Related provisions for BIPRU 4.10.8

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SUP 18.2.5GRP
Under Principle 6, a firm must treat customers fairly (the scope of the Principle is not precisely consumers) and, under Principle 8, manage conflicts of interest fairly. A criterion for the FSA in considering a proposed scheme would be whether it appears that either Principle is not being followed. Transfers may have both positive and negative effects on individual consumers. In such circumstances it is for consumers to balance these effects and assess whether the proposed scheme
SUP 18.2.12GRP
When an insurance business transfer scheme is being considered, the scheme promoters (including the transferor and, except possibly if it is a new company, the transferee) should discuss the scheme with the FSA as soon as reasonably practical, to enable the FSA to consider what issues are likely to arise, and to enable a practical timetable for the scheme to be agreed. The FSA will wish to consider material issues relating to policyholder rights (such as the reasonable expectations
SUP 18.2.13GRP
The initial information on the schemeprovided to the FSA under SUP 18.2.12 G should include its broad outline and its purpose.The FSA will indicate to the promoters how closely it wishes to monitor the progress of the scheme, including the extent to which it wishes to see draft documentation.
SUP 18.2.14GRP
Under section 109(2) of the Act a scheme report may only be made by a person:(1) appearing to the FSA to have the skills necessary to enable him to make a proper report; and(2) nominated or approved for the purpose by the FSA.
SUP 18.2.19GRP
The suitability of a person to act as an independent expert depends on the nature of the scheme and the firms concerned. On the basis of the preliminary information supplied by the scheme promoters (and any other knowledge it has of the circumstances and the firms), the FSA will consider what skills are needed to make a proper report on the scheme and what criteria should therefore be applied to the choice of independent expert. The FSA will inform the promoters of any such criteria
SUP 18.2.20GRP
Under section 107(2) of the Act, the application to the court may be made by the transferor or the transferee or both. As soon as reasonably practical, the intended applicant should choose their nominee for independent expert in the light of any criteria advised by the FSA and advise the FSA of their choice, unless the FSA wishes them to defer nomination or to make its own nomination. The notification should be accompanied by reasons why the party considers the nominee to be a
SUP 18.2.21GRP
The FSA may wish to have preliminary discussions with the nominee about the transfer to help the FSA determine whether he is suitably qualified to address issues arising from the transfer. The FSA will consider the suitability of the nominee and inform the firm that nominated him whether it approves him. Since the nature of the scheme is a factor in determining the suitability of the nominee, the FSA cannot approve a nominee before the broad outlines of the scheme have been determined.
SUP 18.2.22GRP
The FSA may itself nominate the independent expert, either where it indicates that a nomination is not required by the parties, or where it does not approve the parties' own nomination. In either case it will inform the promoters of its nominee.
SUP 18.2.25GRP
(1) If the transferee is (or will be) an EEA firm (authorised in its Home State to carry on insurance business under the Insurance Directives) or a Swiss general insurance company, then the FSA has to consult the transferee's Home State regulator, who has 3 months to respond. It will be necessary for the FSA to obtain from the transferee's Home State regulator a certificate confirming that the transferee will meet the Home State's solvency margin requirements (if any) after the
SUP 18.2.26GRP
The transferor will need to provide the FSA with the information that the Home State regulator requires from FSA. This information includes:(1) the transfer agreement or a draft, with:(a) the names and addresses of the transferor and transferee; and(b) the classes of insurance business and details of the nature of the risks or commitments to be transferred;(2) for the business to be transferred (both before and after reinsurance):(a) the amount of technical provisions;(b) the
SUP 18.2.27GRP
If the transferee is not (and will not be) authorised and will be neither an EEA firm nor a Swiss general insurance company, then the FSA will need to consult itsinsurance supervisor in the place where the business is to be transferred. The FSA will need confirmation from this supervisor that the transferee will meet his solvency margin requirements there (if any) after the transfer.
SUP 18.2.28GRP
If the transferor is an UK insurer and the business to be transferred includes business carried on from a branch in another EEA State, then the FSA has to consult the Host State regulator, who has 3 months to respond. The FSA will need to be given the information that the Host State regulator requires from it. This information should identify the parties to the transfer and include the transfer agreement or draft transfer agreement or a summary containing relevant information,
SUP 18.2.29GRP
If the transferor is anUK insurer and the business to be transferred includes a long-term insurance contract (other than reinsurance) for which the state of the commitment is an EEA state other than the United Kingdom, then the FSA has to consult the Host State regulator. If the transferor is anUK insurer and the business to be transferred includes a general insurance contract (other than reinsurance) for which the state of the risk is an EEA state other than the United Kingdom,
SUP 18.2.30GRP
Where the transferor is anUK-deposit insurer and, following the transfer, it will no longer be carrying on insurance business in the United Kingdom, the FSA will need to collaborate with regulatory bodies in the other EEA States in which it is carrying on business to ensure that effective supervision of the business carried on in the EEA continues. The transferor should cooperate with the FSA and the other regulatory bodies in this process and demonstrate that it will meet the
SUP 18.2.31GRP
Under section 109 of the Act, a scheme report must accompany an application to the court to approve an insurance business transfer scheme. This report must be made in a form approved by the FSA. The FSA would not expect to approve the form of a scheme report unless it complies with SUP 18.2.33 G and would expect to approve the form of a scheme report that complies. SUP 18.2.32 G and SUP 18.2.34 G to SUP 18.2.41 G provide additional guidance for the independent expert.
SUP 18.2.32GRP
There may be matters relating to the scheme or the parties to the transfer that the FSA wishes to draw to the attention of the independent expert. The FSA may also wish the report to address particular issues. The independent expert should therefore contact the FSA at an early stage to establish whether there are such matters or issues. The independent expert should form his own opinion on such issues, which may differ from the opinion of the FSA.
SUP 18.2.34GRP
The purpose of the scheme report is to inform the court and the independent expert therefore has a duty to the court. However reliance will also be placed on it by policyholders, by others affected by the scheme and by the FSA. The amount of detail that it is appropriate to include will depend on the complexity of the scheme, the materiality of the details themselves and the circumstances. For instance where it is clear that no-one will be adversely affected by the transfer, a
SUP 18.2.44GRP
The regulations referred to in SUP 18.2.44 G require that the FSA approves in advance the notices sent to policyholders and published in the press.
SUP 18.2.46GRP
The FSA is entitled to be heard by the court on any application for a transfer. A consideration for the FSA in determining whether to oppose a transfer would be itsview on whether adequate steps had been taken to tell policyholders about the transfer and whether they had adequate information and time to consider it. The FSA would not normally consider adequate a period of less than six weeks between sending notices to policyholders and the date of the court hearing. Therefore
SUP 18.2.49GRP
Where the transferee is a friendly society, the notice should include information about the meeting at which a special resolution in accordance with paragraph 7 of Schedule 12 to the Friendly Societies Act 1992 is to be voted on, including the date of the meeting, how notice of the meeting is to be given to members and the terms of the special resolution. After the meeting the friendly society should inform the FSA whether the special resolution has been passed. The court will
SUP 18.2.50GRP
The FSA should be given the opportunity to comment on the statement referred to in SUP 18.2.48 G before it is sent, unless the FSA has informed the promoters in writing that it does not wish to do so.
SUP 18.2.51GRP
The assessment is a continuing process, starting when the scheme promoters first approach the FSA about a proposed scheme. Among the considerations that may be relevant to both the depth of consideration given to, and the FSA's opinion on, a scheme are:(1) the potential risk posed by the transfer to the regulatory objectives;(2) the purpose of the scheme;(3) how the security of policyholders' (who include persons with certain rights and contingent rights under the policies) contractual
SUP 18.2.52GRP
The scheme report will be an important factor in the view the FSA forms on a scheme. The FSA will place considerable reliance on the opinions of the independent expert and the reasons for them. However it will form its own view taking into account other information and having regard to its regulatory objectives.
SUP 18.2.53GRP
The FSA is likely to object to a scheme if it concludes that it is unfair to a class of policyholders, unless the policyholders of that class have approved the scheme on the basis of information the FSA considers clear and accurate. Policyholders are not required to vote on a scheme but would, for instance, normally vote on a demutualisation or on a scheme of arrangement under the Companies Act 1985. The FSA is also likely to object to a scheme if it concludes that it has a material
SUP 18.2.54GRP
The FSA may exercise its other powers under the Act, if it considers this a more effective method of achieving its regulatory objectives.
