Related provisions for LR 8.6.7B

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SUP 10C.12.1GRP
(1) SUP 10C.12 describes the regime for conditional and time-limited approvals.(2) In particular, SUP 10C.12 sets out the FCA's policies on giving approval under section 59 subject to conditions or for a limited period only, as required by section 63ZD of the Act (Statement of policy relating to conditional approval and variation).(3) The policies described in SUP 10C.12 also apply when the FCA is considering whether to give its consent to an application made to the PRA for approval.(4)
SUP 10C.12.2GRP
(1) The power to grant an approval subject to conditions or for a limited period only applies to senior management functions.(2) As all FCA controlled functions specified in this chapter are senior management functions, this means that this power applies to all FCA controlled functions specified in this chapter.(3) The FCA has (in SUP 10A) specified controlled functions for relevant authorised persons that are not designated senior management functions. See SUP 10C.1.7R to SUP
SUP 10C.12.3GRP
The FCA may:(1) grant an application for approval subject to any conditions that the FCA considers appropriate; and(2) grant the application to give approval only for a limited period.
SUP 10C.12.4GRP
The FCA may use this power only if it appears to the FCA that it is desirable to do so to advance one or more of its operational objectives.
SUP 10C.12.5GRP
Factors that the FCA will take into account include: (1) those relating to the firm at the time of the application, such as: (a) its size, scale and complexity; and(b) its plans and prospects; and(2) those relating to the candidate and, in particular, the candidate’s fitness and properness.
SUP 10C.12.6GRP
The FCA expects that the most common use of the power to give qualified approvals would be:(1) time-limited approvals;(2) a time limitation in relation to an ongoing or prospective enforcement investigation;(3) a competency-related condition; and(4) a role-limited condition.
SUP 10C.12.7GRP
An example of a time-limited approval is where a firm needs to appoint the candidate on an interim basis while the firm seeks to appoint a permanent candidate. The FCA may approve the interim appointee on a time-limited basis.
SUP 10C.12.8GRP
The FCA would not generally impose a time limitation in these circumstances for a period of less than 12 weeks. The FCA would expect the firm to use the 12-week rule in SUP 10C.3.13R.
SUP 10C.12.9GRP
An example of when the FCA may approve an individual on a time-limited basis is where, following a sudden or unexpected departure:(1) a firm needs to fill an FCA-designated senior management function vacancy immediately; but(2) it is likely to take longer than 12 weeks to recruit a permanent replacement; and(3) there is an individual at the firm not currently approved to perform the relevant FCA-designated senior management function whom the firm and the FCA think capable of fulfilling
SUP 10C.12.10GRP
Generally, the FCA would not impose a time limitation of this type for longer than 12 to 18 months.
SUP 10C.12.11GRP
The FCA would consider using this power for a person who is in the running for the long-term appointment.
SUP 10C.12.12GRP
(1) An example of how the FCA could deal with a person who is in the running for the long-term appointment is outlined below.(2) The head of compliance resigns unexpectedly from a firm. The firm wishes to appoint one of the deputies. The FCA and the firm believe the deputy to be capable of running the firm's compliance function on a day-to-day ‘business as usual basis’ but the deputy has no experience developing a long-term, firm-wide strategy. The firm estimates that it could
SUP 10C.12.13GRP
In deciding whether a candidate is fit and proper, the FCA will take into account the role that the candidate is going to perform. The standard for a person who is appointed on a temporary basis may be different from a person appointed on a permanent basis when the person with a temporary appointment has a more limited role.
SUP 10C.12.14GRP
The FCA may impose a condition on the approval, as well as time limitation. For example, in the example in SUP 10C.12.12G, the FCA may impose a condition prohibiting the candidate from significantly amending the management structure of the department.
SUP 10C.12.17GRP
The FCA will generally limit an enforcement action time-limited approval for a period long enough to allow the investigation to be completed so far as relevant to the candidate. Imposing a time limitation on approval would allow the FCA to look at the situation in more detail after approval, with the benefit of all the facts arising from the investigation.
SUP 10C.12.19GRP
The FCA may take the view that a candidate would meet the fit and proper requirement with an approval subject to either, or both, of the following:(1) one or more conditions; and/or(2) a time limitation;who would not have met that requirement without the qualification.
SUP 10C.12.21GRP
(1) The FCA is likely only to give a qualified approval on the basis described in SUP 10C.12.19G in limited circumstances.(2) Generally, the FCA would only use this power in place of rejection where the deficiency is in only a relatively small proportion of the required job competencies.(3) Lack of technical knowledge is more likely to be easier to remedy than a problem with personal characteristics.(4) The FCA is only likely to give its approval on this basis when the candidate
SUP 10C.12.23GRP
The FCA does not see this as being a probationary or standalone measure. The competency-related limitation would be time specific and linked to something that the FCA would wish to re-examine after the period has expired.
SUP 10C.12.24GRP
(1) When the FCA is imposing a competence-related condition where there is a shortfall, approval will only be granted on the condition that the candidate is required to undertake training or receive mentoring to eliminate the shortfall.(2) See SUP 10C.12.39G (role-limited approval) for an example of a shortfall in competence that is not dealt with by trying to remove it.
SUP 10C.12.26GRP
(1) A competency-related approval is likely to be linked with a time-limited approval.(2) Under an approval of this kind, the candidate will be required to undertake the necessary training or other remedial measures.(3) The time for which the approval will last would be set to give the firm and the candidate a reasonable time to complete the measures.(4) At the end of the period, the firm would need to apply to the FCA to appoint the candidate on a permanent basis.
SUP 10C.12.27GRP
The FCA would only be likely to consider a qualified approval based on competence if it was sure that the candidate could achieve the required level of competence within a specified period, which is unlikely to be more than 12 to 18 months.
SUP 10C.12.28GRP
(1) The FCA may give a conditional approval instead of rejection in cases where the condition does not relate to the candidate’s abilities.(2) For example, the FCA may consider that the candidate is suitable only if the candidate refrains from, or ceases undertaking, certain actions and makes the approval conditional on that basis.(3) The FCA may require the candidate to go beyond the regulatory requirements in a given area.
SUP 10C.12.29GRP
(1) An example of SUP 10C.12.28G is where a firm wishes to appoint someone as an executive director who has a number of non-executive directorships.(2) The FCA may be concerned about the potential impact of these other commitments on that individual’s ability to devote sufficient time to the proposed role with the firm.(3) In this situation, it might be appropriate to attach a condition to the individual’s approval requiring that person to resign from some of their non-executive
SUP 10C.12.31GRP
One example of a role-limited approval relates to the fact that the size, nature, scope and complexity of a firm's activities can change over time. An individual may be fit and proper to perform a senior management function at a certain firm at a point in time but the FCA may wish to re-assess that individual if the firm's situation changes.
SUP 10C.12.32GRP
It is not FCA policy to impose role-limited approvals routinely for all firms or for a certain category of firm. For example, there is no blanket policy that approval of a candidate for a post in a small firm would be subject to a qualification based on the firm remaining small.
SUP 10C.12.33GRP
Where a firm is expanding or transforming its business model or its risk profile and there are identifiable upcoming milestones, the FCA may wish to link the duration of a candidate's approval to these milestones.
SUP 10C.12.34GRP
If the change is likely to occur in the near future and the details are clear, the FCA may consider its approval of the application in the light of this proposed change.
SUP 10C.12.35GRP
(1) Very often it will be uncertain whether a change in circumstances will happen at all, the details may not yet be known or the timing may be uncertain.(2) In that case, the FCA may, subject to (3), make its judgement based on the candidate's proposed role, without taking into account the possible change. This reflects the fact that the judgement of whether a candidate is fit and proper takes into account the role that they are actually going to play.(3) However, to reflect
SUP 10C.12.42GRP
Although it is not general FCA policy to use the power to give qualified approval as a probationary measure, there may be circumstances where a firm wants to appoint a candidate to perform an FCA-designated senior management function who, although fit and proper, may, in the role, be responsible for the firm's approach to dealing with particularly unusual or severe challenges in the near future. In this situation, it might be appropriate to approve the candidate subject to a time
SUP 10C.12.45GRP
Sections 59 and 63A of the Act show that failure to observe a condition does not in itself invalidate an approval. Instead, both the firm and the SMF manager may be subject to a penalty for breach of the Act. Such a failure may also:(1) involve a breach of FCArules by the firm and a breach by the SMF manager of COCON; and(2) call into question the fitness of the SMF manager.
IFPRU 4.12.5GRP
Where the FCA considers that the possible reduction in risk-weighted exposure amounts (RWEA) achieved via the securitisation is not justified by a commensurate transfer of credit risk to third parties, significant risk transfer will be considered to not have been achieved. Consequently, a firm will not be able to recognise any reduction in RWEA due to the transaction.
IFPRU 4.12.6GRP
For IFPRU 4.12.3 G (3) (option 3), the1FCA intends to grant permission for an originator to make its own assessment of significant risk transfer only where it is satisfied that:1(1) in every relevant case, the reduction in own funds requirements achieved would be justified by a commensurate transfer of risk to third parties;(2) the firm has appropriately risk-sensitive policies and methodologies in place to assess the transfer of risk; and(3) such transfer of risk to third parties
IFPRU 4.12.7GRP
Where the FCA grants permission for multiple transactions, then that permission is expected to cover a defined scope of potential transactions. The permission is expected to enable a firm (within certain limits) to carry out these transactions without notifying the FCA in each individual instance.
IFPRU 4.12.8GRP
A firm seeking to achieve capital relief by deducting or applying a 1250% risk weight where permitted under articles 243 or 244 of the EU CRR does not need to make the notification in IFPRU 4.12.1 R.1 However, in such cases, a firm should consider whether the characteristics of the transaction are such that the FCA would reasonably expect prior notice of it.1
IFPRU 4.12.9GRP
Under IIFPRU 4.12.1 G, within one month of a securitisation transaction closing, a firm must notify the FCA of the transaction if it has relied on options 1 or 2 to achieve significant risk transfer.
