Related provisions for COBS 11.4.6

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COBS 20.2.1GRP
2(1) With-profits business, by virtue of its nature and the extent of discretion applied by firms in its operation, involves numerous potential conflicts of interest that might give rise to the unfair treatment of policyholders. Potential conflicts of interest may arise between shareholders and with-profits policyholders, between with-profits policyholders and non-profit policyholders within the same fund, between with-profits policyholders and the members of mutually-owned firms,
COBS 20.2.1ARRP
2A firm must take reasonable care to ensure that all aspects of its operating practice are fair to the interests of its with-profits policyholders and do not lead to an undisclosed, or otherwise unfair, benefit to shareholders or to other persons with an interest in the with-profits fund.
COBS 20.2.1BGRP
(1) 2Notwithstanding that there may not be a rule in the remainder of this section addressing a particular aspect of a firm's operating practices, firms will need to ensure that they take reasonable care to ensure that all aspects of their operating practice comply with COBS 20.2.1A R.(2) For the avoidance of doubt COBS 20.2.1A R does not exhaust or restrict the scope of Principle 6. Firms will in any event need to ensure that their operating practices are consistent with Principle
COBS 20.2.1CGRP
2When considering the provisions in this chapter a firm will need to ensure that, if applicable, it complies with the with-profits governance requirements in COBS 20.5.
COBS 20.2.1DGRP
2For the purposes of COBS 20.2.1A R the FCA expects a firm to be able to demonstrate that it has taken reasonable care to ensure its operating practices are fair, including being able to produce appropriate evidence to show that it has followed relevant governance procedures.
COBS 20.2.2RRP
Neither Principle 6 (Customers' interests) nor the rules on treating with-profits policyholders fairly (COBS 20.2) relieve a firm of its obligation to deliver each policyholder's contractual entitlement.
COBS 20.2.3RRP
A firm must have good reason to believe that its pay-outs on individual with-profits policies are fair.
COBS 20.2.4GRP
In this section, maturity payments include payments made when a with-profits policy provides for a minimum guaranteed amount to be paid.
COBS 20.2.5RRP
(1) Unless a firm cannot reasonably compare a maturity payment with a calculated asset share, it must:(a) set a target range for the maturity payments that it will make on:(i) all of its with-profits policies; or(ii) each group of its with-profits policies;(b) ensure that each target range:(i) is expressed as a percentage of unsmoothed asset share; and(ii) includes 100% of unsmoothed asset share; and(c) manage its with-profits business, and the business of each with-profit fund,
COBS 20.2.6RRP
Notwithstanding that a firm must aim to make maturity payments that fall within the relevant target range, a firm may make a maturity payment that falls outside the target range if it has a good reason to believe that at least 90% of maturity payments on with-profits policies in that group have fallen, or will fall, within the relevant target range.
COBS 20.2.7GRP
If it is not fair or reasonable to calculate or assess a maturity payment using the prescribed asset share methodology, a firm may use another methodology to set bonus rates, if that methodology properly reflects its representations to with-profits policyholders and it applies that methodology consistently.
COBS 20.2.8RRP
A firm may make deductions from asset share to meet the cost of guarantees, or the cost of capital, only under a plan approved by its governing body and described in its PPFM. A firm must ensure that any deductions are proportionate to the costs they are intended to offset.
COBS 20.2.9RRP
If a firm has approved a plan to make deductions from asset share, it must ensure that its planned deductions do not change unless justified by changes in the business or economic environment, or changes in the nature of the firm's liabilities as a result of policyholders exercising options in their policies.
COBS 20.2.10RRP
If a firm calculates maturity payments using the prescribed asset share methodology, it must manage its with-profits business, and each with-profits fund, with the longer term aim that it will make aggregate maturity payments of 100% of unsmoothed asset share.
COBS 20.2.11GRP
A firm may use its own methodology to calculate surrender payments, but it should have good reason to believe that its methodology produces a result which, in aggregate across all similar policies, is not less than the result of the prescribed asset share methodology. A firm might, for example, test the surrender payments on a suitable range of specimen with-profits policies.
COBS 20.2.12RRP
If a firm calculates surrender payments using the prescribed asset share methodology, it must first calculate what the surrender payment would be if it was a maturity payment calculated by that methodology.
COBS 20.2.13RRP
A firm may then make a deduction from unsmoothed asset share if necessary, in the reasonable opinion of the firm'sgoverning body, to protect the interests of the firm's remaining with-profits policyholders.
COBS 20.2.14GRP
Amounts that might be deducted include:(1) the firm's unrecovered costs, including any financing costs incurred in effecting or carrying out the surrendered with-profits policy to the date of surrender, including the costs that might have been recovered if the policy had remained in force;(2) costs that would fall on the with-profits fund, if the surrender value is calculated by reference to an assumed market value of assets which exceeds the true market value of those assets;(3)
COBS 20.2.15GRP
The provisions dealing with the calculation of surrender payments (COBS 20.2.11 G to COBS 20.2.12 R) do not prevent a firm from setting a target range for surrender payments where the top-end of the range is lower than the top-end of the relevant range for maturity payments.
COBS 20.2.16RRP
A firm must not, in so far as is reasonably practicable,2 make a market value reduction to the face value of the units of an accumulating with-profits policy unless:(1) the market value of the with-profits assets in the relevant with-profits fund is, or is expected to be, less than the assumed value of the assets on which the face value of the units of the policy has been based; and222(2) the market value reduction is no greater than is necessary to reflect the impact of the difference
COBS 20.2.16AGRP
2If a firm is able to satisfy COBS 20.2.16R (1), then the volume of surrenders, transfers, or other exits from the with-profits fund that there has been, or is expected to be, is a factor that a firm may take into account when it is considering whether to make a market value reduction, and if so, its amount, subject to the limit in COBS 20.2.16R (2).
COBS 20.2.16BGRP
5References to distributions in COBS 20 includes distributions of distributable profits arising, namely any permanent addition to policy benefits made at the firm's discretion based on the investment or other experience in the fund or more generally. Distributions include those relating to expected payments for which allowance has been made in the technical provisions or to a firm's other liabilities arising from its regulatory duty to treat customers fairly, and not just distributions
COBS 20.2.16CGRP
5Examples of distributions include any payment of a cash bonus (including a final bonus on exit or a reduction in premium), or a declaration of a reversionary bonus in the form of a permanent addition to the benefits guaranteed to be payable at death or on maturity. In COBS 20.2.21 R and COBS 20.2.22 E (distributions from excess surplus) distributions also include any other amounts that are added to asset shares or to any other measure that is used to determine pay-outs under
COBS 20.2.17RRP
A firm must ensure that the amount distributed to policyholders from a with-profits fund, taking into account any adjustments required by COBS 20.2.17A R,2 is not less than the required percentage of the total amount distributed.
COBS 20.2.17ARRP
(1) 2Where a firm adjusts the amounts distributed to policyholders, either by market value reduction or otherwise, in a way that would result in a distribution to policyholders of less than the required percentage, taking both the relevant distributions and the adjustment into account, then the firm must apply a proportionate adjustment to amounts distributed to shareholders so that the distribution to policyholders will not be less than the required percentage.(2) The adjustments
COBS 20.2.17BGRP
2An example of the application of COBS 20.2.17A R, without limitation to its scope generally, is where a firm reduces, for any reason, the amounts of a bonus or of bonus units added to policies in force. The firm should treat this as effectively a ‘negative distribution’, calculated by making the same assumptions regarding discount rates and other relevant factors as would be used for positive bonus additions. The amount so calculated should then be taken into account in ensuring
COBS 20.2.17CRRP
7A firm must not make a distribution from a with-profits fund, unless:55(1) if it is not a Solvency II firm, the whole of the cost of that distribution can be met without eliminating the regulatory surplus in that with-profits fund; and5(2) if it is a Solvency II firm:5(a) the whole of the cost of that distribution can be met without eliminating the with-profits fund surplus in that with-profits fund; and(b) following any distribution that is made to meet a liability for which
COBS 20.2.18RRP
A firm which is not a Solvency II firm5 must not make a distribution from a with-profits fund to any person who is not a with-profits policyholder, unless the whole of the cost of that distribution (including the cost of any obligations that will or may arise from the decision to make a distribution) can be met from the excess, if any,5 of the assets over the liabilities5 in that with-profits fund.55
COBS 20.2.19RRP
A distribution to a person who is not a with-profits policyholder includes a transfer of assets out of a with-profits fund that is not made to satisfy a liability of that fund.
COBS 20.2.19ARRP
5If a firm which is a Solvency II firm proposes to make a distribution from a with-profits fund to any person who is not a with-profits policyholder, where:(1) the distribution to with-profits policyholders is smaller than the ‘pre-notification to policyholder minimum’ calculated in accordance with COBS 20.2.19BR (1) then the firm must:(a) provide the FCA with written details of the proposed distribution at least two months prior to the proposed distribution, together with copies
COBS 20.2.19BRRP
(1) 5The ‘pre-notification to policyholder minimum’ referred to in COBS 20.2.19A R is as follows:wherea is the total amount available for with-profits distribution in the with-profits fund in question at the time of the most recent previous distribution;b is the amount of the most recent previous distribution to with-profits policyholders; andc is the total amount available for with-profits distribution in relation to the proposed distribution.(2) The ‘after the event notification
COBS 20.2.19CGRP
(1) 5If the circumstances in COBS 20.2.19AR (1) or (2) arise, the firm should also consider whether any reduction(s) in the proposed distribution and any previous distributions to with-profits policyholders over a period of at least the last five years are consistent with treating with-profits policyholders fairly and any other obligations of the firm under COBS 20.(2) When calculating the amounts distributed in COBS 20.2.19A R and COBS 20.2.19B R:(a) any amount allocated to with-profits
COBS 20.2.20RRP
If, on a distribution, a firm incurs a tax liability on a transfer to shareholders, it must not attribute that tax liability to a with-profits fund, unless:(1) the firm can show that attributing the tax liability to that with-profits fund is consistent with its established practice;(2) that established practice is explained in the firm's PPFM; and(3) that liability is not charged to asset shares.
COBS 20.2.21RRP
At least once a year (or, in the case of a non-directive friendly society, at least once in every three years) and whenever a firm is seeking to make a reattribution of its inherited estate,2 a firm'sgoverning body must determine whether the firm'swith-profits fund, or any of the firm'swith-profits fund, has an excess surplus.
COBS 20.2.22ERP
(1) If a with-profits fund has an excess surplus, and to retain that surplus would be a breach of Principle 6 (Customers' interests), the firm should make a distribution from that with-profits fund.22(2) Compliance with (1) may be relied on as tending to establish compliance with Principle 6 (Customers' interests).(3) Contravention of (1) may be relied on as tending to establish a contravention of Principle 6 (Customers' interests).
COBS 20.2.23RRP
A firm must only charge costs to a with-profits fund1 which have been, or will be, incurred in operating the with-profits fund. This may include a fair proportion of overheads.1
COBS 20.2.24RRP
Subject to COBS 20.2.25 R, COBS 20.2.25A R and COBS 20.2.25B R, a1firm must not pay compensation or redress from a with-profits fund.11
COBS 20.2.25RRP
A proprietary1firm may pay compensation or redress due to a policyholder, or former policyholder, from assets attributable to shareholders, whether or not they are held within a long-term insurance fund or with-profits fund, as relevant.511
COBS 20.2.25ARRP
A mutual may pay compensation or redress due to a policyholder, or formerpolicyholder, from a with-profits fund, but may only pay from assets that would otherwise be attributable to asset shares if, in the reasonable opinion of the firm'sgoverning body, the compensation or redress cannot be paid from any other assets in the with-profits fund. 1
COBS 20.2.25BRRP
A payment or transfer of liabilities made to correct an error and which has the effect of restoring a policyholder, or former policyholder, and the with-profits fund to the position they would have been in if the error had not occurred (a “rectification payment”), is not a payment of compensation or redress for the purposes of COBS 20.2.24 R.1
COBS 20.2.25CGRP
Rectification payments may include, for example, a payment to a policyholder or former policyholder to correct an erroneous underpayment of policy proceeds, or a reimbursement of premiums overpaid. The effect of COBS 20.2.25B R is that a firm may make rectification payments using assets in a with-profits fund.1
COBS 20.2.25DGRP
COBS TP 2.14 R has the effect that payments of compensation and redress arising out of events which took place before 31 July 2009 are subject to COBS 20.2.23 R to COBS 20.2.25 R as in force at 30 July 2009.1
COBS 20.2.26RRP
A proprietary firm must not charge to a with-profits fund any amounts paid or payable to a skilled person in connection with a report under section 166 of the Act (Reports by skilled persons) if the report indicates that the firm has, or may have, materially failed to satisfy its obligations under the regulatory system1.1
COBS 20.2.26ARRP
5A proprietary firm must not charge to a with-profits fund any financial penalty imposed on the firm by the appropriate regulator.
COBS 20.2.27RRP
A firm must not charge a contribution to corporation tax to a with-profits fund, if that contribution exceeds the notional corporation tax liability that would be charged to that with-profits fund if it were assessed to tax as a separate body corporate.
COBS 20.2.28RRP
A firm must not effect new contracts of insurance in an existing with-profits fund unless:22(1) the firm'sgoverning body is satisfied, so far as it reasonably can be, and can demonstrate, having regard to the analysis in (2), that the terms on which each type of contract is to be effected are likely to have no adverse effect on the interests of the with-profits policyholders whose policies are written into that fund; and2(2) the firm has:(a) carried out or obtained appropriate
COBS 20.2.28AGRP
(1) 2Writing new insurance business into a with-profits fund is not, of itself, automatically adverse to the interests of with-profits policyholders. For example, new insurance business which defers the emergence or distribution of surplus to a limited extent for a number of policyholders, or which leads to a marginal change in the equity backing ratio, may, subject to satisfying the guidance in COBS 20.2.60 G and COBS 20.2.29 G, reasonably be considered not to have an adverse
COBS 20.2.29GRP
In some circumstances, it may be difficult or impossible for a firm to mitigate the risk of an2 adverse effect on its existing, or new, with-profits policyholders, unless it establishes a new bonus series or with-profits fund. Circumstances that might cause a firm to establish a new bonus series or with-profits fund include:2(1) where the firm has a high level of guarantees or options in its existing with-profits policies, which might place an excessive burden on new with-profits
COBS 20.2.30GRP
2(1) When a firm prices the new insurance business that it proposes to effect in an existing with-profits fund, it should estimate the volume of new insurance business that it is likely to effect and then build in adequate margins that will allow it to recover any acquisition costs to be charged to the with-profits fund.2(2) COBS 20.2.28 R requires firms to obtain appropriate analysis and evidence and this should include at least a profitability analysis on a marginal cost ba
COBS 20.2.31GRP
When a firm sets a target volume for new insurance business in an existing with-profits fund, it should pay particular attention to the risk of disadvantage to existing with-profits policyholders. Those policyholders might be disadvantaged, for example, by the need to retain additional capital to support a rapid growth in new business, when that capital might have been distributed in the ordinary course of the firm's existing business.
COBS 20.2.32RRP
Unless COBS 20.2.32A R applies, a5firm carrying on with-profits business must not:5(1) make a loan to a connected person using assets in a with-profits fund; or(2) give a guarantee to, or for the benefit of, a connected person, where the guarantee will be backed using assets in a with-profits fund;unless that loan or guarantee:(3) will be on commercial terms;(4) will, in the reasonable opinion of the firm's senior management, be beneficial to the with-profits policyholders in
COBS 20.2.32ARRP
5COBS 20.2.32R (1) does not apply to a Solvency II firm.
COBS 20.2.32BGRP
5Loans to a connected person using assets in a with-profits fund should be considered as investments of assets within the with-profits fund. As such, a Solvency II firm will need to ensure that: (1) such loans comply with the PRA Rulebook: Solvency II Firms: Investments having regard to COBS 20.2.35B G; and(2) where there is a conflict of interests, in the reasonable opinion of the firm's senior management, they are in the best interests of the with-profits policyholders in the
COBS 20.2.33GRP
(1) If a firm, or a connected person, provides support to a with-profits fund (for example, by a contingent loan), no reliance should be placed on that support when the firm assesses the with-profits fund's financial position unless there are clear and unambiguous criteria governing any repayment obligations to the support provider.(2) The degree of reliance placed on that support should depend on the subordination of the support to the fair treatment of with-profits policyholders
COBS 20.2.34GRP
Where assets from outside a with-profits fund are made available to support that fund (and there is no ambiguity in the criteria governing any repayment obligations to the support provider), a firm should manage the fund disregarding the liability to repay those assets, at least in so far as that is necessary for its policyholders to be treated fairly.
COBS 20.2.34ARRP
(1) 5A Solvency II firm must ensure that, in relation to any arrangements where assets outside a with-profits fund provide or may provide support to it, both the following requirements are met: (a) the precise terms and conditions on which those support asset arrangements operate and assets may become available, including whether and when they are repayable: (i) are adequately documented in the firm's records; and(ii) if the firm is required to produce a PPFM, are set out clearly
COBS 20.2.35GRP
When a firm, other than a Solvency II firm,5 determines its investment strategy, and the acceptable level of risk within that strategy, it should take into account:(1) the extent of the guarantee in its with-profits policies;(2) any representation that it has made to its with-profits policyholders;(3) its established practice; and(4) the amount of capital support available.
COBS 20.2.35BGRP
(1) 5A Solvency II firm is required to consider its investment strategy in relation to the assets in a with-profits fund, including any strategic investments, in accordance with the PRA Rulebook: Solvency II Firms: Investments. Firms are expected, in applying the PRA Rulebook: Solvency II Firms: Investments, to take into account the particular circumstances and requirements of the liabilities in the with-profits fund to which those assets relate. For example, a Solvency II firm
COBS 20.2.36RRP
A firm, other than a Solvency II firm,5 must not:2(1) use with-profits assets to finance the purchase of a strategic investment, directly or by or through a connected person; or2(2) retain an investment referred to in (1);2unless its governing body is satisfied, so far as it reasonably can be, and can demonstrate, that the purchase or retention is likely to have no adverse effect on the interests of its with-profits policyholders whose policies are written into the relevant f
COBS 20.2.36ARRP
2A firm must keep adequate records setting out the strategic purpose for which a strategic investment has been purchased or retained.
COBS 20.2.36BGRP
(1) 2In order for a firm to comply with COBS 20.2.36 R, a firm'sgoverning body should consider:(a) the size of the investment in relation to the with-profits fund;(b) the expected rate of return on the investment;(c) the risks associated with the investment, including, but not limited to, liquidity risk, the capital needs of the acquired business or investment and the difficulty of establishing fair value (if any);(d) any costs that would result from divestment;(e) whether the
COBS 20.2.37GRP
If a firm carries out non-profit insurance business in a with-profits fund, it should review the profitability of the non-profit insurance business regularly.
COBS 20.2.38GRP
If a firm has reinsured its with-profits insurance business into another insurance undertaking, it should take reasonable steps to discharge its responsibilities to its with-profits policyholders, in respect of the reinsured business. Those steps should include maintaining adequate controls.
COBS 20.2.39RRP
A firm must not enter into a material transaction relating to a with-profits fund unless, in the reasonable opinion of the firm'sgoverning body, the transaction is unlikely to have a material adverse effect on the interests of that fund's existing with-profits policyholders.
COBS 20.2.40RRP
A material transaction includes a series of related non-material transactions which, if taken together, are material.
COBS 20.2.41ARRP
2A firm must contact the FCA as soon as is reasonably practicable to make arrangements to discuss what actions may be required to ensure the fair treatment of with-profits policyholders if, in relation to any with-profits fund it operates:(1) the firm reasonably expects, or if earlier, there has been, a sustained and substantial fall in either the volume of new non-profit insurance contracts, or in the volume of new with-profits policies (effected other than by reinsurance), or
COBS 20.2.41BGRP
(1) 2The aim of the discussions in COBS 20.2.41A R is to:(a) allow the FCA to comment on the adequacy of the firm's planning; and(b) seek agreement with the firm on any other appropriate actions to ensure with-profits policyholders are treated fairly.(2) If the firm is no longer effecting a material volume of new with-profits policies (other than by reinsurance) into a with-profits fund; or if it is ceding by way of reinsurance most or all of the new with-profits policies which
COBS 20.2.42RRP
A firm that is seeking to make a reattribution of its inherited estate must:(1) first discuss with the FCA7 (as part of its determination under COBS 20.2.21 R):227(a) its projections for capital required to support existing business, which must include an assessment of:2(i) the firm's future risk appetite for the with-profits fund and other relevant business; and2(ii) how much of the margin for prudence can be identified as excessive and removed from the projected capital requirements;
COBS 20.2.43GRP
The firm should include an independent element in the policyholder advocate selection process, which may include consulting representative groups of policyholders or using the services of a recruitment consultant. When considering an application for approval of a nominee to perform the policyholder advocate role, the FCA will have regard to the extent to which the firm has involved others in the selection process.
COBS 20.2.44GRP
The precise role of the policyholder advocate in any particular case will depend on the nature of the firm and the reattribution proposed. A firm will need to discuss, with a view to agreeing,2 with the FCA the precise role of the policyholder advocate in a particular case (COBS 20.2.45 R). However, the role of the policyholder advocate should include:(1) negotiating with the firm, on behalf of the relevant with-profits policyholders, the benefits to be offered to them in exchange
COBS 20.2.45RRP
A firm must:(1) notify the FCA of the terms on which it proposes to appoint a policyholder advocate (whether or not the candidate was nominated by the FCA); and(2) ensure that the terms of appointment for the policyholder advocate:(a) include a description of the role of the policyholder advocate as agreed with the FCA under COBS 20.2.44 G;2(aA) stress the independent nature of the policyholder advocate's appointment and function, and are consistent with it;2(b) define the relationship
COBS 20.2.46GRP
A firm may include, within the policyholder advocate's terms of appointment, arrangements for the policyholder advocate to be indemnified in respect of certain claims that may be made against him in connection with the performance of his functions. If such indemnity is included, it should not include protection against any liability arising from acts of bad faith.
COBS 20.2.47RRP
Where a firm is not otherwise required to appoint an independent expert, it must:(1) appoint a reattribution expert to undertake an objective assessment of its reattribution proposals, who must be:(a) nominated or approved by the appropriate regulator before he is appointed; and(b) free from any conflicts of interest that may, or may appear to, undermine his independence or the quality of his report;(2) ensure that the reattribution expert's terms of appointment allow him to communicate
COBS 20.2.48GRP
A reattribution expert's report should comply with the applicable rules on expert evidence. The scope and content of the report should be substantially similar to that of the report required of an independent expert under SUP 18.2 (Insurance business transfers), as if (where appropriate) a reference to:(1) the 'scheme report' was a reference to the 'reattribution expert's report';(2) the 'independent expert' was a reference to the 'reattribution expert'; and(3) the 'scheme' was
COBS 20.2.49RRP
A firm must ensure that every policyholder that may be affected by the proposed reattribution is sent appropriate and timely information about:(1) the reattribution process, including the role of the policyholder advocate, the independent expert or reattribution expert, as the case may be, and other individuals appointed to perform particular functions;(2) the reattribution proposals and how they affect the relevant policyholders, including an explanation of any benefits they
COBS 20.2.50RRP
An adequate summary of the report by the reattribution expert must be made available to every policyholder that may be affected by the proposed reattribution.
COBS 20.2.51RRP
A firm must give relevant with-profits policyholders the option to:(1) individually accept or reject the final proposals for the reattribution; or(2) (if the legal process to be followed allows the majority of policyholders to bind the minority) vote on whether the firm should go ahead with those proposals.
COBS 20.2.52GRP
(1) Reattribution and insurance business transfer costs (excluding policyholder advocate costs) should be met from shareholder funds. A firm may present alternative arrangements if it can show good reasons for doing so.(2) Shareholders should pay a reasonable proportion of the policyholder advocate's costs.(3) If a reattribution proposal is not successful, the FCA would expect the costs of the policyholder advocate to be met by the person initiating the proposal. That will usually
COBS 20.2.53RRP
A firm must:(1) inform the appropriate regulator and its with-profits policyholders within 28 days; and(2) submit a run-off plan to the appropriate regulator as soon as reasonably practicable and, in any event, within three months;of first ceasing to effect new contracts of insurance in a with-profits fund.
COBS 20.2.54RRP
A firm will be taken to have ceased to effect new contracts of insurance in a with-profits fund:(1) when any decision by the governing body to cease to effect new contracts of insurance takes effect; or(2) where no such decision is made, when the firm is no longer:(a) actively seeking to effect new contracts of insurance in that fund; or(b) effecting new contracts of insurance in that fund, except by increment; or2(3) if the firm:2(a) (i) is no longer effecting a material volume
COBS 20.2.55GRP
2For the purposes of COBS 20.2.54R (3) the FCA will have regard to, amongst other things, the factors set out in COBS 20.2.41BG (3).
COBS 20.2.56RRP
The run-off plan required by COBS 20.2.53 R2 must:2(1) include an up-to-date plan to2 demonstrate how the firm will ensure a fair distribution of the closed with-profits fund, and its inherited estate (if any); and(2) be approved by the firm'sgoverning body.
COBS 20.2.57GRP
(1) A firm should also include the information described in Appendix 2.15 (Run-off plans for closed with-profits funds) of the Supervision manual in its run-off plan.2(2) A firm should periodically review and update its run-off plan and submit updated versions to the FCA when requested to do so.22
COBS 20.2.58GRP
When a firm tells its with-profits policyholders that it has ceased to effect new contracts of insurance in a with-profits fund, it should also explain:(1) why it has done so;(2) what changes it has made, or proposes to make, to the fund's investment strategy (if any);(3) how closure may affect with-profits policyholders (including any reasonably foreseeable effect on future bonus prospects);(4) the options available to with-profits policyholders and an indication of the potential
COBS 20.2.59GRP
A firm may not be able to provide its with-profits policyholders with all of the information described above until it has prepared the run-off plan. In those circumstances, the firm should:(1) tell its with-profits policyholders that that is the case;(2) explain what is missing and give a time estimate for its supply; and(3) provide the missing information as soon as possible, and within the time estimate given.
COBS 20.2.60GRP
(1) If non-profit insurance business is written in a with-profits fund, a firm should take reasonable steps to ensure that the economic value of any future profits expected to emerge on the non-profit insurance business is available for distribution during the lifetime of the with-profits business.(1A) Where a with-profits fund contains assets which may not be readily realisable, the firm should take reasonable steps to ensure that the economic value of those assets is made available
COBS 20.2.61GRP
(1) 4A mutual operating a common fund may seek to undertake an exercise to identify that part of the fund to which the mutual considers it would be fair for relevant provisions in COBS 20 not to apply. (2) To give regulatory effect to the identification exercise, the FCA expects that a mutual will need to apply to the FCA to modify the relevant provisions in COBS 20 and elsewhere which are dependent on the definition of the with-profits fund. (3) A mutual will need to demonstrate
COBS 11.2.1RRP
A firm must take all reasonable steps to obtain, when executing orders, the best possible result for its clients taking into account the execution factors. [Note: article 21(1) of MiFID and article 25(2) first sentence of the UCITS implementing Directive]2[Note: The Committee of European Securities Regulators (CESR) has issued a Question and Answer paper on best execution under MiFID. This paper also incorporates the European Commission's response to CESR's questions regarding
COBS 11.2.1ARRP
2A management company must, in relation to each UCITS scheme or EEA UCITS scheme it manages, act in the best interests of the scheme when executing decisions to deal on its behalf in the context of the management of its portfolio, and COBS 11.2.1 R applies in relation to all such decisions.[Note: article 25(1) of the UCITS implementing Directive]
COBS 11.2.2GRP
The obligation to take all reasonable steps to obtain the best possible result for its clients (see COBS 11.2.1 R) should apply to a firm which owes contractual or agency obligations to the client. [Note: recital 33 to MiFID]
COBS 11.2.3GRP
Dealing on own account with clients by a firm should be considered as the execution of client orders, and therefore subject to the requirements under MiFID, in particular, those obligations in relation to best execution. [Note: first sentence of recital 69 to the MiFID implementing Directive]
COBS 11.2.4GRP
If a firm provides a quote to a client and that quote would meet the firm's obligations to take all reasonable steps to obtain the best possible result for its clients if the firm executed that quote at the time the quote was provided, the firm will meet those same obligations if it executes its quote after the client accepts it, provided that, taking into account the changing market conditions and the time elapsed between the offer and acceptance of the quote, the quote is not
COBS 11.2.5GRP
The obligation to deliver the best possible result when executing client orders applies in relation to all types of financial instruments. However, given the differences in market structures or the structure of financial instruments, it may be difficult to identify and apply a uniform standard of and procedure for best execution that would be valid and effective for all classes of instrument. Best execution obligations should therefore be applied in a manner that takes into account
COBS 11.2.5AGRP
(1) 2A management company should, for each UCITS scheme or EEA UCITS scheme it manages, act in the best interests of the scheme when directly executing orders to deal on its behalf or when transmitting those orders to third parties.(2) When executing orders on behalf of any such scheme it manages, a management company is expected to take all reasonable steps to obtain the best possible result for the scheme on a consistent basis, taking into account price, costs, speed, likelihood
COBS 11.2.6RRP
When executing a client order, a firm must take into account the following criteria for determining the relative importance of the execution factors:(1) the characteristics of the client including the categorisation of the client as retail or professional;(2) the characteristics of the client order;(3) the characteristics of financial instruments that are the subject of that order;(4) the characteristics of the execution venues to which that order can be directed; and2(5) for
COBS 11.2.7RRP
Where a firm executes an order on behalf of a retail client, the best possible result must be determined in terms of the total consideration, representing the price of the financial instrument and the costs related to execution, which must include all expenses incurred by the client which are directly related to the execution of the order, including execution venue fees, clearing and settlement fees and any other fees paid to third parties involved in the execution of the order.
COBS 11.2.8GRP
For the purposes of ensuring that a firm obtains the best possible result for the client when executing a retail client order in the absence of specific client instructions, the firm should take into consideration all factors that will allow it to deliver the best possible result in terms of the total consideration, representing the price of the financial instrument and the costs related to execution. Speed, likelihood of execution and settlement, the size and nature of the order,
COBS 11.2.9GRP
A firm's execution policy should determine the relative importance of each of the execution factors or establish a process by which the firm will determine the relative importance of the execution factors. The relative importance that the firm gives to those execution factors must be designed to obtain the best possible result for the execution of its client orders. Ordinarily, the FCA would expect that price will merit a high relative importance in obtaining the best possible
COBS 11.2.10RRP
For the purposes of delivering best execution for a retail client where there is more than one competing venue to execute an order for a financial instrument, in order to assess and compare the results for the client that would be achieved by executing the order on each of the execution venues listed in the firm's order execution policy that is capable of executing that order, the firm's own commissions and costs for executing the order on each of the eligible execution venues
COBS 11.2.11GRP
The obligation to deliver best execution for a retail client where there are competing execution venues is not intended to require a firm to compare the results that would be achieved for its client on the basis of its own execution policy and its own commissions and fees, with results that might be achieved for the same client by any other firm on the basis of a different execution policy or a different structure of commissions or fees. Nor is it intended to require a firm to
COBS 11.2.12RRP
A firm must not structure or charge its commissions in such a way as to discriminate unfairly between execution venues. [Note: article 44(4) of the MiFID implementing Directive]
