Related provisions for PERG 8.3.4
21 - 40 of 1099 items.
For the purpose of LR 5.6.4R (2), the FCA considers that the following factors are indicators of a fundamental change:(1) the extent to which the transaction will change the strategic direction or nature of its business; or(2) whether its business will be part of a different industry sector following the completion of the transaction; or(3) whether its business will deal with fundamentally different suppliers and end users.
A shell company6, or in the case of a shell company6with a premium listing, its sponsor, must contact the FCA as early as possible:(1) before announcing a reverse takeover which has been agreed or is in contemplation, to discuss whether a suspension of listing is appropriate; or (2) where details of the reverse takeover have leaked, to request a suspension.
Examples of where the FCA will consider that a reverse takeover is in contemplation include situations where:(1) the shell company6 has approached the target's board;(2) the shell company6 has entered into an exclusivity period with a target; or(3) the shell company6 has been given access to begin due diligence work (whether or not on a limited basis).
Generally, when a reverse takeover between a shell company and a target6 is announced or leaked, there will be insufficient publicly available information about the proposed transaction and the shell company6 will be unable to assess accurately its financial position and inform the market accordingly. In this case, the FCA will often consider that suspension will be appropriate, as set out in LR 5.1.2G (3) and (4). However, if the FCA is satisfied that there is sufficient publicly
The FCA will generally be satisfied that there is sufficient information in the market about the propos ed transaction if: (1) the target has shares or certificates representing equity securities admitted to a regulated market; and(2) the shell company6 makes an announcement stating that the target has complied with the disclosure requirements applicable on that regulated market and providing details of where information disclosed pursuant to those requirements can be obtaine
The FCA will generally be satisfied that there is sufficient publicly available information in the market about the proposed transaction if the target has securities admitted to an investment exchange or trading platform that is not a regulated market and the shell company6: (1) confirms, in a form acceptable to the FCA, that the disclosure requirements in relation to financial information and inside information of the investment exchange or trading platform on which the target'ssecurities
Where the target in a reverse takeover by a shell company6 is not subject to a public disclosure regime, or if the target has securities admitted on an investment exchange or trading platform that is not a regulated market but the shell company6 is not able to give the confirmation and make the announcement contemplated by LR 5.6.12 G, the FCA will generally be satisfied that there is sufficient publicly available information in the market about the proposed transaction such that
Where the FCA has agreed that a suspension is not necessary as a result of an announcement made for the purpose of LR 5.6.15 G the shell company6 must comply with the obligation under article 17(1) of the Market Abuse Regulation3 on the basis that the target already forms part of the enlarged group.
Where an issuer acquires the shares or certificates representing equity securities of a target with a different listing category from its own and the issuer wishes to maintain its existing listing category, the FCA will generally be satisfied that a cancellation is not required on completion of a reverse takeover if: (1) the issuer will continue to be eligible for its existing listing category following completion of the transaction;(2) the issuer provides an eligibility letter
The FCA will generally be satisfied that a cancellation is not required on completion of a reverse takeover if the target is listed with a different listing category from that of the issuer and the issuer wishes to transfer its listing to a different listing category in conjunction with the acquisition and the issuer as enlarged by the relevant acquisition complies with the relevant requirements of LR 5.4A to transfer to a different listing category.
Under section 138A(4) of the Act, the appropriate regulator9 may not give a waiver unless it is satisfied that:99(1) compliance by the firm with the rules, or with the rules as unmodified, would be unduly burdensome, or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of, in the case of the PRA, any of its objectives and, in the case of the FCA, any of its operational objectives.99
9The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
The appropriate regulator9 will acknowledge an application promptly and if necessary will seek further information from the firm. The time taken to determine an application will depend on the issues it raises. A firm should make it clear in the application if it needs a decision within a specific time.96
The appropriate regulator9 will treat a firm's application for a waiver as withdrawn if it does not hear from the firm within 20 business days of sending a communication which requests or requires a response from the firm. The appropriate regulator9 will not do this if the firm has made it clear to the appropriate regulator9 in some other way that it intends to pursue the application. 3999
In some cases, the appropriate regulator9 may give a modification of a rule rather than direct that the rule is not to apply. The appropriate regulator9 may also impose conditions on a waiver, for example additional reporting requirements. A waiver may be given for a specified period of time only, after which time it will cease to apply. A firm wishing to extend the duration of a waiver should follow the procedure in SUP 8.3.3 D. A waiver will not apply retrospectively.99
If the appropriate regulator9 believes that a particular waiver given to a firm may have relevance to other firms, it may publish general details about the possible availability of the waiver. For example, IPRU(INV) 3-80(10)G explains that a firm that wishes to use its own internal model to calculate its position risk requirement (PRR) will need to apply for a waiver of the relevant rules.9
Under section 138A(1) of the Act the appropriate regulator9 may give a waiver with the consent of a firm. This power may be used by the appropriate regulator9 in exceptional circumstances where the appropriate regulator9 considers that a waiver should apply to a number of firms (for example, where a rule unmodified may not meet the particular circumstances of a particular category of firm). In such cases the appropriate regulator9 will inform the firms concerned that the waiver
For an application for a waiver of the presumption of contravention of a binding rule, which is actionable under section 138D9 of the Act, the appropriate regulator9 would normally wish to be satisfied that the evidential rule is itself unduly burdensome or does not achieve the purpose of the rule.299
1The FCA recognises that there are good reasons for firms wishing to carry out their own investigations. This might be for, for example, disciplinary purposes, general good management, or operational and risk control. The firm needs to know the extent of any problem, and it may want advice as to what immediate or short-term measures it needs to take to mitigate or correct any problems identified. The FCA encourages this proactive approach and does not wish to interfere with a
1A firm’s report – produced internally or by an external third party – can clearly assist the firm, but may also be useful to the FCA where there is an issue of regulatory concern. Sharing the outcome of an investigation can potentially save time and resources for both parties, particularly where there is a possibility of the FCA taking enforcement action in relation to a firm’s perceived misconduct or failing. This does not mean that firms are under any obligation to share the
1Work done or commissioned by the firm does not fetter the FCA's ability to use its statutory powers, for example to require a skilled person’s report under section 166 of the Act or to carry out a formal enforcement investigation; nor can a report commissioned by the firm be a substitute for formal regulatory action where this is needed or appropriate. But even if formal action is needed, it may be that a report could be used to help the FCA decide on the appropriate action to
1The FCA invites firms to consider, in particular, whether to discuss the commissioning and scope of a report with FCA staff where: (1) firms have informed the FCA of an issue of potential regulatory concern, as required by SUP 15; or (2) the FCA has indicated that an issue or concern has or may result in a referral to Enforcement.
1The FCA's approach in commenting on the proposed scope and purpose of the report will vary according to the circumstances in which the report is commissioned; it does not follow that the FCA will want to be involved in discussing the scope of a report in every situation. But if the firm anticipates that it will proactively disclose a report to the FCA in the context of an ongoing or prospective enforcement investigation, then the potential use and benefit to be derived from the
1Some themes or issues are common to any discussion about the potential use or value of a report to the FCA. These include: (1) to what extent the FCA will be able to rely on the report in any subsequent enforcement proceedings; (2) to what extent the FCA will have access to the underlying evidence or information that was relied upon in producing the report; (3) where legal privilege or other professional confidentiality is claimed over any material gathered or generated in the
1In certain circumstances the FCA may prefer that a firm does not commission its own investigation (whether an internal audit report or a report by external advisers) because action by the firm could itself be damaging to an FCA investigation. This is true in particular of criminal investigations, where alerting the suspects could have adverse consequences. For example, where the FCA suspects that individuals are abusing positions of trust within financial institutions and that
1How the results of an investigation are presented to the FCA may differ from case to case; the FCA acknowledges that different circumstances may call for different approaches. In this sense, one size does not fit all. The FCA will take a pragmatic and flexible approach when deciding how to receive the results of an investigation. However, if the FCA is to rely on a report as the basis for taking action, or not taking action, then it is important that the firm should be prepared
1The FCA is not able to require the production of “protected items”, as defined in the Act, but it is not uncommon for there to be disagreement with firms about the scope of this protection. Arguments about whether certain documents attract privilege tend to be time- consuming and delay the progress of an investigation. If a firm decides to give a report to the FCA, then the FCA considers that the greatest mutual benefit is most likely to flow from disclosure of the report itself
1For reasons that the FCA can understand, firms may seek to restrict the use to which a report can be put, or assert that any legal privilege is waived only on a limited basis and that the firm retains its right to assert legal privilege as the basis for non-disclosure in civil proceedings against a private litigant.
