Related provisions for DEPP 2.5.4

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DEPP 5.1.1GRP
(1) 1A person subject to enforcement action may agree to a financial penalty or other outcome rather than contest formal action by the FCA.44(2) The fact that he does so will not usually obviate the need for a statutory notice recording the FCA's4 decision to take that action. Where, however, the person subject to enforcement action agrees not to contest the content of a proposed statutory notice, the decision to give that statutory notice will be taken by senior FCA4 staff.44(3)
DEPP 5.1.3GRP
Settlement discussions may take place at any time during the enforcement process if both parties agree. This might be before the giving of a warning notice, before a decision notice, or even after referral of the matter to the Tribunal. But the FCA4 would not normally agree to detailed settlement discussions until it has a sufficient understanding of the nature and gravity of the suspected misconduct or issue to make a reasonable assessment of the appropriate outcome. Settlement
DEPP 5.1.6GRP
The terms of any proposed settlement:(1) will be put in writing and be agreed by FCA4 staff and the person concerned;4(2) may refer to a draft of the proposed statutory notices setting out the facts of the matter and the FCA's4 conclusions; 4(3) may, depending upon the stage in the enforcement process at which agreement is reached, include an agreement by the person concerned to: (a) waive and not exercise any rights under sections 387 (Warning notices) and 394 (Access to Authority
DEPP 5.1.8GRP
(1) Where the settlement decision makers decline to issue a statutory notice despite the proposed settlement, they may invite FCA4 staff and the person concerned to enter into further discussions to try to achieve an outcome the settlement decision makers would be prepared to endorse.4(2) However, if the proposed action by the FCA4 has been submitted to the RDC for consideration, it will be for the RDC to decide:4(a) whether to extend the period for representations in response
DEPP 5.1.10GRP
(1) DEPP 2.4 sets out the FCA's4 approach to giving third parties copies of statutory notices pursuant to section 393 (Third party rights) of the Act.4(2) The decision to give a warning notice or a decision notice to a third party is a statutory notice associated decision.(3) In cases therefore where the decision to give a warning notice or decision notice is taken by settlement decision makers, those decision makers will decide whether a copy of the notice should be given to
DEPP 2.5.2GRP
The decision to give a warning notice and a decision notice in a particular matter will often not be taken by the same decision maker. Certain types of action require that the warning notice decision be taken by FCA6 staff under executive procedures and the decision notice decision be taken by the RDC. Similarly, in enforcement cases the RDC might take the decision to give a warning notice,4 but the decision to give a decision notice could be taken by the settlement decision makers
DEPP 2.5.5GRP
If representations are made in response to a warning notice proposing the action set out at DEPP 2.5.3G (1), DEPP 2.5.3G (4), DEPP 2.5.3G(4A), DEPP 2.5.3G(4B)9 or DEPP 2.5.3G (5), then the RDC will take the decision to give a decision notice.
DEPP 2.5.5AGRP
6If representations are made in response to a warning notice proposing the action set out at DEPP 2.5.3G (3B), FCA staff under executive procedures will take the decision to give a decision notice.
DEPP 2.5.6GRP
If representations are made in response to a warning notice proposing the action set out atDEPP 2.5.3G (2), DEPP 2.5.3G (3), DEPP 2.5.3G (3A),6 or DEPP 2.5.3G (6), then the RDC will take the decision to give a decision notice if the action involves a fundamental variation or requirement6 (see DEPP 2.5.8 G). Otherwise, the decision to give the decision notice will be taken by FCA6 staff under executive procedures.6666
DEPP 2.5.11AGRP
6Under section 88(4)(aa) of the Act, if the FCA proposes to impose limitations or other restrictions on the services to which a sponsor's approval relates, it must give him a warning notice. If, after considering any representations made in response to the warning notice, the FCA decides to impose limitations or other restrictions on the services to which a sponsor's approval relates, it must give him a decision notice. Where the sponsor has requested or otherwise agrees to the
DEPP 2.5.11BGRP