COBS 11.2.13GRP
A firm would be considered to structure or charge its commissions in a way which discriminates unfairly between execution venues if it charges a different commission or spread to clients for execution on different execution venues and that difference does not reflect actual differences in the cost to the firm of executing on those venues. [Note: recital 73 to the MiFID implementing Directive]
COBS 11.2.14RRP
A firm must establish and implement effective arrangements for complying with the obligation to take all reasonable steps to obtain the best possible result for its clients. In particular, the firm must establish and implement an order execution policy to allow it to obtain, for its client orders, the best possible result in accordance with that obligation. [Note: article 21(2) of MiFID and article 25(3) first paragraph of the UCITS implementing Directive]2
COBS 11.2.15RRP
The order execution policy must include, in respect of each class of financial instruments, information on the different execution venues where the firm executes its client orders and the factors affecting the choice of execution venue. It must at least include those execution venues that enable the firm to obtain on a consistent basis the best possible result for the execution of client orders. [Note: paragraph 1 of article 21(3) of MiFID]
COBS 11.2.16GRP
(1) When establishing its execution policy, a firm should determine the relative importance of the execution factors, or at least establish the process by which it determines the relative importance of these factors, so that it can deliver the best possible result to its clients.(2) In order to give effect to that policy, a firm should select the execution venues that enable it to obtain on a consistent basis the best possible result for the execution of client orders.(3) A firm
COBS 11.2.17GRP
The provisions of this section which provide that costs of execution include a firm's own commissions or fees charged to the client for the provision of an investment service should not apply for the purpose of determining what execution venues must be included in the firm's execution policy. [Note: recital 72 to the MiFID implementing Directive]
COBS 11.2.18GRP
The provisions of this section as to execution policy are without prejudice to the general obligation of a firm to monitor the effectiveness of its order execution arrangements and policy and assess the execution venues in its execution policy on a regular basis. [Note: recital 74 to the MiFID implementing Directive]
COBS 11.2.19RRP
(1) Whenever there is a specific instruction from the client, the firm must execute the order following the specific instruction.[Note: article 21(1) of MiFID](2) A firm satisfies its obligation under this section to take all reasonable steps to obtain the best possible result for a client to the extent that it executes an order, or a specific aspect of an order, following specific instructions from the client relating to the order or the specific aspect of the order. [Note: article
COBS 11.2.20GRP
When a firm executes an order following specific instructions from the client, it should be treated as having satisfied its best execution obligations only in respect of the part or aspect of the order to which the client instructions relate. The fact that the client has given specific instructions which cover one part or aspect of the order should not be treated as releasing the firm from its best execution obligations in respect of any other parts or aspects of the client order
COBS 11.2.21GRP
A firm should not induce a client to instruct it to execute an order in a particular way, by expressly indicating or implicitly suggesting the content of the instruction to the client, when the firm ought reasonably to know that an instruction to that effect is likely to prevent it from obtaining the best possible result for that client. However, this should not prevent a firm inviting a client to choose between two or more specified trading venues, provided that those venues
COBS 11.2.22RRP
A firm must provide appropriate information to its clients on its order execution policy. [Note: paragraph 2 of article 21(3) of MiFID]
COBS 11.2.23RRP
(1) A firm must provide a retail client with the following details on its execution policy in good time prior to the provision of the service:(a) an account of the relative importance the firm assigns, in accordance with the execution criteria, to the execution factors, or the process by which the firm determines the relative importance of those factors;(b) a list of the execution venues on which the firm places significant reliance in meeting its obligation to take all reasonable
COBS 11.2.23ARRP
2A management company must make available appropriate information on its execution policy and on any material changes to that policy to the Unitholders of each scheme it manages.[Note: article 25(3) second part of the second paragraph of the UCITS implementing Directive]
COBS 11.2.24RRP
Where the order execution policy provides for the possibility that client orders may be executed outside a regulated market or an MTF, the firm must, in particular, inform its clients about this possibility. [Note: paragraph 3 of article 21(3) of MiFID]
COBS 11.2.25RRP
2(1) A firm (other than a management company providing collective portfolio management services for a UCITS scheme or an EEA UCITS scheme) must obtain the prior consent of its clients to the execution policy.2(2) In the case of a management company providing collective portfolio management services for an ICVC that is a UCITS scheme, or for an EEA UCITS scheme that is structured as an investment company, the management company must obtain the prior consent of the ICVC or investment
COBS 11.2.26RRP
A firm must obtain the prior express consent of its clients before proceeding to execute their orders outside a regulated market or an MTF. The firm may obtain this consent either in the form of a general agreement or in respect of individual transactions. [Note: paragraph 3 of article 21(3) of MiFID]
COBS 11.2.27RRP
A firm must monitor the effectiveness of its order execution arrangements and execution policy in order to identify and, where appropriate, correct any deficiencies. In particular, it must assess, on a regular basis, whether the execution venues included in the order execution policy provide for the best possible result for the client or whether it needs to make changes to its execution arrangements. The firm must notify clients of any material changes to their order execution
COBS 11.2.28RRP
(1) A firm must review annually its execution policy, as well as its order execution arrangements.(2) This review must also be carried out whenever a material change occurs that affects the firm's ability to continue to obtain the best possible result for the execution of its client orders on a consistent basis using the venues included in its execution policy. [Note: article 46(1) of the MiFID implementing Directive and article 25(4) second paragraph of the UCITS implementing
COBS 11.2.29RRP
2(1) A firm other than a management company must be able to demonstrate to its clients, at their request, that it has executed their orders in accordance with its execution policy.2(2) A management company must be able to demonstrate that it has executed orders on behalf of any UCITS scheme or EEA UCITS scheme it manages in accordance with its execution policy.2 [Note: article 21(5) of MiFID and article 25(5) of the UCITS implementing Directive]2
COBS 11.2.30RRP
A firm must, when providing the service of portfolio management or, for a management company, collective portfolio management,2 comply with the obligation to act in accordance with the best interests of its clients when placing orders with other entities for execution that result from decisions by the firm to deal in financial instruments on behalf of its client. [Note: article 45(1) of MiFID implementing Directive and article 26(1) of the UCITS implementing Directive]2
COBS 11.2.31RRP
A firm must, when providing the service of reception and transmission of orders, comply with the obligation to act in accordance with the best interests of its clients when transmitting client orders to other entities for execution. [Note: article 45(2) of the MiFID implementing Directive]
COBS 11.2.32RRP
In order to comply with the obligation to act in accordance with the best interests of its clients when it places an order with, or transmits an order to, another entity for execution, a firm must:[Note: article 45(3) of the MiFID implementing Directive and article 26(1) of the UCITS implementing Directive]2(1) take all reasonable steps to obtain the best possible result for its clients taking into account the execution factors. The relative importance of these factors must be
COBS 11.2.32ARRP
2A management company must be able to demonstrate that it has placed orders on behalf of any UCITS scheme or EEA UCITS scheme it manages in accordance with the policy referred to in COBS 11.2.32 R (2).[Note: article 26(4) of the UCITS implementing Directive]
COBS 11.2.33GRP
This section is not intended to require a duplication of effort as to best execution between a firm which provides the service of reception and transmission of orders or portfolio management and any firm to which that firm transmits its orders for execution. [Note: recital 75 to the MiFID implementing Directive]
COBS 11.2.34RRP
The provisions applying to a firm which places orders with, or transmits orders to, other entities for execution (see COBS 11.2.30 R to COBS 11.2.33 G) will not apply when the firm which provides the service of portfolio management or collective portfolio management2 and/or service of reception and transmission of orders also executes the orders received or the decisions to deal on behalf of its client's portfolio. In those cases the requirements of this section for firms who
COBS 6.1A.1RRP
(1) 1This section applies to a firm which makes personal recommendations to retail clients in relation to retail investment products12or P2P agreements.1111(2) This section does not apply to a firm giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme.2
COBS 6.1A.1AGRP
8Guidance on the regulated activity12of advising in relation to a new or existing investment can be found in PERG 8.24 to PERG 8.29. Although the guidance in PERG 8.29.7 G relates to advising on investments (except P2P agreements)12under article 53(1) 12of the Regulated Activities Order, exactly the same answers apply to a personal recommendation because the examples given relate to the relationship between a firm and a particular client and advice given to that specific client.
COBS 6.1A.2RRP
This section does not apply to a firm when it gives basic advice in accordance with the basic advicerules.
COBS 6.1A.2ARRP
4This section does not apply to a firm when it makes a personal recommendation to a retail client in relation to a Holloway sickness policy, provided that the Holloway policy special application conditions are met.
COBS 6.1A.3RRP
This section does not apply if the retail client is outside the United Kingdom.
COBS 6.1A.4RRP
Except as specified in COBS 6.1A.4A R, COBS 6.1A.4AB R, COBS 6.1A.4AC G11 and COBS 6.1A.4B R, a firm must:6(1) only be remunerated for the personal recommendation (and any other related services provided by the firm) by adviser charges; and(2) not solicit or accept (and ensure that none of its associates solicits or accepts) any other commissions, remuneration or benefit of any kind in relation to the personal recommendation or any other related service, regardless of whether
COBS 6.1A.4ARRP
6A firm and its associates may:(1) solicit and accept a commission, remuneration or benefit of any kind in the circumstances set out in COBS 6.1A.4 R if:(a) the personal recommendation was made on or before 30 December 2012;(b) the solicitation and acceptance of the commission, remuneration or benefit of any kind was permitted by the rules in force on 30 December 2012;(c) the contract under which the right to receive the commission, remuneration or benefit of any kind was entered
COBS 6.1A.4AAGRP
(1) 8A firm may continue to accept a commission, remuneration or benefit of any kind after 30 December 2012 if there is a clear link between the payment and an investment in a retail investment product which was made by the retail client following a personal recommendation made, or a transaction executed, on or before 30 December 2012. This is the case even if the firm makes a personal recommendation to the same retail client after 30 December 2012 to the extent that the continued
COBS 6.1A.4ABRRP
11A firm and its associates may solicit and accept a commission, remuneration or benefit of any kind from a discretionary investment manager in the circumstances in COBS 6.1A.4 R if:(1) the firm or its associates recommended the discretionary investment manager to a retail client on or before 30 December 2012;(2) the solicitation and acceptance of the commission, remuneration or benefit of any kind was permitted by the rules in force on 30 December 2012;(3) the contract under
COBS 6.1A.4ACGRP
(1) 11If a firm makes a recommendation of a discretionary investment manager to a retail client and wishes to:(a) receive remuneration for that recommendation in addition to any commission, remuneration or benefit of any kind it receives in the circumstances contemplated by COBS 6.1A.4AB R; or(b) be paid additional amounts for any actions linked to a new amount invested by the retail client through the same discretionary investment manager;it should only be paid those additional
COBS 6.1A.4BRRP
6If a retail client chooses to become a client of a firm and that firm or its associate enters into an arrangement in COBS 6.1A.4AR (2), the firm must:(1) before the arrangement is entered into, disclose to the retail client that the transfer of the commission, remuneration or benefit of any kind will be requested by the firm or its associate;(2) throughout the period during which the firm or its associate receives the commission, remuneration or benefit of any kind, provide the
COBS 6.1A.5GRP
A firm may receive an adviser charge that is no longer payable (for example, after the service it is received in payment for has been amended or terminated) provided the firm refunds any such payment to the retail client.
COBS 6.1A.6RRP
7‘Related service(s)’ for the purposes of COBS 6.1A includes:(1) arranging or executing a transaction which has been recommended to a retail client by the firm, an associate or another firm in the same group or conducting administrative tasks associated with that transaction; or(2) managing a relationship between a retail client (to whom the firm provides personal recommendations on retail investment products or P2P agreements) 12and a discretionary investment manager or providing
COBS 6.1A.6AGRP
11‘Other services’ in COBS 6.1A.6R (3) includes:(1) providing information relating to retail investment products, P2P agreements or operators of electronic systems in relation to lending12 to the retail client, for example, general market research; or(2) passing on information from the discretionary investment manager to the retail client.
COBS 6.1A.7GRP
The requirement to be paid through adviser charges does not prevent a firm from making use of any facility for the payment of adviser charges on behalf of the retail client offered by another firm or other third parties provided that the facility complies with the requirements of COBS 6.1B.9R.
COBS 6.1A.8GRP
Examples of payments and benefits that should not be accepted under the requirement to be paid through adviser charges include:(1) a share of the retail investment product charges or platform service provider's charges, or5retail investment product provider’s or platform service provider's5 revenues or profits; 125(2) a commission set and payable by a retail investment product provider or an operator of an electronic system in relation to lending12 in any jurisdiction12; and(3)
COBS 6.1A.9RRP
If the firm or its associate is the retail investment product provider or operator of an electronic system in relation to lending12, the firm must ensure that the level of its adviser charges is at least reasonably representative of the services associated with making the personal recommendation (and related services).
COBS 6.1A.10GRP
An adviser charge is likely to be reasonably representative of the services associated with making the personal recommendation if:(1) the expected long term costs associated with making a personal recommendation and distributing the retail investment product do not include the costs associated with manufacturing and administering the retail investment product;(2) the allocation of costs and profit to adviser charges and product charges is such that any cross-subsidisation is not
COBS 6.1A.11RRP
A firm must determine and use an appropriate charging structure for calculating its adviser charge for each retail client.
COBS 6.1A.12GRP
A firm can use a standard charging structure.
COBS 6.1A.13GRP
In determining its charging structure and adviser charges a firm should have regard to its duties under the client's best interests rule. Practices which may indicate that a firm is not in compliance with this duty include:(1) varying its adviser charges inappropriately according to provider or, for substitutable and competing retail investment products, the type of retail investment product; or(2) allowing the availability or limitations of services offered by third parties
COBS 6.1A.14RRP
A firm must not use a charging structure which conceals the amount or purpose of any of its adviser charges from a retail client.
COBS 6.1A.14ARRP
9A firm must not make a personal recommendation to a retail client in relation to a retail investment product or P2P agreement12if it knows, or ought to know, that:(1) the product’s charges,12 the platform service provider's charges or the operator of the electronic system in relation to lending’s charges 12are presented in a way that offsets or may appear to offset any adviser charges or platform charges that are payable by that retail client; or(2) the product’s charges or other
COBS 6.1A.15GRP
A firm is likely to be viewed as operating a charging structure that conceals the amount or purpose of its adviser charges if, for example:(1) it makes arrangements for amounts in excess of its adviser charges to be deducted from a retail client's investments from the outset, in order to be able to provide a cash refund to the retail client later; or(2) it provides other services to a retail client (for example, advising on a home finance transaction or advising on an equity release
COBS 6.1A.16GRP
In order to meet its responsibilities under the client's best interests rule and Principle 6 (Customers’ interests), a firm should consider whether the personal recommendation or any other related service7 is likely to be of value to the retail client when the total charges the retail client is likely to be required to pay are taken into account.
COBS 6.1A.17RRP
A firm must disclose its charging structure to a retail client in writing, in good time before making the personal recommendation (or providing related services).
COBS 6.1A.18GRP
A firm may wish to consider disclosing as its charging structure a list of the advisory services it offers with the associated indicative charges which will be used for calculating the adviser charge for each service.
COBS 6.1A.19GRP
In order to meet the requirement in the rule on information disclosure before providing services (COBS 2.2.1 R), a firm should ensure that the disclosure of its charging structure is in clear and plain language and, as far as is practicable, uses cash terms. If a firm's charging structure is in non-cash terms, examples in cash terms should be used to illustrate how the charging structure will be applied in practice.
COBS 6.1A.20GRP
A firm is unlikely to meet its obligations under the fair, clear and not misleading rule and the client's best interests rule unless it ensures that:(1) the charging structure it discloses reflects, as closely as is practicable, the total adviser charge to be paid; for example, the firm should avoid using a wide range; and(2) if using hourly rates in its charging structure, it states whether the rates are indicative or actual hourly rates, provides the basis (if any) upon which
COBS 6.1A.21GRP
A firm may meet the disclosure requirements in this section by using a services and costs disclosure document or a combined initial disclosure document (COBS 6.3 and COBS 6 Annex 1G or COBS 6 Annex 2).
COBS 6.1A.22RRP
A firm must not use an adviser charge which is structured to be payable by the retail client over a period of time unless (1) or (2) applies:(1) the adviser charge is in respect of an ongoing service for the provision of personal recommendations or related services and: (a) the firm has disclosed that service along with the adviser charge; and6(b) the retail client is provided with a right to cancel the ongoing service, which must be reasonable in all the circumstances, without
COBS 6.1A.22AGRP
6To comply with the rule on providing a retail client with the right to cancel an ongoing service for the provision of personal recommendations or related services without penalty (COBS 6.1A.22R (1)(b)) a firm should:(1) ensure that any notice period of the retail client's right of cancellation is reasonable; (2) not make any charge in respect of cancellation of the ongoing service except for an amount which is in proportion to the extent of the service already provided by the
COBS 6.1A.22BRRP
6If a retail client exercises his right to cancel an ongoing service, the firm must clearly disclose to the retail client whether charges for other services provided by the firm, such as custody services, will continue to be payable by the retail client.
COBS 6.1A.23RRP
If COBS 6.1A.22R(1) or (2) do not apply, a firm may not offer credit to a retail client for the purpose of paying adviser charges unless this would be in the best interests of the retail client.
COBS 6.1A.24RRP
(1) A firm must agree with and disclose to a retail client the total adviser charge payable to it or any of its associates by a retail client.(2) A disclosure under (1) must:(a) be in cash terms (or convert non-cash terms into illustrative cash equivalents);(b) be as early as practicable;(c) be in a durable medium or through a website (if it does not constitute a durable medium) if the website conditions are satisfied; and(d) if there are payments over a period of time, include
COBS 6.1A.24AGRP
3If the price of the retail investment product may vary as a result of fluctuations in the financial markets and the adviser charge is expressed as a percentage of that price, a firm need not disclose to the retail client the total adviser charge payable to the firm or any of its associates by the retail client until after execution of the transaction, provided it then does so promptly.
COBS 6.1A.25GRP
A firm may include the information required by the rule on disclosure of total adviser charges (COBS 6.1A.24 R) in a suitability report.
COBS 6.1A.26GRP
To comply with the rule on disclosure of total adviser charges (COBS 6.1A.24 R) and the fair, clear and not misleading rule, a firm's disclosure of the total adviser charge should:(1) provide information to the retail client as to which particular service an adviser charge applied to;(2) include information as to when payment of the adviser charge is due; (3) inform the retail client if the total adviser charge varies materially from the charge indicated for that service in the
COBS 6.1A.27RRP
A firm must keep a record of:(1) its charging structure;(2) the total adviser charge payable by each retail client; and(3) if the total adviser charge paid by a retail client has varied materially from the charge indicated for that service in the firm's charging structure, the reasons for that difference.
COBS 19.7.1RRP
In this section:(1) [deleted]2(2) “pension decumulation product” is a product used to access pension savings and includes:2(a) a facility to enable a retail client to make an uncrystallised funds pension lump sum payment; 2(b) an option to take a small lump sum payment; 2(c) a drawdown pension; and2(d) a pension annuity; 2(3) “pension savings” is the proceeds of the client'spersonal pension scheme, stakeholder pension scheme, or occupational pension scheme;(4) “retirement risk
COBS 19.7.2RRP
This section applies to a firm communicating with a retail client in relation to accessing their pension savings using a pension decumulation product.
COBS 19.7.3RRP
This section does not apply:(1) to a firm giving regulated advice to a retail client on options to access their pension savings;(2) if the firm has already provided the retirement risk warnings to the retail client in relation to their decision to access their pension savings and the firm has reasonable grounds to believe that the retirement risk warnings are still appropriate for the client.
COBS 19.7.4GRP
(1) The purpose of this section is to ensure that a firm, which is communicating with a retail client about a pension decumulation product, gives appropriate retirement risk warnings at the point when the retail client has decided how to access their pension savings. (2) If the retail client has not yet decided what to do,2 the firm should consider whether it is required to signpost the pensions guidance under COBS 19.4.16R2 (signposting pensions guidance) and whether it may be
COBS 19.7.5GRP
This section amplifies Principles 6 and 7, but does not exhaust or restrict what they require. A firm will, in any event, need to ensure that its sales processes are consistent with the Principles and other rules.
COBS 19.7.6GRP
An illustration of the steps a firm is required to take is set out in COBS 19 Annex 1G.
COBS 19.7.7RRP
A firm must follow the steps specified in this section at the point when the retail client has decided (in principle) to take one of the following actions (and before the action is concluded):(1) buy a pension decumulation product; or(2) vary their personal pension scheme, stakeholder pension scheme, FSAVC, retirement annuity contract or pension buy-out contract to enable the client to:(a) access pension savings using a drawdown pension; or(b) elect to make one-off, regular or
COBS 19.7.8RRP
(1) The first step is to ask the retail client whether they have received pensions guidance or regulated advice:(a) if the client says that they have, the firm must proceed to step 2; or(b) if the client says that they have not or is unsure, the firm must explain that the decision to access pension savings is an important one and encourage the retail client to use pensions guidance or to take regulated advice to understand their options at retirement.(2) If, after giving the explanation
COBS 19.7.9RRP
Based on how the retail client wants to access their pension savings, at step 2 the firm must ask the client questions to identify whether any risk factors are present, except where COBS 19.7.9AR applies2.
COBS 19.7.9ARRP
2If the value of the retail client’s pension savings is £10,000 or less and there are no safeguarded benefits, the firm:(1) is not required to ask questions to identify whether any risk factors are present; and(2) must prepare appropriate retirement risk warnings based on the risk factors relevant to each pension decumulation product it offers to enable retail clients to access their pension savings.
COBS 19.7.9BRRP
2A firm may ask the client the questions required by COBS 19.7.9R before the client has decided (in principle) to take one of the actions specified in COBS 19.7.7R to access their pension savings.
COBS 19.7.9CRRP
2If, to complete step 2, a firm relies on information gathered prior to the client’s decision to access their pension savings, the firm must be satisfied that this information is relevant, accurate and up-to-date before giving the risk warnings at step 3.
COBS 19.7.10RRP
A firm must prepare the questions required by COBS 19.7.9 R before taking the steps for the first time, and must keep the questions up to date.
COBS 19.7.11GRP
To prepare for step 2, the firm should:(1) identify the main risk factors relevant to each pension decumulation product it offers to enable retail clients to access their pension savings; and(2) prepare questions to enable it to identify the presence of those risk factors for different retail clients.
COBS 19.7.12GRP
Examples of the sorts of risk factors which relate to pension decumulation products are:(1) the client's state of health;(2) loss of any guarantees;(3) whether the client has a partner or dependants; (4) inflation; (5) whether the client has shopped around; (6) sustainability of income in retirement; (7) tax implications; (8) charges (if a client intends to invest their pension savings); (9) impact on means-tested benefits;(10) debt; and(11) investment scams.
COBS 19.7.13RRP
At step 3:2(1) if the value of the retail client's pension savings is £10,000 or less and there are no safeguarded benefits, based on how the retail client wants to access their pension savings, a firm must give the client the appropriate retirement risk warnings prepared under COBS 19.7.9AR(2); and 2(2) in all other cases, a firm must give the retail client appropriate retirement risk warnings in response to the client's answers to the firm's questions.2
COBS 19.7.14RRP
A firm must prepare the retirement risk warnings required by COBS 19.7.13 R in good time before taking the steps for the first time, and must keep them up to date.
COBS 19.7.15GRP
If after considering the retail client's answers it is unclear whether a risk factor is present, a firm should give the client the appropriate retirement risk warning.
COBS 19.7.16RRP
When communicating the signpost and retirement risk warnings, the firm must do so clearly and prominently.
COBS 19.7.17RRP
Whatever the means of communication, the firm must ensure that the retail client cannot progress to the next stage of the sale unless the relevant signpost or retirement risk warning has been communicated to the client.
COBS 19.7.18GRP
For an internet sale, a firm should display the required information on a screen which the retail client must access and acknowledge as part of the sales process. It would not be sufficient for the information to be accessible only by giving the client the option to click on a link or download a document.
COBS 19.7.19RRP
Firms must record whether the retail client has received:(1) the retirement risk warnings at step 3 of the process specified in this section;(2) regulated advice; and(3) pensions guidance.
COBS 2.3.-1RRP
6In this section ‘giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme’ includes:(1) giving advice or assistance to an employer on the operation of such a scheme;(2) taking, or helping the employer to take, the steps that must be taken to enable an employee to become a member of such a scheme; and(3) giving advice to an employee, pursuant to an agreement between the employer and the adviser,
COBS 2.3.-1ARRP
This section does not apply to giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme where that scheme is a qualifying scheme.
COBS 2.3.-1BGRP
The rules governing fees, commissions and non-monetary benefits which may be paid or provided in respect of qualifying schemes are found in COBS 19.6.
COBS 2.3.1RRP
A firm must not pay or accept any fee or commission, or provide or receive any non-monetary benefit, in relation to designated investment business or, in the case of its MiFID or equivalent third country business, another ancillary service, carried on for a client other than:(1) a fee, commission or non-monetary benefit paid or provided to or by the client or a person on behalf of the client; or(2) a fee, commission or non-monetary benefit paid or provided to or by a third party
COBS 2.3.1ARRP
7COBS 2.3.1 R applies to a UK UCITS management company and EEA UCITS management company when providing collective portfolio management services, as if:(1) references to a client, were references to any UCITS it manages; and(2) in (2)(b) and (c) and (3) of that rule, references to MiFID or equivalent third country business were also references to the collective portfolio management activities of investment management and administration for the scheme.[Note: article 29(1) of the
COBS 2.3.2RRP
A firm will satisfy the disclosure obligation under this section if it:(1) discloses the essential arrangements relating to the fee, commission or non-monetary benefit in summary form;(2) undertakes to the client that further details will be disclosed on request; and(3) honours the undertaking in (2).[Note: article 26 of the MiFID implementing Directive and article 29(2) of the UCITS implementing Directive]7
COBS 2.3.2ARRP
7COBS 2.3.2 R applies to a UK UCITS management company and EEA UCITS management company when providing collective portfolio management services, as if references to a client were references to a Unitholder of the scheme.[Note: article 29(2) of the UCITS implementing Directive]
COBS 2.3.3GRP
The obligation of a firm to act honestly, fairly and professionally in accordance with the best interests of its clients includes both the client's best interests rule and the duties under Principles 1 (integrity), 2 (skill, care and diligence) and 6 (customers' interests).
COBS 2.3.4GRP
1COBS 11.6 (Use of dealing commission) deals with the acceptance of certain inducements by investment managers and builds upon the requirements in this section. Investment managers should ensure they comply with this section and COBS 11.6.
COBS 2.3.5GRP
For the purposes of this section, a non-monetary benefit would include the direction or referral by a firm of an actual or potential item of designated investment business to another person, whether on its own initiative or on the instructions of an associate.
COBS 2.3.6GRP
For the purposes of this section, the receipt by an investment firm of a commission in connection with a personal recommendation or a general recommendation, in circumstances where the advice or recommendation is not biased as a result of the receipt of commission, should be considered as designed to enhance the quality of the recommendation to the client. [Note: recital 39 of MiFID implementing Directive]
COBS 2.3.6AGRP
5COBS 6.1A (Adviser charging and remuneration), COBS 6.1B (Retail investment product provider and operator of an electronic system in relation to lending and platform service provider 10requirements relating to adviser charging and remuneration), COBS 6.1C (Consultancy charging and remuneration) and COBS 6.1D (Product provider requirements relating to consultancy charging and remuneration) set out specific requirements as to when it is acceptable for a firm to pay or receive commissions,
COBS 2.3.7GRP
The fact that a fee, commission or non-monetary benefit is paid or provided to or by an appointed representative or, where applicable, by a tied agent,2 does not prevent the application of the rule on inducements.
COBS 2.3.8GRP
The rule on inducements is applicable to a firm and those acting on behalf of a firm in relation to the provision of an investment service or ancillary service to a client. Small gifts and minor hospitality received by an individual in their personal capacity below a level specified in the firm's conflict's of interest policy, will not be relevant for the purpose of the rule on inducements.
COBS 2.3.9GRP
1The following guidance and evidential provisions provide examples of arrangements the FCA believes will breach the client's best interests rule if a firm sells or arranges5 the sale of a packaged product for a retail client.5
COBS 2.3.10ERP
(1) 1If a firm is required to disclose commission (see COBS 6.4) to a client in relation to the sale of a packaged product (other than in relation to arrangements between firms that are in the same immediate group) the firm should not enter into any of the following:(a) volume overrides, if commission paid in respect of several transactions is more than a simple multiple of the commission payable in respect of one transaction of the same kind; and(b) an agreement to indemnify
COBS 2.3.11GRP
(1) 1If a firm enters into an arrangement with another firm under which it makes or receives a payment of commission in relation to the sale of a packaged product that is increased in excess of the amount disclosed to the client, the firm is likely to have breached the rules on disclosure of charges, remuneration and commission (see COBS 6.4) and, where applicable, the rule on inducements in COBS 2.3.1R (2)(b), unless the increase is attributable to an increase in the premiums
COBS 2.3.11AGRP
5The following guidance and evidential provisions provide examples of arrangements the FCA believes will breach the client's best interests rule in relation to a personal recommendation of a retail investment product or P2P agreement10to a retail client.
COBS 2.3.12ERP
(1) 1This evidential provision applies in relation to a holding in, or the provision of credit to, a firm which holds itself out as making personal recommendations to retail clients on retail investment products or P2P agreements10, except where the relevant transaction is between persons who are in the same immediate group.55(2) A retail investment product provider5 or operator of an electronic system in relation to lending10 should not take any step which would result in it:5(a)
COBS 2.3.12AGRP
5Where a retail investment product provider or operator of an electronic system in relation to lending, 10or its associate, provides credit to a retail client of a firm making personal recommendations in relation to retail investment products or P2P agreements10 or giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme6, this may create an indirect benefit for the firm and, to the extent that
COBS 2.3.13GRP
1In considering the compliance of arrangements between members of the same immediate group with the rule on inducements (COBS 2.3.1 R), firms may wish to consider the evidential provisions in COBS 2.3.10 E and COBS 2.3.12 E, to the extent that these are relevant.
COBS 2.3.14GRP
(1) 1In relation to the sale of retail investment products,5 the table on reasonable non-monetary benefits (COBS 2.3.15 G) indicates the kind of benefits which are capable of enhancing the quality of the service provided to a client and, depending on the circumstances, are capable of being paid or received without breaching the client's best interests rule. However, in each case, it will be a question of fact whether these conditions are satisfied. 5(2) The guidance in the table
COBS 2.3.15GRP