IFPRU 4.12.10GRP
Notification under IFPRU 4.12.1 G should include sufficient information to enable the FCA to assess whether the possible reduction in RWEA which would be achieved by the securitisation is justified by a commensurate transfer of credit risk to third parties. The FCA expects this to include the following:(1) details of the securitisation positions, including rating, exposure value and RWEA broken down by securitisation positions sold and retained;(2) key transaction documentation
IFPRU 4.12.11GRP
The FCA's review will focus on the proportion of credit risk transferred, compared to the proportion by which RWEA are reduced in the transaction. Where the FCA judges that the reduction in RWEA is not justified by a commensurate transfer of credit risk to third parties, it will inform the firm that significant risk transfer has not been achieved by this transaction. Otherwise, the FCA will inform the firm that it does not object to the transaction.
IFPRU 4.12.12GRP
The FCA does not intend to pre-approve transactions. The FCA will provide a view on whether it considers that commensurate risk transfer has been achieved at a point in time, which may be provided after a transaction has closed. The FCA may reassess its judgement of the achievement of commensurate risk transfer if the level of credit risk transfer in a transaction changes materially.
IFPRU 4.12.14GRP
Where a firm applies for such permission, the FCA would expect the scope should be defined according to a range of characteristics, including the type of asset class and the structural features of the transaction. The characteristics the FCA would expect a firm to consider when scoping a permission application include:(1) asset class (eg, residential mortgages, commercial mortgages, credit card receivables, leasing, loans to corporates or small and medium-sized enterprises (SMEs),
IFPRU 4.12.15GRP
It is likely for it to be more straightforward for the FCA to assess relatively narrowly scoped permissions than those covering a wide range of assets and/or with complex structural features.
IFPRU 4.12.16GRP
To assess a firm's ability to use its own policies and methodologies for assessing significant risk transfer, the FCA's permission reviews will focus on:(1) the firm's understanding of the risk of any potential transactions within permission scope, including for potential underlying assets, securitisation structures and other relevant factors that affect the economic substance of risk transfer;(2) the governance around significant risk transfer assessment (including sign-off procedures)
IFPRU 4.12.17GRP
The information the FCA expects a firm to provide in a permission application includes the following:(1) details of the firm's governance processes for significant risk transfer, including details of any relevant committees and the seniority and expertise of key persons involved in sign-off;(2) a copy of the firm's significant risk transfer policy, including details of the significant risk transfer calculation policies, methodologies and any models used to assess risk transfer
IFPRU 4.12.18GRP
The FCA intends to apply two materiality limits to the proportion of risk-weighted exposure amount (RWEA) relief that can be taken under any permission covering multiple transactions:(1) transaction level limit any transaction that would, in principle, be within the scope of the permission, but that resulted in an RWEA reduction exceeding 1% of the firm's credit risk-related RWEAs as at the date of the firm's most recent regulatory return, will fall outside the scope of a multiple
IFPRU 4.12.19GRP
Multiple transaction permissions can be expected to be granted for a period of one year. The FCA's review of permission renewal will focus on any changes to the firm's significant risk transfer policies and methodologies since the previous review.
IFPRU 4.12.20GRP
Permissions relating to individual transactions do not need to be granted prior to the execution of a transaction. The FCA does not intend to specify the timeframe in which a firm should submit an individual transaction permission, but the firm should note that capital relief from a specific transaction will not be available until a firm has obtained permission covering the significant risk transfer assessment and capital treatment (unless the transaction is being notified under
IFPRU 4.12.22GRP
Depending on the nature of a transaction, the FCA may grant an individual permission for the duration of the transaction, or may impose a time limit on the permission. Where a firm sought to take capital relief on a transaction beyond the expiry date of the relevant permission, the firm would need to renew the permission prior to its expiry date.
IFPRU 4.12.23GRP
Given that significant risk transfer should be met on a continuing basis, permissions will typically include a requirement to notify the FCA of any change in circumstances from those under which the permission was granted (eg, where the amount of credit risk transfer had changed materially). Any reduction in credit risk transfer subsequent to the permission being granted will require the firm to take a commensurate reduction in RWEA relief. If a firm does not effect a commensurate
IFPRU 4.12.25GRP
As part of the notification and permissions process, the FCA expects the firm to inform it of the methodology it intends to use to calculate securitisation capital requirements.
IFPRU 4.12.26GRP
As part of a firm's ongoing consideration of risk transfer, the FCA expects it to consider the support it has provided to securitisation transactions.
IFPRU 4.12.27GRP
(1) If a firm is found to have provided support to a securitisation, the expectation that the firm will provide future support to its securitisations is increased. The FCA will take account of this increased expectation in future assessments of commensurate risk transfer to that firm.(2) The FCA expects securitisation documentation to make clear, where applicable, that repurchase of securitisation positions by the originator beyond its contractual obligations is not mandatory
IFPRU 4.12.31GRP
The FCA expects originators seeking to apply the securitisation risk weights to synthetic securitisations to take into account all relevant factors to assess the amount of risk transferred. As well as the size and timing of amounts payable to the protection seller, the circumstances in which those amounts are payable can undermine the effectiveness of risk transfer. The FCA expects a firm seeking capital relief through synthetic securitisations to incorporate premiums in their
IFPRU 4.12.32GRP
Article 238 of the EU CRR (Maturity of credit protection) requires maturity to be assessed in considering significant risk transfer. When considering the effective maturity of synthetic securitisations, the FCA expects a firm to consider whether the transaction contained an option to terminate the protection at the discretion of the protection buyer.
IFPRU 4.12.33GRP
The FCA considers the following to be examples of features which generally indicate a positive incentive to call or, at least, to constitute grounds for discussion with the FCA prior to the conclusion of the transaction:(1) the transaction contains terms, such as payments at maturity or payments upon early termination or significant premiums, which may reduce risk transfer;(2) the transaction includes a requirement for the protection buyer to incur additional costs or obligations
IFPRU 4.12.34GRP
Significant risk transfer is an ongoing requirement. Accordingly, the FCA expects firms to ensure that any reduction in own funds requirements achieved through securitisation continues to be matched by a commensurate transfer of risk throughout the life of the transaction. The FCA expects firms to take a substance over form approach to assessing significant risk transfer. Firms should be able to demonstrate that the capital relief post-transaction adequately captures the economic
IFPRU 4.12.35GRP
When risk transfer transactions are structured as a group of linked transactions rather than a single transaction, the FCA expects the aggregate effect of linked transactions to comply with the EU CRR. The FCA expects firms to ensure that analysis of risk transfer incorporates all linked transactions, particularly if certain transactions within a group of linked transactions are undertaken at off-market rates.
IFPRU 4.12.36GRP
The FCA expects the instruments used to transfer credit risk not to contain provisions which limit the amount of risk transferred. For example, should losses or defaults on the securitised exposures occur1(ie, deterioration in the credit quality of the underlying pool) the FCA expects the originator's net cost of protection or the yield payable to investors should not increase as a result.1
IFPRU 4.12.37GRP
To ensure continued appropriateness, the FCA expects firms to update the opinions of qualified legal counsel, required by the EU CRR, as necessary to ensure their continuing validity. For example, an opinion may need to be updated if relevant statutory provisions are amended, or where a new decision or judgment of a court has a bearing on the continuing validity of counsel's opinion.
IFPRU 4.12.38GRP
The FCA expects relevant senior management of a firm to be appropriately engaged in the execution of securitisation transactions that lead to a reduction in RWEA where the firm is providing or purchasing structured trades.
IFPRU 4.12.39GRP
The FCA does not operate a pre-approval process for transactions. The FCA expects a firm to discuss with its supervisor at any early stage securitisation transactions that are material or have complex features. Where a firm claims a regulatory capital reduction from securitisation transactions in its disclosures to the market, the FCA expects such disclosures to include caveats making clear the risk of full or partial re-characterisation where this risk is material in the light
IFPRU 4.12.40GRP
Although this section sets out the FCA's expectations regarding securitisations, these expectations are also relevant for other similar credit protection arrangements.
IFPRU 4.12.41GRP
The FCA will seek to ensure that the securitisation framework is not used to undermine or arbitrage other parts of the prudential framework. For other similar credit protection arrangements (eg, those subject credit risk mitigation or trading book requirements), the impact of certain features (such as significant premiums or call options) may cast doubt on the extent of risk transferred and the resulting capital assessment. Features which result in inadequate own funds requirements
IFPRU 4.12.42GRP
Where a firm achieves significant risk transfer for a particular transaction, the FCA expects it to continue to monitor risks related to the transaction to which it may still be exposed. The firm should consider capital planning implications of securitised assets returning to its balance sheet. The EU CRR requires a firm to conduct regular stress testing of its securitisation activities and off-balance sheet exposures. The stress tests should consider the firm-wide impact of stressed
GENPRU 2.2.8GRP
The FCA18 has divided its definition of capital into categories, or tiers, reflecting differences in the extent to which the capital instruments concerned meet the purpose and conform to the characteristics of capital listed in GENPRU 2.2.9 G. The FCA18 generally prefers a firm to hold higher quality capital that meets the characteristics of permanency and loss absorbency that are features of tier one capital. Capital instruments falling into core tier one capital can be included
GENPRU 2.2.19RRP
This table belongs to GENPRU 2.2.17 RType of firmLocation of rulesRemarksBIPRU firm16without an investment firm consolidation waiver16GENPRU 2 Annex 4 (Deducts material holdings)Applies to a BIPRU firm16not using GENPRU 2 Annex 5 or GENPRU 2 Annex 616BIPRU firm16without an investment firm consolidation waiver16GENPRU 2 Annex 5 (Deducts illiquid assets)A BIPRU firm16must give one Month's prior notice to the FCA16 before starting to use or stopping using this method1616BIPRU firm16with
GENPRU 2.2.20GRP
GENPRU 2.2.19 R sets out three different methods of calculating capital resources for BIPRU firms16. The differences between the three methods relate to whether and how material holdings and illiquid assets are deducted when calculating capital resources. The method depends on whether a firm has an investment firm consolidation waiver. If a firm does have such a waiver, it should deduct illiquid assets, own groupmaterial holdings and certain contingent liabilities. If a firm does
GENPRU 2.2.61BRRP
12A firm must notify the FCA18 in writing of its intention to issue a capital instrument which it intends to include within its capital resources at least one month before the intended date of issue, unless there are exceptional circumstances which make it impracticable to give such a period of notice, in which event the firm must give as much notice as is practicable in those circumstances. When giving notice, a firm must:(1) provide details of the amount of capital the firm
GENPRU 2.2.61CRRP
12A firm must provide a further notification to the FCA18 in writing including all the information required in GENPRU 2.2.61BR (1) to (4) as soon as it proposes any change to the intended date of issue, amount of issue, type of investors, stage of capital or any other feature of the capital instrument to that previously notified to the FCA18.