SUP 18.2.55GRP
The FSA is not required under its regulatory objectives to object to a scheme merely because some other scheme might have been in the better interests of policyholders, if the scheme itself is not adverse to their interests. However there may be circumstances where treating customers fairly would require a firm to consider or to implement an alternative scheme.
SUP 18.2.56GRP
Where a transfer involves members of Lloyd's as transferor or transferee, the FSA will consult the Society. Where the business of a syndicate is being transferred, the transfer involves all members participating in the relevant syndicate years.
SUP 18.2.57GRP
Regulations require that copies of the application to the court, the scheme report and the statement for policyholders referred to in SUP 18.2.48 G are also given to the FSA. This enables the FSA to consider these and determine whether it wishes to be heard by the court. It might assist the FSA if these items were given to the FSA in draft, in the first instance. This would enable:(1) the FSA to seek clarification before the documents were finalised; and(2) if the promoters so
BIPRU 7.10.2GRP
BIPRU 7.10 provides details of when the FSA expects to allow a firm to use a VaR model (value at risk model) for the purpose of calculating part or all of its PRR. It introduces the concept of a VaR model, the methodology behind it and the link to the standard market risk PRR rules. It then goes on to detail the application and review process. The bulk of BIPRU 7.10 specifies the model standards and risk management standards that firms will be required to meet in order to use
BIPRU 7.10.3GRP
The models described in BIPRU 7.10 are described as VaR models in order to distinguish them from CAD 1 models, which are dealt with in BIPRU 7.9 (Use of a CAD 1 model). A VaR model is a risk management model which uses a statistical measure to predict profit and loss movement ranges with a confidence interval. From these results PRR charges can be calculated. The standards described in BIPRU 7.10, and which will be applied by the FSA, are based on and implement Annex V of the
BIPRU 7.10.5GRP
There are a number of general methodologies for calculating PRR using a VaR model. The FSA does not prescribe any one method of computing VaR measures. Moreover, it does not wish to discourage any firm from developing alternative risk measurement techniques. A firm should discuss the use of any alternative techniques used to calculate PRR with the FSA.
BIPRU 7.10.7GRP
A waiver or other permission allowing the use of models in the calculation of PRR will not be granted if that would be contrary to the Capital Adequacy Directive and any VaR model permission which is granted will only be granted on terms that are compatible with the Capital Adequacy Directive. Accordingly, the FSA is likely only to grant a waiver or other permission allowing the use of models in the calculation of PRR if it is a VaR model permission or a CAD 1 model waiver.
BIPRU 7.10.8GRP
BIPRU 7.10 sets out the minimum standards that the FSA expects firms to meet before granting a VaR model permission. The FSA will not grant a VaR model permission unless it is satisfied that the requirements of BIPRU 7.10 are met and it is satisfied about the procedures in place at a firm to calculate the model PRR. In particular the FSA will not normally grant a VaR model permission unless it is satisfied about the quality of:(1) the internal controls and risk management relating
BIPRU 7.10.9GRP
The FSA recognises that the nature of VaR models will vary between firms. The scope of and the requirements and conditions set out in a VaR model permission may therefore differ in substance or detail from BIPRU 7.10 in order to address individual circumstances adequately. However any differences will only be allowed if they are compliant with the Capital Adequacy Directive. A VaR model permission will implement any such variation by modifying BIPRU 7.10. A VaR model permission
BIPRU 7.10.10GRP
Details of the general process for applying for a VaR model permission are set out in BIPRU 1.3 (Applications for advanced approaches). Because of the complexity of a VaR model permission, it is recommended that a firm discuss its proposed application with its usual contact at the FSA before it makes the application.
BIPRU 7.10.11GRP
In order for a VaR model permission to be granted, the FSA is likely to undertake a review to ensure that it is adequate and appropriate for the PRR calculation.
BIPRU 7.10.12GRP
The VaR model review process may be conducted through a series of visits covering various aspects of a firm's control and IT environment. Before these visits the FSA may ask the firm to provide some information relating to the firm'sVaR model permission request accompanied by some specified background material. The VaR model review visits are organised on a timetable that allows the firm being visited sufficient time to arrange the visit and provide the appropriate pre-visit
BIPRU 7.10.14GRP
A visit will usually involve the FSA wishing to meet senior management and staff from the front office, financial control, risk management, operations, systems development, information technology and internal audit areas.
BIPRU 7.10.15GRP
The FSA may complement its own review of a VaR model permission request with one or more reviews by a skilled person under section 166 of the Act (Reports by skilled persons). Such a review may also be used where a VaR model permission has been granted to ensure that the requirements BIPRU 7.10 and of the VaR model permission continue to be met.
BIPRU 7.10.16GRP
Where a VaR model used outside the United Kingdom differs from that used in the United Kingdom the FSA may request details of the reasons for using different models.
BIPRU 7.10.17GRP
Where a firm operates any part of its VaR model outside the United Kingdom, the FSA may take into account the results of the home supervisor's review of that model. The FSA may wish to receive information directly from the home supervisor.
BIPRU 7.10.23GRP
It is the FSA's view that, where a firm uses a VaR model for one risk category as described in BIPRU 7.10.19G, it is good practice to extend its model over time to calculate all of its PRR risk categories. A firm will typically be expected to have a realistic plan in place to do this.
BIPRU 7.10.25GRP
The FSA accepts that the scope and nature of VaR models varies across firms. This means that different firms are likely to calculate different estimates of market risk for the same portfolio. Systematic differences are due to length of data series, choice of methodology (historical or Monte Carlo simulation or variance-covariance method or a hybrid of these), differences in aggregating risks within and across broad risk factors, the treatment of options and other non-linear products
BIPRU 7.10.29GRP
If a firm uses a holding period other than 10 business days and converts the resulting VaR measure to a ten business day equivalent measure, it should be able to justify the choice of conversion technique. For example, the square root of time method will usually be justifiable. The FSA considers it good practice ultimately to move towards the application of an actual ten business day holding period, rather than using different holding periods.
BIPRU 7.10.37RRP
In aggregating VaR measures across risk or product categories, a firm must not use the square root of the sum of the squares approach unless the assumption of zero correlation between these categories is empirically justified. If correlations between risk categories are not empirically justified, the VaR measures for each category must simply be added in order to determine its aggregate VaR measure. But to the extent that a firm'sVaR model permission provides for a different way
BIPRU 7.10.45GRP
(1) This paragraph contains guidance on the inclusion of CIUs in a VaR model.(2) The FSA may allow all types of CIU to be included within the scope of a firm'sVaR model permission.(3) BIPRU 7.10 does not distinguish between specific risk and general market risk for positions in CIUs. Therefore even if specific risk is not otherwise included within the scope of a firm'sVaR model permission, a firm should be able to demonstrate that its VaR model captures specific risk.(4) A firm
BIPRU 7.10.54GRP
For example, BIPRU 7.10.53R might involve creating and documenting a prudent incremental PRR charge for the risk not captured in the VaR model and holding sufficient capital resources against this risk. In that case the firm should hold capital resources at least equal to its capital resources requirement as increased by adding this incremental charge to the model PRR. Alternatively the firm may make valuation adjustments through its profit and loss reserves to cover this material
BIPRU 7.10.68GRP
(1) An example of documents required by BIPRU 7.10.67R may be a manual that describes the basic principles of the risk management framework, clearly setting out empirical techniques, principles and assumptions used within it.(2) This documentation should be of sufficient detail for the FSA to be able to develop a clear understanding of how the VaR model works from that documentation on its own.
BIPRU 7.10.76GRP
The FSA will require a period of initial monitoring or live testing before a VaR model can be recognised. This will be agreed on a firm by firm basis.
BIPRU 7.10.77GRP
In assessing the firm'sVaR model and risk management, the FSA has regard to the results of internal model validation procedures used by the firm to assess the VaR model.
