Related provisions for GEN 1.3.3
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If a firm considers that the individual capital guidance given to it is inappropriate to its circumstances it should, consistent with Principle 11 (Relations with regulators), inform the FCA that it disagrees with that guidance. The FCA may reissue the individual capital guidance if, after discussion with the firm, the FCA concludes that the amount or quality of capital that the firm should hold to meet the overall financial adequacy rule is different from the amount or quality
If a firm disagrees with the FCA's assessment as to the amount or quality of capital planning buffer that it should hold, it should, consistent with Principle 11 (Relations with regulators), notify the FCA of its disagreement. The FCA may reconsider its initial assessment if, after discussion with the firm, the FCA concludes that the amount or quality of capital that the firm should hold as capital planning buffer is different from the amount or quality initially suggested.
A firm continuing to hold capital in accordance with its individual capital guidance and its ability to carry on doing so is a fundamental part of the FCA's supervision of that firm. Therefore, if a firm'sown funds have fallen, or are expected to fall, below the level advised in individual capital guidance, then, consistent with Principle 11 (Relations with regulators), a firm should inform the FCA of this fact as soon as practicable, explaining why this has happened or is expected
Consistent with Principle 11 (Relations with regulators), a firm should notify the FCA as early as possible in advance where it has identified that it would need to use its capital planning buffer. The firm's notification should at least state: (1) what adverse circumstances are likely to force the firm to draw down its capital planning buffer; (2) how the capital planning buffer will be used up in line with the firm's capital planning projections; and(3) what plan is in place
6CBTL firms are subject to a duty to deal with the FCA in an open and co-operative manner under article 18(1)(d) of the MCD Order. SUP 2.3 applies to CBTL firms in relation to complying with that duty as though:(1) a reference to firm included a reference to a CBTL firm;(2) a reference to the regulatory system were a reference to the provisions of the MCD Order, rules, directions and guidance applicable to CBTL firms;(3) a reference to Principle 11 were a reference to the duty
The FCA prefers to discharge its functions by working in an open and cooperative relationship with firms. The FCA will look to obtain information in the context of that relationship unless it appears that obtaining information in that way will not achieve the necessary results, in which case it will use its statutory powers. The FCA has exercised its rule-making powers to make Principle 11 which requires that a firm must deal with its regulators in an open and cooperative way,
The purpose of SUP 2.3 is to amplify Principle 11 in the context of information gathering by the FCA on its own initiative in the discharge of its functions under the Act. SUP 2.3 therefore sets out, in guidance on Principle 11 and in rules, how the FCA expects firms to deal with the FCA in that context, including the steps that a firm should take with a view to ensuring that certain connected persons should also cooperate with the FCA.
When a firm appoints a skilled person4 to provide a report under section 166 (Reports by skilled persons) or collect or update information under section 166A (Appointment of skilled person to collect and update information) of the Act,4 the firm must, in a contract with the skilled person:44(1) require and permit the skilled person during and after the course of his appointment:(a) to cooperate with the FCA3 in the discharge of its functions under the Act in relation to the firm;
In complying with the contractual duty in SUP 5.5.1 R (1) the FCA3 expects that a skilled person appointed by a firm4 under section 166 (Reports by skilled persons) or section 166A (Appointment of skilled person to collect and update information) of the Act4 will cooperate with the FCA3 by, amongst other things, providing information or documentation about the planning and progress of the report and its findings and conclusions, if requested to do so. A firm should therefore
The FCA3 expects the firm, including where applicable4 in complying with Principle 11, to give the FCA3 information about the cost of the skilled persons report. This may include both an initial estimate of the cost as well as the cost of the completed report. This information is required to help inform the FCA's3 decision making in the choice of regulatory tools. Information about the number and cost of reports by skilled persons will be published by the FCA3. 44444444
In complying with Principle 11, the FCA4 considers that a firm should, in relation to the discharge by the FCA4 of its functions under the Act:(1) make itself readily available for meetings with representatives or appointees of the FCA4 as reasonably requested;(2) give representatives or appointees of the FCA4 reasonable access to any records, files, tapes or computer systems, which are within the firm's possession or control, and provide any facilities which the representatives
In complying with Principle 11, the FCA4 considers that a firm should take reasonable steps to ensure that the following persons act in the manner set out in SUP 2.3.3 G: (1) its employees, agents and appointed representatives; and(2) any other members of its group, and their employees and agents.(See also, in respect of appointed representatives, SUP 12.5.3 G (2)).
7In complying with Principle 11, the FCA considers that a firm should cooperate with it in providing information for other regulators. Sections 169 (Investigations etc. in support of overseas regulator) of the Act gives the FCA certain statutory powers to obtain information and appoint investigators for overseas regulators if required (see DEPP 7 and EG 3).