1The FCA understands that the concept of a limited waiver of legal privilege is not one which is recognised in all jurisdictions; the FCA considers that English law does permit such “limited waiver” and that legal privilege could still be asserted against third parties notwithstanding disclosure of a report to the FCA. However, the FCA cannot accept any condition or stipulation which would purport to restrict its ability to use the information in the exercise of the FCA's statutory
1This does not mean that information provided to the FCA is unprotected. The FCA is subject to strict statutory restrictions on the disclosure of confidential information (as defined in section 348 of the Act), breach of which is a criminal offence (under section 352 of the Act). Reports and underlying materials provided voluntarily to the FCA by a firm, whether covered by legal privilege or not, are confidential for these purposes and benefit from the statutory protections.
1Even in circumstances where disclosure of information would be permitted under the “gateways” set out in the Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations, the FCA will consider carefully whether it would be appropriate to disclose a report provided voluntarily by a firm. The FCA appreciates that firms feel strongly about the importance of maintaining confidentiality, and that firms are more likely to volunteer information to the
A person wanting to provide sponsor services4, and to be included on the list of sponsors, must apply to the FCA for approval as a sponsor by submitting the following to the Sponsor Supervision Team at the FCA's address:4(1) a completed Sponsor Firm Application Form; and4(2) [deleted]44(3) the application fee set out in 1FEES 31.[Note: The Sponsor's Firm Application Form can be found on the UKLA section of the FCA's website.]4
When considering an application for approval as a sponsor the FCA may:(1) carry out any enquiries and request any further information which it considers appropriate, including consulting other regulators;(2) request that the applicant or its specified representative answer questions and explain any matter the FCA considers relevant to the application; and6(3) take into account any information which it considers appropriate in relation to the application.22(4) [deleted]22[Note:
The FCA will approve a person as a sponsor only if it is satisfied that the person :4(1) is 4an authorised person or a member of a designated professional body;(2) is 4competent to provide8sponsor services4 in accordance with LR 88; and8(3) has appropriate 4systems and controls in place to carry out its role as a sponsor in accordance with LR 884.488
7Situations when the FCA may impose restrictions or limitations on the services a sponsor can provide include (but are not limited to) where it appears to the FCA that: (1) the employees of the person applying to be a sponsor whom it is proposed will perform sponsor services have no or limited relevant experience and expertise of providing certain types of sponsor services or of providing sponsor services to certain types of company; or(2) the person applying to be a sponsor does
8Where a person wishes to apply for approval as a sponsor to provide a limited range of sponsor services, it may do so on the basis that the FCA will impose a limitation or restriction on its approval (in accordance with section 88 of the Act). In such circumstances, the FCA will assess whether the person satisfies LR 8.6.5R (2) and LR 8.6.5R (3) taking into consideration the sponsor services to which the approval, as formally limited or restricted by the FCA, will relate.
A sponsor, or a 8person48applying for approval as a sponsor, will not satisfy LR 8.6.5R (2) unless it has:4888(1) 8submitted a sponsor declaration to the FCA:(a) for a person applying for approval as a sponsor, within three years of the date of its application; and(b) for a sponsor, within the previous three years; and(2) 8a sufficient number of employees with the skills, knowledge and expertise necessary for it to:(a) provide sponsor services in accordance with LR 8.3; (b) understand:(i)
8To determine whether a sponsor or a person applying for approval as a sponsor is able to satisfy LR 8.6.7R (1)(a), the FCA may consider whether any of the person'semployees have had material involvement in the provision of sponsor services that have required the submission of a sponsor declaration within the previous three years.
8In assessing whether a sponsor or a person applying for approval as a sponsor satisfies LR 8.6.7R (2), the FCA will consider a variety of factors including:(1) the nature, scale and complexity of its business;(2) the diversity of its operations; (3) the volume and size of transactions it undertakes;(4) the volume and size of transactions it anticipates undertaking in the following year; and (5) the degree of risk associated with the transactions it undertakes or anticipates
4In assessing whether a sponsor or a8person applying for approval as a sponsor can demonstrate it is competent in the areas required under LR 8.6.7R (2), the FCA may also take into account, where relevant, the guidance or advice on the listing rules or disclosure requirements9 and transparency rules5the sponsor or8person has given in circumstances other than in providing sponsor services.885
When considering a sponsor's ability to comply with LR 8.6.12 R, the FCA will consider8 a variety of factors, including:8(1) the nature, scale and complexity of its business;(2) the diversity of its operations;(3) the volume and size of the transactions it undertakes;4(4) the volume and size of the transactions it anticipates undertaking in the following year; and44(5) the degree of risk associated with the transactions it undertakes or anticipates undertaking in the following
6A sponsor must have effective arrangements to create and retain for six years accessible records which are sufficient to be capable of demonstrating that it has provided sponsor services and otherwise complied with its obligations under LR 8 including:88(1) where a declaration is to be submitted to the FCA:88(a) under LR 8.4.3R (1), LR 8.4.9R (1), LR 8.4.13R (1), LR 8.4.14R (2) or LR 8.4.17 R; or (b) pursuant to an appointment under LR 8.2.1R (5);the basis of each declaration
6In considering whether a sponsor has satisfied the requirements regarding sufficiency of records in LR 8.6.16A R, the FCA will consider whether the records would enable a person with general knowledge of the sponsor regime but no specific knowledge of the actual sponsor service undertaken to understand and verify the basis upon which material judgments have been made throughout the provision of the sponsor service.
4For each 8sponsor service requiring the submission of a document to the FCA or contact with the FCA, a sponsor must:8(1) at the time of submission or on first making contact with the FCA8notify the FCAof the name and contact details of a key 8contact within8 the sponsor for that matter8; and8888(2) ensure that its key8contact : 88(a) has8 sufficient knowledge about the listed company or applicant and the proposed matter8to be able to answer queries from the FCA about it; 888(b)
The purpose of DTR 8.4.1 R is to ensure that a primary information provider can disseminate regulated information to as wide a public as possible, as close to simultaneously as possible, in the United Kingdom and other EEA States. In considering whether a primary information provider has satisfied the requirements in DTR 8.4.1 R, the FCA will consider the number and nature of arrangements that the primary information provider has with media operators.
A primary information provider must prioritise the order of dissemination of pending regulated information according to the headline information, except that a primary information provider must prioritise the dissemination of regulated information that is submitted by the FCA if the FCA requests it.
A primary information provider must:(1) disseminate regulated information at least between the hours of 7:00 am and 6:30 pm on any business day;(2) be able to receive regulated information at all times; (3) provide service support at least between the hours of 7.00 am and 6.30 pm on any business day to:(a) any person who has requested the dissemination of regulated information; and(b) any media operator with whom the primary information provider has an arrangement for the dissemination
In considering whether a primary information provider satisfies the requirements of DTR 8.4.9 R, the FCA will consider, among other things, whether the primary information provider has arrangements in place for an alternative primary information provider to receive and disseminate regulated information on its behalf.
A primary information provider must record the following information for each announcement of regulated information it disseminates: (1) the name of any person who communicates regulated information on behalf of an issuer or other organisation to the primary information provider;(2) the name of the issuer or organisation on whose behalf the regulated information is communicated;(3) the security validation details of the issuer or organisation;(4) the date and time the regulated
Regulated information disseminated to a media operator by a primary information provider must contain the following: (1) identification of the information as regulated information which has been disseminated by a primary information provider;(2) the unique identification number for the item of regulated information;(3) the sequence number of the regulated information;(4) a clear indication of the start of the regulated information;(5) the name of the issuer or organisation concerned;(6)
If requested by the FCA, a primary information provider must:(1) place an embargo on regulated information; or(2) cancel any embargo placed on regulated information by the person that has submitted the regulated information and disseminate the regulated information; or(3) cancel any embargo placed on regulated information by the FCA and disseminate the regulated information.
In considering whether a primary information provider satisfies the requirements of DTR 8.4.31 R, the FCA will consider, among other things, whether the primary information provider has in place appropriate measures to identify new and emerging risks which would be likely to prevent its compliance with DTR 8.4.11 R, DTR 8.4.19 R or DTR 8.4.20 R.