BIPRU 7.10.81GRP
In assessing whether the VaR model is implemented with integrity as described in BIPRU 7.10.58R (Stress testing), the FSA will consider in particular the information technology systems used to run the model and associated calculations. The assessment may include:(1) feeder systems; risk aggregation systems; time series databases; the VaR model system; stress testing system; the backtesting system including profit and loss cleaning systems where appropriate; data quality; reconciliations
BIPRU 7.10.93GRP
Backtesting conducted only at a whole portfolio level using a single measure of profit and loss has limited power to distinguish an accurate VaR model from an inaccurate one. Backtesting should therefore be regarded as an additional safeguard rather than a primary validation tool. Such testing does however form the basis of the FSA'splus factor system. The test has been chosen as the basis of the backtesting regime because of its simplicity. A firm will therefore be expected to
BIPRU 7.10.95GRP
Clean profit and loss backtesting should be used for regulatory backtesting and used to calculate plus factors. Hypothetical profit and loss backtesting is used for model validation and for reporting to the FSA.
BIPRU 7.10.101GRP
The definition of clean profit and loss figure may be amended or replaced in an individual VaR model permission if the firm can demonstrate to the FSA that the alternative method meets the spirit and purpose of the provisions in BIPRU 7.10 about the clean profit and loss figure.
BIPRU 7.10.102GRP
The FSA will review as part of a firm'sVaR model permission application the processes and documentation relating to the derivation of profit and loss used for backtesting. 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 clean profit and loss
BIPRU 7.10.104RRP
If a backtesting exception occurs, the firm must notify its usual supervisory contact at the FSA orally by close of business two business days after the business day for which the backtesting exception occurred. Within five business days following the end of each Month, the firm must submit to the FSA a written account of the previous Month'sbacktesting exceptions (if any). This explanation must include the causes of the backtesting exceptions, an analysis of whether the backtesting
BIPRU 7.10.105GRP
(1) This paragraph gives guidance on the backtesting calculation and reporting process in BIPRU 7.10.96R - BIPRU 7.10.104R.(2) Let the day on which the loss referred to in BIPRU 7.10.100R is made be day n. The value-at-risk measure for that day will be calculated on day n-1, or overnight between day n-1 and day n. Profit and loss figures are produced on day n+1, and backtesting also takes place on day n+1. The firm's supervisor should be notified of any backtesting exceptions
BIPRU 7.10.106GRP
(1) This paragraph gives guidance on the process for excluding backtesting exceptions as referred to in BIPRU 7.10.103R.(2) The FSA will respond flexibly to backtesting exceptions. However, the FSA's starting assumption will be that a backtesting exception should be taken into account for the purpose of the calculation of plus factors. If the firm believes that a backtesting exception should not count for that purpose, then it should seek a variation of its VaR model permission
BIPRU 7.10.110GRP
Where backtesting reveals severe problems with the basic integrity of the VaR model, the FSA may withdraw model recognition. In particular, if ten or more backtesting exceptions are recorded in a 250 business day period, the FSA may apply a plus factor greater than one or the FSA may consider revoking a firm'sVaR model permission. The FSA may also consider revoking a firm'sVaR model permission if ten or more specific riskbacktesting exceptions occur in such a period.
BIPRU 7.10.120GRP
The minimum multiplication factor will never be less than three. If the FSA does set the minimum multiplication factor above three the VaR model permission will have a table that sets outs the reasons for that add on and specify how much of the add on is attributable to each reason (see BIPRU 7.10.121R). If there are weaknesses in the VaR model that may otherwise be considered a breach of the minimum standards referred to in BIPRU 7.10.24R the FSA may apply such an add on to act
BIPRU 7.10.122GRP
Typically, any add on will be due to a specific weakness in systems and controls identified during the FSA's review that the FSA does not consider material enough to justify withholding overall model recognition. The firm will be expected to take action to address the reasons for any add on. The FSA will then review these periodically and, where satisfactory action has been taken, the add on will be removed through a variation of the VaR model permission.
BIPRU 7.10.128GRP
A VaR model permission will contain requirements for what the firm should report to the FSA and the procedures for reporting. The precise requirements will vary from VaR model permission to VaR model permission. BIPRU 7.10.129R-BIPRU 7.10.130R set out what the FSA regards as the standard requirements.
BIPRU 7.10.129RRP
A firm must, no later than the number of business days after the end of each quarter specified in the VaR model permission for this purpose, submit, in respect of that quarter, a report to the FSA about the operation of the VaR model, the systems and controls relating to it and any changes to the VaR model and those systems and controls. Each report must outline as a minimum the following information in respect of that quarter:(1) methodological changes and developments to the
BIPRU 7.10.130RRP
A firm must provide to, and discuss with, the FSA details of any significant planned changes to the VaR model before those changes are implemented. These details must include information about the nature of the change and an estimate of the impact on VaR numbers and the incremental default risk charge.
BIPRU 7.10.132GRP
The information in BIPRU 7.10.131G will vary over time. It is therefore not included in a VaR model permission as a rule but for information only. The FSA will update that information regularly in accordance with information supplied under BIPRU 7.10.129R. That updating will not amount to a variation of the VaR model permission.
BIPRU 7.10.134GRP
By modifying GENPRU 2.1.52 R (Calculation of the market risk capital requirement) to allow the firm to use the VaR model to calculate all or part of its PRR for certain positions, the FSA is treating it like an application rule. The modification means that the PRR calculation set out in BIPRU 7.10 supersedes the standard market risk PRR rules for products and risks coming within the scope of the VaR model permission.
BIPRU 7.10.147GRP
If a firm ceases to meet any of the requirements set out in BIPRU 7.10, the FSA's policy is that the VaR model permission should cease to have effect. In part this will be achieved by making it a condition of a firm'sVaR model permission that it complies at all times with the minimum standards referred to in BIPRU 7.10.26R - BIPRU 7.10.53R. Even if they are not formally included as conditions, the FSA is likely to consider revoking the VaR model permission if the requirements
BIPRU 7.10.148RRP
If a firm ceases to meet the conditions or requirements in its VaR model permission or BIPRU 7.10 it must notify the FSA at once.
SUP 18.4.2GRP
Friendly societies are encouraged to discuss a proposed transfer or amalgamation with the FSA, at an early stage to help ensure that a workable timetable is developed. This is particularly important where there are notification requirements for supervisory authorities in EEA States other than the United Kingdom, or for an amalgamation where additional procedures are required.
SUP 18.4.3GRP
The FSA will want to satisfy itselfthat after an amalgamation or a transfer the business will be prudently managed and continue to comply with the Principles. It may therefore require prudential information to be provided. It may request prudential information at an early stage to provide itself with adequate time to assess the information.
SUP 18.4.4GRP
For a transfer to another friendly society, if the conditions of 87(1) and 87(2) of the Friendly Societies Act 1992 are met a report is required from the appropriate actuary of the transferee to confirm that it will meet the required minimum margin. Where the conditions of 87(1) and 87(3) are met the FSA may require a report from the appropriate actuary of the transferee to confirm that it will have an excess of assets over liabilities.
SUP 18.4.5GRP
For a transfer of long-term insurance business, the FSA may, under section 88 of the Friendly Societies Act 1992, require a report from an independent actuary on the terms of the proposed transfer and on his opinion of the likely effects of the transfer on long-term policyholder members of either the transferor or (if it is a friendly society) the transferee. A summary is included in the statement sent to members (see SUP 18.4.13 G) and the full report is required to be made available
SUP 18.4.6GRP
Under the Friendly Societies Act 1992 the FSA may not confirm a transfer of engagements unless it is satisfied that the transfer is in the interests of the members of each friendly society participating in the transfer (see SUP 18.4.25 G (2)(b)). Itwill therefore ask that the participating societies' actuaries confirm that the transfer is in the interests of the members.
SUP 18.4.7GRP
Under the Friendly Societies Act 1992, members will normally have the opportunity to vote on a proposed transfer or amalgamation (SUP 18.4.11 G and SUP 18.4.12 G describe exceptions). A friendly society has to ensure that, before casting their votes, its members are clearly and fully informed of the terms on which the amalgamation or transfer of engagements is to take place and that they have all the information needed to understand how their interests will be affected. If the
SUP 18.4.9GRP
For an amalgamation the successor society, and for a transfer the transferee, may need to apply for permission, or to vary its permission, under Part IVof the Act. The FSA will need time before confirming a transferto consider whether any necessary permission or variation should be given. If the transferee is an EEA firm or a Swiss general insurance company, then confirmation will be needed from its Home State regulator that it meets the Home State's solvency margin requirements
SUP 18.4.10GRP
It is likely that the information sent to members will include a statement explaining the reasons for the amalgamation or transfer and the choice of partner. Although this is not a statutory statement and not subject to FSA approval, the FSA will take the statement into account whenconsidering whether to confirm the amalgamation or transfer. A friendly society will therefore find it helpful to consult the FSA about the content of such a statement.