GENPRU 2.2.61DRRP
12If a firm proposes to establish a debt securities program for the issue of capital instruments for inclusion within its capital resources, it must: (1) notify the FCA18 of the establishment of the program; and(2) provide the information required by GENPRU 2.2.61BR (1) to (4)at least one month before the first proposed drawdown. Any changes must be notified to the FCA18 in accordance with GENPRU 2.2.61C R.
GENPRU 2.2.61ERRP
12The capital instruments to which GENPRU 2.2.61B R does not apply are:(1) ordinary shares which:(a) are the most deeply subordinated capital instrument issued by the firm;(b) meet the criteria set out in GENPRU 2.2.83R (2) and (3) and, for a BIPRU firm, GENPRU 2.2.83A R; and(c) are the same as ordinary shares previously issued by the firm;(2) debt instruments issued from a debt securities program, provided that program was notified to the FCA18 prior to its first drawdown, in
GENPRU 2.2.61FRRP
12A firm must notify the FCA18 in writing, no later than the date of issue, of its intention to issue a capital instrument listed in GENPRU 2.2.61E R which it intends to include within its capital resources. When giving notice, a firm must: (1) provide the information set out at GENPRU 2.2.61BR (1) to (3); and(2) confirm that the terms of the capital instrument have not changed since the previous issue by the firm of that type of capital instrument.
GENPRU 2.2.61GGRP
12GENPRU 2.2.61B R provides that, in exceptional circumstances, a firm may provide less than one month's notice of the intended issue. The FCA18 is unlikely to consider circumstances to be exceptional unless they are such that there is a risk of a firm'scapital resources falling below its capital resources requirement if a one-month notification period is observed. In such circumstances, a firm should notify the FCA18 as soon as it has resolved to issue further capital, and
GENPRU 2.2.67AGRP
4The purpose of GENPRU 2.2.64R (4) is to ensure that a firm retains flexibility over the payment of coupons and can preserve cash in times of financial stress. However, a firm may include, as part of the capital instrument terms, a right to make payments of a coupon mandatory if an item of capital becomes ineligible to form part of its capital resources (e.g. through a change in the relevant rules) and the firm has notified the FCA18 that the instrument is ineligible.
GENPRU 2.2.68GRP
The FCA18 considers that dividend pushers diminish the quality of capital by breaching the principle of complete discretion over coupons set out in GENPRU 2.2.64R (4). A dividend pusher operates so that, in a given period of time, payments must be made on senior securities if payments have previously been made on junior securities or securities ranking pari passu. As such, dividend pushers may not be included in the terms of tier one capital, unless the firm has the option to
GENPRU 2.2.69DGRP
8The FCA18 considers that a BIPRU firm's financial resources are not preserved under GENPRU 2.2.69CR (2) unless, among other things, the conditions of the substituted payment are that:(1) there is no decrease in the amount of the firm'score tier one capital;(2) the deferred coupon is satisfied without delay using newly issued core tier one capital that has an aggregate fair value no more than the amount of the coupon;(3) the firm is not obliged to find new investors for the newly
GENPRU 2.2.69FGRP
(1) 8In relation to the cancellation or deferral of the payment of a coupon in accordance with GENPRU 2.2.64R (4) and GENPRU 2.2.64R (5), GENPRU 2.2.68A R, or GENPRU 2.2.69B R, the FCA18 expects that situations where a coupon may need to be cancelled or deferred will be resolved through analysis and discussion between the firm and the FCA18. If the FCA18 and the firm do not agree on the cancellation or deferral of the payment of a coupon, then the FCA18 may consider using its
GENPRU 2.2.70RRP
A firm may not include a capital instrument in its tier one capital resources, unless its contractual terms are such that:(1) (if it is redeemable other than in circumstances set out in GENPRU 2.2.64R (3)(a) (redemption on a winding up)) it is redeemable only at the option of the firm or, in the case of a BIPRU firm, on the date of maturity;88(2) the firm cannot exercise that redemption right:(a) before the fifth anniversary of its date of issue; and18(b) unless it has given notice
GENPRU 2.2.70AGRP
8In the case of a BIPRU firm, an incentive to redeem is a feature of a capital instrument that would lead a reasonable market participant to have an expectation that the firm will redeem the instrument. The FCA18 considers that interest rate step-ups and principal stock settlements, in conjunction with a call option, are incentives to redeem. Only instruments with moderate incentives to redeem are permitted as tier one capital, in accordance with the limited conversion ratio
GENPRU 2.2.71RRP
A firm may include a term in a tier one instrument allowing the firm to redeem it before the date in GENPRU 2.2.70R (2)(a) if the following conditions are satisfied:(1) the other conditions in GENPRU 2.2.70 R are met;(2) the circumstance that entitles the firm to exercise that right is18 a change in the applicable tax treatment or regulatory classification of those instruments;8(3) the circumstance that entitles the firm to exercise that right was not reasonably foreseeable at
GENPRU 2.2.73GRP
The purpose of GENPRU 2.2.71 R to GENPRU 2.2.72 R is this. In general a tier one instrument should not be redeemable by the firm before its fifth anniversary. However there may be circumstances in which it would be reasonable for the firm to redeem it before then. GENPRU 2.2.71 R allows the firm to include a right to redeem the instrument before the fifth anniversary in certain circumstances. A tax call is an example of a term that may be allowed. GENPRU 2.2.71 R says that the
GENPRU 2.2.74RRP
A firm must not redeem any tier one instrument that it has included in its tier one capital resources unless it has notified the FCA18 of its intention at least one month before it becomes committed to do so. When giving notice, the firm must provide details of its position after such redemption in order to show how it will:77(1) meet its capital resources requirement;78(2) 7have sufficient financial resources to meet the overall financial adequacy rule; and8(3) 8in the case
GENPRU 2.2.74AGRP
8The FCA18 considers that, in order to comply with GENPRU 2.2.74 R, the firm should, at a minimum, provide the FCA18 with the following information:(1) a comprehensive explanation of the rationale for the redemption;(2) the firm's financial and solvency position before and after the redemption, in particular whether that redemption, or other foreseeable internal and external events or circumstances, may increase the risk of the firm breaching its capital resources requirement;(3)
GENPRU 2.2.79ARRP
8A BIPRU firm must not purchase a tier one instrument that it has included in its tier one capital resources unless:(1) the firm initiates the purchase;(2) 10[deleted]10(3) the firm has given notice to the FCA18 in accordance with GENPRU 2.2.79G R; and10(4) 10(in the case of hybrid capital) it is on or after the fifth anniversary of the date of issue of the instrument.
GENPRU 2.2.79GRRP
8A BIPRU firm must not purchase a tier one instrument in accordance with GENPRU 2.2.79A R unless it has notified the FCA18 of its intention at least one month before it becomes committed to doing so. When giving notice, the firm must provide details of its position after the purchase in order to show how, over an appropriate timescale, adequately stressed, and without planned recourse to the capital markets, it will:(1) meet its capital resources requirement; and(2) have sufficient
GENPRU 2.2.79HGRP
8The FCA18 considers that:(1) in order to comply with GENPRU 2.2.79G R, the firm should, at a minimum, provide the FCA18 with the following information:(a) a comprehensive explanation of the rationale for the purchase;(b) the firm's financial and solvency position before and after the purchase, in particular whether the purchase, or other foreseeable internal and external events or circumstances, may increase the risk of the firm breaching its capital resources requirement or
GENPRU 2.2.79IRRP
10A BIPRU firm must not announce to the holders of a tier one instrument its intention to purchase that instrument unless it has notified that intention to the FCA18 in accordance with GENPRU 2.2.79G R and it has not, during the period of one month from the date of giving notice, received an objection from the FCA18.
GENPRU 2.2.83BRRP
10A BIPRU firm must not include in stage A of the capital resources table different classes of the same share type (for example "A ordinary shares" and "B ordinary shares") that meet the conditions in GENPRU 2.2.83 R and GENPRU 2.2.83A R but have differences in voting rights, unless it has notified the FCA18 of its intention at least one month before the shares are issued or (in the case of existing issued shares) the differences in voting rights take effect.