A primary information provider must notify the FCA immediately if:(1) there is any change to the names and contact details of staff who are available to assist the FCA exercise its functions in relation to the dissemination of regulated information by the primary information provider; or(2) any contractual arrangement between the primary information provider and a media operator regarding the dissemination of regulated information is terminated; or(3) any changes are proposed
If a person performs an FCA controlled function without approval it is not only the firm that is accountable. Under section 63A of the Act (Power to impose penalties), if the FCA is satisfied that:(1) a person (“P”) has at any time performed an FCA controlled function without approval; and(2) at that time P knew, or could reasonably be expected to have known, that P was performing an FCA controlled function without approval;it may impose a penalty on P of such amount as it considers
(1) In accordance with section 60 of the Act (Applications for approval), applications must be submitted by, or on behalf of, the firm itself, not by:(a) the FCAcandidate; or(b) (where the FCAcandidate works for the firm'sparent undertaking or holding company) by the firm'sparent undertaking or holding company.(2) Usually this will be the firm that is employing the FCAcandidate to perform the FCA controlled function. Where a firm has outsourced the performance of an FCA controlled
Outsourcing arrangements
Outsourcing arrangements |
Submitting form |
|
The FCA will consider A to have taken reasonable care if it enters into a contract with B under which B is responsible for ensuring that the relevant FCA controlled functions are performed by FCA-approved persons, and that it is reasonable for A to rely on this |
Firm B submits FCA-approved persons forms on behalf of firm A |
|
Outsourcing by A to B (both being a member of the same United Kingdom group and each having its registered office in the United Kingdom) |
See SUP 10A.3.4 G |
See SUP 15.7.8 G |
(i) A to B, where B is a non-authorised person not part of the same group as A (ii) A to B, where A is a branch of an overseas firm in the United Kingdom, and B is an overseas undertaking of the same group (iii) A to B, where A is a UK authorised subsidiary of an overseas firm and B is an overseas undertaking of the same group |
Responsibility for (as opposed to the performance of) any activity outsourced to B will remain with A. See SYSC 3.2.4 G and SYSC 8 |
A ensures that an individual approved by the FCA or the PRA under a controlled function that is a significant-influence function has responsibility for the outsourced arrangement and A submits a form in relation to that individual |
Where the notification of an appointed representative (SUP 12.7.1 R) is linked to an application for approval (SUP 10A.13 (Applications for approval and withdrawing an application for approval)), any delay in receiving the notification under SUP 12.7.1 R may delay the FCA's approval of the individuals employed by that appointed representative who will be performing FCA controlled functions for the firm.
In any case where the application for approval is made by a person applying for permission under Part 4A of the Act, the FCA has until the end of whichever of the following periods ends last: (1) the period within which an application for that permission must be determined; and(2) the period of three months from the time it receives a properly completed application.
The FCA must either grant the application or, if it proposes not to grant an application, issue a warning notice (see DEPP 2). The FCA will deal with cases more quickly than this whenever circumstances allow and will try to meet the standard response times published on the website and in its Annual Report. However, if an application is incomplete when received, or the FCA has knowledge that, or reason to believe that, the information is incomplete, then the processing time will
Application forms must always be completed fully and honestly. Further notes on how to complete the form are contained in each form. If forms are not completed fully and honestly, applications will be subject to investigation and the FCAcandidate's suitability to be approved to undertake an FCA controlled function will be called into question. A person who provides information to the FCA that is false or misleading may commit a criminal offence, and could face prosecution under
Before making a decision to grant the application or give a warning notice, the FCA may ask the firm for more information about the FCA candidate. If it does this, the three-month period in which the FCA must determine a completed application:(1) will stop on the day the FCA requests the information; and(2) will start running again on the day on which the FCA finally receives all the requested information.
The FCA may grant an application only if it is satisfied that the FCA candidate is a fit and proper person to perform the FCA controlled function stated in the application form. Responsibility lies with the firm making the application to satisfy the FCA that the FCA candidate is fit and proper to perform the FCA controlled function applied for.
Under section 169(1)(b) and section 131FA2 of the Act,
the FCA3 may
appoint an investigator to investigate any matter at the request of an overseas regulator or EEA regulator2. The powers of the investigator appointed by the FCA3 (referred to here as the 'FCA's3 investigator') include the power to require persons to
attend at a specified time and place and answer questions (the compulsory
interview power).333
Where the FCA3 appoints an investigator in response to a request from an overseas regulator or EEA regulator2 it may, under section 169(7) or section 131FA2 of the Act,
direct him to permit a representative of that regulator to attend and take
part in any interviews conducted for the purposes of the investigation. The FCA3 may
only give a direction under section 169(7) or section 131FA2 if it is satisfied that any information
obtained by an overseas regulator or EEA
regulator2
The FCA3 may need to consider whether to use its direction power at two
stages of an investigation:3(1) at the same time that it considers
the request from the overseas regulator or EEA
regulator2 to appoint investigators;(2) after it has appointed investigators,
either at the request of the overseas regulator or EEA
regulator2 or on the recommendation of the
investigators.
Before making a direction under
section 169(7) or section
131FA2 the FCA3 will discuss and determine with the overseas
regulator or EEA regulator2 how this statement of policy will
apply to the conduct of the interview, taking into account all the circumstances
of the case. Amongst other matters, the FCA3 will at this stage determine the extent to which the representative
of the overseas regulator or EEA
regulator2 will be able to participate in
the interview. The overseas regulator
The direction will contain the
identity of the representative of the overseas
regulator or EEA regulator2 that is permitted to attend any
interview and the role that he will play in the interview. If the FCA3 envisages that there will be more than one interview in the course
of the investigation, the direction may also specify which interview(s) the representative is allowed to attend.32
In circumstances where an interview
is to be conducted as part of the investigation, the FCA's3 investigator will have conduct of the interview. In general,
the FCA's3 investigators
will be employees of the FCA3, but in appropriate cases the FCA3 may appoint persons who
are not its employees. In those cases, the FCA3 may choose to require that an FCA3 employee is present at the interview and may choose to appoint
that person as an investigator.333333
The FCA's3 investigator will act on behalf of the FCA3 and under its control. He may be instructed to permit the representative
of the overseas regulator or EEA
regulator2 to assist in the preparation of
the interview. Where the FCA3 considers it appropriate, it may permit the representative to
attend and ask questions of the interviewee in the course of the interview.
The interview will be conducted according to the terms of the direction and
the notification referred to in DEPP
If the direction does permit the
representative of an overseas regulator or EEA
regulator2 to attend the interview and ask
the interviewee questions, the FCA's3 investigator will retain control of the interview throughout.
Control of the interview means the following will apply:3(1) The FCA's3 investigator instigates and concludes the interview, introduces
everyone present and explains the procedure of the interview. He warns the
interviewee of the possible consequences of refusing
The FCA3 will in general provide written notice of the appointment of
an investigator to the person under
investigation pursuant to the request of an overseas
regulator or EEA regulator2. Whether or not the interviewee
is the person under investigation,
the FCA's3 investigator
will inform the interviewee of the provisions under which he has been appointed,
the identity of the requesting authority and general nature of the matter
under investigation. The interviewee will also normally
When the FCA's3 investigator has exercised the compulsory interview power, at
the outset of the interview the interviewee will be given an appropriate warning.
The warning, amongst other things, must state that the interviewee is obliged
to answer all questions put to them during the interview, including any put
by the representative of the overseas regulator or EEA
regulator2. It will also state that in criminal
proceedings or proceedings for market abuse the FCA3 will
not use
The FCA's3 investigator may decide which documents or other information
may be put to the interviewee, and whether it is appropriate to give the interviewee
sight of the documents before
the interview takes place. Where the overseas
regulator or EEA regulator2 wishes to ask questions about documents during the interview and the FCA's3 investigator
wishes to inspect those documents before
the interview, he will be given the opportunity to do so. If the FCA's3 investigator wishes
When the FCA's3 investigator has exercised the compulsory interview power, the FCA's3 investigator
will require the person attending
the interview to answer questions. Where appropriate, questions may also be
posed by the representative of the overseas
regulator or EEA regulator2. The interviewee will also be
required to answer these questions. The FCA's3 investigator may intervene at any stage during questioning by
the representative of the overseas regulator or EEA
regulato
Interviews will, in general, be
conducted in English. Where the interviewee's first language is not English,
at the request of the interviewee arrangements will be made for the questions
to be translated into the interviewee's first language and for his answers
to be translated back into English. If a translator is employed at the request
of the representative of the overseas regulator or EEA
regulator2 then the translation costs will
normally be met by the overseas regulator
All compulsory interviews will
be tape-recorded. The method of recording will be decided on and arranged
by the FCA's3 investigator.
Costs will be addressed similarly to that set out in the preceding paragraph.