SUP 18.4.11GRP
The FSA has discretion under section 86(3)(b) of the Friendly Societies Act 1992 to allow a transferee society to resolve to undertake to fulfil the engagements of a transferor society by resolution of the committee of management, rather than by special resolution. Among the issues on which the FSA will wish to satisfy itself before exercising this discretion, are that the transfer will be in the interests of the members of both societies and that the transfer will not mean a
SUP 18.4.12GRP
The FSA has discretion under section 89 of the Friendly Societies Act 1992 to modify some of the requirements for a transfer of engagements from a friendly society, on the application of a specified number of its members, if it is satisfied that it is expedient to do so in the interests of its members or potential members.
SUP 18.4.13GRP
Schedule 15 to the Friendly Societies Act 1992 requires a statement to be sent to every member of a friendly society entitled to vote on a transfer or amalgamation. Among other matters this statement has to cover the financial position of the friendly society and every other participant in the transfer or amalgamation. The members should be provided with sufficient financial information about the respective financial positions of the participants to gain an understanding of the
SUP 18.4.16GRP
The information should state whether any of the participants has any significant future capital commitments. The FSA will require it to state that the transfer of engagements or amalgamation will not conflict with any contractual commitment by a society, any subsidiary or any body jointly controlled by it and others.
SUP 18.4.18GRP
The FSA may require confirmation from the auditors of either friendly society involved in the transfer or amalgamation about the reasonableness of any part of the information in the statement. For instance such confirmation would normally be required if the financial information relates to a date more than six months previously.
SUP 18.4.20GRP
Under schedule 15 to the Friendly Societies Act 1992, the FSA may require the statement to include any other matter. The FSA would normally require inclusion of the terms on which the amalgamation or the transfer of engagements is to be made.
SUP 18.4.21GRP
The statement should be clearly separate from other information sent to members. It has to be approved by the FSA and if it is not in a self-contained document, the approved element should appear in a separate section.
SUP 18.4.23GRP
Under the Friendly Societies Act 1992:(1) when the members of a transferor society have approved the transfer of its engagements by passing a special resolution and the transferee has approved the transfer (by passing a resolution where the transferee is a friendly society); or(2) when two or more societies have approved a proposed amalgamation by passing a special resolution;it, or they jointly, must then obtain confirmation by the FSA of the transfer. Notice of the application
SUP 18.4.24GRP
For a directive friendly society, if the transfer or amalgamation includes policies where the state of the risk or the state of the commitment is an EEA State other than the United Kingdom, consultation with the Host State regulator is required and SUP 18.2.25 G to SUP 18.2.29 G apply (for an amalgamation they apply as if the business of the amalgamating societies is to be transferred to the successor society). Paragraph 6(1) of Schedule 15 to the Friendly Societies Act 1992 requires
SUP 18.4.25GRP
The criteria that the FSA must use in determining whether to confirm a proposed amalgamation or transfer are set out in schedule 15 to the Friendly Societies Act 1992. These criteria include that:(1) confirmation must not be given if the FSA considers that:(a) there is a substantial risk that the successor society or transferee will be unable lawfully to carry out the engagements to be transferred to it;(b) information material to the members' decision about the amalgamation or
SUP 18.4.26GRP
If authorisation or a Part IV permission is needed, the FSA will need to consider the application for authorisation or permission in the usual way. If the authorisation or permission is refused, confirmation cannot be given even if all the other criteria are met. As part of the regulatory objective to protect consumers, the FSA may consider whether an amalgamation is in the interests of members.
SUP 18.4.27GRP
The FSA may (as an alternative to refusing confirmation) direct the society or societies to remedy certain procedural defects in a proposed transfer or amalgamation, and after they have been remedied confirm the application. If it appears to the FSA that failure to meet a "relevant requirement" of the Friendly Societies Act 1992 or the rules of the friendly society could not be material to the members' decision, then it may direct that this failure is to be disregarded.
SUP 18.4.28GRP
Any interested party has the right to make representations to the FSA about an application for confirmation of a transfer or amalgamation. This includes any person (whether a member of the friendly society or not) who claims that he would be adversely affected by the amalgamation or transfer. The person making the representations should state clearly why he or she claims to be an interested party and the ground or grounds to which the representations are directed.
SUP 18.4.29GRP
Written representations, or written notice of a person's intention to make oral representations, or both, are required to reach the FSA by the date published in the relevant Gazettes and other newspapers. Those giving notice of intent to make oral representations are advised to state the nature and general grounds of the oral representations they intend to make. Persons who make written representations but subsequently decide also to make oral representations are required, nevertheless,
SUP 18.4.30GRP
The FSA will send copies of all written representations to the society(ies), and will afford them an opportunity to comment on the representations. It may consider the written representations and a society's response to them, before the date set for hearing oral representations. A synopsis of the written representations (probably in the form of a summary of each of the points made and the numbers of persons making each point) and a society's responses will be made available to
SUP 18.4.31GRP
The FSA expects that any documents referred to in a society's comments will be made available by the society for inspection at its registered office and, if reasonably possible, at the venue of the hearing on the date of the hearing. However if a society applies to put documents which it considers to be sensitive to the FSA in confidence, the FSA will balance any disadvantage this might cause interested parties in making representations against the commercial damage that publication
SUP 18.4.33GRP
The hearing referred to in SUP 18.4.30 G will be at a time and place that will be notified to the participants and will be conducted by FSA representatives. The hearing may last longer than one day and may be adjourned. The FSA will try to tell participants when they may expect to make their representations and when the society may be expected to respond.
SUP 18.4.34GRP
The FSA expects that oral hearings will be held in public though this is not required. At the start members of the general public and the press will be asked to wait outside while participants are asked if any of them has good reason to object to the admission of the general public or the press. Unless an objection by a participant is upheld by the FSA representatives, the press and the general public will then be admitted, within the limits of the space available. However, the
SUP 18.4.35GRP
The procedure will be informal. All participants will be expected to speak concisely and avoid repetition. The FSA will, as far as practicable, help those who are not professionally represented. Those taking the hearing may question the participants. The sequence of events will normally be broadly:(1) any preliminary matters (such as the admission of the public or other procedural questions) will be dealt with;(2) the chair of the hearing will introduce the proceedings;(3) the
SUP 18.4.36GRP
The above procedure may be varied according to the circumstances at the hearing, and is intended only as a guide. The hearing may be adjourned if the FSA representatives consider that necessary to enable facts to be checked or additional information to be obtained.
SUP 18.4.37GRP
The FSA will not decide whether to confirm the transfer or amalgamation at the hearing. A copy of its written decision, including its findings on the points made in representations, will be sent to the society(ies) and to those making representations. It will also be available to any other person on request and may be published.
DEPP 7.2.1GRP
Under section 169(1)(b) of the Act, the FSA may appoint an investigator to investigate any matter at the request of an overseas regulator. The powers of the investigator appointed by the FSA (referred to here as the 'FSA's investigator') include the power to require persons to attend at a specified time and place and answer questions (the compulsory interview power).
DEPP 7.2.2GRP
Where the FSA appoints an investigator in response to a request from an overseas regulator it may, under section 169(7) 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 FSA may only give a direction under section 169(7) if it is satisfied that any information obtained by an overseas regulator as a result of the interview will be subject to the safeguards equivalent
DEPP 7.2.4GRP
The FSA's policy on how it will use its investigative powers, including its power to appoint investigators, in support of overseas regulators, is set out in the FSA's Enforcement Guide (EG).
DEPP 7.2.5GRP
The FSA may need to consider whether to use its direction power at two stages of an investigation:(1) at the same time that it considers the request from the overseas regulator to appoint investigators;(2) after it has appointed investigators, either at the request of the overseas regulator or on the recommendation of the investigators.
DEPP 7.2.6GRP
Before making a direction under section 169(7) the FSA will discuss and determine with the overseas regulator 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 FSA will at this stage determine the extent to which the representative of the overseas regulator will be able to participate in the interview. The overseas regulator will be notified of this determination on the issuing
DEPP 7.2.7GRP
The direction will contain the identity of the representative of the overseas regulator that is permitted to attend any interview and the role that he will play in the interview. If the FSA envisages that there will be more than one interview in the course of the investigation, the direction may also specify which interview(s) the overseas representative is allowed to attend.
