to persons who need to know whether their communications are subject to or comply with the Act. It also helps them decide whether their activities in making or helping others to make financial promotions are regulated activities.
The purpose of this guidance is two fold:(1) to outline the restriction on financial promotion under section 21 of the Act (Restrictions on financial promotion) and the main exemptions from this restriction; and(2) to outline the main circumstances in which persons who are primarily involved in making or helping others to make financial promotions may be conducting regulated activities requiring authorisation or exemption themselves; this part of the guidance may also be of more
In particular, this guidance covers:(1) invitations and inducements (see PERG 8.4);(2) meaning of 'in the course of business' (see PERG 8.5);(3) meaning of 'communicate' (see PERG 8.6);(4) meaning of 'engage in investment activity' (see PERG 8.7);(5) meaning of 'having an effect in the United Kingdom' (see PERG 8.8);(6) circumstances where the restriction in section 21 does not apply (see PERG 8.9);(7) types of financial promotion, including:(a) meaning of 'real time financial
COBS 19.2.1GRP
A financial promotion for1 a 1FSAVC should contain a prominent warning that, as an alternative1 an AVC arrangement 1exists, and that details can be obtained from the scheme administrator (if that is the case).1
COBS 19.2.3RRP
When a firm promotes a personal pension scheme, including a group personal pension scheme, to a group of employees it must:(1) be satisfied on reasonable grounds that the scheme is likely to be at least as suitable for the majority of the employees as a stakeholder pension scheme; and(2) record why it thinks the promotion is justified.
PERG 8.18.1GRP
A person involved in insurance business written at Lloyd’s may be making financial promotions when attracting another person:(1) to effect or carry out contracts of insurance written at Lloyd’s (where the controlled activity which is the subject of the financial promotion is effecting and carrying out contracts of insurance); or(2) to have assets held under funds at Lloyd’s (where the controlled activity may involve dealing in securities and contractually based investments, arranging
PERG 8.18.2GRP
Most persons making financial promotions as referred to in this section 1are likely to be authorised persons. As such they will be subject to the appropriate financial promotion rules1. Any persons who are making financial promotions as referred to in PERG 8.18.1 G and who do not need to be authorised persons will need to ensure that their financial promotions are approved by an authorised person or that a specific exemption applies (see PERG 8.13).1
A financial promotion for an overseas long-term insurer, which has no establishment in the United Kingdom, must include:(1) the full name of the overseas long-term insurer, the country where it is registered, and, if different, the country where its head office is situated;(2) a prominent statement that 'holders of policies issued by the company will not be protected by the Financial Services Compensation Scheme if the company becomes unable to meet its liabilities to them'; and(3)
A financial promotion for an overseas long-term insurer which is authorised to carry on long-term insurance business in any country or territory listed in paragraph (c) of the Glossary definition of overseas long-term insurer must also include:(1) the full name of any trustee of property of any description which is retained by the overseas long-term insurer in respect of the promoted contracts;(2) an indication whether the investment of such property (or any part of it) is managed
If a financial promotion relates to a life policy with an overseas long-term insurer but does not name the overseas long-term insurer by giving its full name or its business name:(1) it must include the following prominent statement: "This financial promotion relates to an insurance company which does not, and is not authorised to, carry on in any part of the United Kingdom the class of insurance business to which this promotion relates. This means that the management and solvency
Under section 21(4) of the Act, the Treasury has the power to specify circumstances in which a person is viewed as ‘acting in the course of business’ or ‘not acting in the course of business’. The power under section 21(4) relates only to financial promotions and is distinct from the power in section 419 which relates to regulated activities. To date, the Treasury has not used the power in section 21(4). As a result, the phrase has its ordinary or natural meaning.