6If the FCA is proposing or deciding to refuse a sponsor's application for the withdrawal or variation of a limitation or other restriction on the services to which a sponsor's approval relates under section 88(8)(d) of the Act, the decision maker will be FCA staff under executive procedures where FCA staff decided to impose the limitation or other restriction. Otherwise, the RDC will take the decision to give the warning notice and decision notice.
DEPP 2.5.11CGRP
6Under section 89P(5)(b) of the Act, if the FCA proposes to impose limitations or other restrictions on the dissemination of regulated information to which a primary information provider's approval relates, it must give him a warning notice. If, after considering any representations made in response to the warning notice, the FCA decides to impose limitations or other restrictions on the dissemination of regulated information to which a primary information provider's approval
DEPP 2.5.11DGRP
6Under section 89P(9)(d) of the Act, if the FCA is proposing or deciding to refuse a primary information provider's application for the withdrawal or variation of a limitation or other restriction on the dissemination of regulated information to which a primary information provider's approval relates, the decision maker will be FCA staff under executive procedures where FCA staff decided to impose the limitation or other restriction. Otherwise, the RDC will take the decision to
DEPP 2.5.13GRP
The decisions referred to in DEPP 2.5.12 G are:(1) the decision to give a supervisory notice pursuant to section 259(3), (8) or 9(b) (directions on authorised unit trust schemes); section 268(3), 7(a) or 9(a) (directions in respect of recognised overseas schemes); or section 282(3), (6) or (7)(b) (directions in respect of relevant recognised schemes) of the Act;(1A) the decision to give a supervisory notice pursuant to section 261Z1(3), (8) or (9)(b) (Procedure on giving directions
DEPP 2.5.15GRP
A decision to give a warning notice or decision notice refusing an application for an authorisation order declaring a scheme7 to be an AUT, ACS7 or ICVC2 will be taken by the RDC only if the application is by an authorised fund manager who is not the operator of an existing AUT, ACS7 or ICVC. Otherwise, the decision to give the warning notice or decision notice will be taken by FCA6 staff under executive procedures.2762
DEPP 2.5.18GRP
Some of the distinguishing features of notices given under enactments other than the Act are as follows: (1) [deleted]66(2) [deleted]66(3) Friendly Societies Act 1992, section 58A1: The warning notice and decision notice must set out the terms of the direction which the FCA6 proposes or has decided to give and any specification of when the friendly society is to comply with it. A decision notice given under section 58A(3) must give an indication of the society's right, given by
DEPP 3.2.3GRP
The composition and size of panels of the RDC may vary depending on the nature of the particular matter under consideration. In cases in which representations are made, it will be usual for the panel that is to consider the representations and decide whether to give a decision notice to include additional members of the RDC who have not previously considered the matter.
DEPP 3.2.26GRP
FCA1 staff responsible for recommending action to the RDC will continue to assess the appropriateness of the proposed action in the light of new information or representations they receive and any material change in the facts or circumstances relating to a particular matter. It may be therefore that they decide to give a notice of discontinuance to a person to whom a warning notice or decision notice has been given. The decision to give a notice of discontinuance does not require
EG 6.2.1RP
3For supervisory notices (as defined in section 395(13)) which have taken effect, decision notices and final notices, section 391 of the Act requires the FCA to publish, in such manner as it considers appropriate, such information about the matter to which the notice relates as it considers appropriate. Section 391 prevents the FCA from publishing warning notices, but the FCA may publish such information about the matter to which a warning notice falling within section 391(1ZB)
EG 6.2.2RP
3The FCA’s approach to publishing information about warning notices is set out in paragraphs 6.2.3 to 6.2.11 below. This should be contrasted with the FCA’s approach to the publication of decision notices and final notices as set out in paragraphs 6.2.12 to 6.2.15 below. In particular, the considerations that the FCA will take into account when deciding what information to publish about a warning notice, including whether publication would be unfair, recognise that the FCA has
EG 6.2.10RP