Principle 11 requires a firm to deal with its regulators in an open and cooperative way and to disclose to the FCA11 appropriately anything relating to the firm of which the FCA11 would reasonably expect notice. Principle 11 applies to unregulated activities as well as regulated activities and takes into account the activities of other members of a group.31313131
Compliance with Principle 11 includes, but is not limited to, giving the FCA11 notice of:3131(1) any proposed restructuring, reorganisation or business expansion which could have a significant impact on the firm's risk profile or resources, including, but not limited to:(a) setting up a new undertaking within a firm'sgroup, or a new branch (whether in the United Kingdom or overseas); or (b) commencing the provision of cross border services into a new territory; or(c) commencing
A notification under Principle 11 may be given orally or in writing (as set out in SUP 15.7.1 R and SUP 15.7.2 G), although the FCA11 may request written confirmation of a matter. However, it is the responsibility of a firm to ensure that matters are properly and clearly communicated to the FCA.11 A firm should provide a written notification if a matter either is complex or may be such as to make it necessary for the FCA11 to take action. A firm should also have regard to Principle
Firms, approved persons and conduct rules staff1 have an obligation to be open and co-operative with the FCA (as a result of Principle 11 for Businesses,1 Statement of Principle 4 for Approved Persons and Rule 3 of COCON 2.11). The FCA will make it clear to the person concerned whether it requires them to produce information or answer questions under the Act or whether the provision of answers is purely voluntary. The fact that the person concerned may be a regulated person does
2The FCA will not bring disciplinary proceedings against a person for failing to be open and co-operative with the FCA1 simply because, during an investigation, they choose not to attend or answer questions at a purely voluntary interview. However, there may be circumstances in which an adverse inference may be drawn from the reluctance of a person (whether or not they are a firm or individual1) to participate in a voluntary interview. If a person provides the FCA with misleading
2If a person does not comply with a requirement imposed by the exercise of statutory powers, they may be held to be in contempt of court. The FCA may also choose to bring proceedings for breach of Principle 11,1 Statement of Principle 4 or COCON 2.1.3R1 as this is a serious form of non-cooperation.
The FCA1 would not normally seek to gather information using the methods described in SUP 2.3 or SUP 2.4 in a situation where the FCA1 could not have obtained it under the powers in Part XI of the Act (Information Gathering and Investigations). In particular, the limitations in the following sections of the Act are relevant to this chapter:11(1) section 175(5) (Information and documents: supplementary powers) under which no person may be required under Part XI of the Act (Information
Under Principle 11 and SUP 15.3.1 R, a firm must notify the FCA1 immediately of any operational risk matter of which the FCA1 would reasonably expect notice. SUP 15.3.8 G provides guidance on the occurrences that this requirement covers, which include a significant failure in systems and controls and a significant operational loss.
Regarding operational risk, matters of which the FCA1 would expect notice under Principle 11 include:(1) any significant operational exposures that a firm has identified;(2) the firm's invocation of a business continuity plan; and(3) any other significant change to a firm's organisation, infrastructure or business operating environment.
A firm is required to provide the FCA2 with a wide range of information to enable the FCA2 to meet its responsibilities for monitoring the firm's compliance with requirements imposed by or under the Act. Some of this information is provided through regular reports, including those set out in SUP 16 (Reporting requirements) and SUP 17 (Transaction reporting). In addition, other chapters in the Handbook set out specific notification and reporting requirements. Principle 11 includes
Principles 3 (Management and control), 4 (Financial prudence) and (in so far as it relates to disclosing to the FCA11 ) 11 (Relations with regulators) take into account the activities of members of a firm's group. This does not mean that, for example, inadequacy of a group member's risk management systems or resources will automatically lead to a firm contravening Principle 3 or 4. Rather, the potential impact of a group member's activities (and, for example, risk management systems
As set out in PRIN 3.3 (Where?), Principles 1 (Integrity), 2 (Skill, care and diligence) and 3 (Management and control) apply to world-wide activities in a prudential context. Principle 5 (Market conduct) applies to world-wide activities which might have a negative effect on confidence in the UK financial system8. In considering whether to take regulatory action under these Principles in relation to activities carried on outside the United Kingdom, the FCA11 will take into account
The risk assessment will guide the FCA's1 supervisory focus. It is important, therefore, that there is good dialogue between the FCA1 and the recognised body. The FCA1 expects to review its risk assessment with the staff of the UK recognised body to ensure factual accuracy and a shared understanding of the key issues, and may discuss the results of the risk assessment with members of the management body2 of the UK recognised body. If appropriate, the FCA1 may send a detailed letter
The FCA3 expects to have an open, cooperative and constructive relationship with UK recognised bodies to enable it to have a broad picture of the UK recognised body's activities and its ability to meet the recognised body requirements.2 This broad picture is intended to complement the information which the FCA3 will obtain under section 293 of the Act (Notification requirements) or under notification rules made under that section (see REC 3). The FCA3 will usually arrange meetings
SUP 15.6.1 R applies also in relation to rules outside this chapter, and even if they are not notification rules. Examples of rules and chapters to which SUP 15.6.1 R is relevant, are:(1) Principle 11, and the guidance on Principle 11 in SUP 2 (Information gathering by the FCA and PRA99 on their9 own initiative);9(2) SUP 15 (Notifications to the FCA3):99(3) SUP 16 (Reporting requirements); (4) SUP 17 (Transaction reporting); 1(5) any notification rule (see Schedule 2 which contains
3The Statement of Principle 4 (see APER 2.1A.3 R1) is in the following terms: "An approved person must deal with the FCA, the PRA and other regulators in an open and cooperative way and must disclose appropriately any information of which the FCA or the PRA would reasonably expect notice."1