There is, of course, no reason why an individual cannot act ‘in the course of business’. For example, sole traders who are independent financial advisers will give investment advice ‘in the course of business’ and so satisfy the test. Individuals who are merely seeking to make personal investments will not be acting ‘in the course of business’ by approaching a company about making an investment in its shares. However, it is possible that an individual who regularly seeks to invest
Persons who carry on a business which is not a regulated activity will need to be particularly careful in making communications which may amount to financial promotions (because they seek to persuade or incite persons to engage in investment activity (see PERG 8.4)). For example, where a company makes financial promotions to its employees, they may well be made in the course of business. Examples of these include financial promotions concerning employee share schemes, group wide
(1) Subject to (2) and (3), this section applies to a firm in relation to:1(a) 1the provision of information in relation to its MiFID or equivalent third country business;222(b) the communication or approval of a financial promotion;1where such information or financial promotion is addressed to, or disseminated in such a way that it is likely to be received by, a retail client.1(2) If3 a communication relates to a firm'sMiFID or equivalent third country business, this section
If a financial promotion includes information referring to the past performance of a packaged product that is not a financial instrument2, a firm will comply with the rule on appropriate performance information (COBS 4.6.2R (2)) if the financial promotion includes, in the case of a scheme, unit-linked life policy, unit-linked personal pension scheme or unit-linked stakeholder pension scheme (other than a unitised with-profits life policy or stakeholder pension scheme) past performance
(1) A firm must ensure that information that contains an indication of future performance of relevant business, a relevant investment, a structured deposit or a financial index, satisfies the following conditions:(a) it is not based on and does not refer to simulated past performance;(b) it is based on reasonable assumptions supported by objective data;(c) it discloses the effect of commissions, fees or other charges if the indication is based on gross performance; and(d) it contains
1(1) This sourcebook3 applies to every firm that:113(a) carries on a home finance activity3 (subject to 31the business loan application provisions3); or3(b) communicates or approves a financial promotion of qualifying credit, of a home purchase plan,6of a home reversion plan3or of a regulated sale and rent back agreement.636(2) Where a firm has outsourced activities to a third party processor, any rule in MCOB which requires the third party processor, when acting as such, to disclose
MCOB 1.2.10RRP
MCOB does not apply to an authorised professional firm with respect to its non-mainstream regulated activities except for:(1) MCOB 2.2 (Communications);(2) MCOB 3 (Financial promotion); and
MCOB 1.2.11GRP
Authorised professional firms should be aware of the following:(1) PROF 5 (Non-mainstream regulated activities); and(2) MCOB 3.1.9 R (Authorised professional firms) and the exception in article 55 of the Financial Promotion Order (Communications by members of the professions) which applies in relation to financial promotion of qualifying credit or of a home reversion plan3 of authorised professional firms under MCOB 3.2.5 R(3) (Exemptions).3
(1) Subject to (2) and (3), this section applies to a firm in relation to:(a) the provision of information in relation to its designated investment business; and(b) the communication or approval of a financial promotion;where such information or financial promotion is addressed to, or disseminated in such a way that it is likely to be received by, a retail client.(2) If3 a communication relates to a firm's3MiFID or equivalent third country business, this section does not apply:3(a)
(1) If any information refers to a particular tax treatment, a firm must ensure that it prominently states that the tax treatment depends on the individual circumstances of each client and may be subject to change in future.[Note: article 27(7) of the MiFID implementing Directive](2) This rule applies in relation to MiFID or equivalent third country business or, otherwise, to a financial promotionfinancial promotion. However, it does not apply to a financial promotion to the extent
(1) A firm must ensure that information contained in a financial promotion is consistent with any information the firm provides to a retail client in the course of carrying on designated investment business or, in the case of MiFID or equivalent third country business, ancillary services.[Note: article 29(7) of the MiFID implementing Directive](2) This rule does not apply to a financial promotion to the extent that it relates to:(a) [deleted]22(b) a pure protection contract that
PERG 8.36.1GRP
This flowchart sets out the matters which a person will need to consider to see if the restriction in section 21 of the Act applies to his communications. It is referred to in PERG 8.2.5 G.6
PERG 8.36.5GRP
This table identifies the types of financial promotion to which each exemption in the Financial Promotions Order applies. It is referred to in PERG 8.11.2 G and PERG 8.14.1 G.
