Related provisions for BIPRU 2.1.6
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Under section 148(4) of the Act, the FSA may not give a waiver unless it is satisfied that:(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 result in undue risk to persons whose interests the rules are intended to protect.
If a firm wishes to apply for a waiver, it must complete and submit the form in SUP 8 Annex 2 (Application form for a waiver or modification). The application must be given or addressed, and delivered, in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).(1) [Deleted](2) [Deleted](3) [Deleted](4) [Deleted](5) [Deleted](6) [Deleted](7) [Deleted](a) [Deleted](b) [Deleted]31
The FSA will treat a firm's application for a waiver as withdrawn if it does not hear from the firm within 20 business days of sending a communication which requests or requires a response from the firm.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 FSA will not do this if the firm has made it clear to the FSA in some other way that it intends to pursue the application. 3
In some cases, the FSA may give a modification of a rule rather than direct that the rule is not to apply. The FSA 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.
If the FSA 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.
Under section 148(2) of the Act the FSA may give a waiver with the consent of a firm. This power may be used by the FSA in exceptional circumstances where the FSA 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 FSA will inform the firms concerned that the waiver is available, either by contacting firms individually or by publishing details
An application for a waiver of an evidential provision will normally be granted only if a breach of the underlying binding rule is actionable under section 150 of the Act. Individual guidance would normally be a more appropriate response (see SUP 9 (Individual Guidance)) if there is no right of action.2
In the case of an application for a waiver of a two-way evidential provision relating to an actionable binding rule, the policy in SUP 8.3.12 G would apply to the presumption of compliance and the policy in SUP 8.3.13 G would apply to the presumption of contravention. In other words, any modification is likely to be in relation to the second presumption only.2
(1) A firm may apply for an Article 129 permission or a waiver in respect of:(a) the IRB approach;(b) the advanced measurement approach;(c) the CCR internal model method; and(d) the VaR model approach.(2) A firm should apply for a waiver if it wants to:(a) apply the CAD 1 model approach;(b) apply the master netting agreement internal models approach;(c) disapply consolidated supervision under BIPRU 8 for its UK consolidation group or non-EEAsub-group;(d) apply the treatment in
As explained in SUP 8, under of the Act, the FSA may not grant a waiver to a firm unless it is satisfied that:(1) compliance by the firm with the rules, or with the rules as modified, would be unduly burdensome or would not achieve the purpose for which the rules were made; and(2) the waiver would not result in undue risk to persons whose interests the rules are intended to protect objects.
The conditions relating to the use of an approach listed in BIPRU 1.3.2 G referred to in the relevant chapter of BIPRU are minimum standards. Satisfaction of those conditions does not automatically mean the FSA will grant a waiver referred to in those paragraphs. The FSA will in addition also apply the tests in section 148 of the Act.
In respect of the application for waivers to apply the approaches set out in BIPRU 1.3.2 G (1), the FSA will aim to give decisions on applications as soon as practicable. However, the FSA expects that it will take a significant period to determine and give a decision due to the complexity of the issues raised by the applications. Details of timelines for applications for waivers to use advanced approaches and under the Article 129 procedure are set out on the FSA website.
Under section 294 of the Act (Modification or waiver of rules), the FSA may, on the application or with the consent of a recognised body (including an overseas recognised body), direct that any notification rule is not to apply to the body or is to apply with such modifications as may be specified in the waiver.
Under section 294(4) of the Act, before the FSA may give a waiver of notification rules, it must be satisfied that:(1) compliance by the recognised body with those notification rules, or with those rules as unmodified, would be unduly burdensome or would not achieve the purpose for which those rules were made; and(2) the waiver would not result in undue risk to persons whose interests those rules are designed to protect.
There is no application form, but applicants should make their application formally and in writing and in accordance with any direction the FSA may make under section 294(2) of the Act. Each application should set out at least:(1) full particulars of the waiver which is requested; (2) the reason why the recognised body believes that the criteria set out in section 294(4) (and described in REC 3.3.3 G) would be met, if this waiver were granted; and (3) where the recognised body
Any waiver given by the FSA under section 294 of the Act will be made in writing, stating: (1) the name of the recognised body in respect of which the waiver is made;(2) the notification rules which are to be waived or modified in respect of that body;(3) where relevant, the manner in which any rule is to be modified;(4) any condition or time limit to which the waiver is subject; and(5) the date from which the waiver is to take effect.
Where the FSA considers that it will not give the waiver which has been applied for, the FSA will give reasons to the applicant for its decision. The FSA will endeavour, where practicable, to inform an applicant in advance where it seems that an application is likely to fail unless it is amended or expanded, so that the applicant will have the opportunity to make any necessary amendments or additions before the application is considered.