GENPRU 2.2.96GRP
If a firm has surplus eligible partnership capital or eligible LLP members' capital that it wishes to repay in circumstances other than those set out in GENPRU 2.2.93 R or GENPRU 2.2.94 R it may apply to the FCA18 for a waiver to allow it to do so. If a firm applies for such a waiver the information that the firm supplies with the application might include:(1) a demonstration that the firm would have sufficient capital resources to meet its capital resources requirement immediately
8A BIPRU firm must not include a capital instrument at stage B1 of the calculation in the capital resources table unless (in addition to satisfying all the other requirements in relation to tier one capital and hybrid capital) its contractual terms are such that:(1) it cannot be redeemed in cash but can only be converted into core tier one capital;(2) it must be converted into core tier one capital by the firm during emergency situations; (3) the emergency situations referred
(1) 8In respect of GENPRU 2.2.115AR (4), the FCA18 may require the firm to convert the instrument into core tier one capital based on its financial and solvency situation. The FCA18 will take into account, among other things, the factors identified at GENPRU 2.2.69FG (2), adjusted to take into account the effects of a conversion rather than payment of a coupon.(2) Even if a firm meets its capital resources requirement, the FCA18 may consider the amount or composition of the
(1) 8The effects of the mechanisms described in GENPRU 2.2.117A R will be more meaningful if they happen immediately after losses cause a significant deterioration of the financial as well as the solvency situation and even before the reserves are exhausted.(2) If a firm does not operate the loss absorption mechanism in a prudent and timely way, then the FCA18 may consider using its powers under 55J of the Act to, on its own initiative, vary the firm'sPart 4A permission to require
GENPRU 2.2.135RRP
A firm which satisfies the conditions for the inclusion of capital set out in GENPRU 2.2.124 R, must, in addition, if that transaction is in any respect unusual, notify the FCA18 at least one Month in advance of the date on which the firm intends to include that capital in its capital resources.
GENPRU 2.2.136GRP
The FCA18 is likely to consider as unusual a transaction which involves the raising by the firm of tier one capital through a subsidiary undertaking of that firm that is not an SPV. The FCA18 would expect a firm to request individual guidance in such circumstances.
GENPRU 2.2.164GRP
The FCA18 is more concerned that the subordination provisions listed in GENPRU 2.2.159 R should be effective than that they should follow a particular form. The FCA18 does not, therefore, prescribe that the loan agreement or capital instrument should be drawn up in a standard form.
GENPRU 2.2.171RRP
A firm must not amend the terms of the capital or the documents referred to in GENPRU 2.2.159R (8) unless:(1) at least one Month before the amendment is due to take effect, the firm has given the FCA18 notice in writing of the proposed amendment and the FCA18 has not objected; and(2) that notice includes confirmation that the legal opinions referred to in GENPRU 2.2.159R (12) and, if applicable, GENPRU 2.2.163 R (General conditions for eligibility as tier two capital instruments:
GENPRU 2.2.174RRP
In relation to a tier two instrument, a firm must notify the :(1) [deleted]18(2) [deleted]18FCA one month18 before it becomes committed to7 the proposed repayment (unless that firm intends to repay an instrument on its final maturity date). When giving notice, the firm must provide details of its position after such repayment in order to show how it will:777(3) meet its capital resources requirement; and7(4) have sufficient financial resources to meet the overall financial adequacy
GENPRU 2.2.179GRP
(1) The purpose of GENPRU 2.2.177R (2) is to ensure that a firm which issues an item of capital with a coupon retains flexibility over the payments of such coupon and can preserve cash in times of financial stress. However, a firm may include, as part of the capital instrument terms, a right to make payments of a coupon mandatory if an item of capital becomes ineligible to form part of its capital resources (for example, through a change in the relevant rules) and the firm has
GENPRU 2.2.187RRP
A BIPRU firm which adopts the standardised approach to credit risk may include general/collective provisions in its tier two capital resources only if:(1) they are freely available to the firm;(2) their existence is disclosed in internal accounting records; and(3) their amount is determined by the management of the firm, verified by independent auditors and notified to the FCA18.
GENPRU 2.2.197GRP
If a firm wishes to include in lower tier two capital resources an instrument with or without a fixed maturity date but where less than five years' notice of redemption or repayment has been given, it should seek individual guidance from the FCA18.
GENPRU 2.2.220RRP
For the purpose of GENPRU 2.2.219 R, a relevant rule means a rule in GENPRU, BIPRU or INSPRU or any other capital adequacy or solvency requirements of the FCA18 or any other regulator, territory or country.
GENPRU 2.2.243RRP
A BIPRU firm which includes subordinated debt in its tier three capital resources must notify the FCA18 one month in advance of all payments of either interest or principal made when the firm'scapital resources are less than 120% of its capital resources requirement.
DEPP 6.2.1GRP
The FCA4 will consider the full circumstances of each case when determining whether or not to take action for a financial penalty or public censure. Set out below is a list of factors that may be relevant for this purpose. The list is not exhaustive: not all of these factors may be applicable in a particular case, and there may be other factors, not listed, that are relevant.4(1) The nature, seriousness and impact of the suspected breach, including:(a) whether the breach was deliberate
DEPP 6.2.2GRP
When deciding whether to take action for market abuse7, the FCA4 may consider the following additional factors:4(1) The degree of sophistication of the users of the market in question, the size and liquidity of the market, and the susceptibility of the market to market abuse.(2) The impact, having regard to the nature of the behaviour, that any financial penalty or public censure may have on the financial markets or on the interests of consumers:(a) a penalty may show that high
DEPP 6.2.2AGRP
2The factors to which the FCA4 will have regard when deciding whether to impose a penalty under regulation 34 of the RCB Regulations are set out in RCB 4.2.3 G. 4
DEPP 6.2.3GRP
The FCA's4 rules on systems and controls against money laundering are set out in SYSC 3.2 and SYSC 6.3. The FCA4, when considering whether to take action for a financial penalty or censure in respect of a breach of those rules, will have regard to whether a firm has followed relevant provisions in the Guidance for the UK financial sector issued by the Joint Money Laundering Steering Group.44
DEPP 6.2.4GRP
Disciplinary action against senior managers of firms and other individuals is one of the FCA’s key tools in deterring firms and individuals from committing breaches.644
DEPP 6.2.5GRP
In some cases it may not be appropriate to take disciplinary measures against a firm for the actions of an individual6 (an example might be where the firm can show that it took all reasonable steps to prevent the breach). In other cases, it may be appropriate for the FCA4 to take action against both the firm and the individual6. For example, a firm may have breached the rule requiring it to take reasonable care to establish and maintain such systems and controls as are appropriate
DEPP 6.2.6GRP
In addition to the general factors outlined in DEPP 6.2.1 G, there are some additional considerations that may be relevant when deciding whether to take action against an individual under6section 66 of the Act. This list of those considerations is non-exhaustive. Not all considerations below may be relevant in every case, and there may be other considerations, not listed, that are relevant.(1) The individual's6 position and responsibilities. The FCA4 may take into account the
DEPP 6.2.6AGRP
6DEPP 6.2.6BG to DEPP 6.2.9G apply to action taken by the FCA under section 66 of the Act, except for action taken by virtue of section 66A(5). DEPP 6.2.9-AG to DEPP 6.2.9-FG apply only to action taken by virtue of section 66A(5).9
DEPP 6.2.6BGRP
6The FCA may take disciplinary action against an individual where there is evidence of personal culpability on the part of that individual. Personal culpability arises if the individual’s behaviour was deliberate or below the standard which would be reasonable in all the circumstances at the time of the conduct concerned.
DEPP 6.2.7GRP
The FCA will not discipline individuals6 on the basis of vicarious liability (that is, holding them responsible for the acts of others), provided appropriate delegation and supervision has taken place (see APER 4.6.13G, APER 4.6.14G, COCON 4.1.8G and COCON 4.2.17G to COCON 4.2.24G6). In particular, disciplinary action will not be taken against an approved person performing a significant influence function or a senior conduct rules staff member6 simply because a regulatory failure
DEPP 6.2.9GRP
Where disciplinary action is taken against an individual6 the onus will be on the FCA4 to show that the individual6 has been guilty of misconduct.4
DEPP 6.2.9-AGRP
9The FCA is able to take action against an SMF manager under section 66A(5) of the Act where: (1) there has been (or continues to be) a contravention of a relevant requirement by the SMF manager’sfirm;(2) at the time of the contravention, the SMF manager was responsible for the management of any of the firm’s activities in relation to which the contravention occurred; and(3) the SMF manager did not take such steps as a person in their position could reasonably be expected to take
DEPP 6.2.9-BGRP
9When deciding whether to take action further to section 66A(5) of the Act, the FCA will follow the approach in DEPP 6.2.1G and DEPP 6.2.6G.
DEPP 6.2.9-CGRP
9When determining, for the purposes of section 66A(5) of the Act, whether an SMF manager was responsible for the management of any of the firm’s activities in relation to which a contravention of a relevant requirement by the firm occurred, the FCA will consider the full circumstances of each case. A list of considerations that may be relevant for this purpose is set out below. This list is not exhaustive.(1) The SMF manager’sstatement of responsibilities, including whether the
DEPP 6.2.9-EGRP
9When determining under section 66A(5)(d) of the Act whether or not an SMF manager has taken such steps as a person in their position could reasonably be expected to take to avoid the contravention of a relevant requirement by the firm occurring (or continuing), additional considerations to which the FCA would expect to have regard include, but are not limited to:(1) the role and responsibilities of the SMF manager (for example, such steps as an SMF manager in a non-executive
DEPP 6.2.9-FGRP
Where action is taken against an SMF manager under section 66A(5) of the Act the onus will be on the FCA to show that the SMF manager has been guilty of misconduct.