The FCA3 will
not provide the overseas regulator or EEA
regulator2 with transcripts of the tapes
of interviews unless specifically agreed to, but copies of the tapes will
normally be provided where requested. The interviewee will be provided with
a copy of tapes of the
The interviewee may be accompanied
at the interview by a legal adviser or a non-legally qualified observer of
his choice. The costs of any representation will not be met by the FCA3. The
presence at the interview of a representative of the overseas
regulator or EEA regulator2 may mean that the interviewee
wishes to be represented or accompanied by a person either
from or familiar with that regulator's jurisdiction. As far as practical the
arrangements for the interview should
In respect of data inputs, the testing for accuracy of data (including the reconciliation referred to above) should be sufficiently detailed so that, together with other available evidence, it gives reasonable assurance that data input into the rating system is accurate, complete and appropriate. The FCA considers that input data fails to meet the required standard if it gives rise to a serious risk of material misstatement in the own funds requirement either immediately or s
For the FCA to be satisfied that a firm documents its ratings systems appropriately, in accordance with article 144(1)(e) of the EU CRR, it would expect a firm to be able to demonstrate that it has an appropriate policy for any ratings system in relation to:(1) any deficiencies caused by its not being sensitive to movements in fundamental risk drivers or for any other reason;(2) the periodic review and action in the light of such review;(3) providing appropriate internal guidance
To be satisfied that the requirements in article 179(1) of the EU CRR are met, the FCA expects a firm to collect data on what it considers to be the main drivers of the risk parameters of probability of default (PD), loss given default (LGD), conversion factors (CFs) and expected loss (EL) for each group of obligors or facilities, to document the identification of the main drivers of risk parameters, and be able to demonstrate that the process of identification is reasonable and
In its processes for identifying the main drivers of risk parameters, the FCA expects that a firm should set out its reasons for concluding that the data sources chosen provide in themselves sufficient discriminative power and accuracy and why additional potential data sources do not provide relevant and reliable information that would be expected materially to improve the discriminative power and accuracy of its estimates of the risk parameter in question. This process need not
To demonstrate that rating systems provide for meaningful assessment, the FCA expects that a firm's documentation relating to data should include clear identification of responsibility for data quality. A firm should set standards for data quality, aim to improve them over time and measure its performance against those standards. Furthermore, a firm should ensure that its data is of high enough quality to support its risk management processes and the calculation of its own funds
To estimate PDs that are long run averages of one-year default rates for obligor grades or pools, the FCA expects a firm to estimate expected default rates for the grade/pool over a representative mix of good and bad economic periods, rather than simply taking the historic average of default rates actually incurred by the firm over a period of years. The FCA expects that a long run estimate would be changed when there is reason to believe that the existing long run estimate is
To demonstrate compliance with article 144(1) of the EU CRR, the FCA expects a firm to take into account the following factors in understanding differences between their historic default rates and their PD estimates, and in adjusting the calibration of their estimates as appropriate:(1) the rating philosophy of the system and the economic conditions in the period over which the defaults have been observed;(2) the number of defaults, as a low number is less likely to be representative
The FCA expects a firm that is unable to produce a long run estimate, as described above, to consider what action it would be appropriate for it to take to comply with article 180(1)(a) of the EU CRR. In some circumstances, it may be appropriate for a firm to need to amend its rating system so that the PD used as an input into the IRB own funds requirement is an appropriately conservative estimate of the actual default rate expected over the next year. However, such an approach
In accordance with articles 181(1)(b) and 182(1)(b) of the EU CRR, where the estimates appropriate for an economic downturn are more conservative than the long run average, the FCA expects the estimate for each of these parameters to represent the LGD or CF expected, weighted by the number of defaults, over the downturn period. Where this is not the case, the FCA expects the estimate to be used to be the expected LGD or CF, weighted by the number of defaults, over a representative
To demonstrate that a rating system provides for a meaningful differentiation of risk and accurate and consistent quantitative estimates of risk, the FCA expects a firm would have regard to the sensitivity of the rating to movements in fundamental risk drivers, in assigning exposures to grades or pools within a rating system (see article 171 of the EU CRR).
In the3 case of a senior staff committee,3 the
decision will be taken by FCA3 staff who have not been directly involved in establishing the
evidence on which the decision is based
or by two or more FCA staff
who include a person not directly involved in establishing that evidence,3 except in accordance with section 395(3) of the Act.33
A senior
staff committee will consist of such FCA3 staff members as the FCA's3 senior executive committee may from time to time determine. The FCA's3 senior
executive committee may authorise the chairman of a senior
staff committee to select its other members. A senior staff committee is accountable for
its decisions to the FCA's3 senior executive committee and, through it, to the FCA3 Board.33333
A senior
staff committee may operate through standing or specific sub-committees
to consider particular decisions or classes of decision, for which accountability
will lie through the committee. Each meeting of a senior
staff committee, or sub-committee, will include:(1) an individual with authority to
act as its chairman; and(2) at least two other members.
Statutory
notice decisions to be taken under executive procedures and decisions referred
to in DEPP
2.5.6A G,3 and not falling within the responsibility of a senior
staff committee, will be taken by an individual FCA3 staff member. The decision will be:3(1) made by an executive director of
the FCA3 Board
or his delegate (who will be of at least the level of associate);3(2) on the recommendation of an FCA3 staff
member of at least the level of associate; and3(3) with the benefit
An FCA3 staff member who considers that a statutory
notice decision or
a decision referred to in DEPP
2.5.6A G3 should be taken above his own
level is free to refer that decision to a more senior level. If an FCA3 staff
member consults another staff member about a decision, the decision remains
the independent decision of the FCA3 staff member who consults his colleague, unless it is agreed
that the decision should instead be taken by the colleague, and the colleague
has the delegated
If an individual responsible for
a decision under executive procedures (or
a more senior FCA3 staff
member with responsibilities in relation to the decision concerned) considers
that it warrants collective consideration, the individual may:3(1) take the decision himself, following
consultation with other FCA3 staff members, as above; or3(2) refer it to a senior
staff committee, which will take the decision itself.
(1) FCA3staff
are required by their contract of employment to comply with a code of conduct
which imposes strict rules to cover the handling of conflicts of interest
which may arise from personal interests or associations. FCA3 staff subject to a conflict of interest must declare that interest
to the person to whom they are
immediately responsible for a decision.33(2) If a member of a senior
staff committee has a potential conflict of interest in any
matter in which he is asked
The procedure for taking decisions
under executive procedures will
generally be less formal and structured than that for decisions by the RDC. Broadly, however, FCA3 staff responsible for taking statutory
notice decisions under executive
procedures will follow a procedure similar to that described
at DEPP 3.2.7 G to DEPP 3.2.27 G for
the RDC except that:3(1) in a case where the decision will
be taken by a senior staff committee: (a) the chairman or deputy chairman
of the senior
3Broadly, FCA staff
responsible for taking decisions referred to in DEPP
2.5.6A G will follow
a procedure similar to that described at DEPP 3.2.7 G to DEPP 3.2.27 G for the RDC (subject to the exceptions in DEPP 4.1.13 G (1) to DEPP 4.1.13 G (5) which also reflects that these decisions
are not statutory notice decisions.
(1) 5The FCA may by notice in writing given to a sponsor require it to provide specified documents or specified information to the FCA.11(2) The sponsor must as soon as practicable provide to the FCA any documents or information that it has been required to provide under (1).11(3) This rule applies only to documents or information reasonably required by the FCA in connection with the performance of its functions in relation to a sponsor or a company that has appointed a spons
10Situations when the FCA may impose restrictions or limitations on the services a sponsor can provide include (but are not limited to) where it appears to the FCA that: (1) the sponsor has no or limited relevant experience and expertise of providing certain types of sponsor services or of providing sponsor services to certain types of company; or(2) the sponsor does not have systems and controls in place which are appropriate for the nature of the sponsor services which the sponsor
A sponsor must provide to the FCA on or after the first business day of January in each year but no later than the last business day of January in each year:77(1) written confirmation that it continues to satisfy the criteria for approval as a sponsor as set out in LR 8.6.5 R; and5(1A) for each of the criteria in that rule, evidence8 of the basis upon which it considers that it meets that criterion8.588(2) [deleted]55(3) [deleted]55(4) [deleted]55
A sponsor must notify the FCA in writing as soon as possible if:(1) 8(a) 8the sponsor ceases to satisfy the criteria for approval as a sponsor set out in LR 8.6.5 R or becomes aware of any matter which, in its reasonable opinion, would be relevant to the FCA in considering whether the sponsor continues to comply with LR 8.6.6 R; or(b) 8the sponsor becomes aware of any fact or circumstance relating to the sponsor or any of its employees engaged in the provision of sponsor services
8Where a sponsor is of the opinion that notwithstanding the circumstances giving rise to a notification obligation under LR 8.7.8 R, it continues to satisfy the ongoing criteria for approval as a sponsor in accordance with LR 8.6.6 R, it must include in its notification to the FCA a statement to that effect and the basis for its opinion.