DEPP 7.2.9GRP
The FSA's investigator will act on behalf of the FSA and under its control. He may be instructed to permit the representative of the overseas regulator to assist in the preparation of the interview. Where the FSA 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 7.2.6 G.
DEPP 7.2.10GRP
If the direction does permit the representative of an overseas regulator to attend the interview and ask the interviewee questions, the FSA's investigator will retain control of the interview throughout. Control of the interview means the following will apply:(1) The FSA's 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 to answer questions
DEPP 7.2.11GRP
The FSA 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. Whether or not the interviewee is the person under investigation, the FSA's 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 be informed
DEPP 7.2.14GRP
When the FSA's 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. It will also state that in criminal proceedings or proceedings for market abuse the FSA will not use as evidence against
DEPP 7.2.15GRP
The FSA's 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 wishes to ask questions about documents during the interview and the FSA's investigator wishes to inspect those documents before the interview, he will be given the opportunity to do so. If the FSA's investigator wishes to inspect them and
DEPP 7.2.16GRP
When the FSA's investigator has exercised the compulsory interview power, the FSA's 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. The interviewee will also be required to answer these questions. The FSA's investigator may intervene at any stage during questioning by the representative of the overseas regulator.
DEPP 7.2.17GRP
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 then the translation costs will normally be met by the overseas regulator. Where interviews
DEPP 7.2.18GRP
All compulsory interviews will be tape-recorded. The method of recording will be decided on and arranged by the FSA's investigator. Costs will be addressed similarly to that set out in the preceding paragraph. The FSA will not provide the overseas regulator 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 interview but will only
DEPP 7.2.19GRP
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 FSA. The presence at the interview of a representative of the overseas regulator 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 accommodate this wish.
DEPP 7.2.20GRP
In relation to the publication of investigations by overseas regulators, the FSA will pursue a policy similar to the policy that relates to its own investigations.
SUP 11.3.2GRP
Sections 178(1) and 191D(1)10 of the Act require a person (whether or not he is an authorised person) to notify the FSA in writing if he decides 10to acquire, increase or reduce10control or to cease to have control10 over a UK domestic firm . Failure to notify is an offence under section 191F10 of the Act (Offences under this Part).461010101010
SUP 11.3.4GRP
If a person decides10 to acquire control or increase control over a UK domestic firm in a way described in SUP 11.4.2 Ror acquire control in a way described in SUP 11.4.2AR (1)4, he must obtain the FSA's approval before doing so. Making an acquisition before the FSA has approved of it10is an offence under section 191F of the Act (Offences under this Part).1010104610
SUP 11.3.5GRP
The FSA's approval is not required before a controller reduces control or ceases to have control10 over a UK domestic firm.10
SUP 11.3.5AGRP
6The FSA recognises that firms acting as investment managers may have difficulties in complying with the prior notification requirements in sections 178 and 191D 10of the Act as a result of acquiring or disposing of listed shares in the course of that fund management activity. To ameliorate these difficulties, the FSA may accept pre-notification of proposed changes in control, made in accordance with SUP D, and may grant approval of such changes for a period lasting up to a
SUP 11.3.5BDRP
6The FSA may treat as notice given in accordance with sections 178 and 190(1)of the Act a written notification from a firm which contains the following statements:10(1) that the firm proposes to acquire and/or dispose of control, on one or more occasions, of any UK domestic firm whose shares or those of its ultimate parent undertaking are, at the time of the acquisition or disposal of control, listed or which are admitted to listing on a designated investment exchange;;10(2) that
SUP 11.3.5CGRP
6Where the FSA approves changes in control proposed in a notice given under SUP 11.3.5B D:(1) the controller remains subject to the requirement to notify the FSA when a change in control actually occurs; and(2) the notification of change in control should be made no later than five business days after the end of each month and set out all changes in the controller's control position for each UK domestic firm for the month in question.At that stage, the FSA may seek from the controller
SUP 11.3.7DRP
A section 178 notice10 given to the FSA by a person who is acquiring control or increasing his control over a UK domestic firm, in a way described in SUP 11.4.2 R (1) to (4), or acquiring control in a way described in SUP 11.4.2A R, must contain the information and be accompanied by such documents as are required by the controllers form approved by the FSA for the relevant application. 461010
SUP 11.3.7AGRP
The controllers forms approved by the FSA may be found at the FSA's website (www.fsa.gov.uk/Pages/Doing/Regulated/Notify/Control/index.shtml)
SUP 11.3.10DRP
(1) A person who has submitted a section 178 notice10under SUP 11.3.7 D must notify the FSA immediately if he becomes aware, or has information that reasonably suggests, that he has or may have provided the FSA with information which was or may have been false, misleading, incomplete or inaccurate, or has or may have changed, in a material particular. The notification must include:10(a) details of the information which is or may be false, misleading, incomplete or inaccurate,
SUP 11.3.11GRP
The FSA will inform a section 178 notice giver as soon as reasonably practicable if it considers the section 178 notice to be incomplete.10651810
SUP 11.3.12GRP
86 The FSA has power, under section 179(3) 10of the Act (Requirements for section 178 notices10), to vary or waive these 10requirements in relation to a section 178 notice in particular cases 10if it considers it appropriate to do so.888101010108
SUP 11.3.13GRP
A controller or proposed controller which is an authorised person is required to submit less information under SUP 11.3.7 D than other persons and consequently the FSA may ask for confirmation of details already held or any additional information required under SUP 11.5.1R10.1010
SUP 11.3.14GRP
Pursuant to section 188 of the Act (Assessment: consultation with EC competent authorities), the 10FSA is obliged to consult any appropriate Home State regulator10before making a determination under section 185 of the Act (Assessment: general)10.7101067910
SUP 11.3.15ADRP
10A notice given to the FSA by a person who is reducing or ceasing to have control over a UK domestic firm, as set out in SUP 11.4.2Ror SUP 11.4.2A R must:(1) be in writing; and(2) provide details of the extent of control (if any) which the controller will have following the change in control.
SUP 11.3.17GRP
6Notifications to the FSA by proposed controllers and controllers under Part XII of the Act may be made on a joint basis outlined in SUP 11.5.8 G to SUP 11.5.10 G.10
SUP 6.3.8GRP
(1) Where a firm is submitting an application for variation of Part IV permission which would lead to a change in the controlled functions of its approved persons, it should, at the same time and as appropriate:(a) make an application to the FSA for an internal transfer of an approved person, Form E (Internal transfer), or make an application to the FSA for an individual to perform additional controlled functions, the relevant11 Form A (Application); seeSUP 10.13.3 D to SUP 10.13.5
SUP 6.3.13GRP
The application for variation of Part IV permission will need to provide information about the classes of contract of insurance for which variation of Part IV permission is requested and also those classes qualifying to be carried on, on an ancillary or supplementary basis. For example, an insurer applying to vary its permission to include class 10 (motor vehicle liability, other than carrier's liability) must satisfy the FSA that it will meet, and continue to meet, threshold
SUP 6.3.15DRP
(1) If a firm wishes to apply for a variation of Part IV permission, it must complete and submit to the FSA the form in SUP 6 Annex 5 (Variation of permission application form).7(2) A firm's application for variation of Part IV permission must be given or addressed, and delivered in the way set out in SUP 15.7.4 R to SUP 15.7.6 G (Form and method of notification).(3) Until the application has been determined, a firm which submits an application for variation of Part IV permission
SUP 6.3.16GRP
(1) Section 51(2) of the Act (Applications under this Part) requires that the application for variation of Part IV permission must contain a statement:(a) of the desired variation; and(b) of the regulated activity or regulated activities which the firm proposes to carry on if its permission is varied.(2) The full form and content of the application for variation of Part IV permission is a matter for direction by the FSA, who will determine the additional information and documentation
SUP 6.3.17GRP
(1) [deleted]7(2) A firm is advised to discuss its application with its usual supervisory contact at the FSA before submission, particularly if it is seeking a variation of permission within a short timescale. A firm is also advised to include as much detail as possible (including any additional information identified by its supervisors at this stage) with its application.7
SUP 6.3.18GRP
The FSA, as soon as possible after receipt of an application, will advise the firm of any additional information which is required as part of its application (see SUP 6.3.23 G to SUP 6.3.27 G). The amount of information the FSA will require will vary depending on the scale of the variation in the context of the firm as a whole, and the nature, risk profile and complexity of the variation.