DEPP 6.2.9AGRP
3In addition to the general factors outlined in DEPP 6.2.1 G, there are some additional considerations that the FCA4 will have regard to when deciding whether to take action against a person that performs a controlled function without approval contrary to section 63A of the Act.4(1) The conduct of the person. The FCA4 will take into consideration whether, while performing controlled functions without approval, the person committed misconduct in respect of which, if he had been
DEPP 6.2.10GRP
The primary responsibility for ensuring compliance with Part VI of the Act, the Part 6 rules, the prospectus rules or a provision otherwise made in accordance with the Prospectus Directive or a requirement imposed under such provision rests with the persons identified in section 91(1) and section 91(1A) (Penalties for breach of Part 6 rules) of the Act respectively. Normally therefore, any disciplinary action taken by the FCA4 for contraventions of these obligations will in the
DEPP 6.2.11GRP
However, in the case of a contravention by a person referred to in section 91(1)(a) or section 91(1)(b) or section 91(1A) of the Act ("P"), where the FCA4 considers that another person who was at the material time a director of P was knowingly concerned in the contravention, theFCA4 may take disciplinary action against that person. In circumstances where the FCA4 does not consider it appropriate to seek a disciplinary sanction against P (notwithstanding a breach of relevant requirements
DEPP 6.2.13GRP
In deciding whether to take action, the FCA4 will consider the full circumstances of each case. Factors that may be relevant for this purpose include, but are not limited to, the factors at DEPP 6.2.1 G.4
DEPP 6.2.14GRP
The Principles are set out in PRIN 2.1.1 R. The Principles are a general statement of the fundamental obligations of firms under the regulatory system. The Principles derive their authority from the FCA's4 rule-making powers set out in section 137A4(General rule-making power) of the Act. A breach of a Principle will make a firm liable to disciplinary action. Where the FCA4 considers this is appropriate, it will discipline a firm on the basis of the Principles alone.444
DEPP 6.2.15GRP
In determining whether a Principle has been breached, it is necessary to look to the standard of conduct required by the Principle in question at the time. Under each of the Principles, the onus will be on the FCA4 to show that a firm has been at fault in some way. 4
DEPP 6.2.16GRP
The Listing Principles and Premium Listing Principles5 are set out in LR 7. The Listing Principles set out in LR 7.2.1 R5 are a general statement of the fundamental obligations of all5listed companies. In addition to the Listing Principles, the Premium Listing Principles set out in LR 7.2.1A R are a general statement of the fundamental obligations of all listed companies with a premium listing of equity shares. The Listing Principles and Premium Listing Principles5 derive their
DEPP 6.2.17GRP
In determining whether a Listing Principle or Premium Listing Principle5 has been broken, it is necessary to look to the standard of conduct required by the Listing Principle or Premium Listing Principle5 in question. Under each of the Listing Principles and Premium Listing Principles5, the onus will be on the FCA4 to show that a listed company has been at fault in some way. This requirement will differ depending upon the relevant5 Listing Principle or Premium Listing Princip
DEPP 6.2.19GRP
Some types of breach may potentially result not only in action by the FCA4, but also action by other domestic or overseas regulatory authorities or enforcement agencies.4
DEPP 6.2.20GRP
When deciding how to proceed in such cases, the FCA4 will examine the circumstances of the case, and consider, in the light of the relevant investigation, disciplinary and enforcement powers, whether it is appropriate for the FCA4 or another authority to take action to address the breach. The FCA4 will have regard to all the circumstances of the case including whether the other authority has adequate powers to address the breach in question.444
DEPP 6.2.21GRP
In some cases, it may be appropriate for both the FCA4and another authority to be involved, and for both to take action in a particular case arising from the same facts. For example, a breach of RIE rules may be so serious as to justify the FCA4 varying or cancelling the firm's Part IV permission, or withdrawing approval from approved persons, as well as action taken by the RIE. In such cases, the FCA4 will work with the relevant authority to ensure that cases are dealt with efficiently
DEPP 6.2.22GRP
In relation to behaviour7 which may have happened or be happening in the context of a takeover bid, the FCA4 will refer to the Takeover Panel and give due weight to its views. Where the Takeover Code has procedures for complaint about any behaviour, the FCA4 expects parties to exhaust those procedures. The FCA4 will not, save in exceptional circumstances, take action under any of section 123 (FCA's4power to impose penalties), section 123A (Power to prohibit individuals from managing
DEPP 6.2.23GRP
The FCA4 will not take action against a person over behaviour7 which does not amount to market abuse. Behaviour is less likely to amount to market abuse where it7 (a) conforms with the Takeover Code or rules of an RIE and (b) falls within the terms of MAR 1.10.4G to 1.10.6G7 which state7 that behaviour7 so conforming is unlikely to, of itself,7 amount to market abuse. The FCA4 will seek the Takeover Panel's or relevant RIE's views on whether behaviour7 complies with the Takeover
DEPP 6.2.24GRP
If any of the circumstances in DEPP 6.2.26 G apply, and the FCA4 considers that the use of its disciplinary powers under section 123 or section 129, or of its injunctive powers under section 381 or of its powers relating to restitution under section 383 or 384 is appropriate, it will not take action during an offer to which the Takeover Code applies except in the circumstances set out in DEPP 6.2.27 G.4
DEPP 6.2.25GRP
In any case where the FCA4 considers that the use of its powers under any of sections 123, 123A, 123B,7 129, 381, 383 or 384 of the Act may be appropriate, if that use may affect the timetable or outcome of a takeover bid or where it is appropriate in the context of any exercise by the Takeover Panel of its powers and authority, the FCA4 will consult the Takeover Panel before using any of those powers.44
DEPP 6.2.26GRP
Where the behaviour7 of a person which amounts to market abuse is behaviour7 to which the Takeover Code is relevant, the use of the Takeover Panel's powers will often be sufficient to address the relevant concerns. In cases where this is not so, the FCA4 will need to consider whether it is appropriate to use any of its own powers under the market abuse regime. The principal circumstances in which the FCA4 is likely to consider such exercise are:44(1) where the behaviour7 falls
DEPP 6.2.27GRP
The exceptional circumstances in which the FCA4 will consider the use of powers during a takeover bid are listed in DEPP 6.2.26G (1), DEPP 6.2.26G (3) and DEPP 6.2.26G (4), and, depending on the circumstances, DEPP 6.2.26G (5).4
IFPRU 2.3.1GRP
(1) IFPRU 2.3 sets out guidance on IFPRU 2.2 (Adequacy of financial resources) so far as it applies to an IFPRU investment firm. In particular, guidance on how a firm should carry out its ICAAP, as well as some factors the FCA will take into consideration when undertaking a SREP. The terms ICAAP and SREP are explained in IFPRU 2.3.3 G. IFPRU 2.3.48 G to IFPRU 2.3.52 R are rules that apply to a firm with an IRB permission.(2) IFPRU 2.3 is mainly written on the basis that IFPRU
IFPRU 2.3.3GRP
The adequacy of a firm's capital needs to be assessed both by a firm and the FCA. This process involves:(1) an internal capital adequacy assessment process (ICAAP), which a firm is obliged to carry out in accordance with the ICAAPrules; and(2) a supervisory review and evaluation process (SREP), which is conducted by the FCA.
IFPRU 2.3.7GRP
The FCA will review a firm'sICAAP, including the results of the firm's stress tests carried out under IFPRU and the EUCRR, as part of its SREP. Provided that the FCA is satisfied with the appropriateness of a firm's capital assessment, the FCA will take into account that firm'sICAAP and stress tests in its SREP. More material on stress tests for a firm with an IRB permission can be found in IFPRU 2.3.50 R to IFPRU 2.3.54 G.11
IFPRU 2.3.8GRP
The SREP is a process under which the FCA: (1) reviews the arrangements, strategies, processes and mechanisms implemented by a firm to comply with IFPRU, SYSC and with requirements imposed by or under the EUCRR and wider regulatory system and evaluates the risks to which the firm is, or might be, exposed;(2) determines whether the arrangements, strategies, processes and mechanisms implemented by the firm and the capital held by the firm ensures a sound management and coverage
IFPRU 2.3.9GRP
As part of its SREP, the FCA may ask a firm to provide it with the results of that firm'sICAAP, together with an explanation of the process used. Where appropriate, the FCA will ask for additional information on the ICAAP.
IFPRU 2.3.10GRP
As part of its SREP, the FCA will consider whether the amount and quality of capital which a firm should hold to meet its own funds requirements in the EUCRR is sufficient for that firm to comply with the overall financial adequacy rule.
IFPRU 2.3.11GRP
After completing a review as part of the SREP, the FCA will normally give that firm individual guidance (individual capital guidance), advising it of the amount and quality of capital which it should hold to meet the overall financial adequacy rule.
IFPRU 2.3.12GRP
(1) As part of its SREP, the FCA will also consider whether a firm should hold a capital planning buffer and the amount and quality of such capital planning buffer. 2(2) In making these assessments, the FCA will have regard to the nature, scale and complexity of a firm's business and of the major sources of risks relevant to such business as referred to in the general stress and scenario testing rule and SYSC 20 (Reverse stress testing), and the extent to which the firm has used
IFPRU 2.3.13GRP
After completing a review as part of the SREP, the FCA may notify the firm of the amount and quality of capital which it should hold as a capital planning buffer over and above the level of capital recommended as its ICG. The FCA may set a firm'scapital planning buffer either as an amount and quality of capital which it should hold now (ie, at the time of the FCA notification following the firm'sSREP) or, in exceptional cases, as a forward-looking target that the firm should build
IFPRU 2.3.14GRP
Where the amount or quality of capital which the FCA considers a firm should hold to meet the overall financial adequacy rule or as a capital planning buffer is not the same as that which results from a firm'sICAAP, the FCA usually expects to discuss any such difference with the firm. Where necessary, the FCA may consider the use of its powers under section 166 of the Act (Reports by skilled persons) to assist in such circumstances.
IFPRU 2.3.15GRP
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
IFPRU 2.3.16GRP
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.
IFPRU 2.3.17GRP
The FCA will not give individual capital guidance to the effect that the amount of capital advised in that guidance is lower than the amount of capital which a firm should hold to meet its own funds requirements.