8Examples of when a sponsor should submit a cancellation request pursuant to LR 8.7.22 R include, but are not limited to:(1) situations where the sponsor ceases to satisfy the ongoing criteria for approval as a sponsor in accordance with LR 8.6.6 R and, following a notification made under LR 8.7.8 R, there are no ongoing discussions with the FCA which could lead to the conclusion that the sponsor remains eligible; or(2) where there is a change of control of the sponsor or any
A request by a sponsor for its approval as a sponsor to be cancelled must be in writing and must include:(1) the sponsor's name;(2) a clear explanation of the background and reasons for the request;(3) the date on which the sponsor requests the cancellation to take effect;4(4) a signed confirmation that the sponsor will not provide any sponsor services8 as of the date the request is submitted to the FCA; and8(5) the name and contact details of the person at the sponsor with whom
10A request by a sponsor for its approval as a sponsor to be suspended must be in writing and must include: (1) the sponsor's name; (2) a clear explanation of the background and reasons for the request;(3) the date on which the sponsor requests the suspension to take effect;(4) a signed confirmation that the sponsor will not provide any sponsor services as of the date the request is submitted to the FCA; and(5) the name and contact details of the person at the sponsor with whom
11A sponsor may wish to consider submitting a suspension request under LR 8.7.25 R where the sponsor:(1) ceases to satisfy the ongoing criteria for approval as a sponsor in accordance with LR 8.6.6 R; (2) has notified the FCA in accordance with LR 8.7.8 R;(3) is having ongoing discussions with the FCA regarding remedial action; and(4) is undertaking remedial action which may result in the sponsor being able to satisfy the ongoing criteria for approval in accordance with LR 8.6.6
10The FCA may impose restrictions or limitations on the services a sponsor can provide or suspend a sponsor's approval under section 88E of the Act if the FCA considers it desirable to do so in order to advance one or more of its operational objectives.[Note: A statutory notice may be required under section 88F of the Act. Where this is the case, the procedure for giving a statutory notice is set out in DEPP.]
Schedule to the Recognition Requirements Regulations, paragraph 3
2(1) |
The [UK RIE] must ensure that the systems and controls used in the performance of its [relevant functions] are adequate, and appropriate for the scale and nature of its business. |
|
(2) |
Sub-paragraph (1) applies in particular to systems and controls concerning - |
|
(a) |
the transmission of information; |
|
(b) |
the assessment, mitigation and management of risks to the performance of the [UK RIE'srelevant functions]; |
|
(c) |
the effecting and monitoring of transactions on the [UK RIE]; |
|
(ca) |
the technical operation of the [UK RIE], including contingency arrangements for disruption to its facilities; |
|
(d) |
the operation of the arrangements mentioned in paragraph 4(2)(d); and |
|
(e) |
(where relevant) the safeguarding and administration of assets belonging to users of the [UK RIE's] facilities. |
|
In assessing whether the systems and controls used by a UK recognised body in the performance of its relevant functions are adequate and appropriate for the scale and nature of its business, the FCA3 may have regard to the UK recognised body's:3(1) arrangements for managing, controlling and carrying out its relevant functions, including: (a) the distribution of duties and responsibilities among its key individuals and the departments of the UK recognised body responsible for performing
The following paragraphs set out other matters to which the FCA3 may have regard in assessing the systems and controls used for the transmission of information, risk management, the effecting and monitoring of transactions, the operation of settlement arrangements (the matters covered in paragraph 4(2)(d) of the Schedule to the Recognition Requirements Regulations) and the safeguarding and administration of assets .33
In assessing a UK recognised body's systems and controls for the transmission of information, the FCA3 may also have regard to the extent to which these systems and controls ensure that information is transmitted promptly and accurately: 3(1) within the UK recognised body itself; (2) to members; and (3) (where appropriate) to other market participants or other relevant persons.
In assessing a UK RIE's systems and controls for the effecting and monitoring of transactions, and for the operation of settlement arrangements, the FCA3 may have regard to the totality of the arrangements and processes through which the UK RIE's transactions are effected, cleared,3 and settled, including:333(1) a UK RIE's arrangements under which orders are received and matched, its arrangements for trade and transaction reporting, and (if relevant) its arrangements with another
In assessing a UK recognised body's systems and controls for the safeguarding and administration of assets belonging to users of its facilities, the FCA3 may have regard to the totality of the arrangements and processes by which the UK recognised body: 3(1) records the assets held and the identity of the owners of (and other persons with relevant rights over) those assets; (2) records any instructions given in relation to those assets;(3) records the carrying out of those instructions;(4)
The FCA3 recognises that a UK RIE3 has legitimate interests of its own and that its general business policy may properly be influenced by other persons (such as its owners). Such a connection does not necessarily imply the existence of a conflict of interest nor is it necessary to exclude individuals closely connected with other persons (for example, those responsible for the stewardship of the owner's interests) from all decision-making processes in a UK recognised body. However,
The FCA3 may have regard to the arrangements a UK recognised body makes to structure itself and to allocate responsibility for decisions so that it can continue to take proper regulatory decisions notwithstanding any conflicts of interest, including:3(1) the size and composition of the governing body and relevant committees; (2) the roles and responsibilities of key individuals, especially where they also have responsibilities in other organisations; (3) the arrangements for transferring
The FCA3 may also have regard to the systems and controls intended to ensure that confidential information is only used for proper purposes. Where relevant, recognised bodies will have to comply with section 348 (Restrictions on disclosure of confidential information by the FCA3 etc.) and regulations made under section 349 (Exemptions from section 348) of the Act.33
The FCA3 may also have regard to the contracts of employment, staff rules, letters of appointment for members of the governing body, members of relevant committees and other key individuals and other guidance given to individuals on handling conflicts of interest. Guidance to individuals may need to cover:3(1) the need for prompt disclosure of a conflict of interest to enable others, who are not affected by the conflict, to assist in deciding how it should be managed;(2) the circumstances
A UK recognised body's arrangements for internal and external audit will be an important part of its systems and controls. In assessing the adequacy of these arrangements, the FCA3 may have regard to: 3(1) the size, composition and terms of reference of any audit committee of the UK recognised body'sgoverning body;(2) the frequency and scope of external audit; (3) the provision and scope of internal audit; (4) the staffing and resources of the UK recognised body's internal audit
Information technology is likely to be a major component of the systems and controls used by any UK recognised body. In assessing the adequacy of the information technology used by a UK recognised body to perform or support its relevant functions, the FCA3 may have regard to:3(1) the organisation, management and resources of the information technology department within the UK recognised body;(2) the arrangements for controlling and documenting the design, development, implementation
Data may be deemed insufficient if, for example, it contains missing data points, or data points which contain stale data. With regard to less liquid risk factors or positions, the FCA expects the firm to make a conservative assessment of those risks, using a combination of prudent valuation techniques and alternative VaR estimation techniques to ensure there is a sufficient cushion against risk over the close-out period, which takes account of the illiquidity of the risk factor
(1) In determining whether it is appropriate for a firm to use empirical correlations within risk categories and across risk categories within a model, the FCA expects certain features to be observed in assessing whether such an approach is sound and implemented with integrity. In general, the FCA expects a firm to determine the aggregate VaR measure by adding the relevant VaR measure for each category, unless the firm's permission provides for a different method of aggregating
Any overshooting initially counts for the purpose of the calculation of the plus factor, even if subsequently the FCA agrees to exclude it. Thus, where the firm experiences an overshooting and already has four or more overshootings for the previous 250 business days, changes to the multiplication factor arising from changes to the plus factor become effective at day n+3.
The FCA, will review as part of a firm's VaR model permission application, the processes and documentation relating to the derivation of profit and loss used for back-testing. A firm's documentation should clearly set out the basis for cleaning profit and loss. To the extent that certain profit and loss elements are not updated every day (for example, certain reserve calculations) the documentation should clearly set out how such elements are included in the profit and loss s
In accordance with article 363(3) of the EU CRR (Permission to use internal models), the FCA expects a firm to provide and discuss with us details of any significant planned changes to the VaR model before those changes are implemented. These details must include detailed information about the nature of the change, including an estimate of the impact on VaR numbers and the incremental risk charge.