SUP 6.3.20GRP
In certain cases, FSA may consider that granting an application for variation of Part IV permission which includes adding further regulated activities or changing a requirement or limitation would cause a significant change in the firm's business or risk profile. In these circumstances, the FSA may require the firm to complete appropriate parts of the full application pack (see the FSA website "How do I get authorised": http://www.fsa.gov.uk/Pages/Doing/how/index.shtml10), as
SUP 6.3.21GRP
A firm that wishes to make a significant change to its business, or is unsure whether the changes it is proposing would be considered to be significant, should contact its usual supervisory contact at the FSA. The FSA will discuss with the firm whether it will be required to submit parts of the application pack and whether any reports from third parties may be required.1
SUP 6.3.23GRP
(1) The FSA may ask for any information it reasonably requires before determining the application. The information required will be determined on a case by case basis, taking into account the FSA's existing knowledge of the firm and the variation requested. The FSA will advise the firm of the information required at an early stage in the application process.(2) The nature of the information and documents requested will be related to the risks posed to the FSA's regulatory objectives
SUP 6.3.25GRP
Information which may be required. See SUP 6.3.24 GType of businessInformation which may be requiredAll 1. Details of how the firm plans to comply with the FSA's regulatory requirements relating to any additional regulated activities it is seeking to carry on.2. Descriptions of the firm's key controls, senior management arrangements and audit and proposed compliance arrangements in respect of any new regulated activity (see SYSC). 3. Organisation charts and details of individuals
SUP 6.3.26GRP
Specific information may also be required by the FSA on the activities the firm intends to cease, or cease carrying on in relation to any specified investments (see SUP 6 Annex 4).
SUP 6.3.27GRP
When determining whether to grant an application, the FSA may request further information, including reports from third parties such as the firm's auditors, and may require meetings with, and visits to, the firm. The FSA may also require a statement from members of the firm's governing body confirming, to the best of their knowledge, the completeness and accuracy of the information supplied. The FSA may also discuss the application with other regulators , exchanges.
SUP 6.3.28GRP
(1) The FSA is required by section 41(2) of the Act to ensure that a firm applying to vary its Part IV permission satisfies and will continue to satisfy the threshold conditions in relation to all the regulated activities for which the firm has or will have Part IV permission after the variation. However, the FSA's duty under the Act does not prevent it, having regard to that duty, from taking such steps as it considers necessary in relation to a particular firm, to secure its
SUP 6.3.29GRP
In determining whether the firm satisfies and continues to satisfy the threshold conditions, the FSA will consider whether the firm is ready, willing and organised to comply with the regulatory requirements it will be subject to if the requested variation of Part IV permission is granted.
SUP 6.3.31GRP
In considering whether to grant a firm's application to vary its Part IV permission, the FSA will also have regard, under section 49(1) of the Act (Persons connected with an applicant), to any person6 appearing to be, or likely to be, in a relationship with the firm which is relevant. The Financial Groups Directive Regulations make special consultation provisions where the FSA is exercising its functions under Part IV of the Act (Permission to carry on regulated activities) for
SUP 6.3.34GRP
If limitations or requirements are varied or imposed by the FSA which were not included in the firm's application for variation of Part IV permission, the FSA will be required to issue the firm with a warning notice and decision notice (see SUP 6.3.39 G).
SUP 6.3.35GRP
Under section 52(1) of the Act (Determination of applications), the FSA has six months to consider a completed application from the date of receipt.
SUP 6.3.36GRP
If the FSA receives an application which is incomplete (that is, if information or a document required as part of the application is not provided), section 52(2) of the Act requires the FSA to determine that incomplete application within 12 months of the initial receipt of the application.
SUP 6.3.38GRP
At any time after receiving an application and before determining it, the FSA may require the applicant to provide additional information or documents. The circumstances of each application will dictate what additional information or procedures are appropriate.
SUP 6.3.39GRP
A decision to grant an application for variation of Part IV permission, as applied for, will be taken by appropriately experienced FSA staff. However, if the FSA staff dealing with the application recommend that a firm's application for variation of Part IV permission be either refused or granted subject to limitations or requirements or a narrower description of regulated activities than applied for, the decision will be taken by either the RDC or executive procedures.
SUP 6.3.41GRP
If the variation of Part IV permission is given, the FSA will expect a firm to commence a new regulated activity in accordance with its business plan (revised as necessary to take account of changes during the application process) or scheme of operations for an insurer. Firms should take this into consideration when determining when to make an application to the FSA.
SUP 18.3.1GRP
Under section 115 of the Act, the FSA has the power to give a certificate confirming that a firm possesses any required minimum margin, to facilitate an insurance business transfer to the firm under overseas legislation from a firm authorised in another EEA State or from a Swiss general insurance company. This section provides guidance on how the FSA would exercise this power and on related matters.
SUP 18.3.2GRP
Under cooperation agreements between EEA regulators, if it has serious concerns about the proposed transferee, the FSA should inform the regulatory body of the transferor within 3 months of the original request from that regulatory body. The FSA is not obliged to reply, but if it does not, its opinion is taken to be favorable. Although the protocol does not apply to Switzerland, the FSA is required to cooperate with the Swiss regulatory body and would apply similar principles
SUP 18.3.3GRP
The information that the regulatory body of the transferor is required to supply will normally be sufficient for the FSA to determine whether the transfer is likely to have a material effect on the transferee.
SUP 18.3.4GRP
If the effect of the transfer is not likely to be material and the FSA does not already have serious concerns about the transferee, the FSA can reply favorably.
SUP 18.3.5GRP
If the effect of the transfer may be material, the FSA will need to consider whether to request a scheme of operations or other information from the proposed transferee to assist in determining whether the likely effect of the transfer is such that the FSA should have serious concerns.
SUP 18.3.6GRP
If the effect of the transfer may have a material adverse effect on the transferee or the security of policyholders, the FSA will consider whether it is appropriate to exercise its powers under the Act to achieve its regulatory objectives.
SUP 14.2.3GRP
Where the change arises from circumstances within the control of the incoming EEA firm, the requirements in regulation 4(4) are that:(1) the incoming EEA firm has given notice to the FSA (see SUP 14.4.1 G) and to its Home State regulator stating the details of the proposed change;(2) the FSA has received a notice stating those details; and(3) either:(a) the FSA has informed the firm that it may make the change; or(b) the period of one month beginning with the date on which the
SUP 14.2.4GRP
Changes to the requisite details may lead to changes to the applicable provisions to which the incoming EEA firm is subject. The FSA will, as soon as practicable after receiving a notice in SUP 14.2.3 G or SUP 14.2.8 G, inform the incoming EEA firm of any consequential changes in the applicable provisions (regulation 4(6)).1
SUP 14.2.8GRP
If the change arises from circumstances beyond the incoming EEA firm's control, the firm is required by regulation 4(5) (see SUP 14.2.2 G) or regulation 6(5) (see SUP 14.2.5 G (2)) to give a notice to the FSA (see SUP 14.4.1 G) and to its Home State regulator stating the details of the change as soon as reasonably practicable.
SUP 14.2.9GRP
The FSA believes that for a change to arise from circumstances beyond the control of an incoming EEA firm, the circumstances should be outside the control of the firm as a whole and not just its UK branch. For example, the FSA considers that this provision would be unlikely to apply to circumstances in which lack of planning at the incoming EEA firm's head office resulted in a problem arising in a UKbranch which was outside its control. In practice, therefore, use of this provision
SUP 14.2.11GRP
6The relevant requirements in regulation 4A(3) are that:(1) the EEA MiFID investment firm has given notice to its Home State regulator stating the details of the proposed change; and(2) the period of one month beginning with the date on which the EEA MiFID investment firm gave the notice mentioned in (1) has elapsed.
SUP 14.2.12GRP
6Changes to the requisite details may lead to changes to the applicable provisions to which the EEA MiFID investment firm is subject. The FSA will, as soon as practicable after receiving a notice in SUP 14.2.11 G inform the EEA MiFID investment firm of any consequential changes in the applicable provisions.
SUP 3.8.1GRP
The auditor of a firm has various rights and duties to obtain information from the firm and both to enable and to require him to pass information to the FSA in specified circumstances. This section imposes or gives guidance on those rights and duties.
SUP 3.8.2RRP
An auditor of a firm must cooperate with the FSA in the discharge of its functions under the Act.