1This table belongs to COBS 2.3.14 G.

11

Gifts, Hospitality and Promotional Competition Prizes

1

A retail investment product provider5 giving and a firm receiving gifts, hospitality and promotional competition prizes of a reasonable value.

5

Promotion

2

A retail investment product provider5 assisting another firm to promote its retail investment products5 so that the quality of its service to clients is enhanced. Such assistance should not be of a kind or value that is likely to impair the recipient firm's ability to pay due regard to the interests of its clients, and to give advice on, and recommend, retail investment products5 available from the recipient firm's whole range or ranges.

555

Joint marketing exercises

3

A retail investment product provider5 providing generic product literature (that is, letter heading, leaflets, forms and envelopes) that is suitable for use and distribution by or on behalf of another firm if:

5

(a)

the literature enhances the quality of the service to the client and is not primarily of promotional benefit to the retail investment product provider;5 and

5

(b)

the total costs (for example, packaging, posting, mailing lists) of distributing such literature to its client are borne by the recipient firm.

4

A retail investment product provider5 supplying another firm with 'freepost' envelopes, for forwarding such items as completed applications, medical reports or copy client agreements.

5

5

A retail investment product provider5 supplying product specific literature (for example, key features documents, minimum information) to another firm if:

5

(a)

the literature does not contain the name of any other firm; or

(b)

if the name of the recipient firm is included, the literature enhances the quality of the service to the client and is not primarily of promotional benefit to the recipient firm.

6

A retail investment product provider5 supplying draft articles, news items and financial promotions for publication in another firm's magazine, only if in each case any costs paid by the product provider for placing the articles and financial promotions are not more than market rate, and exclude distribution costs.

5

Seminars and conferences

7

A retail investment product provider5 taking part in a seminar organised by another firm or a third party and paying toward the cost of the seminar, if:

5

(a)

its participation is for a genuine business purpose; and

(b)

the contribution is reasonable and proportionate to its participation and by reference to the time and sessions at the seminar when its staff play an active role.