IFPRU 2.3.18GRP
If, after discussion, the FCA and a firm still do not agree on an adequate level of capital, the FCA may consider using its powers under section55L of the Act on its own initiative to require the firm1 to hold capital in line with the FCA's view of the capital necessary to comply with the overall financial adequacy rule. In deciding whether it should use its powers under section 55L,1the FCA will take into account the amount and quality of the capital planning buffer which the
IFPRU 2.3.19GRP
If the FCA gives individual capital guidance to a firm, the FCA will state what amount and quality of capital the FCA considers the firm needs to hold in order to comply with the overall financial adequacy rule. It will generally do so by saying that the firm should hold own funds of an amount which is at least equal to a specified percentage of that firm'stotal risk exposure amount2 plus one or more static add-ons for specific risks, in line with the overall Pillar 2 rule.
IFPRU 2.3.21GRP
Where the FCA notifies a firm that it should hold a capital planning buffer, the notification will state what amount and quality of capital the FCA considers is adequate for the firm to hold. This will normally be notified to the firm, together with its individual capital guidance and expressed as a separate amount of own funds that the firm should hold in excess of the amount of own funds indicated as its individual capital guidance.
IFPRU 2.3.22GRP
For the purposes of IFPRU 2.3.21 G, 1IFPRU 2.3.20 G1 applies as it applies to individual capital guidance. References in those provisions to individual capital guidance should be read as if they were references to capital planning buffer. In relation toIFPRU 2.2.62 R, where the general stress and scenario testing rule or SYSC 20 (Reverse stress testing), as part of the ICAAPrules, applies to a firm on a consolidated basis, the FCA may notify the firm that it should hold a group
IFPRU 2.3.23GRP
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
IFPRU 2.3.24GRP
In the circumstance in IFPRU 2.3.23 G, the FCA may ask a firm for alternative or more detailed proposals and plans or further assessments and analyses of capital adequacy and risks faced by the firm. The FCA will seek to agree with the firm appropriate timescales and scope for any such additional work, in the light of the circumstances which have arisen.
IFPRU 2.3.25GRP
If a firm has not accepted individual capital guidance given by the FCA it should, nevertheless, inform the FCA as soon as practicable if its own funds have fallen, or are expected to fall, below the level suggested by that individual capital guidance.
IFPRU 2.3.26GRP
Monitoring the use of a firm'scapital planning buffer is also a fundamental part of the FCA's supervision of that firm. A firm should only use its capital planning buffer to absorb losses or meet increased own funds requirements if certain adverse circumstances materialise. These should be circumstances beyond the firm's normal and direct control, whether relating to a deteriorating external environment or periods of stress, such as macroeconomic downturns or financial/market
IFPRU 2.3.27GRP
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
IFPRU 2.3.28GRP
Following discussions with the firm on the items listed in IFPRU 2.3.27 G, the FCA may put in place additional reporting arrangements to monitor the firm's use of its capital planning buffer in accordance with the plan referred to in IFPRU 2.3.27 G (3). The FCA may also identify specific trigger points as the capital planning buffer is being used up by the firm, which could lead to additional supervisory actions.
IFPRU 2.3.29GRP
Where a firm'scapital planning buffer is being drawn down due to circumstances other than those in IFPRU 2.3.26 G, such as poor planning or mismanagement, the FCA may ask the firm for more detailed plans for it to restore its capital planning buffer. In the light of the relevant circumstances, the FCA may consider taking other remedial actions, which may include using its powers under section 55L of the Act on its own initiative, to impose a requirement on a firm.11
IFPRU 2.3.30GRP
A firm should inform the FCA where its capital planning buffer is likely to start being drawn down, even if it has not accepted the FCA's assessment as to the amount or quality of its capital planning buffer.
IFPRU 2.3.31GRP
Where a firm has started to use its capital planning buffer in circumstances where it was not possible to notify in advance, it should notify the FCA and provide the information referred to in IFPRU 2.3.27 G as soon as practicable afterwards.
IFPRU 2.3.33GRP
IFPRU 2.3.34 G to IFPRU 2.3.36G set out what the FCA considers to be a proportional approach to preparing an ICAAP as referred to in IFPRU 2.2.12 R (The processes, strategies and systems required by the overall Pillar 2 rule should be comprehensive and proportionate), according to the relative degree of complexity of a firm's activities. If a firm adopts the appropriate approach, it may enable the FCA more easily to review a firm'sICAAP when the FCA undertakes its SREP. The FCA
IFPRU 2.3.36GRP
(1) This paragraph applies to a proportional ICAAP in the case of a firm that is a significant IFPRU firm (see IFPRU 1.2.3 R) whose activities are complex.(2) A proportional approach to that firm'sICAAP should cover the matters identified in IFPRU 2.3.34 G and IFPRU 2.3.35 G, but is likely also to involve the use of models, most of which will be integrated into its day-to-day management and operation.(3) Models of the kind referred to in (2) may be linked to generate an overall
IFPRU 2.3.38GRP
(1) A firm may take into account factors other than those identified in the overall Pillar 2 rule when it assesses the level of capital it wishes to hold. These factors might include external rating goals, market reputation and its strategic goals. However, a firm should be able to distinguish, for the purpose of its dialogue with the FCA, between capital it holds to comply with the overall financial adequacy rule, capital it holds as a capital planning buffer and capital held
IFPRU 2.3.42GRP
A firm should assess and monitor, in detail, its exposure to sectoral, geographic, liability and asset concentrations. The FCA considers that concentrations in these areas increase a firm's exposure to credit risk. Where a firm identifies such concentrations it should consider the adequacy of its own funds requirements.
IFPRU 2.3.52RRP
If IFPRU 2.3.50 Rapplies to a firm on a consolidated basis, the following adjustments are made to IFPRU 2.3.50 R in accordance with the general principles of Part One, Title II, Chapter 2 of the EU CRR (Prudential consolidation): (1) references to own funds are to the consolidated own funds of the firm's FCA consolidation group or, as the case may be, its non-EEA sub-group; and(2) references to the capital requirements in Part Three of the EU CRR (Capital requirements) are to
IFPRU 2.3.53GRP
If a firm's current available own funds are less than the own funds requirements indicated by the stress test, that does not necessarily mean there is a breach of IFPRU 2.3.50 R. The firm may wish to set out any countervailing effects and off-setting actions that can be demonstrated to the satisfaction of the FCA as being likely to reduce that difference. The FCA is only likely to consider a demonstration of such actions as credible if those actions are set out in a capital management
IFPRU 2.3.56GRP
In considering if there are any systems and control weaknesses, and their effect on the adequacy of the own funds requirements, a firm should be able to demonstrate to the FCA that all the issues identified in SYSC have been considered and that appropriate plans and procedures exist to deal adequately with adverse scenarios.
IFPRU 2.3.60GRP
As an asset manager's mandates become more complex, the risk of it failing to comply fully with the terms of its contracts increases. In the event of such failure, a firm can be exposed to substantial losses resulting from customers' claims and legal actions. Although the FCA would expect an asset manager to have adequate controls in place to mitigate that risk, it may also like to consider the potential cost to it if customers claim that it has not adhered to mandates. Past claims
IFPRU 2.3.62GRP
The FCA expects an asset manager to consider the impact of economic factors on its ability to meet its liabilities as they fall due. Therefore, an asset manager should develop scenarios which relate to its strategic and business plan. An asset manager might consider: (1) the effect of a market downturn that affects both transaction volumes and the market values of assets in its funds - in assessing the impact of such a scenario, an asset manager may consider the extent to which
IFPRU 2.3.69GRP
A firm should not expect the FCA to accept as adequate any particular model that it develops, or automatically to reflect the results from the model in any individual capital guidance or capital planning buffer. However, the FCA will take into account the results of a sound and prudent model when giving individual capital guidance or when dealing with the firm in relation to its capital planning buffer.
IFPRU 2.3.71GRP
In relation to the use of an ECM (see IFPRU 2.3.36 G), the FCA is likely to place more reliance on a firm'sICAAP if the firm provides the following information: (1) a comparison of the amount of capital that the ECM generates in respect of each of the risks captured in the own funds requirements before aggregation with the corresponding components of the own funds requirements calculation; and(2) evidence that the guidance inIFPRU 2.3.68 G to IFPRU 2.3.75 G1 has been followed
IFPRU 2.3.73GRP
If a firm's internal model makes explicit or implicit assumptions in relation to correlations within or between risk types, or diversification benefits between business types, the firm should be able to explain to the FCA, with the support of empirical evidence, the basis of those assumptions.
IFPRU 4.6.5GRP
Article 169(3) of the EU CRR allows the use of direct estimates of PDs, although such a measure could be assessed over a variety of different time horizons which the EU CRR does not specify. Accordingly, the FCA considers that it acceptable in principle to use methodologies of this type in lieu of estimation of long-run averages for the grade/pool/score of the underlying rating system, where the following conditions are met. Meeting these conditions requires a firm using the
IFPRU 4.6.6GRP
The FCA will not permit a firm using a variable scalar approach to revert to using a PiT approach during more benign economic conditions.
IFPRU 4.6.8GRP
Accordingly, the FCA expects a firm using a variable scalar approach should adopt a PD that is the long-run default rate expected over a representative mix of good and bad economic periods, assuming that the current lending conditions including borrower mix and attitudes and the firm's lending policies remain unchanged. If the relevant lending conditions or policies change, then the FCA would expect the long-run default rate to change (see article 180(1)(a), (b) and (2)(a) of
IFPRU 4.6.9GRP
The FCA considers that, until more promising account level arrears data is collected, enabling firms to better explain the movement in their arrears rate over time, the likelihood of firms being able to develop a compliant variable scalar approach for non-mortgage retail portfolios is low. This is because of the difficulty that firms have in distinguishing between movements in default rates that result from cyclical factors and those that result from non-cyclical reasons for these
IFPRU 4.6.11GRP
The FCA considers that one variable scalar approach, potentially compliant with the four principles in IFPRU 4.6.5 G, could involve:(1) segmenting a portfolio by its underlying drivers of default risk; and(2) estimating separate long-run default rates for each of these segmented pools.