The FSA will periodically review any waiver it has given. The FSA has the right to revoke a waiver under section 294(6) of the Act. This right is likely to be exercised in the event of a material change in the circumstances of the recognised body or in any fact on the basis of which the waiver was given.
An investment firm consolidation waiver will waive the application of BIPRU 8.2.1 R and BIPRU 8.2.2 R (if it applies with respect to a UK consolidation group) or BIPRU 8.3.1 R and BIPRU 8.3.2 R (if it applies with respect to a non-EEA sub-group). The effect will be to switch off this chapter with respect to the group in question apart from this section.
The FSA will not grant an investment firm consolidation waiver unless:(1) the UK consolidation group or non-EEA sub-group meets the conditions for being a CAD Article 22 group;(2) the FSA is satisfied that each BIPRU firm in the UK consolidation group or non-EEA sub-group will be able to meet its capital requirements using the calculation of capital resources in GENPRU 2 Annex 6 (Capital resources table for a BIPRU investment firm with a waiver from consolidated supervision);
If a firm has an investment firm consolidation waiver with respect to its UK consolidation group or non-EEA sub-group but that UK consolidation group or non-EEA sub-group ceases to meet the definition of a CAD Article 22 group the firm must comply with the rest of this chapter rather than this section notwithstanding the investment firm consolidation waiver.
GENPRU 2.2 (Capital resources) says that a BIPRU investment firm with an investment firm consolidation waiver should calculate its capital resources on a solo basis using GENPRU 2 Annex 6 (Capital resources table for a BIPRU investment firm with a waiver from consolidated supervision). GENPRU 2 Annex 6 requires a BIPRU investment firm to deduct contingent liabilities in favour of other members of the UK consolidation group or non-EEA sub-group. Therefore BIPRU 8.4.9R (5)(b) only
If a firm has an investment firm consolidation waiver, it must ensure that any financial holding company in the UK consolidation group or the non-EEA sub-group that is the UKparent financial holding company in a Member State of a CAD investment firm in the UK consolidation group or non-EEA sub-group has capital resources, calculated under BIPRU 8.4.12 R, in excess of the sum of the following (or any higher amount specified in the investment firm consolidation waiver):(1) the sum
If a firm has an investment firm consolidation waiver, it must:(1) ensure that each CAD investment firm in the UK consolidation group or non-EEA sub-group which is a firm or an EEA firm has in place systems to monitor and control the sources of capital and funding of all the members in the UK consolidation group or non-EEA sub-group;(2) notify the FSA of any serious risk that could undermine the financial stability of the UK consolidation group or non-EEA sub-group, as soon as
Although an investment firm consolidation waiver switches off most of this chapter, a firm should still carry out the capital adequacy calculations in BIPRU 8.3 to BIPRU 8.8 as if those parts of this chapter still applied to the UK consolidation group or non-EEA sub-group and report these to the FSA. It should also still monitor large exposure risk on a consolidated basis.
The rules in GENPRU and BIPRU do not allow a firm that is a parent undertaking to incorporate the capital and requirements of a subsidiary undertaking in the calculation of that firm'scapital resources and capital resources requirement. A firm that wishes to incorporate a subsidiary undertaking for this purpose should therefore apply for a solo consolidation waiver.
A firm that has a solo consolidation waiver must incorporate in the calculation of its requirements under the main BIPRU firm Pillar 1 rulesand BIPRU 10 (Concentration risk requirement) each subsidiary undertaking to which the solo consolidation waiver applies. This does not apply to the base capital resources requirement.
(1) A firm that has a solo consolidation waiver must meet the obligations in SYSC 12.1.13 R (Application of certain systems and controls rules on a consolidated basis) on a consolidated basis with respect to the firm and each subsidiary undertaking to which the firm'ssolo consolidation waiver applies.(2) If (1) applies, SYSC 12.1.13 R applies to the group made up of the firm and its subsidiary undertakings referred to in (1) in the same way as it applies to a UK consolidation
The effect of BIPRU 2.1.19 R is that even though a firm'ssolo consolidation waiver applies BIPRU 2.1 with respect to a subsidiary undertaking, the firm should not apply BIPRU 2.1 with respect to that subsidiary undertaking unless in addition it meets the conditions in BIPRU 2.1.20 R to BIPRU 2.1.24 R.
The FSA is required by section 148(6) of the Act to publish a waiver unless it is satisfied that it is inappropriate or unnecessary to do so. If the FSA publishes a waiver, it will not publish details of why a waiver was required or any of the supporting information given in a waiver application.