Technical services and information technology

8

A retail investment product provider5 supplying a 'freephone' link to which it is connected.

5

9

A retail investment product provider5 supplying another firm with any of the following:

5

(a)

quotations and projections relating to its retail investment products5 and, in relation to specific investment transactions (or for the purpose of any scheme for review of past business), advice on the completion of forms or other documents;

5

(b)

access to data processing facilities, or access to data, that is related to the retail investment product provider’s5 business;

5

(c)

access to third party electronic dealing or quotation systems that are related to the retail investment product provider's5 business; and

5

(d)

software that gives information about the retail investment product provider's retail investment products5 or which is appropriate to its business (for example, for use in a scheme for review of past business or for producing projections or technical product information).

5

10

A retail investment product provider5 paying cash amounts or giving other assistance to a firm not in the same immediate group for the development of software or other computer facilities necessary to operate software supplied by the retail investment product provider,5 but only to the extent that by doing so it will generate equivalent cost savings to itself or clients.

55

11

A retail investment product provider5 supplying another firm with information about sources of mortgage finance.

5

12

A retail investment product provider5 supplying another firm with generic technical information in writing, not necessarily related to the product provider's business, when this information states clearly and prominently that it is produced by the product provider or (if different) supplying firm.

5

Training

13

A retail investment product provider5 providing another firm with training facilities of any kind (for example, lectures, venue, written material and software).

5

Travel and accommodation expenses

14

A retail investment product provider5 reimbursing another firm's reasonable travel and accommodation expenses when the other firm:

5

(a)

participates in market research conducted by or for the retail investment product provider;5

5

(b)

attends an annual national event of a United Kingdom trade association, hosted or co-hosted by the retail investment product provider;5

5

(c)

participates in the retail investment product provider’s5 training facilities (see 13);

5

(d)

visits the retail investment product provider’s5United Kingdom office in order to:

5

(i)

receive information about the retail investment product provider's5 administrative systems; or

5

(ii)

attend a meeting with the retail investment product provider5 and an existing or prospective client of the receiving firm.

5
COBS 2.3.16GRP
1In interpreting the table of reasonable non-monetary benefits, retail investment product providers5 should be aware that where a benefit is made available to one firm and not another, this is more likely to impair compliance with the client's best interests rule and that, where any benefits of substantial size or value (such as adviser training programmes or significant software) are made available to firms that are subject to the rules on adviser charging and remuneration (COBS
COBS 2.3.16AGRP
5In interpreting the table of reasonable non-monetary benefits, a firm that provides a personal recommendation in relation to a retail investment product to a retail client or gives advice, or provides a service, to an employer in connection with a group personal pension scheme or a group stakeholder pension scheme6 should be aware that acceptance of benefits on which the firm will have to rely for a period of time is more likely to impair compliance with the client's best interests
COBS 2.3.17RRP
(1) A firm must make a record of the information disclosed to the client in accordance with COBS 2.3.1R (2)(b)4 and must keep that record for at least five years from the date on which it was given.4(2) A firm must also 4make a record of each benefit given to another firm which does not have to be disclosed to the client4in accordance with COBS 2.3.1R (2)(b)(ii),4 and must keep that record for at least five years from the date on which it was given.14 [Note: see article 51(3)
COBS 6.2A.1RRP
(1) 1This section applies to a firm that either:(a) makes a personal recommendation to a retail client in relation to a retail investment product; or(b) provides basic advice to a retail client.(2) This section does not apply to a firm when it makes a personal recommendation or provides basic advice to an employee, if that recommendation or advice is provided under the terms of an agreement between the firm and that employee’s employer which is subject to the rules on consultancy
COBS 6.2A.1ARRP
4This section does not apply to a firm when it makes a personal recommendation to a retail client in relation to a Holloway sickness policy, provided that the Holloway policy special application conditions are met.
COBS 6.2A.1BGRP
7P2P agreements are not retail investment products. This section does not apply to a firm when it is advising on P2P agreements.
COBS 6.2A.2RRP
This section does not apply if the retail client is outside the United Kingdom.
COBS 6.2A.3RRP
(1) A firm must not hold itself out to a retail client as acting independently unless the only personal recommendations in relation to retail investment products it offers to that retail client are:(a) based on a comprehensive and fair analysis of the relevant market; and(b) unbiased and unrestricted.(2) Paragraph (1) does not apply to group personal pension schemes if a firm discloses information to a client in accordance with the rule on group personal pension schemes (COBS
COBS 6.2A.4GRP
(1) A firm that provides both independent advice and restricted advice should not hold itself out as acting independently for its business as a whole. 6(1A) 6A firm that offers an unlimited range of regulated mortgage contracts, or gives advice in relation to contracts of insurance on the basis of a fair analysis, but offers restricted advice on retail investment products should not hold itself out as acting independently for its business as a whole, for example by holding itself
COBS 6.2A.4ARRP
5In complying with COBS 6.2A.3 R, a firm which: (1) holds itself out to a retail client as acting independently; and(2) relies upon a single platform service to facilitate the majority of its personal recommendations in relation to retail investment products;must take reasonable steps to ensure that, as appropriate, the platform service provider bases its selection of retail investment products on a comprehensive, fair and unbiased analysis of the relevant market.
COBS 6.2A.4BGRP
5When a firm considers whether a platform service provider's selection of retail investment products is based on an unbiased analysis of the relevant market, a firm should take into account any fees, commission or non-monetary benefits the platform service provider receives in relation to those retail investment products.
COBS 6.2A.5RRP
A firm must disclose in writing to a retail client, in good time before the provision of its services in respect of a personal recommendation or basic advice in relation a retail investment product, whether its advice will be:(1) independent advice; or(2) restricted advice.
COBS 6.2A.6RRP
(1) A firm must include the term “independent advice” or “restricted advice” or both, as relevant, in the disclosure.(2) If a firm provides independent advice in respect of a relevant market that does not include all retail investment products, a firm must include in the disclosure an explanation of that market, including the types of retail investment products which constitute that market.(3) If a firm provides restricted advice, its disclosure must explain the nature of the
COBS 6.2A.7RRP
A firm must provide the disclosure information required by the rule on describing the breadth of a firm's advice service (COBS 6.2A.5 R) in a durable medium or through a website (if it does not constitute a durable medium) provided the website conditions are satisfied.
COBS 6.2A.8GRP
A firm may meet the disclosure requirements in the rule on describing the breadth of a firm's advice service (COBS 6.2A.5 R) and the rule on content and wording of disclosure (COBS 6.2A.6R) by using a services and costs disclosure document or a combined initial disclosure document (COBS 6.3 and COBS 6 Annex 1G or COBS 6 Annex 2).
COBS 6.2A.9RRP
If a firm provides restricted advice and engages in spoken interaction with the retail client, a firm must disclose orally in good time before the provision of its services in respect of a personal recommendation that it provides restricted advice and the nature of that restriction.
COBS 6.2A.11GRP
A relevant market should comprise all retail investment products which are capable of meeting the investment needs and objectives of a retail client.
COBS 6.2A.12GRP
A relevant market can be limited by the investment needs and objectives of the retail client. For example, ethical and socially responsible investments or Islamic financial products could both be relevant markets. However, a firm would be expected to consider all retail investment products within those investment parameters.
COBS 6.2A.13GRP
For a firm not specialising in a particular market, the relevant market will generally include all retail investment products.
COBS 6.2A.14GRP
A personal recommendation on a retail investment product that invests in a number of underlying investments would not of itself meet the requirements for providing unbiased and unrestricted advice even if the retail investment product invests in a wide range of underlying investments.
COBS 6.2A.15GRP
In order to satisfy the rule on firms holding themselves out as independent (COBS 6.2A.3 R) a firm should ensure that it is not bound by any form of agreement with a retail investment product provider that restricts the personal recommendation the firm can provide or imposes any obligation that may limit the firm's ability to provide a personal recommendation which is unbiased and unrestricted.
COBS 6.2A.16GRP
A firm may be owned by, or own in whole or part, or be financed by or provide finance to, a retail investment product provider without contravening the ‘unbiased, unrestricted’ requirement provided the firm ensures that that ownership or finance does not prevent the firm from providing a personal recommendation which is unbiased and unrestricted.
COBS 6.2A.17GRP
In providing unrestricted advice a firm should consider relevant financial products other than retail investment products which are capable of meeting the investment needs and objectives of a retail client, examples of which could include national savings and investments products and cash deposit ISAs.
COBS 6.2A.18GRP
A firm may provide a personal recommendation on a comprehensive and fair analysis basis required by the rule on firms holding themselves out as independent (COBS 6.2A.3 R) by using ‘panels’. A firm would need to ensure that any panel is sufficiently broad in its composition to enable the firm to make personal recommendations based on a comprehensive and fair analysis, is reviewed regularly, and that the use of the panel does not materially disadvantage any retail client.
COBS 6.2A.19GRP
When using a panel a firm may exclude a certain type or class of retail investment product from the panel if, after review, there is a valid reason consistent with the client's best interests rule, for doing so.
COBS 6.2A.20GRP
If a firm chooses to use a third party to conduct a fair and comprehensive analysis of its relevant market, the firm is responsible for ensuring the criteria used by the third party are sufficient to meet the requirement. For example, criteria which selected retail investment product providers on the basis of payment of a fee (or facilitation of adviser charges), whilst excluding those not paying a fee (or such a facilitation) would not meet the comprehensive and fair analysis
COBS 6.2A.21GRP
Firms are reminded of the general record keeping requirements in SYSC 3.2 and SYSC 9. A firm should keep appropriate records of the disclosures required by this section.
COBS 6.2A.22GRP
(1) Firms are reminded of the systems and controls requirements in SYSC.(2) A firm providing restricted advice should take reasonable care to establish and maintain appropriate systems and controls to ensure that if there is no retail investment product in the firm's range of products which meets the investment needs and objectives of the retail client, no personal recommendation should be made.(3) A firm specialising in a relevant market should take reasonable care to establish
COBS 5.1.-1RRP
3(1) This section applies to a firm that carries on any distance marketing activity from an establishment in the United Kingdom, with or for a consumer in the United Kingdom or another EEA State.3(2) If a firm is an intermediary rather than the supplier under the distance contract, references to 'firm' in COBS 5 Annex 1 R and COBS 5 Annex 2 R are to be interpreted as referring to the supplier except for references to 'firm' in COBS 5 Annex 1 R (2), (4) and (18).3
COBS 5.1.1RRP
1A firm must provide a consumer with the distance marketing information (COBS 5 Annex 1R ) in good time before the consumer is bound by a distance contract or offer. [Note: article 3(1) of the Distance Marketing Directive]
COBS 5.1.2RRP
A firm must ensure that the distance marketing information, the commercial purpose of which must be made clear, is provided in a clear and comprehensible manner in any way appropriate to the means of distance communication used, with due regard, in particular, to the principles of good faith in commercial transactions, and the legal principles governing the protection of those who are unable to give their consent, such as minors. [Note: article 3(2) of the Distance Marketing
COBS 5.1.3RRP
When a firm makes a voice telephony communication to a consumer, it must make its identity and the purpose of its call explicitly clear at the beginning of the conversation. [Note: article 3(3)(a) of the Distance Marketing Directive]
COBS 5.1.4RRP
A firm must ensure that information on contractual obligations to be communicated to a consumer during the pre-contractual phase is in conformity with the contractual obligations which would result from the law presumed to be applicable to the distance contract if that contract is concluded. [Note: article 3(4) of the Distance Marketing Directive]
COBS 5.1.5RRP
A firm must communicate to the consumer all the contractual terms and conditions and the information referred to in the distance marketing disclosure rules (COBS 5.1.1 R to COBS 5.1.4 R) on a durable medium available and accessible to the consumer in good time before the consumer is bound by any distance contract or offer. [Note: article 5(1) of the Distance Marketing Directive]
COBS 5.1.6GRP
A firm will provide information, or communicate contractual terms and conditions, to a consumer if another person provides the information, or communicates the terms and conditions, to the consumer on its behalf.
COBS 5.1.7RRP
This section does not apply to a distance contract to deal as agent, advise or arrange, if the distance contract is concluded merely as a stage in the provision of another service by the firm or another person. [Note: recital 19 to the Distance Marketing Directive]
COBS 5.1.8RRP
In the case of a distance contract comprising an initial service agreement, followed by successive operations or a series of separate operations of the same nature performed over time, the rules in this section only apply to the initial agreement. [Note: article 1(2) of the Distance Marketing Directive]
COBS 5.1.9RRP
If there is no initial service agreement but the successive operations or separate operations of the same nature performed over time are performed between the same contractual parties, the distance marketing disclosure rules (COBS 5.1.1 R to COBS 5.1.4 R) will only apply: (1) when the first operation is performed; and(2) if no operation of the same nature is performed for more than a year, when the next operation is performed (the next operation being deemed the first in a new
COBS 5.1.10GRP
In this section:(1) 'initial service agreement' includes the opening of a bank account and the concluding of a portfolio management contract;(2) 'operations' includes transactions made within the framework of a portfolio management contract; and5(3) adding new elements to an initial service agreement, such as the ability to use an electronic payment instrument together with one's existing bank account, does not constitute an 'operation' but an additional contract to which the
COBS 5.1.11GRP
In the FCA's view, other examples of:(1) 'initial service agreement' include:(a) subscribing to an investment trust savings scheme; or(b) concluding a life policy, personal pension scheme or stakeholder pension scheme that includes a pre-selected option providing for future increases or decreases in regular premiums or payments; and(2) 'operations' include:(a) successive purchases or sales of shares under an investment trust savings scheme; and(b) subsequent index-linked changes
COBS 5.1.12RRP
In the case of a voice telephony communication, and subject to the explicit consent of the consumer, only the abbreviated distance marketing information (COBS 5 Annex 2R ) needs to be provided during that communication. However, a firm must still provide the distance marketing information (COBS 5 Annex 1R ) on a durable medium available and accessible to the consumer in good time before the consumer is bound by any distance contract or offer, unless another exception applies.
COBS 5.1.13RRP
A firm may provide the distance marketing information (COBS 5 Annex 1R ) and the contractual terms and conditions in a durable medium immediately after the conclusion of a distance contract, if the contract has been concluded at a consumer's request using a means of distance communication that does not enable the provision of that information in that form in good time before the consumer is bound by any distance contract or offer. [Note: article 5(2) of the Distance Marketing
COBS 5.1.13ARRP
4Where a distance contract is also a contract for payment services to which the Payment Services Regulations apply, a firm is required to provide to the consumer only the information specified in rows 7 to 12, 15, 16 and 20 of COBS 5 Annex 1 R. [Note: article 4(5) of the Distance Marketing Directive]
COBS 5.1.13BGRP
4Where a distance contract covers both payment services and non-payment services, this exception applies only to the payment services aspects of the contract. A firm taking advantage of this exception will need to comply with the information requirements in Part 5 of the Payment Services Regulations.
COBS 5.1.14RRP
If, at any time during the contractual relationship, a consumer that is a party to a distance contract asks a firm:(1) for a paper copy of the terms and conditions of that contract; or(2) to change the means of distance communication used;the firm must provide that paper copy or change the means of distance communication used, unless (in the latter case) that would be incompatible with the contract or the nature of the service provided. [Note: article 5(3) of the Distance Marketing
COBS 5.1.15RRP
(1) A firm must not enforce, or seek to enforce, any obligations under a distance contract against a consumer, in the event of an unsolicited supply of services, the absence of reply not constituting consent.(2) This rule does not apply to the tacit renewal of a distance contract. [Note: article 9 of the Distance Marketing Directive]
COBS 5.1.16RRP
If a consumer purports to waive any of the consumer's rights created or implied by the rules in this section, a firm must not accept that waiver, nor seek to rely on or enforce it against the consumer. [Note: article 12 of the Distance Marketing Directive]
COBS 5.1.17RRP
If a firm proposes to enter into a distance contract with a consumer that will be governed by the law of a country outside the EEA, the firm must ensure that the consumer will not lose the protection created by the rules in this section if the distance contract has a close link with the territory of one or more EEA States. [Note: articles 12 and 16 of the Distance Marketing Directive]
COBS 6.1C.1RRP
(1) 1This section applies to a firm that gives advice, or provides services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme.(2) Without prejudice to (1), this section does not apply to a firm that makes a personal recommendation to a retail client in relation to a retail investment product.
COBS 6.1C.2RRP
This section does not apply if the employer is outside the United Kingdom.
COBS 6.1C.3RRP
In this section ‘giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme’ includes:(1) giving advice or assistance to an employer on the operation of such a scheme;(2) taking, or helping the employer to take, the steps that must be taken to enable an employee of the employer to become a member of such a scheme; and(3) giving advice to an employee, pursuant to an agreement between the employer and
COBS 6.1C.4GRP
COBS 6.1C.1 (Application - Who? What?) and COBS 6.1C.3 (Interpretation) mean (for example) that the cost of any advice given to an employee pursuant to an agreement between the employer and the adviser about the benefits that are, or might be, available to the employee if he is, or if he becomes, a member of a group personal pension scheme or group stakeholder pension scheme are subject to the rules in this section, not the rules on adviser charging (COBS 6.1A).
COBS 6.1C.5RRP
Except as specified in COBS 6.1C.5A R,4COBS 6.1C.5B R and COBS 6.1C.5C R4,3 a firm must:4(1) only be remunerated for giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme by consultancy charges or by a fee payable by the employer;(2) not solicit or accept (and ensure that none of its associates solicits or accepts) any other commissions, remuneration or benefit of any kind in relation to that
COBS 6.1C.5ARRP
3A firm and its associates may, except in relation to a qualifying scheme: 4(1) solicit and accept a commission, remuneration or benefit of any kind in the circumstances set out in COBS 6.1C.5 R if:(a) the employer’s part of the relevant scheme was established on or before 30 December 2012; and(b) the solicitation and acceptance of the commission, remuneration or benefit of any kind was permitted by the rules in force on 30 December 2012; and(2) enter into an arrangement under
COBS 6.1C.5BRRP
3If an employer chooses to appoint a firm to provide advice or services in connection with a group personal pension scheme or a group stakeholder pension scheme and that firm or its associate enters into an arrangement in COBS 6.1C.5AR (2), the firm must:(1) before the arrangement is entered into, disclose to the employer that the transfer of the commission, remuneration or benefit of any kind will be requested by the firm or its associate;(2) throughout the period during which
COBS 6.1C.5CRRP
4In connection with a qualifying scheme, a firm may only solicit or accept consultancy charges from an operator of a qualifying scheme if the operator has confirmed that express agreement has been given by members of that scheme under COBS 19.6.4 R.
COBS 6.1C.6GRP
A firm may receive a consultancy charge that is no longer payable (for example, after the service it is received in payment for has been amended or terminated) provided the firm passes any such payments to the relevant group personal pension scheme or group stakeholder pension scheme.
COBS 6.1C.7GRP
The requirement to be paid through consultancy charges does not prevent a firm from making use of any facility for the payment of consultancy charges provided by another firm or other third parties provided that the facility complies with the requirements of COBS 6.1D.9 R.
COBS 6.1C.8GRP
Examples of payments and benefits that should not be accepted under the requirement only to be paid through consultancy charges include:(1) a share of the charges applied to a group personal pension scheme, group stakeholder pension scheme or the scheme provider’s revenues or profits (except if the firm providing the advice to an employer in relation to such a scheme is the scheme provider);(2) a commission set and payable by a retail investment product provider in any jurisdiction.Requirements
COBS 6.1C.9RRP
If the firm or its associate is the group personal pension scheme or group stakeholder pension scheme provider, the firm must ensure that the level of its consultancy charges is at least reasonably representative of the cost associated with giving the advice to the employer in relation to the relevant scheme.
COBS 6.1C.10GRP
A consultancy charge is likely to be reasonably representative of the services associated with giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme if:(1) the expected long term costs associated with advising the employer in relation to the group personal pension scheme or group stakeholder pension schemedo not include the costs associated with establishing and operating that scheme;(2) the
COBS 6.1C.11RRP
A firm must determine and use an appropriate charging structure for calculating its consultancy charge for each employer.
COBS 6.1C.12GRP
A firm can use a standard charging structure.
COBS 6.1C.13GRP
(1) In determining its charging structure and consultancy charges a firm should have regard to the best interests of the employer and the employer’s employees.(2) A firm may not be acting in the best interests of the employer and the employer’s employees if it:(a) varies its consultancy charges inappropriately according to product provider; or(b) allows the availability or limitation of services offered by third parties to facilitate the payment of consultancy charges to influence
COBS 6.1C.14RRP
A firm must not use a charging structure which conceals the amount or purpose of any of its consultancy charges from an employer or an employee.
COBS 6.1C.15GRP
A firm is likely to be viewed as operating a charging structure that conceals the amount or purpose of its consultancy charges if, for example, it makes arrangements for amounts in excess of its consultancy charges to be deducted from an employee’s investments from the outset, in order to be able to provide a cash payment to the employer or employee later.
COBS 6.1C.16RRP
A firm must disclose its charging structure to an employer in writing, in good time before giving advice, or providing services, to the employer in connection with a group personal pension scheme or group stakeholder pension scheme.
COBS 6.1C.17GRP
A firm should ensure that the disclosure of its charging structure is in clear and plain language and, as far as is practicable, uses cash terms. If a firm's charging structure is in non-cash terms, examples in cash terms should be used to illustrate how the charging structure will be applied in practice.
COBS 6.1C.18RRP
(1) A firm must agree with and disclose to an employer the total consultancy charge payable to it or any of its associates.(2) A disclosure under (1) must:(a) be in cash terms (or convert non-cash terms into illustrative cash equivalents);(b) be made as early as practicable and, in any event, before the employer: (i) selects a particular group personal pension scheme or group stakeholder pension scheme for the benefit of its employees; or(ii) if applicable, reviews its group personal
COBS 6.1C.19GRP
To comply with the rule on disclosure of total consultancy charges payable (COBS 6.1C.18R) and the fair, clear and not misleading rule, a firm's disclosure of the total consultancy charge should:(1) provide information to the employer as to which particular service a consultancy charge applies;(2) include information as to when payment of the consultancy charge is due;(3) if an ongoing consultancy charge is expressed as a percentage of funds under management, clearly reflect in
COBS 6.1C.20RRP
When an employer asks a firm to provide advice to the employer’s employees, the firm:(1) may make a consultancy charge for the cost of preparing and giving advice to each employee who chooses to accept his employer’s offer of advice;(2) must not make a consultancy charge for the cost of preparing or giving advice to an employee who chooses not to accept the offer of advice; (3) (if the firm prepares generic advice to be given to more than one employee) must not make more than
COBS 6.1C.21RRP
A firm must keep a record of:(1) its charging structure;(2) the consultancy charges payable by each employer and each of the employer’s employees; and(3) if the consultancy charge for a particular service has varied materially from that indicated in the firm's charging structure, the reasons for that difference.
COBS 11.6.1GRP
1This section deals with the acceptance of certain inducements by investment managers and builds upon the rule on inducements (COBS 2.3.1 R). Investment managers should ensure they comply with both this section and the rule on inducements.
COBS 11.6.2RRP
This section applies to a firm that acts as an investment manager when it executescustomer orders that relate to:(1) shares; and(2) (a) warrants;(b) certificates representing certain securities;(c) options; and(d) rights to or interests in investments of the nature referred to in (a) to (c);to the extent that they relate to shares.
COBS 11.6.2AGRP
2COBS 11.6.3 R applies to a full-scope UK AIFM that is an internally managed AIF in accordance with the modification in COBS 18.5.4C R.
COBS 11.6.3RRP
(1) Subject to (3), an3investment manager must not accept any good or service3in addition to the execution of its customer orders if it:33(a) executes its customer orders through a broker or another person;(b) passes on the broker's or other person'scharges to its customers; and(c) is offered that good or service3 in return for the charges referred to in (b).3(2) [deleted]3(3) 3The prohibition under (1) does not apply where:(a) the investment manager has reasonable grounds to
COBS 11.6.4ERP
(1) Under COBS 11.6.3R (3)(c)(i), for a good or service to be directly related to the execution of trades on behalf of the investment manager'scustomers it must be:33(a) linked to the arranging and conclusion of a specific investment transaction (or series of related transactions); and (b) provided between the point at which the investment manager makes an investment or trading decision and the point at which the investment transaction (or series of related transactions) is concluded.
COBS 11.6.5ERP
(1) Under COBS 11.6.3R (3)(c)(ii), for a good or service to amount to the provision of substantive research the relevant research must:33(a) be3 capable of adding value to the investment or trading decisions by providing new insights that inform the investment manager when making such decisions about its customers' portfolios;3(b) whatever form its output takes, represent3 original thought, in the critical and careful consideration and assessment of new and existing facts, and
COBS 11.6.6GRP
An example of a good or service 3relating to the execution of trades that the FCA does not regard as meeting the requirements of the rule on use of dealing commission (COBS 11.6.3 R) is post-trade analytics. These would not meet the evidential criteria for a good or service to be directly related to the execution of trades under COBS 11.6.4E (1).33
COBS 11.6.7GRP
Examples of goods or services that relate to the provision of research that the FCA does not regard as meeting the requirements of the rule on use of dealing commission (COBS 11.6.3 R) include price feeds or historical price data that have not been analysed or manipulated in order to present the investment manager with meaningful conclusions. These would not meet the evidential criteria for a good or service to amount to the provision of substantive research under COBS 11.6.5E
COBS 11.6.8GRP
Examples of goods or services that relate to the execution of trades or the provision of research that the FCA does not regard as meeting the requirements of either evidential provisions COBS 11.6.4E (1) or COBS 11.6.5E (1)3 include:3(1) services relating to the valuation or performance measurement of portfolios;(2) computer hardware; (3) connectivity services such as electronic networks and dedicated telephone lines; (4) seminar fees;(4A) 3corporate access services;3(5) subscriptions
COBS 11.6.8AGRP
(1) 3An investment manager intending to pass on to its customers any charges under the exemption at COBS 11.6.3R (3) should have regard to its duties under the client's best interests rule. For example, this means that:(a) an investment manager should not pass on a charge to a customer under the exemption at COBS 11.6.3R (3) that is greater than the cost charged by the broker or relevant person specifically for the relevant good or service falling under COBS 11.6.3R (3); (b) if
COBS 11.6.9GRP
The reference to substantive 3research in the rule on use of dealing commission (COBS 11.6.3 R) is not confined to investment research as defined in the Glossary. Substantive research can potentially be or include investment research, but this is not part of the criteria under COBS 11.6.5 E.3 In addition, any goods or services that relate to the provision of research that the FCA regards as not acceptable under COBS 11.6.7 G or COBS 11.6.8 G3 should be viewed as not meeting the
COBS 11.6.10GRP
This section applies only to arrangements under which an investment manager receives from brokers or other persons a good or service that directly relates 3to the execution of trades or amounts to3 the provision of substantive 3research. It has no application in relation to execution and research generated internally by an investment manager itself. 3
COBS 11.6.11GRP
An investment manager should not enter into any arrangements that could compromise its ability to comply with its best execution obligations (COBS 11.2).
COBS 11.6.12RRP
An investment manager that enters into arrangements under this section must make adequate prior disclosure to customers concerning the receipt of goods or services that directly relate to the execution of trades or amount to the provision of substantive research3. This prior disclosure should form part of the summary form disclosure under the rule on inducements (COBS 2.3.1 R).3
COBS 11.6.13GRP
The rule on prior disclosure of goods and services under this section complements the requirements on the disclosure of inducements (COBS 2.3.1 R (2)(b)). Investment managers should ensure they comply with both requirements where relevant.
COBS 11.6.14GRP
(1) The prior disclosure required by this section should include an adequate disclosure of the firm's policy relating to the receipt of goods or services that directly relate to the execution of trades or amount to the provision of substantive research3 in accordance with the rule on use of dealing commission (COBS 11.6.3 R).3(2) The prior disclosure should explain generally why the firm might find it necessary or desirable to use dealing commission to purchase goods or services,
COBS 11.6.15RRP
If an investment manager enters into arrangements in accordance with the rule on use of dealing commission (COBS 11.6.3 R), it must in a timely manner make adequate periodic disclosure to its customers of the arrangements entered into.
COBS 11.6.16RRP
Adequate prior and periodic disclosure under this section must include details of the goods or services that directly relate to the execution of trades and, wherever appropriate, separately identify the details of the goods or services that are attributable amount to the provision of substantive research3.3
COBS 11.6.17GRP
In assessing the adequacy of prior and periodic disclosures made by an investment manager under this section, the FCA will have regard to the extent to which the investment manager adopts disclosure standards developed by industry associations such as the Investment Management Association, the National Association of Pension Funds and the Association for Financial Markets in Europe.
COBS 11.6.18ERP
(1) A firm will make periodic disclosure to its customers under this section in a timely manner if it is made at least once a year.(2) Compliance with (1) may be relied upon as tending to establish compliance with the rule on periodic disclosure (COBS 11.6.16 R).
COBS 11.6.19RRP
An investment manager must make a record of each prior and periodic disclosure it makes to its customers in accordance with this section and must maintain each such record for at least five years from the date on which it is provided.
COBS 11.6.20GRP
Firms are also reminded of the general record keeping requirements in SYSC 3.2 and SYSC 9 (as applicable). An investment manager should keep appropriate records of the basis on which it concludes that a particular good or service may be received under the exemption at COBS 11.6.3R (3) in return for the charges in COBS 11.6.3R (1)(b).
COBS 9.6.1GRP
This section applies to a firm giving basic advice, which has chosen to comply with the rules in this section instead of the other rules in this chapter (see COBS 9.1.2 R).1
COBS 9.6.2RRP
A firm is permitted to maintain more than one range of stakeholder products.1
COBS 9.6.3RRP
A range of stakeholder products:1(1) may include more than one deposit-based stakeholder product;1(2) may include the stakeholder products of more than one stakeholder product provider;1(3) must not include any more than one:1(a) CISstakeholder product or linked life stakeholder product; or1(b) stakeholder CTF; or1(c) stakeholder pension scheme.1
COBS 9.6.4RRP
When a firm provides basic advice it must:1(1) explain why it chose the stakeholder products and stakeholder product providers that appear in the relevant range; and1(2) give the client a list of the stakeholder products and stakeholder product providers that appear in that range;1if the client asks it do so.1
COBS 9.6.5RRP
When a firm first has contact with a retail client with a view to giving basic advice on a stakeholder product, it must give the retail client:1(1) the basic advice initial disclosure information (COBS 9 Annex 1), in a durable medium, together with an explanation of that information, unless:1(a) it has already done so and the basic advice initial disclosure information is likely still to be accurate and appropriate; or1(b) the contact is not face to face and is using a means of
COBS 9.6.6GRP
(1) A firm may give a retail client the basic advice initial disclosure information (COBS 9 Annex 1) as part of :12(a) a services and costs disclosure document;2 or 1(b) a combined initial disclosure document if it has reasonable grounds to believe that it will provide services relating to a stakeholder product and a non-investment insurance contract, a regulated mortgage contract, an equity release transaction or a home purchase plan.1(2) If a firm provides a services and costs
COBS 9.6.6AGRP
3A firm will meet the requirements in respect of its obligation to provide written disclosure in the rules on describing the breadth of advice (COBS 6.2A.5 R) and content and wording of disclosure (COBS 6.2A.6 R) by providing its basic advice initial disclosure information (in COBS 9 Annex 1 R).
COBS 9.6.7RRP
For the purposes of GEN 5, a firm may not use the Key facts logo in relation to any document that is designed to comply with rules in COBS 9.6 or COBS 7 unless it is a services and costs disclosure document or a2combined initial disclosure document produced in accordance with the templates and notes in the annexes to COBS 6.122
COBS 9.6.8RRP
If a firm's first contact with a retail client is not face to face, it must:1(1) inform the client at the outset:1(a) (if the communication is initiated by or on behalf of a firm), of the name of the firm and the commercial purpose of the communication;1(b) [deleted]33(c) that the firm will provide the retail client with basic advice without carrying out a full assessment of the retail client's needs and circumstances; and1(d) that such information will be confirmed in writing;
COBS 9.6.9RRP
When a firm gives basic advice, it must do so using:1(1) a single range of stakeholder products; and1(2) a sales process that includes putting pre-scripted questions to the client.1
COBS 9.6.10RRP
When a firm gives basic advice it must not:1(1) describe or recommend a stakeholder product outside the firm'srange; or1(2) describe or recommend a smoothed linked long term stakeholder product; or1(3) describe fund choice, or recommend a particular fund, if a stakeholder product offers a choice of funds; or1(4) recommend the level of contributions required to be made to a stakeholder pension scheme to achieve a specific income in retirement; or1(5) recommend or agree that a client
COBS 9.6.11RRP
(1) If a firm starts the sales process for a stakeholder product that is not a deposit-based stakeholder product, it must not depart from that process unless it has advised the retail client that it will not provide basic advice on stakeholder products during the period of departure. A firm that does that must not provide basic advice during the departure period.1(2) Before a firm returns to the sales process for stakeholder products, it must tell the retail client that that process
COBS 9.6.12RRP
1A firm must only recommend a stakeholder product to a retail client if:(1) it has taken reasonable steps to assess the client's answers to the scripted questions and any other facts, circumstances or information disclosed by the client during the sales process;(2) (unless the relevant product is a deposit-based stakeholder product) having done so, it has reasonable grounds for believing that the stakeholder product is suitable for the client; and(3) the firm reasonably believes
COBS 9.6.13GRP
1COBS 9 Annex 2 gives guidance on the steps a firm could take to help it meet these suitability obligations.
COBS 9.6.14RRP
1If a firm giving basic advice recommends to a retail client to acquire a stakeholder product, it must ensure that, before the conclusion of the contract, its representative:(1) (unless the relevant product is a deposit-based stakeholder product) explains to the client, if necessary in summary form, but always in a way that will allow the client to make an informed decision about the firm's recommendation:(a) the nature of the stakeholder product; and(b) the "aims", "commitment"
COBS 9.6.15RRP
1Notwithstanding COBS 9.6.14R (2) a firm may provide the summary sheet (COBS 9.6.14R (2)) as soon as reasonably practicable after the conclusion of the contract if the client asks it to do so, or the contract will be concluded using a means of distance communication that does not enable the provision of the summary sheet in a durable medium before the conclusion of the contract, but only if the firm:(1) reads the summary sheet to the client before it concludes the contract; and(2)
COBS 9.6.16RRP
1If a firm concludes a contract for a stakeholder product with or for a retail client it must provide a copy of the completed questions and answers to the client in a durable medium as soon as reasonably practicable afterwards.
COBS 9.6.17RRP
(1) [deleted]33(2) When a firm provides basic advice on a stakeholder product, it3 may use the facilities and stationery it uses for other business in respect of which it does hold itself out as acting or advising independently.33
COBS 9.6.18RRP
1A firm must ensure that none of its representatives:(1) is likely to be influenced by the structure of his or her remuneration to give unsuitable basic advice on stakeholder products to a retail client; or(2) refers a retail client to another firm in circumstances which would amount to the provision of any fee, commission or non-monetary benefit.
COBS 9.6.19RRP
1A firm must record that it has chosen to give basic advice to a retail client and make a record of the range used and the summary sheet (COBS 9.6.14R (2)) prepared for each retail client. That record must be retained for at least five years from the date of the relevant basic advice.
COBS 9.6.20RRP
(1) 1A firm must make an up-to-date record of:(a) its scope of basic advice, and the scope of basic advice used by its appointed representatives (if any); and(b) its range (or ranges) of stakeholder products, and the range (or ranges) used by its appointed representatives (if any).(2) Those records must be retained for five years from the date on which they are replaced by a more up-to-date record.
COBS 18.5.1RRP
1Subject to COBS 18.5.1A R and COBS 18.5.1BR9, this6 section applies to a firm which is:666(1) a UCITS management company;6(2) a full-scope UK AIFM;6(3) a small authorised UK AIFM; 6(4) a residual CIS operator; or6(5) an incoming EEA AIFM branch.6
COBS 18.5.1ARRP
COBS 18.5.3 R (2) and COBS 18.5.5 R to COBS 18.5.18 E do not apply to a small authorised UK AIFM of an unauthorised AIF which is not a collective investment scheme.
COBS 18.5.1BRRP
(1) 9The following apply to a full-scope UK AIFM in relation to its AIFM management functions10:(a) COBS 18.5.1 R to COBS 18.5.2-AG;9(b) 9COBS 18.5.3R;(c) COBS 18.5.4A R; 9and(d) COBS 18.5.10A R, except as set out in (2).9(2) COBS 18.5.10A R does not apply to a full-scope UK AIFM of:9(a) a UK ELTIF or an EEA ELTIF; or9(b) an unauthorised AIF which is not a collective investment scheme.(3) In addition to (1) and (2), 9COBS 18.5.4C R to COBS 18.5.4D G9apply to a full-scope UK AIFM
COBS 18.5.2RRP