IFPRU 4.6.13GRP
Segmentation should be done on the basis of the main drivers of both willingness and ability to pay. In the context of residential mortgages, an example of the former is the amount of equity in the property and an example of the latter is the ratio of debt to income. The FCA expects a firm to:(1) incorporate an appropriate number of drivers of risk within the segmentation to maximise the accuracy of the system;(2) provide detailed explanations supporting its choices of drivers,
IFPRU 4.6.14GRP
To the extent that the basis of segmentation is not sufficient completely to explain movements in non-cyclical default risk, the long-run default rate for that segment will not be stable (eg, a change in the mix of the portfolio within the segment could change the long-run default rate). In such cases, the FCA would expect a firm to make a conservative compensating adjustment to the calibration of the long-run average PD for the affected segments and be able to demonstrate that
IFPRU 4.6.15GRP
The FCA expects a firm to review and amend as necessary the long run default rate to be applied to each segment on a regular (at least an annual) basis. When reviewing the long run default rate to be applied to each segment, the FCA expects a firm to consider the extent to which:(1) realised default rates are changing due to cyclical factors and the scaling factors needs to be changed;(2) new information suggests that both the PiT PDs and the long run PDs should be changed; and(3)
IFPRU 4.6.16GRP
The FCA expects that, over time, the actual default rates incurred in each segment would form the basis of PD estimates for the segments. However, at the outset, the key calibration issue is likely to be the setting of the initial long-run default rate for each segment, as this will underpin the PD of the entire portfolio for some years to come. A firm should apply conservatism in this area and this is something on which the FCA is likely to focus on in model reviews.
IFPRU 4.6.17GRP
A firm should put in place a governance process to provide a judgemental overlay to assess its choices of segments, PD estimates and scalars, both initially and on a continuing basis. Moreover, where the basis of its estimation is a formulaic approach, the FCA considers that the act of either accepting or adjusting the estimate suggested by the formula would represent the exercise of judgement.
IFPRU 4.6.19GRP
The FCA expects a firm to consider the following issues when seeking to apply a variable scalar approach for UK mortgages:(1) in respect of Principle 2 (IFPRU 4.6.5 G), the commonly used Council for Mortgage Lenders database was based on arrears data and not defaults during a period, and the use of these data without further analysis and adjustment can undermine the accuracy of any calculations; and(2) in respect of Principle 3 (IFPRU 4.6.5 G), the historical data time period
IFPRU 4.6.20GRP
The FCA expects a firm that is including mortgage arrears data as a proxy for default data to:(1) carry out sensitivity analysis identifying the circumstances in which the assumption that arrears may be used as a proxy for default would produce inaccuracy in long-run PD estimates;(2) set a standard for what might constitute a potentially significant level of inaccuracy, and demonstrate why, in practice, the use of this proxy would not result in any significant inaccuracy;(3) establish
IFPRU 4.6.21GRP
When using historical mortgage data as a key input into variable scalar models, the FCA expects a firm to:(1) carry out sensitivity analysis identifying the implications of using different cut-off dates for the start of the reference data set; and(2) justify the appropriateness of its choice of cut-off date.
IFPRU 4.6.22GRP
Where a firm has not chosen to apply the definition of default at the level of an individual credit facility in accordance with article 178(1) of the EU CRR, the FCA expects it to ensure that the PD associated with unsecured exposures is not understated as a result of the presence of any collateralised exposures.
IFPRU 4.6.23GRP
The FCA expects the PD of a residential mortgage would typically be lower than the PD of an unsecured loan to the same borrower (see article 178(1) of the EU CRR).
IFPRU 4.6.24GRP
Where a firm chooses to apply the definition of default at the level of an individual credit facility, in accordance with article 178(1) of the EU CRR, and a customer has defaulted on a facility, then default on that facility is likely to influence the PD assigned to that customer on other facilities. The FCA expects a firm to take this into account in its estimates of PD (see article 178(1) of the EU CRR).
IFPRU 4.6.25GRP
To ensure that a rating system provides a meaningful differentiation of risk and accurate and consistent quantitative estimates of risk, the FCA expects a firm to develop country-specific mid-market PD models. Where a firm develops multi-country mid-market PD models, the FCA expects the firm to be able to demonstrate that the model rank orders risk and predicts default rates for each country where it is to be used for own funds requirements calculation.
IFPRU 4.6.26GRP
The FCA expects a firm to have challenging standards in place to meaningfully assess whether a model rank orders risk and accurately predict default rates. These standards should specify the number of defaults that are needed for a meaningful assessment to be done.
IFPRU 4.6.27GRP
The FCA expects a firm to assess the model's ability to predict default rates using a time series of data (ie, not only based on one year of default data).
IFPRU 4.6.28GRP
In the FCA's view, a model is not likely to be compliant where the firm cannot demonstrate that it rank orders risk and predicts default rates for each country, regardless of any apparent conservatism in the model.
IFPRU 4.6.29GRP
The FCA expects a firm using a rating agency grades as the primary driver in its IRB models to be able to demonstrate (and document) compliance with the following criteria:(1) the firm has its own internal rating scale;(2) the firm has a system and processes in place that allow it to continuously collect and analyse all relevant information, and the 'other relevant information' considered by the firm in accordance with article 171(2) of the EU CRR reflects the information collected
IFPRU 4.6.30GRP
In the FCA's view, if a firm does not have any additional information to add to the external ratings for the significant part of its portfolio then it will not be meeting the requirements for using an IRB approach.
IFPRU 4.6.31GRP
The FCA expects a firm to estimate PD for a rating system in line with this section where the firm's internal experience of defaults for that rating system was 20 defaults or fewer, and reliable estimates of PD cannot be derived from external sources of default data, including the use of market price-related data. In PD estimation for all exposures covered by the rating system, the FCA expects the firm to:(1) use a statistical technique to derive the distribution of defaults implied
IFPRU 4.6.32GRP
The FCA expects a firm to take into account only defaults that occurred during periods that are relevant to the validation under the EU CRR of the model or other rating system in question when determining whether there are 20 defaults or fewer.
IFPRU 4.6.33GRP
The FCA expects a firm to assign exposures to the risk weight category for specialised lending exposures based on the criteria set out in the tables in IFPRU 4 Annex 1G(Slotting criteria).
SUP 10C.14.1GRP
(1) An FCA-approved SMF manager's job may change from time to time as a result, for instance, of a change in personal job responsibilities or a firm'sregulated activities. (2) Where the changes will involve the SMF manager performing one or more FCA-designated senior management functions different from those for which approval has already been granted, an application must be made to the FCA for approval for the SMF manager to perform those FCA-designated senior management functions.(3)
SUP 10C.14.3GRP
If it is proposed that an FCA-approved SMF manager:(1) will no longer be performing an FCA-designated senior management function under an arrangement entered into by one firm or one of its contractors; but(2) will be performing the same or a different FCA-designated senior management function under an arrangement entered into by a new firm or one of its contractors (whether or not the new firm is in the same group as the old firm);the new firm will be required to make a fresh
SUP 10C.14.4GRP
In certain circumstances, when the FCA already has the information it would usually require, a shortened version of the relevant Form A may be completed. See the notes relevant to each form for full details.
SUP 10C.14.5RRP
(1) A firm must notify the FCA no later than ten3business days after an FCA-approved SMF manager ceases to perform an FCA-designated senior management function.(2) It must make that notification by submitting to the FCA a completed Form C (SUP 10A Annex 6R).(3) If: (a) the firm is also making an application for approval for that approved person to perform a controlled function within the same firm or group; and(b) ceasing to perform the FCA-designated senior management function
SUP 10C.14.7RRP
(1) A firm must notify the FCA as soon as practicable after it becomes aware, or has information which reasonably suggests, that it will submit a qualified Form C for an FCA-approved SMF manager.(2) Form C is qualified if the information it contains:(a) relates to the fact that the firm has dismissed, or suspended, the FCA-approved SMF manager from its employment; (b) relates to the resignation by the FCA-approved SMF manager while under investigation by the firm, the FCA or any
SUP 10C.14.8GRP
(1) Notification under SUP 10C.14.7R may be made by telephone, email or fax and should be made, where possible, within one business day of the firm becoming aware of the information. (2) Oral notifications should be given directly to the firm's usual supervisory contact at the FCA. An oral notification left with another person or left on a voicemail, or other automatic messaging service, is unlikely to have been given appropriately.
SUP 10C.14.9GRP
A firm is responsible for notifying the FCA if any FCA-approved SMF manager has ceased to perform an FCA-designated senior management function under an arrangement entered into by its contractor.
SUP 10C.14.10GRP
(1) A firm can submit Form C or Form E and the MiFID Article 4 SMR Information Form3 to the FCA in advance of the cessation date. (2) If the actual cessation date turns out to be different from the one notified in advance, the firm should notify the FCA.(3) If the firm does not submit Form C (including a qualified one), the MiFID Article 4 SMR Information Form,3 or Form E, it should inform the FCA in due course of the reason. This could be done using Form D, if appropriate.
SUP 10C.14.11GRP
(1) When a person ceases the arrangement under which they perform an FCA-designated senior management function, they will automatically cease to be an FCA-approved SMF manager in relation to that FCA-designated senior management function. (2) A person can only be an FCA-approved SMF manager in relation to a specific FCA-designated senior management function. Therefore, a person is not an FCA-approved SMF manager during any period between ceasing to perform one FCA-designated senior
SUP 10C.14.13RRP
If an FCA-approved SMF manager's title, name or national insurance number changes, the firm for which the person performs an FCA-designated senior management function must notify the FCA on Form D (SUP 10A Annex 7R), of that change within seven business days of the firm becoming aware of the matter.