When considering whether it is satisfied under section 148(6), the FSA is required by section 148(7) of the Act:(1) to take into account whether the waiver relates to a rule contravention of which is actionable under section 150 of the Act (Actions for damages); Schedule 5 identifies such rules;(2) to consider whether its publication would prejudice, to an unreasonable degree, the commercial interests of the firm concerned, or any other member of its immediate group; and(3) to
Waivers can affect the legal rights of third parties, including consumers. In the FSA's view it is important that the fact and effect of such waivers should be transparent. So the fact that a waiver relates to a rule that is actionable under section 150 of the Act (see SUP 8.6.2 G (1)) will tend to argue in favour of publication.
In considering whether commercial interests would be prejudiced to an unreasonable degree (see SUP 8.6.2 G (2)), the FSA will weigh the prejudice to firms' commercial interests against the interests of consumers, markets and other third parties in disclosure. In doing so the FSA will consider factors such as the extent to which publication of the waiver would involve the premature release of proprietary information to commercial rivals, for example relating to a product innovation,
If, after taking into account the matters in SUP 8.3.3 D to SUP 8.6.6 G, a firm believes there are good grounds for the FSA either to withhold publication or to publish the waiver without disclosing the identity of the firm, it should make this clear in its application (see SUP 8.3.3 D (7)). If the FSAproposes to publish a waiver against the wishes of the firm, the FSA will give the firm the opportunity to withdraw its application before the waiver is given.
A decision to withhold a waiver or identity of a firm from publication may be for a limited period only, usually as long as the duration of the relevant grounds for non-publication. If the FSA proposes to publish information about a waiver that had previously been withheld, it will first give the firm an opportunity to make representations.
Energy market participants should bear in mind that section 148 of the Act requires that in order to give a waiver of particular rules, the FSA must be satisfied that:(1) compliance 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 result in undue risk to persons whose interests the rules are intended to protect.
In particular, clause 4 of the form of waiver in SUP 21 Annex 1 will not ordinarily be inserted in waivers for energy market participants that will not, at the time the waiver will take effect, clearly satisfy the conditions set out in that clause. For these purposes the FSA will take into account the relative proportions of the energy market participant's assets and revenues that are referable to the various parts of its business, as well as to any other factor that the FSA considers
Section 250 of the Act and regulation 7 of the OEIC Regulations allow the FSA to waive the application of certain rules in COLL and CIS to:(1) a person, as respects a particular AUT or ICVC, on the application or with the consent of that person; and(2) an AUT or ICVC on the application or with the consent of the manager and trustee (in the case of an AUT) or the ICVC and its depositary (in the case of an ICVC).2
This table belongs to GENPRU 2.2.17 RType of firmLocation of rulesRemarksInsurerGENPRU 2 Annex 1BankGENPRU 2 Annex 2Building societyGENPRU 2 Annex 3BIPRU investment firm without an investment firm consolidation waiverGENPRU 2 Annex 4 (Deducts material holdings)Applies to a BIPRU investment firm not using GENPRU 2 Annex 5 or GENPRU 2 Annex 6BIPRU investment firm without an investment firm consolidation waiverGENPRU 2 Annex 5 (Deducts illiquid assets)A BIPRU investment firm must
GENPRU 2.2.19 R sets out three different methods of calculating capital resources for BIPRU investment firms. The differences between the three methods relate to whether and how material holdings and illiquid assets are deducted when calculating capital resources. The method depends on whether a firm has an investment firm consolidation waiver. If a firm does have such a waiver, it should deduct illiquid assets, own groupmaterial holdings and certain contingent liabilities. If
A firm may include a term in a tier one instrument allowing the firm to redeem it before the date in GENPRU 2.2.70R (2)(a) if the following conditions are satisfied:(1) the other conditions in GENPRU 2.2.70 R are met;(2) the circumstance that entitles the firm to exercise that right is a change in law or regulation in any relevant jurisdiction or in the interpretation of such law or regulation by any court or authority entitled to do so;(3) it would be reasonable for the firm
The purpose of GENPRU 2.2.71 R to GENPRU 2.2.72 R is this. In general a tier one instrument should not be redeemable by the firm before its fifth anniversary. However there may be circumstances in which it would be reasonable for the firm to redeem it before then. GENPRU 2.2.71 R allows the firm to include a right to redeem the instrument before the fifth anniversary in certain circumstances. A tax call is an example of a term that may be allowed. GENPRU 2.2.71 R says that the
If a firm has surplus eligible partnership capital or eligible LLP members' capital that it wishes to repay in circumstances other than those set out in GENPRU 2.2.93 R or GENPRU 2.2.94 R it may apply to the FSA for a waiver to allow it to do so. If a firm applies for such a waiver the information that the firm supplies with the application might include:(1) a demonstration that the firm would have sufficient capital resources to meet its capital resources requirement immediately
The alternative calculation in GENPRU 2.2.239R (3) to (4) is only relevant to BIPRU 11 (Pillar 3 disclosures) and certain reporting requirements under SUP. However the deduction of material holdings at Part 2 of stage E of the capital resources table in the case of a BIPRU investment firm with an investment firm consolidation waiver has effect for all purposes.