A firm6 when it is carrying on scheme management activity or, for an AIFM, AIFM investment management functions6:

6
  1. (1)

    must comply with the COBSrules specified in the table, as modified by this section; and

  2. (2)

    need not comply with any other rule in COBS.

66
COBS 18.5.2-AGRP

6For activities carried on by firms which are not scheme management activities or, for an AIFM, AIFM investment management functions, the COBSrules apply under the general application rule, as modified in COBS 1 Annex 1.

Table: Application of conduct of business rules

This table belongs to COBS 18.5.2 R

6Chapter, section, rule

Full-scope UK AIFM

Small authorised UK AIFM and a residual CIS operator

Incoming EEA AIFM branch

UCITS management company

1

Applies

Applies

Applies

Applies

2.1.1

Does not apply

Applies

Does not apply

Applies

2.1.4

Applies

Does not apply

Applies

Does not apply

2.3

Does not apply

Applies

Does not apply

Applies

2.4

Does not apply

Applies

Does not apply

Applies

4.2.1-4.2.3

Applies

Applies

Applies

Applies

5.2

Applies

Applies

Applies

Applies

6.1G.2

Applies

Applies

Applies

Applies

11.2

Applies as modified by COBS 18.5.4A R

Applies to a small authorised UK AIFM of an authorised AIF. Applies (as modified by COBS 18.5.4 R) to a small authorised UK AIFM of an unauthorised AIF or residual CIS operator

Applies as modified by COBS 18.5.4A R

Applies

11.3

Does not apply

Applies

Does not apply

Applies

11.5

Does not apply

Applies as rules

Does not apply

Does not apply

11.6

Applies7, but as modified by COBS 18.5.4C R for internally managed AIFs.7

Applies

Applies

Applies

11.8

Applies

Applies

Applies

Applies

16.3

Does not apply

Applies to a small authorised UK AIFM of an unauthorised AIF which is not a collective investment scheme, as modified by COBS 18.5.4B R. Otherwise does not apply.

Does not apply

Does not apply

18.5

Applies as modified by COBS 18.5.1B R7

Applies

Applies

Applies

COBS 18.5.2ARRP
4A management company must:(1) in addition to complying with the COBSrules specified in COBS 18.5.2 R, comply with COBS 11.7 (Personal account dealing); and(2) comply with COBS 2.3 (Inducements) as modified by COBS 2.3.2A R[Note: article 13(1) to 13(4) of the UCITS implementing Directive]
COBS 18.5.3RRP
Where6COBSrules specified in the table in COBS 18.5.2 R apply to a firm carrying on scheme management activities or, for an AIFM, AIFM investment management functions, the following modifications apply:666(1) subject to (2), references to customer or client are to be construed as references to any fund6 in respect of which the firm6 is acting or intends to act, and with or for the benefit of which the relevant activity is to be carried on;66(2) in the case of a small authorised
COBS 18.5.4RRP
The best execution provisions applying to a small authorised UK AIFM of an unauthorised AIF or a residual CIS operator6 do not apply in relation to a fund6 whose fund6 documents include a statement that best execution does not apply in relation to the fund6 and in which:6666(1) no investor6 is a retail client; or6(2) no current investor in the fund6 was a retail client when it invested in the fund.666
COBS 18.5.4ARRP
6Only the following provisions in COBS 11.2 apply to a full-scope UK AIFM:(1) COBS 11.2.5 G; (2) COBS 11.2.17 G; (3) COBS 11.2.23A R, but references to management company should be read as references to an AIFM and references to Unitholders read as references to investors. This obligation only applies for the execution policy required under article 27(3) of the AIFMD level 2 regulation (Execution of decisions to deal on behalf of the managed AIF);(4) COBS 11.2.24 R; (5) COBS 11.2.25
COBS 18.5.4BRRP
6A small authorised UK AIFM of an unauthorised AIF which is not a collective investment scheme must comply with COBS 16.3 (Periodic reporting) with references to managing investments to be construed as providing AIFM investment management functions.
COBS 18.5.4CRRP
7Only COBS 11.6.1 G to COBS 11.6.11 G apply to a full-scope UK AIFM that is an internally managed AIF and references to an investment manager in COBS 11.6 are to be read as including an internally managed AIF which manages designated investments on its own account and references to a customer order as a decision by an internally managed AIF to execute a transaction for these purposes.
COBS 18.5.4DGRP
7To be an investment manager, a person needs to manage designated investments on a discretionary or non-discretionary basis under the terms of a management agreement. The purpose of COBS 18.5.4C R is to modify COBS 11.6.1 G to COBS 11.6.11 G so that these provisions apply to a full-scope UK AIFM that is an internally managed AIF because such firms manage designated investments on their own account rather than under the terms of a management agreement.
COBS 18.5.5RRP
A small authorised UK AIFM of an unauthorised AIF or a residual CIS operator6 must not accept a retail client as an investor in the fund6 unless it has taken reasonable steps to offer and, if requested, provide to the potential investor, fund6 documents which adequately describe how thefund6 is governed.666
COBS 18.5.5AGRP
6Firms should also be aware that if they are carrying on distance marketing activity from an establishment in the UK, with or for a consumer in the UK or another EEA State, COBS 5.1 applies specific requirements for that activity.
COBS 18.5.6GRP
The fund documents required under COBS 18.5.5 R6 may consist of any number of documents provided that it is clear that collectively they constitute the fund6 documents and provided the use of several documents in no way diminishes the significance of any of the statements which are required to be given to the potential investor.6666
COBS 18.5.7GRP
The fund documents of an unauthorised fund managed by a small authorised UK AIFM or a residual CIS operator (if those fund documents6 exist) should make it clear that if an investor6 is reclassified as a retail client, this reclassification will not affect certain activities of the firm6. In particular, despite such a reclassification, the firm6 will not be required to comply with the best execution provisions. It should be noted that there is no requirement that fund6 documents
COBS 18.5.8RRP
Where the fund is an unauthorised fund managed by a small authorised UK AIFM or a residual CIS operator6 and no current investor6 in the fund6 was a retail client when it invested in the fund6, the fund6 documents must include a statement that:66666(1) explains that if an investor6 is reclassified as a retail client subsequent to investing in the fund6, then the firm6 may continue to treat all investors in the fund6 as though they were not retail clients; 6666(2) explains that
COBS 18.5.9GRP
A small authorised UK AIFM of an unauthorised AIF or a residual CIS operator will still have to comply with other COBS provisions as a result of the reclassification of an investor6 as a retail client. For example, the firm must6 provide periodic statements to investors6 who are retail clients in an unauthorised fund6 (see the rule on periodic statements for an unauthorised fund6 (COBS 18.5.11 R6)).666666
COBS 18.5.10ERP
  1. (1)

    In order to provide adequate information to describe how the fund6 is governed, a small authorised UK AIFM of an unauthorised AIF or a residual CIS operator6 should include in the fund6 documents a provision about each of the items of relevant information set out in the following table (Content of fund6 documents).