The use of overlapping intervals of 10-day holding periods for article 365 of the EU CRR (VaR and stressed VaR calculation) introduces an autocorrelation into the data that would not exist should truly independent 10-day periods be used. This may give rise to an under-estimation of the volatility and the VaR at the 99% confidence level. To obtain clarity on the materiality of the bias, a firm should measure the bias arising from the use of overlapping intervals for 10-day VaR
Article 365 of the EU CRR requires a firm that uses an internal model for calculating its own funds requirement to calculate, at least weekly, a stressed VaR (sVaR) of their current portfolio. When the FCA considers a firm's application to use a sVaR internal model it would expect the features in IFPRU 6.3.20 G to IFPRU 6.3.24 G to be present prior to permission being granted, as indicative that the conditions for granting permission have been met.
The firm should calculate the sVaR measure to be greater than or equal to the average of the 2nd and 3rd worst loss in a 12-month time series comprising of 250 observations. The FCA expects, as a minimum, that a corresponding linear weighting scheme should be applied if the firm uses a larger number of observations.
Article 372 of the EU CRR (Requirement to have an internal IRC model) requires a firm that use an internal model for calculating own funds requirements for specific risk of traded debt instruments to also have an internal incremental default and migration risk (IRC) model in place to capture the default and migration risk of its trading book positions that are incremental to the risks captured by its VaR model. When the FCA considers a firm's application to use an IRC internal
The FCA expects the IRC model to capitalise pre-default basis risk. In this respect, the model should reflect that in periods of stress the basis could widen substantially. The firm should disclose to the FCA its material basis risks that are incremental to those already captured in existing market risk capital measures (VaR-based and others). This must take actual close-out periods during periods of illiquidity into account.
To achieve a soundness standard comparable to those under the IRB approach, LGD estimates should reflect the economic cycle. Therefore, the FCA expects a firm to incorporate dependence of the recovery rate on the economic cycle into the IRC model. Should the firm use a conservative parameterisation to comply with the IRB standard of the use of downturn estimates, evidence of this should be submitted in quarterly reporting to the FCA, bearing in mind that for trading portfolios,
(1) A firm must allocate each of the FCA-prescribed senior management responsibilities in rows (1) to (7) in the table in SYSC 4.8.9R to one or more SMF managers of the branch.(2) If the FCA-prescribed senior management responsibility in row (8) of the table in SYSC 4.8.9R (functions in relation to CASS) applies to a firm, the firm must allocate that FCA-prescribed senior management responsibility to one or more SMF managers of the branch.(3) A firm may not allocate an FCA-prescribed
Table: FCA-prescribed senior management responsibilities for third-country relevant authorised persons.
FCA-prescribed senior management responsibility in relation to the branch |
Explanation |
Equivalent PRA-prescribed UK branch senior management responsibility |
(1) Responsibility for the firm’s performance of its obligations under the senior management regime |
The senior management regime means the requirements of the regulatory system applying to relevant authorised persons insofar as they relate to SMF managers performing designated senior management functions, including SUP 10C (FCA senior management regime for approved persons in relevant authorised persons). This responsibility includes: (1) compliance with conditions and time limits on approval; (2) compliance with the requirements about the statements of responsibilities (but not the allocation of responsibilities recorded in them);3 (3) compliance by the firm with its obligations under section 60A of the Act (Vetting of candidates by relevant authorised persons); and3 3(4) compliance by the firm with the requirements in SYSC 22 (Regulatory references) so far as they relate to the senior management regime, including the giving of references to another firm about an SMF manager or former SMF manager. |
PRA-prescribed UK branch senior management responsibility 6.2(1) |
(2) Responsibility for the firm’s performance of its obligations under the employee certification regime |
The employee certification regime means the requirements of sections 63E and 63F of the Act (Certification of employees) and all other requirements of the regulatory system about the matters dealt with in those sections, including:3 3(1) SYSC 5.2 (Certification Regime); 3(2) the requirements in SYSC 22 (Regulatory references) so far as they relate to the employee certification regime, including the giving of references to another firm about a certification employee or former certification employee; and |
PRA-prescribed UK branch senior management responsibility 6.2(2) |
(3) Responsibility for compliance with the requirements of the regulatory system about the management responsibilities map |
This responsibility does not include allocating responsibilities recorded in it. |
PRA-prescribed UK branch senior management responsibility 6.2(3) |
(4) Responsibility for management of the firm’s risk management processes in the UK |
PRA-prescribed UK branch senior management responsibility 6.2(4) |
|
(5) Responsibility for the firm’s compliance with the UKregulatory system applicable to the firm |
PRA-prescribed UK branch senior management responsibility 6.2(5) |
|
(6) Responsibility for the escalation of correspondence from the PRA, FCA and other regulators4 in respect of the firm to the governing body and/or the management body of the firm or, where appropriate, of the parent undertaking or holding company of the firm’sgroup |
This includes taking steps to ensure that the senior management of the firm and, where applicable, the group, are made aware of any views expressed by the regulatory bodies and any steps taken by them in relation to the branch, firm or group. |
PRA-prescribed UK branch senior management responsibility 6.2(6) |
(7) Local responsibility for the firm’s policies and procedures for countering the risk that the firm might be used to further financial crime |
(A) This includes the function in SYSC 6.3.8R (a firm must allocate overall responsibility to a director or senior manager within the firm for the establishment and maintenance of effective anti-money laundering systems and controls), if that rule applies to the firm. (B) The firm may allocate this FCA-prescribed senior management responsibility to the MLRO but does not have to. (C) If the firm does not allocate this FCA-prescribed senior management responsibility to the MLRO, this FCA-prescribed senior management responsibility includes responsibility for supervision of the MLRO. (D) Local responsibility is defined in SYSC 4.8.10R (Local responsibility for a branch’s activities, business areas and management functions). |
None |
(8) Local responsibility for the firm’s compliance with CASS |
(A) This responsibility only applies to a firm to which CASS applies. (B) A firm may include in this FCA-prescribed senior management responsibility whichever of the following functions apply to the firm: (1) CASS 1A.3.1R (certain CASS compliance functions for a CASS small firm); (2) CASS 1A.3.1AR (certain CASS compliance functions for a CASS medium firm or a CASS large firm); (3) CASS 11.3.1R (certain CASS compliance functions for certain CASS small debt management firms); or (4) CASS 11.3.4R (certain CASS compliance functions for a CASS large debt management firm); but it does not have to. (C) If the firm does not include the functions in (B) in this FCA-prescribed senior management responsibility, this FCA-prescribed senior management responsibility includes responsibility for supervision of the person performing the functions in (B) that apply to the firm. (D) Local responsibility is defined in SYSC 4.8.10R (Local responsibility for a branch’s activities, business areas and management functions). |
None |
(1) A firm must ensure that, at all times, one or more of its SMF managers has overall responsibility (subject to the branch’sgoverning body) for each of the activities, business areas and management functions of the branch that are under the management of the branch’sgoverning body.(2) A firm must ensure that, at all times, one or more of its SMF managers has responsibility for each of the activities, business areas and management functions of the branch not covered by (1).(3)
(1) The purpose of SYSC 4.8.10R is to avoid gaps. It is to ensure that an SMF manager has responsibility for every part of a branch’s activities, business areas and management functions not otherwise covered by other parts of this section or by the equivalent PRA requirements.(2) SYSC 4.8.10R(1) refers to the activities, business areas and management functions of the branch that are under the management of the branch’sgoverning body. However, the FCA recognises that for some branches,
(1) The FCA would not consider it unusual if a person who has local responsibility for a particular function was not a member of the branch’sgoverning body or equivalent. (2) For example, in some branches, the head of compliance may report directly to the branch’sgoverning body even though the head of compliance is not a member of the governing body.
(1) The FCA expects that a firm appointing someone to have local responsibility for a function under SYSC 4.8.10R(2) (responsibility for a branch’s activities, business areas and management functions not under the management of a branch’sgoverning body) will appoint the most senior employee or officer of the firm with responsibility for that activity, business area or management function.(2) However, as explained in SYSC 4.8.27G (Setting overall strategy for a branch), the firm
(1) Generally, where a firm allocates responsibility under SYSC 4.8.10R to one of the firm’sSMF managers who is not based in the branch the FCA would expect:(a) that the responsibility would not be allocated to a manager whose responsibilities for the branch are limited to setting overall strategy for the branch; and(b) that, instead, the firm would allocate it to a manager who is the most senior person responsible for implementing the strategy for the branch.(2) See SUP 10C.1.5AG
(1) It will be common for a small non-complex branch to divide local responsibility for its activities under the management of the branch’sgoverning body between members of the branchgoverning body or equivalent and not to assign responsibility for any activity to someone who is not a member.(2) However, when deciding how to divide up responsibility for the activities of a branch, a firm should avoid assigning such a wide range of responsibilities to a single individual that
(1) A third-country relevant authorised person should allocate responsibility to its SMF managers for every area of the activities of its branch.(2) This is required by a mixture of: (a) SYSC 4.8.6R (FCA-prescribed senior management responsibility);(b) SYSC 4.8.10R (Local responsibility for a firm’s activities, business areas and management functions);(c) the requirements for FCA-designated senior management functions; and(d) the corresponding PRA requirements.