3Any warning notice statement the FCA publishes will make clear that: (a) the warning notice is not the final decision of the FCA;(b) the recipient has the right to make representations to the RDC which, in the light of those representations, will decide on the appropriate action and whether to issue a decision notice; and (c) if a decision notice is issued, the subject of the notice will have the right to refer the matter to the Tribunal which will reach an independent decision
RCB 6.2.1GRP
When making a decision on an application for registration under the RCB Regulations, or in relation to material changes to the contractual terms of the regulated covered bond, or in relation to a change of owner, or when seeking to use direction, revocation or penalty powers, the RCB Regulations require the FCA to give the subject of the intended action a warning notice and a decision notice. The recipient of a warning notice has the right to make representations to the decision
RCB 6.2.2GRP
Regulation 44 of the RCB Regulations (Warning notices and decision notices) applies Part XXVI of the Act (Notices) in respect of notices that we give under the RCB Regulations. This means that the provisions of section 393 of the Act (Third party rights) and section 394 of the Act (Access to Authority material) apply to penalty procedures under the RCB Regulations and that, if the matter is not referred to the Tribunal, then upon taking the action to which a decision notice relates,
RCB 6.2.3GRP
DEPP 2 Annex 1 G identifies the relevant decision maker in relation to warning notices and decision notices issued by the FCA under the RCB Regulations.
EG 2.15.1RP
1When the FCA is proposing to exercise its regulatory enforcement powers, the Act generally requires the FCA to give statutory notices (depending on the nature of the action, a warning notice and decision notice or supervisory notice) to the subject of the action. The person to whom a warning notice or supervisory notice is given has a right to make representations on the FCA's proposed decision.
EG 2.15.2RP
1The procedures the FCA will follow when giving supervisory notices, warning notices and decision notices are set out in DEPP 1 to 5. Under these procedures, the decisions to issue such notices in contested enforcement cases are generally taken by the RDC, an FCA Board committee that is appointed by, and accountable to, the FCA Board for its decisions generally. Further details about the RDC can be found in DEPP 3 and on the pages of the FCA web site relating to the RDC. However,
EG 20.3.1RP
1The RDC is the FCA's decision maker for decisions which require the giving of warning or decision notices under the CCA Order, as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3.
EG 20.3.4RP
1The CCA Order requires the FCA to give third party rights as set out in section 393 of the Act and to give access to material, as set out in section 394 of the Act, in relation to warning notices and decision notices given under the CCA Order.
DEPP 2.3.2GRP
If the FCA1 receives no response or representations within the period specified in a warning notice, the decision maker may regard as undisputed the allegations or matters in that notice and a decision notice will be given accordingly. A person who has received a decision notice and has not previously made any response or representations to the FCA1, may nevertheless refer the FCA's1 decision to the Tribunal.111
DEPP 2.3.4GRP
In exceptional cases, the decision maker may permit representations from a person who has received a decision notice (or a second supervisory notice) or against whom action, detailed in a first supervisory notice, has taken effect, and shows on reasonable grounds that he did not receive the warning notice (or first supervisory notice), or that he had reasonable grounds for not responding within the specified period. In these circumstances, the decision maker may decide to give
EG 19.28.6RP
1The RDC is the FCA's decision maker for decisions which require warning notices or decision notices to be given under the Referral Fees Regulations, as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3.
EG 19.28.9RP
1The Referral Fees Regulations apply sections 393 and 394 of the Act to warning notices and decision notices given under the Referral Fees Regulations and so require the FCA to give third party rights and to give access to material.
EG 19.29.6RP
1The RDC is the FCA’s decision maker for decisions which require warning notices or decision notices to be given under the Immigration Regulations, as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3.
EG 19.29.8RP
1The Immigration Regulations apply sections 393 and 394 of the Act to warning notices and decision notices given under the Immigration Regulations and so require the FCA to give third party rights and to give access to material.
DEPP 1.2.2GRP