    666
  2. (2)

    Compliance with (1) may be relied on as tending to establish compliance with COBS 18.5.5 R.

  3. (3)

    Contravention of (1) may be relied on as tending to establish contravention of COBS 18.5.5 R.

Table: Content of fund6 documents

Content of fund documents6

66

Thefund6 documents should include provision about:

6

(1)

Regulator

The firm statutory status in accordance with GEN 4 Annex 1 R (Statutory status disclosure);

(2)

Services

the nature of the services that the firm will provide6;

6

(3)

Payments for services

details of any payment for services payable by the fund or from the property of the fund6 or investors in the fund to the firm6, including where appropriate:

66

(a)

the basis of calculation;

(b)

how it is to be paid and collected;

(c)

how frequently it is to be paid; and

(d)

whether or not any other payment is receivable by the firm6 (or to its knowledge by any of its associates) in connection with any transactions effected by the firm6 with or for the fund6, in addition to or in lieu of any fees;

666

(4)

Commencement

when and how the firm6 is appointed;

6

(5)

Accounting

the arrangements for accounting to the fund or investors in the fund6 for any transaction effected;

6

(6)

Termination method

how the appointment of the firm6 may be terminated;

6

(7)

Complaints procedure

how to complain to the firm6 and a statement that the investors in the fund6 may subsequently complain direct to the Financial Ombudsman Service;

66

(8)

Compensation

whether or not compensation may be available from the compensation scheme should the firm6 be unable to meet its liabilities, and information about any other applicable compensation scheme; and, for each applicable compensation6 scheme, the extent and level of cover and how further information can be obtained;

6

(9)

Investment objectives

the investment objectives for the portfolio of the fund6;

6

(10)

Restrictions

(a)

any restrictions on:

(i)

the types of investments or property which may be included in the portfolio of the fund6;

6

(ii)

the markets on which investments or property may be acquired for the portfolio of the fund6;

6

(iii)

the amount or value of any one investment or asset, or on the proportion of the portfolio of the fund6 which any one investment or asset or any particular kind of investment or asset may constitute; or

6

(b)

that there are no such restrictions;

(11)

Holding fund6 assets

6

(a)

if it is the case, that the firm6 will:

6

(i)

hold money on behalf of the fund6 or be the custodian of investments or other property of the fund6; or

66

(ii)

arrange for some other person to act in either capacity and, if so, whether that person is an associate of the firm6 identifying that person and describing the nature of any association; and

6

(b)

in either case:

(i)

how any money is to be deposited;

(ii)

the arrangements for recording and separately identifying registrable investments of the fund6 and, where the registered holder is the firm's6 own nominee, that the firm6 will be responsible for the acts and omissions of that person;

666

(iii)

the extent to which the firm6 accepts liability for any loss of the investment of the fund6;

66

(iv)

the extent to which the firm6 or any other person mentioned in (11)(a)(ii), may hold a lien or security interest over investments of the fund6;

66

(v)

where investments of the fund6 will be registered collectively in the same name, a statement that the entitlements of the fund6 may not be identifiable by separate certificates or other physical documents of title, and that, should the firm6 default, any shortfall in investments of the fund6 registered in that name may be shared proportionately among all fund6 and any other customers of the firm6 whose investments are so registered;

666666

(vi)

whether or not investments or other property of the fund6 can be lent to, or deposited by way of collateral with, a third party and whether or not money can be borrowed on behalf of the fund6 against the security of those investments or property and, if so, the terms upon which they may be lent or deposited;

66

(vii)

the arrangements for accounting to the fund6 for investments of the fund6, for income received (including any interest on money and any income earned by lending investments or other property) of the fund6, and for rights conferred in respect of investments or other property of the fund6;

666

(viii)

the arrangements for determining the exercise of any voting rights conferred by investments of the fund6; and

6

(ix)

where investments of the fund6 may be held by an eligible custodian outside the United Kingdom, a general statement that different settlement, legal and regulatory requirements, and different practices relating to the segregation of those investments, may apply;

6

(12)

Clients' money outside the United Kingdom

if it is the case, that the firm6 may hold the money of the fund6 in a client bank account outside the United Kingdom;

66

(13)

Exchange rates

if a liability of the fund6 in one currency is to be matched by an asset in a different currency, or if the services to be provided to the firm for the fund6 may relate to an investment denominated in a currency other than the currency in which the investments of the fund6 are valued, a warning that a movement of exchange rates may have a separate effect, unfavourable or favourable, on the gain or loss otherwise made on the investments of the fund6;

6666

(14)

Stabilised investments

if it is the case, that the firm6 is to have the right under the fund6documents to effect transactions in investments the prices of which may be the subject of stabilisation;

66

(15)

Conflict of interest and material interest

if it is the case, that the firm6 is to have the right under the agreement or instrument constituting the fund6 to effect transactions on behalf of the fund6 in which the firm6 has directly or indirectly a material interest (except for an interest arising solely from the investment of the firm6 as agent for the fund6), or a relationship of any description with another party which may involve a conflict with the firm6 duty to the fund6, together with a disclosure of the nature of the interest or relationship;

66666666

(16)

Use of dealing commission

if the firm6 receives goods or services in addition to the execution of its customer orders in accordance with the section on the use of dealing commission, the prior disclosure required by the rule on prior disclosure (see COBS 11.6.2 R);

6

(17)

Acting as principal

if it is the case, that the firm6 may act as principal in a transaction with the fund6;

66

(18)

Stock lending

if it is the case, that the firm6 may undertake stock lending activity with or for the fund6 specifying the type of assets of the fund6 to be lent, the type and value of relevant collateral from the borrower and the method and amount of payment due to the fund6 in respect of the lending;

6666

(19)

Transactions involving contingent liability investments

(a)

if it is the case, that the agreement orinstrument constituting the fund6 allows the firm6 to effect transactions involving contingent liability investments for the account of the portfolio of the fund6;

666

(b)

if applicable, whether there are any limits on the amount to be committed by way of margin and, if so, what those limits are; and

(c)

if applicable, that the firm6 has the authority to effect transactions involving contingent liability investments otherwise than under the rules of a recognised investment exchange and in a contract traded thereon;

68

(20)

Periodic statements

(a)

the frequency of any periodic statement (this should not be less than once every 12 months) except where a periodic statement is not required (see COBS 18.5.13R); and

(b)

whether those statements will include some measure of performance, and, if so, what the basis of that measurement will be;

(21)

Valuation

the bases on which assets comprised in the portfolio of the fund6 are to be valued;

6

(22)

Borrowings

if it is the case, that the firm6 may supplement the funds in the portfolio of the fund6 and, if it may do so:

66

(a)

the circumstances in which the firm6 may do so;

6

(b)

whether there are any limits on the extent to which the firm6 may do so and, if so, what those limits are; and

6

(c)

any circumstances in which such limits may be exceeded;

(23)

Underwriting commitments

if it is the case, that the firm6 may for the account of the portfolio of the fund6 underwrite or sub-underwrite any issue or offer for sale of securities, and:

66

(a)

whether there are any restrictions on the categories of securities which may be underwritten and, if so, what these restrictions are; and

(b)

whether there are any financial limits on the extent of the underwriting and, if so, what these limits are;

(24)

Investments in other funds6

whether or not the portfolio may invest in fund either managed or advised by the firm6 or by an associate of the firm or in a fund6 which is not a regulated collective investment scheme;

666

(25)

Investments in securities underwritten by the firm6

whether or not the portfolio may contain securities of which any issue or offer for sale was underwritten, managed or arranged by the firm6 or by an associate of the firm6 during the preceding 12 months.

666
COBS 18.5.10ARRP
6A full-scope UK AIFM which markets an unauthorised AIF to a retail client must, in addition to providing the information in FUND 3.2, take reasonable steps to offer and, if requested, provide to that potential investor information about the following items in the COBS 18.5.10 E table (content of fund documents):(1) (1) (Regulator);(2) (4) (Commencement);(3) (5) (Accounting);(4) (6) (Termination method);(5) (7) (Complaints procedure); (6) (8) (Compensation); (7) (13) (Exchange
COBS 18.5.11RRP
A small authorised UK AIFM of an unauthorised AIF or a residual CIS operator6 must, subject to the exceptions from the requirement to provide a periodic statement, provide to investors in the fund6, promptly and at suitable intervals, a statement in a durable medium which contains adequate information on the value and composition of the portfolio of the fund6 at the beginning and end of the period of the statement.666
COBS 18.5.12ERP
(1) A small authorised UK AIFM of an unauthorised AIF or a residual CIS operator6 should act in accordance with the provisions in the right hand column of the periodic statements table (see COBS 18.5.15E) to fulfil the requirement to prepare and issue periodic statements indicated in the left hand column against these provisions.6(2) Compliance with (1) may be relied on as tending to establish compliance with the requirement to prepare and issue periodic statements.66(3) Contravention
COBS 18.5.13RRP
(1) A small authorised UK AIFM of an unauthorised AIF or a residual CIS operator6 need not provide a periodic statement:6(a) (i) to an investor in the fund6 who is a retail client ordinarily resident outside the United Kingdom; or6(ii) to an investor in the fund6 who is a professional client; if the investor6 has so requested or the firm6 has taken reasonable steps to establish that the investor6 does not wish to receive it; or6666(b) if it would duplicate a statement to be provided
COBS 18.5.14RRP
A small authorised UK AIFM of an unauthorised AIF or a residual CIS operator6 must make a copy of any periodic statement it has provided in accordance with the requirement to prepare and issue periodic statements to investors in the fund6. The record must be retained for a minimum period of three years.66
COBS 18.5.15ERP

Table: Periodic statements

This table belongs to COBS 18.5.12 E.

Periodic statements

Suitable intervals

(1)

A periodic statement should be provided at least:

(a)

six-monthly; or

(b)

once in any other period, not exceeding 12 months, which has been mutually agreed between the firm and the investor in the fund.6

6

Adequate information

(2)

(a)

A periodic statement should contain:

(i)

(A)

The information set out in the table of general contents of a periodic statement;

(B)

where the portfolio of the fund6 includes uncovered open positions in contingent liability investments, the additional information in the table listing the contents of a periodic statement (see COBS 18.5.18 E6) in respect of contingent liability investments; or

66

(ii)

such information as an investor6 who is a retail client ordinarily resident outside the United Kingdom, or a professional client, has on his own initiative agreed with the firm6 as adequate.

66

(b)

For a firm acting as an outgoing ECA provider, the words 'United Kingdom' is replaced by 'EEA'

COBS 18.5.16GRP
Examples of uncovered open positions include:(1) selling a call option on an investment not held in the portfolio;(2) unsettled sales of call options on currency in amounts greater than the portfolio's holding of that currency in cash or in readily realisable investments denominated in that currency; and (3) transactions having the effect of selling an index to an amount greater than the portfolio's holdings of investments included in that index.
COBS 18.5.17ERP

Table: General contents of a periodic statement

This table belongs to COBS 18.5.15 E.

General contents of periodic statements

1

Contents and value

(a)

As at the beginning of the account period, the total value of the portfolio of the fund6, being either:

6

(i)

the value of the assets comprised in the portfolio on the date as at which the statement provided for the immediately preceding period of account is made up; or

(ii)

in the case of the first periodic statement, the value of the assets comprised in the portfolio on the date on which the firm6 assumed responsibility for the management of the portfolio.

6

(b)

As at the end of the account period:

(i)

the number, description and value of each investment held on behalf of the fund6;

6

(ii)

the amount of cash held on behalf of the fund6; and

6

(iii)

the total value of the portfolio of the fund6.

6

2

Basis of valuation

A statement of the basis on which the value of each investment has been calculated and, if applicable, a statement that the basis for valuing a particular investment has changed since the previous periodic statement. Where any investments are shown in a currency other than the usual one used for valuation of the portfolio of the fund6, the relevant currency exchange rates must be shown.

6

3

Details of any assets loaned or charged

(a)

A summary of those investments (if any) which were, at the closing date, loaned to any third party and those investments (if any) that were at that date charged to secure borrowings made on behalf of the portfolio of the fund6; and

6

(b)

the aggregate of any interest payments made and income received during the account period in respect of loans or borrowings made during the period.

4

Transactions and changes in composition

Except in the case of a portfolio which aims to track the performance of an external index:

(a)

a statement that summarises the transactions entered into for the portfolio of the fund6 during the period; and

6

(b)

the aggregate of money and a summary of all investments transferred into and out of the portfolio of the fund6 during the period; and

6

(c)

the aggregate of any interest payments, dividends and other benefits received by the firm6 for the portfolio of the fund6 during that period.

66

5

Charges and remuneration

If not previously advised in writing, a statement for the account period:

(a)

of the aggregate charges of the firm6 and its associates; and

6

(b)

of any remuneration received by the firm6 or its associates or both from a third party in respect of the transactions entered into, or any other services provided, for the portfolio of the fund6.

66

6

Movement in value of portfolio

A statement of the difference between the value of the portfolio at the closing date and its value at the starting date of the account period, having regard at least, during the account period, to the following:

(a)

the aggregate of assets received from investors of the fund6 and added to the portfolio of the fund6;

66

(b)

the aggregate of the value of assets transferred, or of amounts paid, to thefund;6

6

(c)

the aggregate income received on behalf of the fund6 in respect of the portfolio; and

6

(d)

the aggregate of realised and unrealised profits or gains and losses attributable to the assets comprised in the portfolio of the fund6.

6

Notes:

For the purposes of Item 1, where the fund6 is a property enterprise trust, it will be sufficient for the periodic statement to disclose the number of properties held in successive valuation bands where this is appropriate to the size and composition of the fund6, rather than the value of each asset in the portfolio. The valuation bands of over £10m, £5-£10m, £2.5-£5m, £1-£2.5m and under £1m would be appropriate, unless a firm6 could show that different bands were justifiable in the circumstances.

The statement to be provided under Item 6 is not intended to be an indicator of the performance of the portfolio of the fund.6

A firm6 may wish to distinguish capital and income, and thereby provide more information than referred to in this table. If the statement includes some measure of performance, the basis of measurement should be stated.

666
COBS 18.5.18ERP

Table: Contents of a periodic statement in respect of contingent liability investments

This table belongs to COBS 18.5.15 E.

Contents of a periodic statement in respect of contingent liability investments

(1)

Changes in value

The aggregate of money transferred into and out of the portfolio of the fund6 during the account period.

6

(2)

Open positions

In relation to each open position in the portfolio of the fund6 at the end of the account period, the unrealised profit or loss to the portfolio of the fund6 (before deducting or adding any commission which would be payable on closing out).

66

(3)

Closed positions

In relation to each transaction effected during the account period to close out a position of the fund6, the resulting profit or loss to the portfolio of the fund6 after deducting or adding any commission.

(Instead of the specific detail required by Items 2 or 3, the statement may show the net profit or loss in respect of the overall position of the fund6 in each contract)

66

(4)

Aggregate of contents

The aggregate of each of the following in, or relating to, the portfolio of the fund6 at the close of business on the valuation date:

6

(a)

cash;

(b)

collateral value;

(c)

management fees; and

(d)

commissions attributable to transactions during the period or a statement that this information has been separately disclosed in writing on earlier statements or confirmations to the investor.6

6

(5)

Option account valuations

In respect of each open option comprising the portfolio of the fund6 on the valuation date:

6

(a)

the share, future, index or other investment or asset involved;

(b)

(unless the valuation statement follows the statement for the period in which the option was opened) the trade price and date for the opening transaction;

(c)

the market price of the contract; and

(d)

the exercise price of the contract.

Options account valuations may show an average trade price and market price in respect of an option series where a number of contracts within the same series have been purchased on behalf of the fund.6

6
COBS 14.3.1RRP
This section applies to a firm in relation to:(1) MiFID or equivalent third country business; and(2) the following regulated activities when carried on for a retail client:(a) making a personal recommendation about a designated investment6;5 or(b) managing investments that are designated investments (other than a P2P agreement);5 or(c) arranging (bringing about) or executing a deal in a warrant, non-readily realisable security4 or derivative; or(d) engaging in stock lending activity;
COBS 14.3.2RRP
A firm must provide a client with a general description of the nature and risks of designated investments, taking into account, in particular, the client's categorisation as a retail client or a professional client. That description must:(1) explain the nature of the specific type of designated investment concerned, as well as the risks particular to that specific type of designated investment, in sufficient detail to enable the client to take investment decisions on an informed
COBS 14.3.3RRP
If a firm provides a retail client with information about a designated investment that is the subject of a current offer to the public and a prospectus has been published in connection with that offer in accordance with the Prospectus Directive, that firm must inform the retail client where that prospectus is made available to the public. [Note: article 31(3) of the MiFID implementing Directive]
COBS 14.3.4RRP
Where the risks associated with a designated investment composed of two or more different designated investments or services are likely to be greater than the risks associated with any of the components, a firm must provide an adequate description of the components of that designated investment and the way in which its interaction increases the risks. [Note: article 31(4) of the MiFID implementing Directive]
COBS 14.3.5RRP
In the case of a designated investment that incorporates a guarantee by a third party, the information about the guarantee must include sufficient detail about the guarantor and the guarantee to enable the retail client to make a fair assessment of the guarantee. [Note: article 31(5) of the MiFID implementing Directive]
COBS 14.3.6GRP
[deleted](1) A firm need not treat each of several transactions in respect of the same type of financial instrument as a new or different service and so does not need to comply with the provision rules (COBS 14.3.2 R to COBS 14.3.5 R) in relation to each transaction.(2) But a firm should ensure that the client has received all relevant information in relation to a transaction, such as details of product charges that differ from those already disclosed. [Note: in respect of (1),
COBS 14.3.7GRP
Providing a key features document, key investor information document, EEA key investor information document3 or simplified prospectus may satisfy the requirements of the rules in this section.
COBS 14.3.7AGRP
4Examples of information a firm should provide to explain the specific nature and risks of a P2P agreement include:(1) expected and actual default rates in line with the requirements in COBS 4.6 on past and future performance;(2) a summary of the assumptions used in determining expected future default rates;(3) a description of how loan risk is assessed, including a description of the criteria that must be met by the borrower before the operator of the electronic system in relation
COBS 14.3.7BGRP
6The guidance in COBS 14.3.7AG is relevant both to firms which are operators of electronic systems in relation to lending and firmsadvising on P2P agreements.
COBS 14.3.7CGRP
6Firms providing information to clients, and communicating information, about an innovative finance ISA should also have regard to the guidance in COBS 4.5.9G.
COBS 14.3.8RRP
The documents and information provided in accordance with the rules in this section must be in a durable medium or available on a website (where that does not constitute a durable medium) that meets2 the website conditions. [Note: article 29(4) of the MiFID implementing Directive]
COBS 14.3.9RRP
(1) The information to be provided in accordance with the rules in this section must be provided in good time before a firm carries on designated investment business or ancillary services with or for a retail client.(2) A firm may provide that information immediately after it begins to carry on that business if:(a) the firm was unable to comply with (1) because, at the request of the client, the agreement was concluded using a means of distance communication which prevented the
COBS 14.3.10RRP
A firm must notify a client in good time about any material change to the information provided under the rules in this section which is relevant to a service that the firm is providing to that client. That notification must be given in a durable medium if the information to which it relates is given in a durable medium. [Note: article 29(6) of the MiFID implementing Directive]
COBS 14.3.11RRP
If a firm provides a client with a key investor information document or EEA key investor information document3 that meets the requirements of articles 78 and 793 of the UCITS Directive (see COLL 4.7 (Key investor information and marketing communications)) and the KII Regulation,3 it will have provided appropriate information for the purpose of the requirement to disclose information on:33(1) designated investments and investment strategies (COBS 2.2.1R (1)(b)); and(2) costs and
COBS 14.3.12GRP
A key investor information document and EEA key investor information document provide3 sufficient information in relation to the costs and associated charges in respect of the UCITS3 itself. However, a firm distributing units3 in a UCITS3 should also inform a client about all of the other costs and associated charges related to the provision of its services in relation to units in the UCITS.333333 [Note: recital 55 to the MiFID implementing Directive]
COBS 19.1.1RRP
1If an individual who is not a pension transfer specialist gives advice or 5a personal recommendation about a pension transfer, a pension conversion5 or pension opt-out on a firm's behalf, the firm must ensure that the recommendation or advice 5 is checked by a pension transfer specialist.
COBS 19.1.2RRP
A firm must: (1) compare the benefits likely (on reasonable assumptions) to be paid under a defined benefits pension scheme or other pension scheme with safeguarded benefits5with the benefits afforded by a personal pension scheme, 5stakeholder pension scheme or other pension scheme with flexible benefits5, before it advises a retail client to transfer out of a defined benefits pension schemeor other pension scheme with safeguarded benefits5;(2) ensure that that comparison includes
COBS 19.1.2ARRP
5A firm need not carry out the comparison described in COBS 19.1.2R if:(1) the retail client wishes to crystallise benefits immediately after the pension transfer or pension conversion; and (2) the retail client is at normal retirement age under the rules of the ceding scheme.
COBS 19.1.3GRP
In particular, the comparison should: (1) take into account all of the retail client's relevant circumstances;(2) have regard to the benefits and options available under the ceding scheme and the effect of replacing them with the benefits and options under the proposed scheme; 3(3) explain the assumptions on which it is based and the rates of return that would have to be achieved to replicate the benefits being given up; 35(4) be illustrated on rates of return which take into
COBS 19.1.4RRP