Section 395 of the Act (The FCA's and PRA's procedures) requires the FCA2 to
publish a statement of its procedure for the giving of statutory
notices. The procedure must be designed to secure, among other
things, that the decision which gives rise to the obligation to give a statutory notice is taken by a person not
directly involved in establishing the evidence on which that decision is based or by two or more persons who include
a person not directly involved in establishing
Table: Summary of statutory and related notices
Notice |
Description |
Act reference |
Further information |
Gives the recipient details about action that the FCA2 proposes to take and about the right to make representations. 2 |
Section 387 |
||
Gives the recipient details about action that the FCA2 has decided to take. The FCA2 may also give a further decision notice if the recipient of the original decision notice consents. 22 |
Section 388 |
||
Identifies proceedings set out in a warning notice or decision notice and which are not being taken or are being discontinued. |
Section 389 |
||
Sets out the terms of the action that the FCA2 is taking. 2 |
Section 390 |
||
Gives the recipient details about action that the FCA2 has taken or proposes to take, for example to vary a Part 4A permission.2 22 |
Section 395(13) |
2Section 395 of the Act also
requires the FCA to publish
a statement of its procedure for decisions which give3 rise to an obligation
for the PRA to include a statement
under section 387(1A) in a warning notice or
a statement under section 388(1A) in a decision
notice as follows:(1) Section 387(1A) provides that where
the FCA proposes to refuse
consent for the purposes of section 55F, 55I or 59 of the Act,
or to give conditional consent as mentioned in section 55F(5), 55I(8) or
2Where an application for Part
4A permission is made to the PRA as
the appropriate regulator (section 55A(2)(a) of the Act),
the PRA may only give permission
with the consent of the FCA (section
55F of the Act). FCA consent can be conditional on the PRA imposing limitations or specifying the
permission is for certain regulated activities only.
2Where an application to vary a Part
4A permission is made to the PRA as
the appropriate regulator (section 55A(2)(a) of the Act),
the PRA may only give permission
with the consent of the FCA (section
55I of the Act). The FCA may withhold its consent to a proposed
variation if it appears to it that it is desirable to do so in order to advance
one or more of its operational objectives. FCA consent
can be conditional on the PRA imposing
limitations, or the PRA specifying
the permission
2Where an application to perform a controlled
function is made to the PRA as
the appropriate regulator, the PRA can
only approve a person to perform a controlled
function with the consent of the FCA (section
59(4)(b) of the Act). Where the application is a relevant senior management application, the FCA’s consent can be conditional on the PRA imposing conditions, or the PRA giving approval only for a limited period.3
Decisions on whether to give a statutory notice will be taken by a 'decision
maker'. The FCA's2 assessment
of who is the appropriate decision maker is subject to the requirements of
section 395 of the Act and will
depend upon the nature of the decision, including its complexity, importance
and urgency. References to the 'decision maker' in DEPP are
to:2(1) the Regulatory
Decisions Committee (RDC);
or(2) FCA2 staff
under executive procedures;
or2(3) FCA2 staff
under the settlement
The decision maker will also take
decisions associated with a statutory notice (a
'statutory notice associated decision'). Statutory notice associated decisions include
decisions:(1) to set or extend the period for
making representations;(2) on whether the FCA2 is required to give a copy of
the statutory notice to any
third party and, if so, the period for the third party to make representations;
and2(3) on whether to refuse access to FCA2 material,
relevant to the relevant statutory
DEPP 2 to DEPP 5 set out:(1) which decisions require the giving
of statutory notices and who takes them (DEPP 2);(2) the nature and procedures of the RDC (DEPP 3);(3) the procedure for decision making
by FCA2 staff
under executive procedures (DEPP 4);2(4) the procedure for decision making
by FCA2 staff
under the settlement decision procedure (DEPP 5).2
The FCA4 uses various methods of information gathering on its own initiative which require the cooperation of firms:55(1) Visits may be made by representatives or appointees of the FCA4. These visits may be made on a regular basis, on a sample basis, for special purposes such as theme visits (looking at a particular issue across a range of firms), or when the FCA4 has a particular reason for visiting a firm. Appointees of the FCA4 may include persons who are not FCA4 staff, but
The FCA4 expects to request meetings or access to business premises during reasonable business hours. The FCA4 also normally expects to be able to give reasonable notice to a firm or connected person when it seeks information, documents, meetings or access to business premises. On rare occasions, however, the FCA4 may seek access to premises without notice. The prospect of unannounced visits is intended to encourage firms to comply with the requirements and standards under
In complying with Principle 11, the FCA4 considers that a firm should, in relation to the discharge by the FCA4 of its functions under the Act:(1) make itself readily available for meetings with representatives or appointees of the FCA4 as reasonably requested;(2) give representatives or appointees of the FCA4 reasonable access to any records, files, tapes or computer systems, which are within the firm's possession or control, and provide any facilities which the representatives
In complying with Principle 11, the FCA4 considers that a firm should take reasonable steps to ensure that the following persons act in the manner set out in SUP 2.3.3 G: (1) its employees, agents and appointed representatives; and(2) any other members of its group, and their employees and agents.(See also, in respect of appointed representatives, SUP 12.5.3 G (2)).
(1) A firm must permit representatives of the FCA4 or persons appointed for the purpose by the FCA4 to have access, with or without notice, during reasonable business hours to any of its business premises in relation to the discharge of the FCA's4 functions under the Act or its obligations under the short selling regulation3.(2) A firm must take reasonable steps to ensure that its agents, suppliers under material outsourcing arrangements and appointed representatives permit
The cooperation that a firm is expected to procure from such suppliers is similar to that expected of the firm, in the light of the guidance in SUP 2.3.3 G to SUP 2.3.4 G, but does not extend to matters outside the scope of the FCA's4 functions in relation to the firm. SUP 2.3.5 R (2) also requires a firm to take reasonable steps regarding access to the premises of such suppliers.
When a firm appoints or renews the appointment of a supplier under a material outsourcing arrangement, it should satisfy itself that the terms of its contract with the supplier require the supplier to give the FCA4 access to its premises as described in SUP 2.3.5 R (2), and to cooperate with the FCA4 as described in SUP 2.3.7 R. The FCA4 does not consider that the 'reasonable steps' in SUP 2.3.7 R would require a firm to seek to change a contract, already in place either7 when
The FCA4 may ask a firm to provide it with information at the request of or on behalf of other regulators to enable them to discharge their functions properly. Those regulators may include overseas regulators or the Takeover Panel. The FCA4 may also, without notifying a firm, pass on to those regulators information which it already has in its possession. The FCA's4 disclosure of information to other regulators is subject to the obligation described in SUP 2.2.4 G (Confidentiality
7In complying with Principle 11, the FCA considers that a firm should cooperate with it in providing information for other regulators. Sections 169 (Investigations etc. in support of overseas regulator) of the Act gives the FCA certain statutory powers to obtain information and appoint investigators for overseas regulators if required (see DEPP 7 and EG 3).
(1) The FCA may require a primary information provider to provide specified information or specified documents to the FCA.(2) The primary information provider must as soon as practicable provide to the FCA any information or documents it has been required to provide under (1).(3) This rule applies only to information or documents reasonably required by the FCA in connection with the performance of its functions in relation to a primary information provider.
Situations when the FCA may impose restrictions or limitations on the services a primary information provider can provide include (but are not limited to) where it appears to the FCA that:(1) the primary information provider's ability to satisfy its obligations in DTR 8.4 would be likely to be compromised; or(2) the primary information provider is proposing to make changes to its systems and controls or operations which would be likely to prevent it from satisfying any of its
A request by a primary information provider for its approval as a primary information provider to be suspended must be in writing and must include:(1) the primary information provider's name;(2) a clear explanation of the background and reasons for the request;(3) the date on which the primary information provider requests the suspension to take effect; and(4) the name and contact details of the person at the primary information provider with whom the FCA should liaise in relation
A request by a primary information provider for its approval as a primary information provider to be cancelled must be in writing and must include:(1) the primary information provider's name; (2) a clear explanation of the background and reasons for the request;(3) the date on which the primary information provider requests the cancellation to take effect; and(4) the name and contact details of the person at the primary information provider with whom the FCA should liaise in relation
The FCA may impose restrictions or limitations on the services a primary information provider can provide or suspend a primary information provider's approval if the FCA considers it desirable to do so in order to advance one or more of its operational objectives.[Note: A statutory notice may be required under section 89V of the Act. Where this is the case, the procedure for giving a statutory notice is set out in DEPP.]