SUP 3.8.3GRP
The FSA may ask the auditor to attend meetings and to supply it with information about the firm. In complying with SUP 3.8.2 R, the auditor should attend such meetings as the FSA requests and supply it with any information the FSA may reasonably request about the firm to enable the FSA to discharge its functions under the Act.
SUP 3.8.4RRP
An auditor of a firm must give any skilled person appointed by the firm all assistance that person reasonably requires (see SUP 5 and section 166(5) of the Act (Reports by skilled persons)).
SUP 3.8.7GRP
SUP 3.5.4 G explains that an auditor whose appointment does not breach the ethical guidance in current issue from the auditor's recognised supervisory body will be regarded as independent by the FSA.
SUP 3.8.9GRP
Within the legal constraints that apply, the FSA may pass on to an auditor any information which it considers relevant to his function. An auditor is bound by the confidentiality provisions set out in Part XXIII of the Act (Public record, disclosure of information and cooperation) in respect of confidential information he receives from the FSA. An auditor may not pass on such confidential information without lawful authority, for example if an exception applies under the Financial
SUP 3.8.10GRP
Auditors are subject to regulations made by the Treasury under sections 342(5) and 343(5) of the Act (Information given by auditor or actuary to the FSA). These regulations oblige auditors to report certain matters to the FSA. Sections 342(3) and 343(3) of the Act provide that an auditor does not contravene any duty by giving information or expressing an opinion to the FSA, if he is acting in good faith and he reasonably believes that the information or opinion is relevant to
SUP 3.8.11RRP
An auditor must notify the FSA without delay if he:(1) is removed from office by a firm; or(2) resigns before his term of office expires; or(3) is not re-appointed by a firm.
SUP 3.8.12RRP
If an auditor ceases to be, or is formally notified that he will cease to be, the auditor of a firm, he must notify the FSA without delay:(1) of any matter connected with his so ceasing which he thinks ought to be drawn to the FSA's attention; or (2) that there is no such matter.
SUP 11.8.1RRP
A firm must notify the FSA immediately it becomes aware of any of the following matters in respect of one or more of its controllers: (1) if a controller, or any entity subject to his control, is or has been the subject of any legal action or investigation which might put into question the integrity of the controller; (2) if there is a significant deterioration in the financial position of a controller; (3) if a corporate controller undergoes a substantial change or series of
SUP 11.8.2GRP
In assessing whether a matter should be notified to the FSA under SUP 11.8.1 R (1), SUP 11.8.1 R (2) or SUP 11.8.1 R (3), a firm should have regard to the guidance on satisfying threshold condition 5 (Suitability) contained in COND 2.5.
SUP 11.8.3GRP
In respect of SUP 11.8.1 R (3), the FSA considers that, in particular, the removal or replacement of a majority of the members of a governing body (in a single event or a series of connected events) is a substantial change and should be notified.
SUP 11.8.4GRP
If a matter has already been notified to the FSA (for example, as part of the firm's application for a Part IV permission), the firm need only inform the FSA of any significant developments.
SUP 11.8.5GRP
The level of a firm's awareness of its controller's circumstances will depend on its relationship with that controller. The FSA does not expect firms to implement systems or procedures so as to be certain of any changes in its controllers' circumstances. However, the FSA does expect firms to notify it of such matters if the firm becomes aware of them, and it expects firms to make enquiries of its controllers if it becomes aware that one of the events in SUP 11.8.1 R may occur
SUP 11.8.6GRP
The FSA may ask the firm for additional information following a notification under SUP 11.8.1 R in order to satisfy itself that the controller continues to be suitable (see SUP 2: Information gathering by the FSA on its own initiative).
SUP 13.6.5GRP
Where the change arises from circumstances within the control of the UK firm, the requirements in regulation 11(2) are that:(1) the UK firm has given notice to the FSA and to the Host State regulator stating the details of the proposed change;(2) the FSA has given the Host State regulator a notice informing it of the details of the change; and(3) either the Host State regulator has informed the UK firm that it may make the change, or the period of one month7 beginning with the
SUP 13.6.5BGRP
7The requirements of regulation 11A(2) are that:(1) the UK firm has given a notice to the FSA stating the details of the proposed change; and(2) the period of one month beginning with the day on which the UK firm gave the notice has elapsed.
SUP 13.6.10GRP
(1) If the change arises from circumstances beyond the UK firm's control, the UK firm:(a) is required by regulation 11(3) or regulation 13(3) to give a notice to the FSA and to the Host State regulator stating the details of the change as soon as reasonably practicable;(b) may, if it is passporting under the Insurance Directives, make a change to its relevant UK details7 under regulation 15(1) if it has, as soon as practicable (whether before or after the change), given notice
SUP 13.6.11GRP
When the FSA receives a notice from a UK firm other than a MiFID investment firm7(see SUP 13.6.5 G (1) and SUP 13.6.7 G (1)) or a pure reinsurer (see SUP 13.6.9B R) 8it is required by regulations 11(4) and 13(4) to either refuse, or consent to the change within a period of one month7 from the day on which it received the notice.7
SUP 13.6.12GRP
If the FSA consents to the change, then under regulations 11(5) and 13(5) it will:(1) give a notice to the Host State regulator informing it of the details of the change; and(2) inform the UK firm that it has given the notice, stating the date on which it did so.
SUP 13.6.15GRP
If the FSA refuses to consent to a change, then under regulations 11(6) and 13(6):(1) the FSA will give notice of the refusal to the UK firm, stating its reasons and giving an indication of the UK firm's right to refer the matter to the Tribunal and the procedures on such a reference; and(2) the UK firm may refer the matter to the Tribunal.62
SUP 13.6.16GRP
7UK firms may wish to use the standard form available from the Passport Notifications Unit (see SUP 13.12 (Sources of further information)) to give the notices to the FSA described in SUP 13.6.5 G (1), SUP 13.6.5B G, SUP 13.6.7 G (1), SUP 13.6.8 G and SUP 13.6.10 G (1).
REC 4.2B.1GRP
1Under section 312C of the Act, if a UK RIE wishes to make arrangements in an EEA State other than the UK to facilitate access to or use of a regulated market or multilateral trading facility operated by it, it must give the FSAwritten notice of its intention to do so. The notice must:(1) describe the arrangements; and(2) identify the EEA State in which the UK RIE intends to make them.
REC 4.2B.2GRP
The FSA must, within one month of receiving the UK RIE's notice, send a copy of it to the Host State regulator.
REC 4.2B.3GRP
The UK RIE may not make the arrangements until the FSA has sent a copy of the notice to the Host State regulator.
REC 4.2B.4GRP
The requirements that a UK RIE must give the FSA written notice and the UK RIE may not make the arrangements until the FSA has sent a copy of it to the Host State regulator do not apply to arrangements made by a UK RIE on or before 31 October 2007.