When a firm compares the benefits likely to be paid under a defined benefits pension scheme or other pension scheme with safeguarded benefits5with the benefits afforded by a personal pension scheme, 5stakeholder pension scheme or other pension scheme with flexible benefits5 (COBS 19.1.2R (1)), it must:

5
  1. (1)

    assume that:

    (a) the annuity interest rate is the intermediate rate of return appropriate for a level or fixed rate of increase annuity in 2COBS 13 Annex 2 3.1R(6)2 unless COBS 19.1.4B R applies3 or the rate for annuities in payment (if less);3

    44

    (b) the RPI4 is

    4

    2.5%

    (c) the average earnings index and the rate for section 21 orders is

    4.0%

    (d) for benefits linked to the RPI,4 the pre-retirement limited price indexation revaluation is

    2.5%

    (e) the annuity interest4 rate for3 post-retirement limited price indexation based on the RPI4 with maximum pension4 increases less than or equal to 3.5% or with minimum pension4 increases more than or equal to 3.5% is the rate in (a) above allowing for increases at the maximum rate of pension increase4; otherwise it is the rate in (f) below;3

    43
    3

    (f) the index linked annuity interest4 rate for pension benefits linked to the RPI4 is the intermediate rate of return in 2COBS 13 Annex 2 3.1 R (6)2 for annuities linked to the RPI4 unless COBS 19.1.4B R applies;3

    44

    (g) the mortality rate used to determine the annuity is based on the year of birth rate derived from each of the Institute and Faculty of Actuaries’ Continuous Mortality Investigation tables PCMA00 and PCFA00 and including mortality improvements derived from each of the male and female annual mortality projections models, in equal parts;3

    4

    4(h) for benefits linked to the CPI, the pre-retirement limited price indexation revaluation is

    2.0%

    4(i) the index linked annuity interest rate for pension benefits linked to the CPI is the intermediate rate of return in COBS 13 Annex 2 3.1R(6) for annuities linked to the RPI plus 0.5% unless COBS 19.1.4B R applies in which case it is the annuity rate in COBS 19.1.4B R plus 0.5%;

    4(j) the annuity interest rate for post-retirement limited price indexation based on the CPI with maximum pension increases less than or equal to 3.0% or with minimum pension increases more than or equal to 3.5% is the rate in (a) above allowing for increases at the maximum rate of pension increase; where minimum pension increases are more than or equal to 3% but less than 3.5% the annuity rate is the rate in (a) above allowing for increases at the minimum rate of pension increase otherwise it is the rate in (i) above;

    or use more cautious assumptions;

  2. (2)

    calculate the interest rate in deferment; and

  3. (3)

    have regard to benefits which commence at difference times.