15A UK MiFID investment firm is also required to notify the FCA of changes to a branch or tied agent in accordance with: (1) article 7 (Information to be notified concerning the change of branch or tied agent particulars) of MiFID RTS 3A; (2) article 18 (submission of the change of branch particulars notification) of MiFID ITS 4A; and(3) article 19 (submission of the change of the tied agent particulars notification) of MiFID ITS 4A.
(1) 11If a UKfirm has exercised an EEA right under AIFMD and established a branch in another EEA State, the UKfirm must not make a material change in the requisite details of the branch or the identity of the AIFs it manages in the EEA State in which it has established a branch (see SUP 13 Annex 1), unless: (a) it has complied with regulation 17A(4) for a planned change; or(b) it has complied with regulation 17A(5) for a unplanned change.(2) The requirements in regulation 17A(4)
(1) 13A UK firm which has exercised an EEA right deriving from the MCD to establish a branch, must not make any material changes to the requisite details of the branch unless it has complied with the requirements in regulation 17(B)(2).(2) The requirements in regulation 17(B)(2) are that(a) the UK firm has given notice to the FCA stating the details of the proposed change; and(b) the period of one month beginning with the day on which the UK firm gave notice has elapsed.(3) Paragraph
17Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give consent to a change (or proposed change) and where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give consent in relation to a UK firm whose immediate group includes a PRA-authorised person.
(1) When the FCA15 receives a notice from a UK MiFID investment firm (see SUP 13.6.5BG (1)), it is required by regulation 11A(3) to inform the relevant Host State regulator of the proposed change as soon as reasonably practicable.15(2) The FCA is required to use the forms in Annex XI, Annex XII or Annex XIII of MiFID ITS 4A, as applicable.15(3) The firm in question may make the change once the period of one month beginning with the day on which it gave notice has elapsed.1571
(1) 11When the FCA receives a notice from an AIFM (see SUP 13.6.9C G) for a planned change and such change means the AIFM no longer complies with AIFMD, the FCA must inform the AIFM without undue delay that:(a) the FCA objects to the change, including reasons for its decision; and(b) the AIFM must not implement the change.In these circumstances the AIFM may refer the matter to the Tribunal.(2) If a planned change is implemented or an unplanned change takes place and results in
13When the FCA receives a notice from a UK firm exercising an EEA right under the MCD it will, under regulation 17(B)(3), inform the relevant Host State regulator of the proposed change as soon as reasonably practicable. The UK firm in question may make the change once a period of one month has elapsed beginning with the day on which it gave notice.
The power in regulation 5A of the RAP Regulations to impose a civil penalty
or publish a statement adds to the FCA's2 other supervisory powers in relation to RAPs (see REC 4) and
its power to impose penalties on an RAP under
the Money Laundering Regulations.
The FCA2 will
use this power under the RAP Regulations where
it is appropriate to do so and with regard to the relevant factors listed
in DEPP 6.2.1 G.
In deciding between a civil penalty or a public statement, the FCA2 will
The FCA2 will notify the subject of the investigation that it has appointed
officers to carry out an investigation under either or both the RAP Regulations or the Money
Laundering Regulations and the reasons for the appointment,
unless notification is likely to prejudice the investigation or otherwise
result in it being frustrated. The FCA2 expects to carry out a scoping visit early on in the enforcement
process in most cases.22
The FCA2 will also have regard to whether the person followed any of the FCA's2 guidance
and will not take action under regulation 5A where there are reasonable grounds
for it to be satisfied that the person took all reasonable steps and exercised
all due diligence to ensure that the requirement was complied with.22
When the FCA2 proposes or decides to take action against an RAP in
exercise of its power in regulation 5A of the RAP
Regulations, it must give the RAP a warning notice or a decision
notice respectively. Those notices must state the amount of
the penalty or set out the terms of the statement, as applicable. On receiving
a warning notice, the RAP has a right to make representations
on the FCA's2 proposed
decision.22
Where the FCA2 is proposing or deciding to publish a statement censuring an RAP or impose a penalty on the RAP under regulation 5A of the RAP Regulations, the FCA's2 decision maker will be the RDC.
This is to ensure that the FCA's2 power to censure or impose a penalty on an RAP has
the same layer of separation in the decision making process, and is exercised
consistently with, similar penalty and censure powers of the FCA2 under other legislation. The RDC will
make its decisions
4The effect of section 64C of the Act and SUP 15.11.6R is that the reporting obligation in section 64C of the Act and in this section: (a) only applies to relevant authorised persons; and(b) only covers persons who are subject to COCON (who are called conduct rules staff in the FCA Handbook) rather than to the whole workforce of a relevant authorised person.
A firm should make a separate notification about a person under section 64C of the Act where:(1) it has made a notification to the FCA about a person pursuant to SUP 15.3.11R(1)(a) because of a breach of COCON2; and(2) it subsequently takes disciplinary action against the person for the action, failure to act, or circumstance, that amounted to a breach of COCON.
If, after a firm has made a notification for a person (A) pursuant to section 64C of the Act,2 it becomes aware of facts or matters which cause it to change its view that A has breached COCON, or cause it to determine that A has breached a provision of COCON other than the provision to which the notification related, the firm should inform the FCA of those facts and matters and its revised conclusion in line with a firm’s obligation to comply with Principle 11, SUP 15.6.4R and,
If a firm takes disciplinary action as a result of a conduct breach (see SUP 15.11.6R) against an employee but the employee has appealed or plans to appeal, the firm should still report the disciplinary action under section 64C of the Act but should include the appeal in the notification. The firm should update the FCA on the outcome of any appeal.2
(1) A firm must make any notifications required pursuant to section 64C of the Act relating to conduct rules staff other than SMF managers4in accordance with SUP 15.11.13R to SUP 15.11.15R.3(2) That notification must be made annually.3(3) Each notification must:3(a) cover the 12 month period ending on the last day of August; and3(b) be submitted to the FCA:3(i) within two months of the end of the reporting period; or3(ii) (if the end of the reporting period in (b)(i) falls on
(1) A firm other than a credit union must make each notification pursuant to SUP 15.11.13R (notifications about section 64C of the Act relating to conduct rules staff other than SMF managers4) by submitting it online through the FCA’s website using the electronic system made available by the FCA for this purpose.3(2) A firm must use the version of Form H (named REP008 – Notification of Disciplinary Action) 4made available on the electronic system referred to in (1), which is based
(1) 3If the information technology systems used by the FCA fail and online submission is unavailable for 24 hours or more, the FCA will endeavour to publish a notice on its website confirming that:(a) online submission is unavailable; and(b) the alternative methods of submission in SUP 15.11.15R apply.(2) Where SUP 15.11.14R(3) applies to a firm, GEN 1.3.2R (Emergency) does not apply.
The issuer must send to the FCA annual written confirmation of compliance with Regulations 16 (sums derived from the issue of regulated covered bonds) and 17 (general requirements on the issuer in relation to the asset pool) of the RCB Regulations in the form set out in RCB 3 Annex 1D (annual confirmation of compliance).
1Where possible, the director or senior manager who signs the annual confirmation should be the same director or senior manager who has verified the application for registration under RCB 2.2.6 D. If the director or senior manager is different to the director or senior manager who verified the application for registration, the issuer should notify the FCA at least one month before sending the confirmation to the FCA.
(1) The owner must ensure that a duly authorised representative signs the confirmation and confirms on the FCA's form that the owner has obtained the appropriate third party advice or reports required by this section.(2) The owner must obtain appropriate advice in the same manner as set out in RCB 3.2.2 D and must provide a copy of the asset pool monitor's report to the FCA as set out in RCB 3.2.4B D.1
1The FCA expects the inspection by the asset pool monitor of the compliance of the issuer or owner (as the case may be) with the relevant requirements in the RCB Regulations to address at least the matters to be checked and due diligence procedures set out in RCB 2.3.18 G. The FCA expects that the inspection will be conducted on an agreed-upon-procedures basis.
1As required under Regulation 17A of the RCB Regulations, if it appears to the asset pool monitor that the issuer or owner (as the case may be) has failed to comply with the requirements set out in Regulations 17 or 24 of the RCB Regulations, or has not provided all relevant information or explanations, the asset pool monitor must report that to the FCA in writing as soon as possible.