PERG 8.36.6GRP
Table Application of Exemptions to Forms of PromotionsFinancial Promotion OrderApplies toArticle No.Title and PERG 8 reference (where applicable)Unsolicited real timeSolicited real timeNon-real time(solicited or unsolicited)12Communications to overseas recipients (8.12.2G)*1**13Communications from customers and potential customers (8.12.9G)***14Follow up non-real time communications and solicited real time communications (8.12.10G)**15Introductions (8.12.11G)***116Exempt persons
PERG 8.23.2GRP
Anyone who is carrying on a regulated activity is likely to make financial promotions in the course of or for the purposes of carrying on that activity. It is beyond the scope of this guidance to cover regulated activities as such (for a general guide see PERG 2). There are circumstances, however, where persons whose main aim is either:(1) to make financial promotions for their own purposes or on behalf of others; or(2) to help other persons to make financial promotions;may find
PERG 8.23.3GRP
The regulated activities which are likely to be conducted in the circumstances referred to in PERG 8.23.2 G are:(1) giving advice on certain investments (articles 53 (Advising on investments), 53A (Advising on regulated mortgage contracts), 53B (Advising on regulated home reversion plans), 53C (Advising on regulated home purchase plans), 53D (Advising on regulated sale and rent back agreements)2 and 56 (Advice on syndicate participation at Lloyd’s) of the Regulated Activities
PERG 4.17.15GRP
Articles 90 and 91 of the Regulated Activities Order include provisions that have the effect of removing from CCA regulation financial promotions about qualifying credit. Such promotions will not therefore be subject to Part IV of the CCA or regulations made under that Part.
PERG 4.17.16GRP
For more detailed guidance concerning the interface between the financial promotion regime and the regulation of credit advertisements under the CCA, see PERG 8.17.17 G.
(1) A person to whom a firm provides, intends to provide or has provided:(a) a service in the course of carrying on a regulated activity; or(b) in the case of MiFID or equivalent third country business, an ancillary service,is a "client" of that firm;(2) A "client" includes a potential client.(3) In relation to the financial promotion rules, a person to whom a financial promotion is or is likely to be communicated is a "client" of a firm that communicates or approves it.(4) A
1(1) A corporate finance contact or a venture capital contact is not a client under the first limb of the general definition. This is because a firm does not provide a service to such a contact. However, it will be a client under the third limb of the general definition for the purposes of the financial promotion rules if the firmcommunicates or approves a financial promotion that is or is likely to be communicated to such a contact. 1(2) Communicating or approving a financial
This table belongs to MCOB 2.1.1 R(1) Category of firm(2) Applicable sectionmortgage lendermortgage administratormortgage advisermortgage arrangerwhole chapter except MCOB 2.2.6A R, MCOB 2.2.8A R, MCOB 2.2.8B G. MCOB 2.6A and MCOB 2.8.6 G11home purchase providerMCOB 2.1, MCOB 2.2.1 G, MCOB 2.2.6 R to MCOB 2.2.9 G, MCOB 2.5, MCOB 2.6, MCOB 2.6A.1 R to MCOB 2.6A.4 G, MCOB 2.6A.7 G to MCOB 2.6A.10 G, MCOB 2.7.4 R to MCOB 2.7.6 R, MCOB 2.7A2 and MCOB 2.8.6 G1home purchase administratorAs
This chapter applies in relation to:(1) home finance activities;11(1A) to4 the extent specified in MCOB 2.1.2 R, regulated sale and rent back activity;34(2) those activities in MCOB 12 and MCOB 13 that are carried on after a regulated mortgage contract or home purchase plan1 has come to an end following the sale of a repossessed property, and those activities in MCOB 12 that are carried on after a home reversion plan has ended for any reason1; and(3) the communication or approval