COBS 19.1.4AERP
3For any year commencing 6 April, the use of the male and female annual CMI Mortality Projections Models in the series CMI(20YY-1)_M_[1.25%] and CMI(20YY-1)_F_[1.25%], where YY-1 is the year of the Model used, will tend to show compliance with COBS 19.1.4R (1)(g).
COBS 19.1.4BRRP
3Firms must apply the annual provisions at COBS 13 Annex 2 3.1R(6) on a monthly basis in any month where the yields on the 15th of the relevant month would give a rolling 12 month average annuity rate that varies by at least 0.2% from the previous rate.
COBS 19.1.5RRP
If a firm arranges a pension transfer or pension opt-out for a retail client as an execution-only transaction, the firm must make, and retain indefinitely, a clear record of the fact that no personal recommendation was given to that client.
COBS 19.1.6GRP
When advising a retail client who is, or is eligible to be, a member of a defined benefits occupational pension scheme or other scheme with safeguarded benefits5whether to transfer, convert 5 or opt-out, a firm should start by assuming that a transfer, conversion 5 or opt-out will not be suitable. A firm should only then consider a transfer, conversion 5 or opt-out to be suitable if it can clearly demonstrate, on contemporary evidence, that the transfer, conversion 5 or opt-out
COBS 19.1.7GRP
When a firm advises a retail client on a pension transfer, pension conversion5 or pension opt-out, it should consider the client’s attitude to risk including, where relevant, 5in relation to the rate of investment growth that would have to be achieved to replicate the benefits being given up.
COBS 19.1.7AGRP
3When giving a personal recommendation about a pension transfer or pension conversion, 5a firm should clearly inform the retail client about the loss of the safeguarded benefits5 and the consequent transfer of risk from the defined benefits pension scheme or other scheme with safeguarded benefits5to the retail client, including:55(1) the extent to which benefits may fall short of replicating those in the defined benefits pension scheme or other scheme with safeguarded benefits5;(2)
COBS 19.1.7BGRP
3In considering whether to make a personal recommendation, a firm should not regard a rate of return which may replicate the benefits being given up from the defined benefits pension scheme or other scheme with safeguarded benefits5as sufficient in itself.
COBS 19.1.8GRP
When a firm prepares a suitability report it should include:(1) a summary of the advantages and disadvantages of its personal recommendation;(2) an analysis of the financial implications (if the recommendation is to opt-out); and(3) a summary of any other material information.
COBS 19.1.9GRP
If a firm proposes to advise a retail client not to proceed with a pension transfer, pension conversion5 or pension opt-out, it should give that advice in writing.
COBS 19.1.10GRP
5Where a firm has advised a retail client in relation to a pension transfer, pension conversion or pension opt-out, and the firm is asked to confirm this for the purposes of section 48 of the Pension Schemes Act 2015, then the firm should provide such confirmation as soon as reasonably practicable.
COBS 14.2.1RRP
1A firm that sells:(1) a packaged product to a retail client, must provide a key features document and a key features illustration2 to that client (unless the packaged product is a unit in a UCITS scheme,7simplified prospectus scheme or an EEA UCITS scheme which is a recognised scheme);77(2) a life policy to a client, must provide the Solvency II Directive information13 to that client;1313(3) the variation of a life policy or personal pension scheme to a retail client, must provide
COBS 14.2.1ARRP
(1) 7This rule applies to an authorised fund manager of a UCITS scheme that is either an authorised unit trust, authorised contractual scheme12 or an ICVC, and an ICVC that is a UCITS scheme.(2) An authorised fund manager and an ICVC in (1) that sells units in a UCITS scheme directly, or through another natural or legal person who acts on its behalf and under its full and unconditional responsibility, must ensure that investors are provided with the key investor information document
COBS 14.2.1BRRP
9When the rules in this chapter require the offer or provision of a key features illustration, a firm may provide a generic key features illustration if that generic key features illustration has been prepared in accordance with COBS 13.4.2 R.
COBS 14.2.2RRP
The documents or information required to be provided or offered by COBS 14.2.1 R and COBS 14.2.1C R9 must be in a durable medium or made available on a website (where that does not constitute a durable medium) that meets the website conditions. 9
COBS 14.2.3RRP
(1) A firm that personally recommends that a retail client holds a particular asset in a SIPP must provide that client with sufficient information for the client to be able to make an informed decision about whether to buy or invest.(2) This rule does not apply if the asset is described in COBS 14.2.1 R.
COBS 14.2.4RRP
When a firm provides a document or information in accordance with the rules in this section, it must not do anything that might reasonably cause a retail client to be mistaken about the identity of the firm that has produced, or will produce, the product.
COBS 14.2.5RRP
A firm is not required to provide:(1) a document, if the firm produces the product and the rules in this section require another firm to provide the document;(2) a key features document or key features illustration2, if another person is required to provide the distance marketing information by the rules of another EEA State; (3) the Solvency II Directive information,13 if another person is required to provide that information by the rules of another EEA State;13(4) a simplified
COBS 14.2.6RRP
2A firm is not required to provide a key features illustration for a product if the information that would have been included in that illustration is included in the key features document provided to the client. 2
COBS 14.2.7RRP
A firm is not required to provide a key features document or a key features illustration2for: (1) a key features scheme if it provides a simplified prospectus instead;(2) a life policy if:13(a) the firm is operating from an establishment in another EEA State and the sale is by distance contract; or(b) the client is habitually resident outside the United Kingdom and the sale is not by distance contract.(3) a traded life policy.[Note: in respect of (2), articles 4(1) and 16 of the
COBS 14.2.8RRP
A firm is not required to provide a key features document or a key features illustration2, if:(1) the client is buying or investing in response to a direct offer financial promotion without receiving a personal recommendation to buy or invest; and(2) the firm provides materially the same information in some other way.
COBS 14.2.9RRP
A firm is not required to provide a , a key features illustration2 or a simplified prospectus for a key features scheme or simplified prospectus scheme if:(1) the client is habitually resident outside the EEA and not present in the EEA when the relevant application is signed; or(2) the purchase is by a discretionary investment manager on behalf of a retail client; or(3) the sale is arranged or personally recommended by an investment manager and the client has agreed that a key
COBS 14.2.9ARRP
7For the purposes of the provision rules in relation to a key investor information document, a firm: (1) may satisfy the requirement to provide the document to the investor by providing it to a person who has written authority to make investment decisions on that investor’s behalf; and(2) is not required to consider as a new transaction:(a) a subscription to units in a UCITS scheme or an EEA UCITS scheme in which the client already holds units; or(b) a series of connected transactions
COBS 14.2.10GRP
7(1) Although a firm is not always required to provide a simplified prospectus to a client (COBS 14.2.9 R), the obligation to offer the prospectus to the client (COBS 14.2.1R (5)) remains.7(2) The FCA would regard a decision to subscribe to a regular monthly savings plan as a single investment decision for the purpose of COBS 14.2.9AR (2)(a). However, a subsequent decision by the client to increase the amount of the regular contributions to be invested in units of a particular
COBS 14.2.11RRP
A firm may provide a single document, which describes more than one key features scheme or7simplified prospectus scheme, or any combination of those schemes, if:77(1) the schemes are offered through a platform service;88(2) the document clearly describes the difference between the relevant schemes; and(3) (in the case of a simplified prospectus scheme) the firm also offers a copy7 of the relevant prospectus7 to the client.7
COBS 14.2.12RRP
In the case of a distance contract comprising an initial service agreement, followed by successive operations or a series of separate operations of the same nature performed over time, the rules in this section only apply to the initial agreement.
COBS 14.2.13RRP
If there is no initial service agreement but the successive operations or separate operations of the same nature performed over time are performed between the same contractual parties, the rules in this section only apply:(1) when the first operation is performed; and(2) if no operation of the same nature is performed for more than a year, when the next operation is performed (the next operation being deemed to be the first in a new series of operations).
COBS 14.2.14RRP
When the rules in this section require a firm to:(1) offer a simplified prospectus to a client, that prospectus must be offered free of charge before the conclusion of the contract; or7(2) provide a key features document, a simplified prospectus, or any other document or information to a client, the document or information must be provided free of charge and in good time before the firm carries on the relevant business; or77(3) provide a key investor information document or EEA
COBS 14.2.15RRP
A key features document for an HMRC allocated CTF must be provided as soon as reasonably possible after the CTF has been opened.
COBS 14.2.16RRP
7(1) A firm may provide a document, or the information required to be provided by the rules in this section, in a durable medium immediately after the conclusion of a distance contract, if the contract has been concluded at a client's request using a means of distance communication that does not enable the document or information to be provided in that form in good time before the client is bound by the contract.7(2) The exception in (1) does not apply in relation to the provision
COBS 14.2.17RRP
7(1) Where the rules in this section require a document or information to be provided, in the case of a voice telephony communication, a firm must:77(a) if the client gives explicit consent to receiving only limited information, provide the abbreviated distance marketing disclosure information () orally to the client;7(b) if the client does not give explicit consent to only receiving limited information, and the parties wish to proceed by voice telephony communication, provide
COBS 6.1B.1RRP
(1) 1This section applies to:24(a) a firm which is a retail investment product provider; 114(b) in relation to COBS 6.1B.9 R, COBS 6.1B.10 G and COBS 6.1B.11 G, a platform service provider; 11and4(c) 11a firm which is an operator of an electronic system in relation to lending; in circumstances where a retail client receives a personal recommendation in relation to a retail investment product or P2P agreement11 and also where a retail investment product transaction is executed
COBS 6.1B.2RRP
This section does not apply to a firm when a retail client receives basic advice in accordance with the basic advicerules.
COBS 6.1B.2ARRP
3This section does not apply to a firm in circumstances where a retail client receives a personal recommendation in relation to one of7 the firm'sHolloway sickness policies,7 provided that the Holloway policy special application conditions are met.
COBS 6.1B.3GRP
This section applies to a firm when it makes a personal recommendation on a retail investment product or P2P agreement11and where a retail investment product for which it is the retail investment product provider or P2P agreement which it facilitates as the operator of an electronic system in relation to lending11is the subject of a personal recommendation made by another firm.
COBS 6.1B.4RRP
This section does not apply if the retail client is outside the United Kingdom.
COBS 6.1B.5RRP
Except as specified in COBS 6.1B.5A R,5 a firm must not offer or pay (and must ensure that none of its associates offers or pays) any commissions, remuneration or benefit of any kind to another firm, or to any other third party for the benefit of that firm, in relation to a personal recommendation (or any related services), except those that facilitate the payment of adviser charges from a retail client's investments in accordance with this section.
COBS 6.1B.5ARRP
5A firm and its associates may:(1) offer and pay a commission, remuneration or benefit of any kind in the circumstances set out in COBS 6.1B.5 R if:(a) the personal recommendation was made on or before 30 December 2012;(b) the offer and payment was permitted by the rules in force on 30 December 2012;(c) the contract under which the right to receive the commission, remuneration or benefit of any kind was entered into on or before 30 December 2012; (d) the terms of that contract
COBS 6.1B.5BGRP
8A firm may continue paying commission, remuneration or benefits of any kind to another firm in relation to a personal recommendation made by that other firm in circumstances where that other firm may accept that commission, remuneration or benefit of any kind (see COBS 6.1A.4A R and COBS 6.1A.4AA G).
COBS 6.1B.7RRP
A firm must:(1) take reasonable steps to ensure that its retail investment product charges or its charges as an operator of an electronic system in relation to lending11are not structured so that they could mislead or conceal from a retail client the distinction between those charges and any adviser charges payable in respect of its retail investment products or investments in P2P agreements made through the system of which it is the operator of an electronic system in relation
COBS 6.1B.7ARRP
10A retail investment product provider may maintain retail investment product charges at a level such that a cash rebate is payable to the retail client if:(1) the retail investment product transaction was agreed on or before 5 April 2014 and executed within a reasonable time of that agreement; and (2) the retail client's right to receive the cash rebate arose on or before 5 April 2014; and(3) on or after 6 April 2014 no change is made to that product, or, where there is such
COBS 6.1B.7BGRP
10In the FCA's view, if the platform service provider retained any part of a rebate on or before 5 April 2014, the retail client is unlikely to have had a right to receive that part of the rebate.
COBS 6.1B.7CGRP
10The following examples do not entail changes to the retail investment product: (1) no change is made to the retail client's investment in the relevant product or to the level of the retail client's regular contributions into that product;(2) the retail client's investment in, or regular contribution to, the relevant product is reduced: the retail investment product provider may continue to pay the cash rebate associated with the reduced investment amount;(3) the retail client's
COBS 6.1B.8GRP
COBS 6.1B.7 R does not prevent a firm from offering a promotional discount to a retail client in the form of extra units or additional investment, but a firm should not offer to invest more than 100% of the retail client's investment.99
COBS 6.1B.9RRP
COBS 6.1B.7 R does not prevent a firm from offering a promotional discount to a retail client in the form of extra units or additional investment, but a9firm that offers to facilitate, directly or through a third party, the payment of adviser charges, including6 by means of a platform service must:49(1) obtain and validate instructions from a retail client in relation to an adviser charge;(2) offer sufficient flexibility in terms of the adviser charges it facilitates; and(3) not
COBS 6.1B.9AGRP
6A firm facilitates the payment of adviser charges for the purposes of COBS 6.1B.9 R if the adviser charge is not paid directly by the retail client, but is instead paid on behalf of the retail client via the firm.
COBS 6.1B.9BGRP
6A firm may facilitate the payment of adviser charges for the purposes of COBS 6.1B.9 R by:(1) selling all or part of the retail client'sretail investment product to pay the adviser charge; or(2) disposing of or reducing all or part of the retail client's rights under the retail investment product (for example, by way of a part disposal which creates benefits under a life policy) to pay the adviser charge; or(3) separating out an amount or amounts for the payment of the adviser
COBS 6.1B.10GRP
A firm should consider whether the flexibility in levels of adviser charges it offers to facilitate is sufficient so as not to unduly influence or restrict the charging structure and adviser charges that the firm providing the personal recommendation or related services can use.
COBS 6.1B.11GRP
COBS 6.1B.9R(3) does not prevent a firm, if this is in the retail client's best interests, from entering into an agreement with another firm which is providing a personal recommendation to a retail client, or with a retail client of such a firm, to provide it with credit separately in accordance with the rules on providing credit and other benefits to firms that advise on retail investment products or P2P agreements11(COBS 2.3.12 E and COBS 2.3.12A G).
COBS 19.4.1RRP
4In this section:(1) 'fact sheet' means the Money Advice Service fact sheet "Your pension: it's time to choose" available on www.moneyadviceservice.org.uk or a statement provided by a firm that gives materially the same information;(2) 'intended retirement date' means:(a) the date (according to the most recent recorded information available to the provider) when the scheme member intends to retire, or to bring the benefits in the scheme into payment, whichever is the earlier;
COBS 19.4.2RRP
4This section applies to a firm which operates a retail client’spersonal pension scheme, stakeholder pension scheme, FSAVC, retirement annuity contract or pension buy-out contract.
COBS 19.4.3GRP
4This section specifies the circumstances where a firm must:(1) provide a retail client with an open market options statement;(2) signpost pensions guidance;(3) provide information to enable a retail client to make an informed decision about how to access their pension savings at their intended retirement date and beyond; and (4) remind a retail client about their open market options.
COBS 19.4.4GRP
4The purpose of this section is to ensure that firms provide retail clients with timely, relevant and adequate information:(1) to enable them to make an informed decision about their options for accessing pension savings at their intended retirement date and beyond; and(2) to encourage them to shop around.
COBS 19.4.5RRP
(1) 4A firm must give a retail client an open market options statement:(a) if the client asks a firm for a retirement quotation more than four months before the client’s intended retirement date; (b) if a firm does not receive such a request for a retirement quotation, between four and six months before the client’s intended retirement date; or(c) if a retail client with open market options tells a firm that he or she is considering, or has decided:(i) to discontinue an income
COBS 19.4.6RRP
4An open market options statement must include:(1) the Money Advice Service fact sheet "Your pension: it's time to choose" available on www.moneyadviceservice.org.uk or a statement provided by a firm that gives materially the same information;(2) a summary of the retail client's open market options, which is sufficient for the client to be able to make an informed decision about whether to exercise, or to decline to exercise, open market options;(3) information about the retail
COBS 19.4.7GRP
4For the purpose of COBS 19.4.6R(1) where a firm provides its own statement as the fact sheet, it should include materially the same information in the Money Advice Service fact sheet about:(1) the following options for accessing pensions savings, even if they are not offered by the firm:(a) pension annuity;(b) drawdown pension; and(c) uncrystallised funds pension lump sum payments;(2) the main features, benefits and risk factors relevant to the options for accessing pensions
COBS 19.4.8RRP
4An open market options statement must not include an application form for a pension decumulation product.
COBS 19.4.9RRP
4At least six weeks before the retail client’s intended retirement date the firm must:(1) remind the client about the open market options statement;(2) tell the client what sum of money will be available to exercise open market options;(3) remind the client about the availability of the pensions guidance; and(4) recommend that the client seeks appropriate guidance or advice to understand their options at retirement.
COBS 19.4.10RRP
4The reminder must not include an application form for a pension decumulation product.
COBS 19.4.11RRP
4A firm must not provide a key features illustration to a retail client for a pension decumulation product, excluding a small lump sum payment, unless:(1) it is required to provide the client with the key features illustration in accordance with the rules on providing product information to clients (COBS 14.2.1R); (2) without prompting by the firm, the client requests the key features illustration; (3) it includes a key features illustration for each of the pension decumulation
COBS 19.4.12RRP
4When a firm communicates with a retail client about their pension annuity options the firm must provide the client with information about how their circumstances can affect retirement income calculations and payments for pension annuities offered by the firm and on the open market.
COBS 19.4.13GRP
4For the purpose of COBS 19.4.12R, examples of the circumstances which can affect retirement income calculations and payments include:(1) the client’s marital status; (2) whether the client has dependants;(3) whether the pension annuity provides a fixed, increasing or decreasing income; (4) the certainty of income associated with an annuity; (5) the client’s state of health; and(6) the client’s lifestyle choices.
COBS 19.4.14RRP
4When a firm communicates with a retail client about their drawdown pension and uncrystallised funds pension lump sum options, the firm must provide the client with such information as is necessary for the client to make an informed decision including, where relevant, information about:(1) how the remaining fund is invested; (2) sustainability of income over time including; (a) the extent to which any income is guaranteed; and(b) implications of full encashment on the client’s
COBS 19.4.15GRP
4A firm should ensure that when it makes any communication with a retail client concerned with the client’s options to access their pension savings it has regard to the fair, clear and not misleading rule, the client’s best interests rule and Principles 6 and 7. In particular a firm should:(1) refer to the contents of the Money Advice Service fact sheet to identify what information might assist the client to understand their options;(2) consider whether it needs to include or
COBS 19.4.16RRP
(1) 4When a firm communicates with a retail client about the retail client'spersonal pension scheme, stakeholder pension scheme, FSAVC, retirement annuity contract or pension buy-out contract which is provided by the firm, unless the circumstances in (2) apply, the firm must:(a) refer to the availability of the pensions guidance;(b) offer to provide the client with information about how to access the pensions guidance; and(c) include a recommendation that the client seeks appropriate
COBS 19.4.17GRP
4An example of behaviour by or on behalf of a firm that is likely to contravene the client's best interests rule or Principle 6 and may contravene other Principles is for a firm to actively discourage a retail client from using the pensions guidance, for example by:(1) leading the client to believe that using the pensions guidance is unnecessary or would not be beneficial; or(2) obscuring the statement about the availability of the pensions guidance or any other information relevant
COBS 19.4.18RRP
4If a firm receives an application from a retail client to access some or all of their pension savings, the firm must provide the client with a description of the tax implications before the client accesses their pension savings.
COBS 19.4.19RRP
4A firm is not required to provide the information in COBS 19.4.18R where it is provided in accordance with COBS 14.2.1R.
COBS 6.3.1RRP
1This section applies to a firm which makes a personal recommendation to, deals in investments as agent for, or arranges for, a retail client in relation to a packaged product.
COBS 6.3.1ARRP
4This section does not apply to a firm when it makes a personal recommendation to a retail client and that retail client is outside the United Kingdom.
COBS 6.3.1BGRP
4If a firm makes a personal recommendation to a retail client in relation to a packaged product and uses the services and costs disclosure document or combined initial disclosure document to make the disclosures required under the rule on describing the breadth of a firm's advice service (COBS 6.2A.5 R) and the rule on content and wording of disclosure (COBS 6.2A.6 R), it may also use these documents for its disclosures in respect of any other retail investment products.
COBS 6.3.2RRP
This section does not apply to a firm giving basic advice where the firm follows the basic advicerules in COBS 9.6.3
COBS 6.3.3GRP
(1) In the FCA's opinion, a firm may3 comply with the rules referred to in (4) of which (a) to (g) are derived from the Single Market Directives and the Distance Marketing Directive4 by ensuring3 that in good time before:3343(a) a retail client is bound by an agreement for the provision of a personal recommendation on packaged products; or (b) the firm performs an act preparatory to the provision of a personal recommendation;(c) (3in relation to the amendment of a life policy
COBS 6.3.4RRP
For the purposes of GEN 5, a firm may not use the Key facts logo in relation to any document that is designed to comply with rules in COBS 5, 6.1 or COBS 7 unless it is a services and costs disclosure document or a 3combined initial disclosure document produced in accordance with the templates and Notes in the annexes to this chapter. 33
COBS 6.3.5GRP
Each of the services and costs disclosure document and3combined initial disclosure document that a firm provides to a client should be documents which the firm reasonably considers will be, or are likely to be, appropriate for the client having regard to the type of service which the firm may provide or business which the firm may conduct. 33
COBS 6.3.6GRP
(1) A firm will satisfy the requirements as to timing in the rules referred to in COBS 6.3.3G (4) if its representative provides information to the client on first making contact with the client.23(2) [deleted]323
COBS 6.3.7GRP
(1) A services and costs disclosure document3 is a document that contains the Key facts logo, headings and text in the order shown in COBS 6 Annex 1 and in accordance with the Notes.3(2) A combined initial disclosure document is a document that contains the Key facts logo, headings and text in the order shown in COBS 6 Annex 2 and in accordance with the Notes.
COBS 6.3.8GRP
A firm may include, in a services and costs disclosure document or a combined initial disclosure document,3 information required by COBS or by the rule on disclosing a tied agent's capacity (SUP 12.6.13 R) and which is not in the template for the services and costs disclosure document or combined initial disclosure document,3if the information would be sufficiently prominent. For example, a firm may wish to use those documents to satisfy:333333(1) the parts of the rule on information
COBS 6.3.9GRP
Firms can obtain from the FCA website http://www.fca.org.uk a specimen of the services and costs disclosure document and the combined initial disclosure document.3 A firm may produce its services and costs disclosure document or combined initial disclosure document3by using its own house style and brand. Electronic tools to help firms to construct their own versions of these documents 3 are available from the FCA website.3333
COBS 6.3.14GRP
A firm would be unlikely to comply with the client's best interests rule and the fair, clear and not misleading rule, 3if:33(1) the services and costs disclosure document or the combined initial disclosure document that it provided initially did not reflect the relevant adviser charge or 4expected commission arrangements; or34(2) the firm arranged to retain any commission which exceeded the amount or rate disclosed without first providing further appropriate inducements information
COBS 6.3.19GRP
In cases where firms make initial contact with a client on the telephone a firm may, in addition, have to take into account and comply with the requirements in this sourcebook applicable to the conclusion of distance contracts3 (see COBS 5). 3
COBS 6.3.20GRP
(1) In accordance with the rule on information disclosure before providing services (COBS 2.2.1 R), if a firm's initial contact with a retail client with a view to providing a personal recommendation on packaged products is by telephone then the following information should be provided before proceeding further:(a) the name of the firm and, if the call is initiated by or on behalf of a firm, the commercial purpose of the call;(b) whether the firm provides independent advice or
COBS 6.3.21RRP
A firm must take reasonable steps to ensure that its representatives,5 when making contact with an employee with a view to giving a personal recommendation on his employer's group personal pension scheme or group stakeholder pension scheme,5 inform the employee:555(1) that the firm will be providing a personal recommendation on a group personal pension scheme5 and/or a group stakeholder pension scheme5 provided by the employer;(2) whether the employee will be provided with a personal
COBS 6.1D.1RRP
This section applies to a firm that is a group personal pension scheme or group stakeholder pension scheme provider, but only if the firm providing the relevant scheme (or another firm) gives advice, or provides services, to an employer in connection with that scheme.
COBS 6.1D.3RRP
In this section ‘giving advice, or providing services, to an employer in connection with a group personal pension scheme or group stakeholder pension scheme' includes:(1) giving advice or assistance to an employer on the operation of such a scheme;(2) taking, or helping the employer to take, the steps that must be taken to enable an employee of the employer to become a member of such a scheme; and(3) giving advice to an employee, pursuant to an agreement between the employer and
COBS 6.1D.4RRP
(1) Except as specified in COBS 6.1D.6A R,1 a firm must not offer or pay (and must ensure that none of its associates offers or pays) any commissions, remuneration or benefit of any kind to another firm, an employee benefit consultant or to any other third party for the benefit of that firm, employee benefit consultant or third party in relation to the sale or purchase of: (a) a group personal pension scheme or group stakeholder pension scheme, whether or not that sale or purchase
COBS 6.1D.5GRP
The requirement not to offer or pay commission does not prevent a firm from making a payment to a third party in respect of administration or other charges incurred, for example a payment to a fund supermarket or a third party administrator.
COBS 6.1D.6RRP
A firm that produces a group personal pension scheme or group stakeholder pension scheme must not offer or make any credit available out of its own funds, and to or for the benefit of another firm, an employee benefit consultant or another third party.
COBS 6.1D.6ARRP
1A firm and its associates may, except in connection with a qualifying scheme: 3(1) offer and pay a commission, remuneration or benefit of any kind in the circumstances set out in COBS 6.1D.4 R if:(a) the employer’s part of the relevant scheme was established on or before 30 December 2012; and(b) the offer or payment was permitted by the rules in force on 30 December 2012; and(2) enter into an arrangement under which the right to receive the commission, remuneration or benefit
COBS 6.1D.7RRP
A firm must:(1) take reasonable steps to ensure that its group personal pension scheme and group stakeholder pension scheme charges are not structured so that they could mislead or conceal from an employer the distinction between those charges and any consultancy charges payable in respect of the scheme; and(2) not include in any marketing materials in respect of its group personal pension schemes or group stakeholder pension schemes any statements about the appropriateness of
COBS 6.1D.8GRP
A firm should not offer to invest more than 100% of the retail client's contribution to a group personal pension scheme or group stakeholder pension scheme.
COBS 6.1D.9RRP
A firm that offers to facilitate, directly or through a third party, the payment of consultancy charges must:2(1) obtain and validate instructions from the relevant employer in relation to the consultancy charge; (2) offer sufficient flexibility in terms of the consultancy charges it facilitates;(3) not pay out or advance consultancy charges to the firm to which the consultancy charge is owed over a materially different time period, or on a materially different basis to that in
COBS 6.1D.9AGRP
2A firm facilitates the payment of consultancy charges for the purposes of COBS 6.1D.9 R if the consultancy charge is not paid directly by the employee, but is instead paid on behalf of the employee via the firm.
COBS 6.1D.9BGRP
2A firm facilitates the payment of consultancy charges for the purposes of COBS 6.1D.9 R by:(1) selling all or part of, or rights under, the employee’s investment in a group personal pension scheme or group stakeholder pension scheme to pay the consultancy charge; or(2) disposing of or reducing all or part of the employee’s rights under the group personal pension scheme or group stakeholder pension scheme (for example, by way of a part disposal which creates benefits under a life
COBS 6.1D.10GRP
A firm should consider whether the flexibility in levels of consultancy charges it offers to facilitate is sufficient so as not to unduly influence or restrict the charging structure and consultancy charges that the firm providing advice to an employer in relation to a group personal pension scheme or group stakeholder pension scheme can use.
COBS 6.1D.11RRP
A firm must, in good time, provide an employee with sufficient information on the total consultancy charge payable by the employee.
COBS 6.1D.12GRP
To comply with COBS 6.1D.11R, a firm's disclosure should be in cash terms (or convert non-cash terms into illustrative cash equivalents) and should:(1) include information as to the period over which the consultancy charge is payable;(2) provide information on the implications for the employee if the employee leaves the employer’s service or their contributions to the group personal pension scheme or group stakeholder pension scheme are cancelled before the consultancy charge
COBS 6.1D.13GRP
A firm may provide the disclosure in COBS 6.1D.11R at the same time as it provides a key features document.
COBS 20.1A.1RRP
For the purposes of calculating any with-profits funds surplus and the rules and guidance in COBS 20, including COBS 20.1A.5 R, COBS 20.1A.6 R and COBS 20.2.17C R, a firm must include the following non-exhaustive list as ‘other liabilities’: (1) liabilities arising from its regulatory duty to treat customers fairly (where not already included in technical provisions); and(2) the value of any prospective future transfers out of the with-profits fund properly attributable to shareholders
COBS 20.1A.2RRP
(1) Where the firm:(a) identifies particular assets as forming a distinct part of its with-profits fund; and(b) restricts participation in the profits or other experience of that distinct part of the fund to a particular category of with-profits policies; then, provided that:(c) such identification and restriction is consistent with the considerations in (3), and(d) the firm treats each affected category of with-profits policyholder fairly, having regard to those considerations;each
COBS 20.1A.3RRP
(1) For a Solvency II firm operating a with-profits fund prior to 1 January 2016:(a) assets in the with-profits fund held in accordance with INSPRU on 31 December 2015 are deemed to be items in a with-profits fund for the purposes of COBS 20 from 1 January 2016, provided that any transfers out of, and any outgoings from, the fund up to 31 December 2015 were made in accordance with, and/or do not as at 31 December 2015, constitute, or continue to constitute, a breach of INSPRU
COBS 20.1A.4RRP
A Solvency II firm effecting or carrying out with-profits insurance business must identify the assets relating to all the business written in, or transferred into, each with-profits fund which it is required to hold under COBS 20.1A.5 R or PRA Rulebook: Solvency II firms: With Profits rule 2.1.
COBS 20.1A.5RRP
A Solvency II firm must ensure that it holds assets in each of its with-profits funds of a value at least sufficient to cover the "with-profits policy liabilities" defined in the PRA Rulebook: Glossary and as required by PRA Rulebook: Solvency II firms: With Profits rule 2.1, and any other liabilities in respect of all of the business written in, or transferred into, that with-profits fund.
COBS 20.1A.6RRP
A Solvency II firm must maintain separate accounting records for each of its with-profits funds. The accounting records must identify:(1) all of the assets of that with-profits fund;(2) the best estimate component of technical provisions for the with-profits policies written in, or transferred into, that with-profits fund;(3) the best estimate component of technical provisions for the non-profit insurance contracts written in, or transferred into, that with-profits fund;(4) any
COBS 20.1A.7GRP
A Solvency II firm must ensure that the assets in its with-profits funds are separately identified and allocated to the relevant with-profits fund at all times. Assets in external accounts (e.g. with banks, custodians, or brokers) should be segregated in the firm's books and records into separate accounts for with-profits insurance business and other business. Where a firm has more than one with-profits fund, separate accounting records must be maintained for each fund. Accounting
COBS 20.1A.8RRP
A Solvency II firm must not transfer assets out of a with-profits fund unless:(1) the assets represent any part of a with-profits fund surplus, or represent assets held in accordance with COBS 20.1A.5 R in relation to the part of a distribution that has been made which is properly attributable to shareholders, in accordance with COBS 20; and(2) no more than three months have passed since the actuarial investigation determining that surplus.
COBS 20.1A.9GRP
For the purposes of COBS 20.1A.8 R, an actuarial investigation is required to determine any with-profits fund surplus for the requirements in COBS 20 and remains in-date for three months from the date when the determination of the surplus was made. However, even where the investigation is still in-date, the firm should not make the transfer unless there is sufficient surplus at the time of the transfer to cover the value of the assets being transferred. The actuarial investigation
COBS 20.1A.10RRP
(1) A Solvency II firm must use or apply an asset in a with-profits fund only for the purpose of the business in the with-profits fund.(2) For the purpose of (1), applying or using an asset includes any obligation (even if only contingent) to apply or use that asset.
COBS 20.1A.11RRP
A Solvency II firm must not agree to, or allow, any mortgage or charge on the assets in any of its with-profits funds, other than in respect of, and for the purposes of, the business in the with-profits fund.
COBS 20.1A.12GRP
References in COBS 20.1A.10 R and COBS 20.1A.11 R to ‘the purposes of the business’ in the with-profits fund include the payment of claims, expenses and liabilities arising from that business, the acquisition of lawful access to fixed assets to be used in that business and the investment of assets. The payment of liabilities may include repaying a loan but only where that loan was incurred for the purpose of the business written into the with-profits fund. The purchase or investment
COBS 20.1A.13RRP
A firm, other than a non-directive friendly society,2 which is subject to contractual terms providing for payments under a capital instrument included in that insurer's own funds2, must:(1) manage any with-profits fund so that discretionary benefits under a with-profits policy are calculated and paid, disregarding, insofar as is necessary for its customers to be treated fairly, any requirements in such contractual terms whether or not they are absolute, contingent or at the discretion
COBS 20.1A.14GRP
(1) A firm, other than a non-directive friendly society,2 is expected to manage its with-profits fund so that amounts (whether interest, principal, or other outgoings) payable by the firm under a capital instrument included in that insurer's own funds2 (as determined in accordance with the PRA Rulebook: Solvency II Firms: Own Funds or Non-Solvency II firms: Insurance Company – Capital Resources2) do not impact on the with-profits fund's assets or on the firm's ability to declare
COBS 20.1A.15RRP
A Solvency II firm must ensure that it has adequate arrangements in place for ensuring that transactions affecting the assets of the firm operate fairly between with-profits policyholders and other persons interested in the other assets of the insurer and, where the firm has more than one with-profits fund, those transactions operate fairly between the with-profits policyholders in each of those funds.
COBS 21.3.-1RRP
4The rules in this section apply to linked long-term contracts of insurance where the investment risk is borne by a policyholder who is a natural person.
COBS 21.3.1RRP
An insurer must not contract to provide benefits under linked long-term contracts of insurance4 that are determined:4(1) wholly or partly, or directly or indirectly, by reference to fluctuations in any index other than an approved index;(2) wholly or partly by reference to the value of, or the income from, or fluctuations in the value of, property other than any of the following:(a) approved securities;(b) listed securities; (c) permitted unlisted securities; (d) permitted land
COBS 21.3.1ARRP
4A firm must classify the types of property listed in COBS 21.3.1R (2)(a) to (2)(l) according to their economic behaviour ahead of their legal form.
COBS 21.3.2GRP
(1) Nothing in these rules prevents a firm making allowance in the value of any permitted link for any notional tax loss associated with the relevant linked assets for the purposes of fair pricing.3(2) In the FCA's5 view the Consumer Prices Index, as well as the Retail Prices Index, is a national index of retail prices and so may be used as an approved index for the purposes of COBS 21.3.1R (1).3
COBS 21.3.6RRP
4A money-market instrument will be regarded as normally dealt in on the money market if it:(1) has a maturity at issuance of up to, and including, 397 days; or(2) has a residual maturity of up to, and including, 397 days; or(3) undergoes regular yield adjustments in line with money market conditions at least every 397 days; or(4) undergoes regular yield adjustments in line with money market conditions at least every 397 days.
COBS 21.3.7RRP
(1) 4A money-market instrument will be regarded as liquid if it can be sold at limited cost in an adequately short timeframe.(2) A money-market instrument will be regarded as having a value which can be accurately determined at any time if accurate and reliable valuations systems, which fulfil the following criteria, are available:(a) enabling the firm to calculate a net asset value in accordance with the value at which the instrument held in the portfolio could be exchanged between
COBS 21.3.8GRP
4A firm should assess the liquidity of a money-market instrument in accordance with CESR's UCITS eligible assets guidelines, with respect to article 4(1) of the UCITS eligible assets Directive.
COBS 21.3.9RRP
4A permitted stock lending transaction is one which, for a Solvency II firm, satisfies the requirements in COBS 21.3.11 R to COBS 21.3.12 R and, for an insurer which is not a Solvency II firm, satisfies INSPRU 3.2.36A R to INSPRU 3.2.42 G.
COBS 21.3.10RRP
4The specific method of stock lending permitted is an arrangement of the kind described in section 263B of the Taxation of Chargeable Gains Act 1992, under which the lender transfers securities to the borrower other than by way of sale and the borrower is to transfer those securities, or securities of the same type and amount, back to the lender at a later date. In accordance with good market practice, a separate transaction by way of transfer of assets is also involved for the
COBS 21.3.11RRP
(1) 4The stock lending arrangement is of the kind described in section 263B of the Taxation of Chargeable Gains Act 1992 (without extension by section 263C), and:(a) all the terms of the agreement under which securities are to be reacquired by the firm for the account of the unit-linked fund are in a form which is acceptable to the firm and in accordance with good market practice;(b) the counterparty is:(i) an authorised person; or(ii) a person authorised by a Home State regulator;
COBS 21.3.12RRP
(1) 4Collateral is adequate for the purposes of this section only if it is:(a) transferred to the firm or the firm's agent;(b) at least equal in value, at the time of the transfer to the firm or its agent, to the value of the securities transferred by the firm; and(c) in the form of one or more of:(i) cash;(ii) a certificate of deposit;(iii) a letter of credit;(iv) a readily realisable security;(v) commercial paper with no embedded derivative content;(vi) a qualifying money market
COBS 21.3.13RRP
4A permitted derivatives contract is one which:(1) for a Solvency II firm, is effected or issued:(a) on or under the rules of a regulated market; or(b) off-market with an approved counterparty; andsatisfies COBS 21.3.14 G; and(2) for an insurer which is not a Solvency II firm, satisfies INSPRU 3.2.5 R to INSPRU 3.2.35A G with the exception of INSPRU 3.2.18 R; and(3) in each of (1) and (2) the provisions are applied in relation to assets covering liabilities in respect of linked
COBS 21.3.14GRP
4Solvency II firms5 are also required to comply with the PRA Rulebook Solvency II Firms Investment and ensure that the use of derivative contracts is adequately covered. Firms are also referred to the rules in COLL 5.3 (Derivative Exposure) in relation to the use of derivatives in investment funds and the further guidance from CESR and its successor body, ESMA, which represent good practice in this area.