The waivers regime is overseen by a staff committee. Its responsibility is to ensure that the giving of waivers is in accordance with the requirements of the Act, of the guidance in SUP 8 and of other relevant guidance. Decisions on individual applications are made under arrangements designed to result in rapid, responsive and well-informed decision making. The arrangements include arrangements for collective decision making to set general policies, and, as necessary, determine
1If the FSA, in the course of carrying on supplementary supervision of a financial conglomerate, is considering exercising its powers under section 148 of the Act (Modification or waiver of rules), regulation 4 of the Financial Groups Directive Regulations contains special provisions. The FSA must, in broad terms, do two things. Where required by those regulations, it must obtain the consent of the relevant competent authorities of the group. And, where required by those Regulations,
The FSA may revoke a waiver at any time. In deciding whether to revoke a waiver, the FSA will consider whether the conditions in section 148(4) of the Act are no longer satisfied (see SUP 8.3.1 G), and whether the waiver is otherwise no longer appropriate. The FSA may revoke a waiver with immediate effect, if it considers that this is necessary, for example, in order to prevent undue risk to consumers.
If the FSA proposes to revoke a waiver, or revokes a waiver with immediate effect, it will:(1) give the firm written notice either of its proposal, or of its action, giving reasons;(2) state in the notice a reasonable period (usually 28 days) within which the firm can make representations about the proposal or action; if a firm wants to make oral representations, it should inform the FSA as quickly as possible , specify who will make the representations and which matters will
The following must comply with the obligations laid down in BIPRU 11.3 on an individual basis:(1) a firm which is neither a parent undertaking nor a subsidiary undertaking;(2) a firm which is excluded from a UK consolidation group or non-EEA sub-group pursuant to BIPRU 8.5; and[Note: BCD Article 68(3)](3) a firm which is part of a group which has been granted an investment firm consolidation waiver under BIPRU 8.4;[Note: CAD.Article 23]
A firm which is included within comparable disclosures provided on a consolidated basis by a parent undertaking whose head office is not in an EEA State may apply for a waiver from the relevant disclosure requirements in BIPRU 11.2.2 R - BIPRU 11.2.5 R. The FSA's approach to granting waivers is set out in the Supervision manual (see SUP 8).[Note: BCD Article 72(3)]
A firm applying for a waiver from one or more of the disclosure requirements in BIPRU 11.2.2 R - BIPRU 11.2.5 R will need to:(1) satisfy the FSA that it is included within comparable disclosures provided on a consolidated basis by a parent undertaking whose head office is not in an EEA State; and(2) notify the FSA of the location where the comparable disclosures are provided.
If the FSA gives a firm a waiver, then the relevant rule no longer applies to the firm. But:(1) if a waiver directs that a rule is to apply to a firm with modifications, then contravention of the modified rule could lead to FSA enforcement action and (if applicable) a right of action under section 150 of the Act (Actions for damages); and(2) if a waiver is given subject to a condition, it will not apply to activities conducted in breach of the condition, and those activities,
Substantive changes to the rules (this would not include simple editorial changes) in the Handbook may affect existing waivers, changing their practical effect and creating a need for a change to the original waiver. The FSA will consult on proposed rule changes. A firm should note proposed rule changes and discuss the impact on a waiver with its usual supervisory contact at the FSA.
Firms are also referred to SUP 15.6 (Inaccurate, false or misleading information). This requires, in SUP 15.6.4 R, a firm to notify the FSA if false, misleading, incomplete or inaccurate information has been provided. This would apply in relation to information provided in an application for a waiver.
The Handbook primarily contains provisions which apply to all firms or to certain categories of firm. However, a firm may apply for a waiver or modification of rules in certain circumstances as set out in SUP 8; or it may receive individual guidance on the application of the rules, as set out in SUP 9.
By waiving or modifying the requirements of a rule or imposing an additional requirement or limitation, the FSA can ensure that the rules, and any other requirements or limitations imposed on a firm, take full account of the firm's individual circumstances, and so assist the FSA in meeting the regulatory objectives (for example, to protect consumers and maintain market confidence).