Related provisions for BIPRU 8.4.5
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Under section 138A(4) of the Act, the appropriate regulator7 may not give a waiver unless it is satisfied that:77(1) compliance by the firm with the rules, or with the rules as unmodified, would be unduly burdensome, or would not achieve the purpose for which the rules were made; and(2) the waiver would not adversely affect the advancement of, in the case of the PRA, any of its objectives and, in the case of the FCA, any of its operational objectives.77
7The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
Under section 138A(1) of the Act the appropriate regulator7 may give a waiver with the consent of a firm. This power may be used by the appropriate regulator7 in exceptional circumstances where the appropriate regulator7 considers that a waiver should apply to a number of firms (for example, where a rule unmodified may not meet the particular circumstances of a particular category of firm). In such cases the appropriate regulator7 will inform the firms concerned that the waiver
For an application for a waiver of the presumption of contravention of a binding rule, which is actionable under section 138D7 of the Act, the appropriate regulator7 would normally wish to be satisfied that the evidential rule is itself unduly burdensome or does not achieve the purpose of the rule.277
Under section 294 of the Act (Modification or waiver of rules), the FCA1 may, on the application or with the consent of a recognised body (including an ROIE),1 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.11
Under section 294(4) of the Act, before the FCA1 may give a waiver of notification rules, it must be satisfied that:1(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 FCA1 may make under section 294(2) of the Act. Each application should set out at least:1(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 FCA1 under section 294 of the Act will be made in writing, stating: 1(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.
The FCA1 will periodically review any waiver it has given. The FCA1 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.11
The appropriate regulator3 is required by sections 138B(1) and (2)3 of the Act to publish a waiver unless it is satisfied that it is inappropriate or unnecessary to do so. If the appropriate regulator3 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.333
3The FCA must consult the PRA before publishing or deciding not to publish a waiver which relates to:(1) a PRA-authorised person; or(2) an authorised person who has as a member of its immediate group a PRA-authorised person;unless the waiver relates to rules made by the FCA under sections 247 or 248 of the Act.
When considering whether it is satisfied under section 138B(2)3, the appropriate regulator3 is required by section 138B(3)3 of the Act:333(1) to take into account whether the waiver relates to a rule contravention of which is actionable under section 138D3 of the Act (Actions for damages); Schedule 5 identifies such rules;3(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
Waivers can affect the legal rights of third parties, including consumers. In the appropriate regulator's3 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 138D3 of the Act (see SUP 8.6.2 G (1)) will tend to argue in favour of publication.33
In considering whether commercial interests would be prejudiced to an unreasonable degree (see SUP 8.6.2 G (2)), the appropriate regulator3 will weigh the prejudice to firms' commercial interests against the interests of consumers, markets and other third parties in disclosure. In doing so the appropriate regulator3 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
Energy market participants should bear in mind that3sections 138A and 138B of the Act requires that in order to give a waiver of particular rules, the FCA4 must be satisfied that:4344(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 adversely affect the advancement of any of the FCA's operational objectives.44
Sections 250 and 261L11 of the Act and regulation 7 of the OEIC Regulations allow the FCA12 to waive the application of certain rules in COLL to:111210(1) a person, as respects a particular AUT, ACS11 or ICVC, on the application or with the consent of that person; and(2) an AUT, ACS11 or ICVC on the application or with the consent of the manager and trustee (in the case of an AUT), the authorised contractual scheme manager and depositary (in the case of an ACS)11 or the ICVC and
The appropriate regulator1 may revoke a waiver at any time. In deciding whether to revoke a waiver, the appropriate regulator1 will consider whether the conditions in section 138A(4)1 of the Act are no longer satisfied (see SUP 8.3.1 G), and whether the waiver is otherwise no longer appropriate.1111
1If the appropriate regulator2, in the course of carrying on supplementary supervision of a financial conglomerate, is considering exercising its powers under section 138A2 of the Act (Modification or waiver of rules), regulation 4 of the Financial Groups Directive Regulations contains special provisions. The appropriate regulator2 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.
If the appropriate regulator1 gives a firm a waiver, then the relevant rule no longer applies to the firm. But:1(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 appropriate regulator1 enforcement action and (if applicable) a right of action under section 138D1 of the Act (Actions for damages); and11(2) if a waiver is given subject to a condition, it will not apply to activities conducted in breach
By waiving or modifying the requirements of a rule or imposing an additional requirement or limitation, the FCA2 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 FCA2 in meeting its2statutory objectives under the Act.2221