SUP 11.7.2GRP
Section 191A deals with the procedure the FSA must follow where there has been a failure to notify or a default.44
SUP 11.7.3GRP
The FSA may serve restriction notices in certain circumstances in accordance with section 191B of the Act4.4
SUP 11.7.4GRP
The FSA may apply to the court for an order for the sale of shares in accordance with section 191C of the Act4.4
SUP 11.7.13GRP
Before making a determination under section 185 or4 giving a4warning notice under section 191A4, the FSAmust comply with the 4 requirements as to consultation with EC41competent authorities set out in section 188 of the Act .44144
SUP 18.1.1GRP
1This chapter provides guidance in relation to business transfers.(1) SUP 18.2 applies to any firm or to anymember of Lloyd's proposing to transfer the whole or part of its business by an insurance business transfer scheme or to accept such a transfer. SUP 18.2.31 G to SUP 18.2.41 G also applyto the independent expert making the scheme report.(2) SUP 18.3 applies to any firm proposing to accept certain transfers of insurance business taking place outside the United Kingdom.(3)
SUP 18.1.5GRP
In the opinion of the FSA, a novation or a number of novations would constitutean insurance business transfer only if their number or value were such that the novation was to be regarded as a transfer of part of the business. A novation is an agreement between the policyholder and two insurers whereby a contract with one insurer is replaced by a contract with the other. In the opinion of the FSA, where an insurer agrees to meet the liabilities (this may include undertaking the
SUP 13.3.2GRP
A UK firm other than a UK pure reinsurer9cannot establish a branch in another EEA State for the first time under an EEA right unless the conditions in paragraphs 19(2), (4) and (5) of Part III of Schedule 3 to the Act are satisfied. It is an offence for a UK firm which is not an authorised person to contravene this prohibition (paragraph 21 of Part III of Schedule 3 to the Act). These conditions are that:(1) the UKfirm has given the FSA, in accordance with the FSArules (see SUP
SUP 13.3.2BGRP
4An appointed representative appointed by a firm to carry on insurance mediation activity on its behalf may establish a branch in another EEA State under the Insurance Mediation Directive. In this case, the notice of intention8 in SUP 13.3.2 G (1) should be given to the FSA by the firm on behalf of the appointed representative.58
SUP 13.3.5GRP
(1) 8If the UK firm'sEEA right derives from the Banking Consolidation Directive, MiFID8 or the UCITS Directive, the FSA will give the Host State regulator a consent notice within three months unless it has reason to doubt the adequacy of a UK firm's resources or its administrative structure.8 The Host State regulator then has a further two months to notify the applicable provisions (if any) and prepare for the supervision, as appropriate, of the UK firm, or in the case of a MiFID
SUP 13.3.6GRP
(1) If the FSA gives a consent notice, it will inform the UK firm in writing that it has done so.(2) The consent notice will contain, among other matters, the requisite details or, 8if the firm is passporting under the Insurance Directives, the relevant EEA details8 (see SUP 13 Annex 18) provided by the UK firm in its notice of intention8 (see SUP 13.5 (Notices of intention)).8888
SUP 13.3.7GRP
(1) If the FSA proposes to refuse to give a consent notice, then paragraph 19(8) of Part III of Schedule 3 to the Act requires the FSA to give the UK firm a warning notice.(2) If the FSA decides to refuse to give a consent notice, then paragraph 19(12) of Part III of Schedule 3 to the Act requires the FSA to give the UK firm a decision notice within three months8 of the date on which it received the UK firm'snotice of intention8(two months8 in the case of a UK firm which is a
PR 5.3.1UKRP
Sections 87H and 87I of the Act provide:Prospectus approved in another EEA State87H(1)A prospectus approved by the competent authority of an EEA State other than the United Kingdom is not an approved prospectus for the purposes of section 85 unless that authority has provided the competent authority with –(a)a certificate of approval;(b)a copy of the prospectus as approved; and(c)if requested by the [FSA], a translation of the summary of the prospectus.(2)A document is not a certificate
PR 5.3.2RRP
(1) This rule applies to a request by a person to the FSA to supply information referred to in section 87I of the Act to the competent authority of a relevant Host State.(2) The request must be in writing and must include:(a) the relevant prospectus as approved (if it has already been approved); and(b) a translation of the summary if required by the competent authority of a relevant host State.
PR 5.3.3GRP
The FSA will inform the person who made the request as soon as practicable after it has supplied the information to the other competent authority.
PR 5.3.4GRP
If the FSA receives information referred to in section 87H from another competent authority it will as soon as practicable give notice on the FSA website that it has received the information.11
SUP 11.2.1GRP
Part XII of the Act (Notices of acquisitions of control 3 over UK3 authorised persons) places an obligation on the controllers and proposed controllers of those UK domestic firms not listed in SUP 11.1.1 R (1) to SUP 11.1.1 R (6) to notify the FSA of changes in control, including acquiring, increasing or reducing control or ceasing to have control over a firm.3 Furthermore, those persons are required to obtain the FSA's approval before becoming a controller or increasing their
SUP 11.2.2GRP
The rules in SUP 11.4 to SUP 11.6 are aimed at ensuring that the FSA receives information it needs to assist the FSA with its responsibility to monitor and, in some cases, give prior approval to firms' controllers.213
SUP 11.2.3GRP
As the approval of the FSA is not required under the Act for a new controller of an overseas firm, the notification rules on such firms are less prescriptive than they are for UK domestic firms. Nevertheless, the FSA still needs to monitor such an overseas firm's continuing satisfaction of the threshold conditions, which normally includes consideration of a firm's connection with any person, including its controllers and parent undertakings (see COND). The FSA therefore needs
SUP 11.2.4GRP
As part of the FSA's function of monitoring a firm's continuing satisfaction of the threshold conditions, the FSA needs to consider the impact of any significant change in the circumstances of one or more of its controllers, for example, in their financial standing and, in respect of corporate controllers, in their governing bodies. Consequently, the FSA needs to know if there are any such changes. SUP 11.8 therefore requires a firm to tell the FSA if it becomes aware of particular
SUP 11.2.5GRP
Similarly, the FSA needs to monitor a firm's continuing satisfaction of threshold condition 3 (Close links) (see COND 2.32), which requires that a firm's close links are not likely to prevent the FSA's effective supervision of that firm. Accordingly the FSA needs to be notified of any changes in a firm's close links. This requirement is contained in SUP 11.9.2
SUP 14.3.3GRP
The relevant requirements in regulation 5(3) are that:(1) the incoming EEA firm has given a notice to the FSA (see SUP 14.4.1 G) and to its Home State regulator stating the details of the proposed change;(2) if the change arises from circumstances beyond the incoming EEA firm's control, that firm has, as soon as practicable, given to the FSA and to its Home State regulator the notice in (1).1
SUP 11.4.2RRP
A UK domestic firm,4 other than a non-directive firm, 4must notify the FSA of any of the following events concerning the firm:14(1) a person acquiring control;4(2) an existing controller increasing control4; 4(3) an existing controller reducing control4; 4(4) an existing controller ceasing to have control4.44
SUP 11.4.2ARRP
1A non-directive firm4must notify the FSA of any of the following events concerning the firm:4(1) a person becoming controller of the firm; or44(2) an existing controller ceasing to be controller of the firm.444
SUP 11.4.4RRP
An overseas firm must notify the FSA if a person becomes a controller of the firm, increases or reduces control over the firm or ceases to have control over the firm44
SUP 11.4.8GRP
Principle 11 requires firms to be open and cooperative with the FSA. A firm should discuss with the FSA, at the earliest opportunity, any prospective changes of which it is aware, in a controller's4or proposed controller's4shareholdings or voting power (if the change is material). These discussions may take place before the formal notification requirement in SUP 11.4.2 R, R or SUP 11.4.4 R arises. (See also SUP 11.3.2 G). As a minimum, the FSA considers that such discussions
SUP 11.4.11GRP
The steps that the FSA expects a firm to take to comply with SUP 11.4.10 R include, if applicable:(1) monitoring its register of shareholders (or equivalent);(2) monitoring notifications to the firm in accordance with Part 223 of the Companies Act 20063;33(3) monitoring public announcements made under the relevant disclosure provisions of the Takeover Code or other rules made by the Takeover Panel;2(4) monitoring the entitlement of delegates, or persons with voting rights in respect
SUP 3.3.1GRP
This section requires a firm to appoint an auditor and supply the FSA with information about its auditor. The FSA requires such information to ensure that the firm has an auditor.
SUP 3.3.2RRP
A firm to which this section applies (see SUP 3.1) must:(1) appoint an auditor;(2) notify the FSA, without delay, on the form in SUP 15 Ann 2R (Standing data form), in accordance with the instructions on the form, when it is aware that a vacancy in the office of auditor will arise or has arisen, giving the reason for the vacancy;2(3) appoint an auditor to fill any vacancy in the office of auditor which has arisen; (4) ensure that the replacement auditor can take up office at the
SUP 3.3.7RRP
(1) Paragraph (2) applies to a firm which is not under an obligation to appoint an auditor imposed by an enactment other than the Act.(2) If a firm fails to appoint an auditor within 28 days of a vacancy arising, the FSA may appoint an auditor for it on the following terms:(a) the auditor to be remunerated by the firm on the basis agreed between the auditor and firm or, in the absence of agreement, on a reasonable basis; and(b) the auditor to hold office until he resigns or the
SUP 3.3.9GRP
SUP 3.3.7 R allows but does not require the FSA to appoint an auditor if the firm has failed to do so within the 28 day period. When it considers whether to use this power, the FSA will take into account the likely delay until the firm can make an appointment and the urgency of any pending duties of the appointed auditor.
SUP 3.3.10RRP
A firm must comply with and is bound by the terms on which an auditor has been appointed by the FSA, whether under SUP 3.3.7 R, the Building Societies Act 1986 or the Friendly Societies Act 1992.