Table: Summary of statutory and related notices

Notice

Description

Act reference

Further information

Warning notice

Gives the recipient details about action that the FCA2 proposes to take and about the right to make representations.

2

Section 387

DEPP 2.2

Decision notice

Gives the recipient details about action that the FCA2 has decided to take. The FCA2 may also give a further decision notice if the recipient of the original decision notice consents.

22

Section 388

DEPP 2.3

Notice of discontinuance

Identifies proceedings set out in a warning notice or decision notice and which are not being taken or are being discontinued.

Section 389

DEPP 1.2.4 G and DEPP 3.2.26 G

Final notice

Sets out the terms of the action that the FCA2 is taking.

2

Section 390

DEPP 1.2.4 G

Supervisory notice

Gives the recipient details about action that the FCA2 has taken or proposes to take, for example to vary a Part 4A permission.2

22

Section 395(13)

DEPP 2.2 and DEPP 2.3

DEPP 1.2.4AGRP
2Section 395 of the Act also requires the FCA to publish a statement of its procedure for decisions which give3 rise to an obligation for the PRA to include a statement under section 387(1A) in a warning notice or a statement under section 388(1A) in a decision notice as follows:(1) Section 387(1A) provides that where the FCA proposes to refuse consent for the purposes of section 55F, 55I or 59 of the Act, or to give conditional consent as mentioned in section 55F(5), 55I(8) or
EG 19.31.5RP
1The RDC is the FCA’s decision maker for some decisions which require warning notices or decision notices to be given under the Small and Medium Sized Business (Credit Information) Regulations, as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure in DEPP 3.2 or, where appropriate, DEPP 3.3 or DEPP 3.4. For decisions made by executive procedures, the procedure to be followed will be those described in DEPP 4.
EG 19.31.6RP
1Regulation 46 of the Small and Medium Sized Business (Credit Information) Regulations applies the procedural provisions of Part 9 of the Act, in respect of matters that can be referred to the Tribunal, and regulation 44 of the Small and Medium Sized Business (Credit Information) Regulations applies Part 26 of the Act to warning and decision notices given under the Regulations.
EG 19.30.8RP
1The RDC is the FCA’s decision maker for some decisions which require warning notices or decision notices to be given under the MCDO as set out in DEPP 2 Annex 1G. The RDC will make its decisions following the procedure set out in DEPP 3.2 or, where appropriate, DEPP 3.3, and DEPP 3.4 applies for urgent notices under article 16(1)(a).
EG 19.30.10RP
1Article 18(3) applies sections 393 and 394 of the Act to warning notices and decision notices given under the MCDO and so require the FCA to give third party rights and to give access to material as set out under the Act. Article 24(1) applies the procedural provisions of Part 9 of the Act, in respect of matters that can be referred to the Tribunal, and article 24(2) applies Part 26 of the Act to warning and decision notices given under the MCDO.
SUP 10C.13.14GRP
If the FCA proposes to refuse an application, it must follow the procedures for issuing warning notices and decision notices to all interested parties. The requirements relating to warning and decision notices are in DEPP 2.
SUP 10A.13.18GRP
If the FCA proposes to refuse an application in relation to one or more FCA controlled functions, it must follow the procedures for issuing warning and decision notices to all interested parties. The requirements relating to warning and decision notices are in DEPP 2.
SUP 6.3.34GRP
If limitationsare varied or imposed or requirements are imposed by the relevant regulator25 which were not included in the firm's application for variation of Part 4A permission, the relevant regulator25 will be required to issue the firm with a warning notice and decision notice (see SUP 6.3.39 G).2525
SUP 6.3.34AGRP
25Where a firm has made an application to the PRA for the variation of its Part 4A permission and requirements are imposed by the FCA which were not included in the firm's application, the FCA will be required to issue the firm with a warning notice and decision notice (see SUP 6.3.39 G).
RCB 6.1.2GRP
The purpose of this chapter is to set out the FCA's statement of the procedure which it proposes to follow on giving warning notices and decision notices in relation to regulated covered bonds.
DEPP 2.1.1GRP
1The circumstances in which the warning notice and decision notice procedure apply are set out in DEPP 2 Annex 1.
EG 5.3.1RP
1As described above, the FCA operates special decision-making arrangements under which members of FCA senior management take decisions on FCA settlements. This means that settlement discussions will take place without involving the RDC. The FCA would expect to hold any settlement discussions on the basis that neither FCA staff nor the person concerned would seek to rely against the other on any admissions or statements made if the matter is considered subsequently by the RDC or
EG 5.4.2RP
1Even where action is not taken against connected parties, these parties may have what the Act calls ‘third party rights’. Broadly, if any of the reasons contained in a warning notice or decision notice identifies a person (the third party) other than the person to whom the notice is given, and in the opinion of the FCA is prejudicial to the third party, a copy of the notice must be given to the third party unless that person receives a separate warning notice or decision notice