SUP 10C.14.14GRP
The duty to notify in SUP 10C.14.13R does not apply to changes to an FCA-approved SMF manager's private address.
SUP 10C.14.15RRP
(1) If any of the details relating to:(a) the arrangements in relation to any of a firm'sFCA-approved SMF managers; or(b) any FCA-designated senior management functions of one of its FCA-approved SMF managers;are to change, the firm must notify the FCA on Form D (SUP 10A Annex 7R).(2) The notification under (1) must be made as soon as reasonably practicable after the firm becomes aware of the proposed change.(3) This rule does not apply to anything required to be notified under
SUP 10C.14.17GRP
(1) Under section 62A of the Act, a firm should provide the FCA with a revised statement of responsibilities if there has been any significant change in the responsibilities of an FCA-approved SMF manager.(2) Details can be found in SUP 10C.11 (Statements of responsibilities).
SUP 10C.14.18RRP
(1) If a firm becomes aware of information which would reasonably be material to the assessment of the fitness and propriety of an FCA-approved SMF manager, or of candidate to be one (see FIT), it must inform the FCA either:(a) on Form D; or(b) if it is more practical to do so and with the prior agreement of the FCA, by email or fax;as soon as practicable and, in any case, within seven business days.(2) This rule does not apply to anything required to be notified under SUP 10C.14.7R
SUP 10C.14.20GRP
Failing to disclose relevant information to the FCA may be a criminal offence under section 398 of the Act.
SUP 10C.14.22RRP
If a firm is required to notify the FCA about an FCA-approved SMF manager under any of the following:(1) section 63(2A) of the Act (Duty to notify regulator of grounds for withdrawal of approval); or2(2) [deleted]2(3) section 64C of the Act (Requirement for relevant authorised persons to notify regulator of disciplinary action);it must give that notification:(4) under SUP 10C.14.5R (Form C) if that rule applies; (5) under SUP 10C.14.7R (Qualified Form C) if that rule applies;
SUP 10C.14.24GRP
Table: Explanation of the sections of the Act mentioned in SUP 10C.12.22G1SectionSummary of relevant partsOther Handbook materialCommentsSection 63(2A) (Duty to notify regulator of grounds for withdrawal of approval)At least once a year, each firm must, in relation to every SMF manager for whom an approval has been given on the application of that firm:(a) consider whether there are any grounds on which the FCA could withdraw the approval; and(b) if the firm is of the opinion
SUP 10C.14.25GRP
(1) When considering how to notify the FCA under SUP 10C.14.18R or SUP 10C.14.22R, a firm should have regard to the urgency and significance of a matter. If appropriate, the firm should also notify its usual supervisory contact at the FCA by telephone or by other prompt means of communication, before submitting a written notification.(2) Oral notifications should be given directly to the firm's usual supervisory contact at the FCA. An oral notification left with another person
SUP 10C.14.26GRP
(1) The obligations to supply information to the FCA under:(a) SUP 10C; or(b) the sections of the Act listed in SUP 10C.14.22R;apply notwithstanding any agreement (for example, a 'COT 3' Agreement settled by the Advisory, Conciliation and Arbitration Service (ACAS)) or any other arrangements entered into by a firm and an employee upon termination of the employee's employment. (2) A firm should not enter into any such arrangements or agreements that could conflict with its obligations
SUP 10C.14.27GRP
Failing to disclose relevant information to the FCA may be a criminal offence under section 398 of the Act.
SUP 10C.14.28RRP
This section also applies to a notification about a PRA-approved SMF manager who is not an FCA-approved SMF manager required by any of the provisions of the Act listed in SUP 10C.14.22R.
SUP 10C.14.30GRP
If a firm is required to notify the FCA about a PRA-approved SMF manager who is not an FCA-approved SMF manager under one of the sections of the Act referred to in SUP 10C.14.28R, it should make a single notification under the PRA's requirements. There is no need for a separate notification to the FCA.
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 6.2.3RP
3The FCA may publish information about warning notices which fall within section 391(1ZB) of the Act. These are essentially disciplinary warning notices, for example, where the FCA is proposing to censure, fine, or impose a suspension, restriction, condition or limitation on1 a firm or individual. The power to publish information does not apply, for example, to warning notices which only propose to prohibit an individual, withdraw the approval of an individual or cancel the permission
EG 6.2.4RP
3The decisions on whether to exercise the power to publish information about a warning notice, and if so what information to publish, will (subject to EG 6.2.4AG)4 be taken by the RDC after it has consulted with the persons to whom the warning notice has been given or copied. The procedure the FCA will follow when making these decisions is set out in DEPP 3.
EG 6.2.4ARP
4Where the settlement decision makers decide to issue a warning notice, they shall also take the decision on whether to exercise the power to publish information about a warning notice and if so what information to publish. The settlement decision makers will consult with the persons to whom the warning notice has been given or copied. The FCA expects that the settlement decision makers are unlikely to decide it is appropriate to publish information about a warning notice where
EG 6.2.5RP
3The principal purpose of this power is to promote the early transparency of enforcement proceedings. This has several benefits, including: consumers, firms and market users will be able to understand the types of behaviour that the FCA considers unacceptable at an earlier stage, which in turn should encourage more compliant behaviour;by showing at an earlier stage that the FCA is taking action, confidence in the FCA and the regulatory system should be enhanced;there will be more
EG 6.2.6RP
3The FCA will take the following initial steps in considering whether it is appropriate to exercise this power: (1) It will consider whether it is appropriate to publish details of the warning notice in order to enable consumers, firms and market users to understand the nature of the FCA’s concerns. The FCA will consider the circumstances of each case but expects normally to consider it appropriate to publish these details. (2) Where the FCA considers it is appropriate to publish
EG 6.2.7RP
3A person to whom the warning notice is given or copied who seeks to demonstrate potential unfairness from publication must provide clear and convincing evidence of how that unfairness may arise and how he could suffer a disproportionate level of damage. For example, this may be the case if publication could materially affect the person’s health, result in bankruptcy or insolvency, a loss of livelihood or a significant loss of income, or prejudice criminal proceedings to which
EG 6.2.8RP
3If, after consulting the persons to whom the notice is given or copied, the FCA still considers it is appropriate to publish information about a warning notice, it will publish this information in a statement (a warning notice statement). This will ordinarily include a brief summary of the facts which gave rise to the warning notice to enable consumers, firms and market users to understand the nature of the FCA’s concerns. Where the FCA considers it appropriate to identify the
EG 6.2.9RP
3As the FCA may only publish information about disciplinary warning notices and not others, it will in many cases not be able to publish details of all of the sanctions it is seeking to impose (for example, the fact that it is proposing to prohibit an individual as well as impose a fine). For this reason, the FCA will not normally publish the nature and level of the proposed disciplinary sanctions.
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
EG 6.2.11RP
3Publication will generally include placing the warning notice statement on the FCA website. The FCA will also consider what information about the matter should be included on the Financial Services Register.
EG 6.2.12RP
3The FCA will consider the circumstances of each case, but will ordinarily publicise enforcement action where this has led to the issue of a final notice. The FCA may also publicise enforcement action where this has led to the issue of a decision notice. The FCA will decide on a case-by-case basis whether to publish information about the matter to which a decision notice relates, but expects normally to publish a decision notice if the subject of enforcement action decides to
EG 6.2.13RP
3If the FCA intends to publish a decision notice, it will give advance notice of its intention to the person to whom the decision notice is given and to any third party to whom a copy of the notice is given. The FCA will consider any representations made, but will normally not decide against publication solely because it is claimed that publication could have a negative impact on a person’s reputation. The FCA will also not decide against publication solely because a person asks
EG 6.2.14RP
3Publication will generally include placing the decision notice or final notice on the FCA website and this will often be accompanied by a press release. The FCA will also consider what information about the matter should be included on the Financial Services Register. Additional guidance on the FCA's approach to the publication of information on the Financial Services Register in certain specific types of cases is set out at the end of this chapter.
EG 6.2.15RP
3However, as required by the Act (see paragraph 6.2.1 above), the FCA will not publish information if publication of it would, in its opinion, be unfair to the person in respect of whom the action is taken or prejudicial to the interests of consumers, or detrimental to the stability of the UK financial system. It may make that decision where, for example, publication could damage market confidence or undermine market integrity in a way that could be damaging to the interests of
EG 6.2.16RP
3Publishing notices is important to ensure the transparency of FCA decision-making; it informs the public and helps to maximise the deterrent effect of enforcement action. The FCA will upon request review warning notice statements, decision notices, final notices and related press releases that are published on the FCA's website. The FCA will determine at that time whether continued publication is appropriate, or whether notices and publicity should be removed or amended.
EG 6.2.17RP
3In carrying out its review the FCA will consider all relevant factors. In particular, the FCA will take into account: the seriousness of the person’s misconduct;the nature of the action taken by the FCA and the level of any sanction imposed on the person;whether the FCA has continuing concerns in respect of the person and any risk they might pose to the FCA's objectives;whether the person is a firm or an individual;whether the publication sets out the FCA's expectations
EG 6.2.18RP
3The FCA expects usually to conclude that warning notice statements, notices and related press releases that have been published for less than six years should not be removed from the website, and that notices and related press releases relating to prohibition orders which are still applicable should not be removed from the website regardless of the length of time they have been published.
EG 6.2.19RP
3In cases where the FCA publishes a warning notice statement and the FCA subsequently decides not to take any further action, or where it publishes a decision notice and the subject of enforcement action successfully refers the matter to the Tribunal, the FCA will make it clear on its website that the warning notice or the 2decision notice no longer applies. The FCA will normally do this by publishing a notice of discontinuance with the consent of the person to whom the notice
EG 6.2.19ARP
2In other cases where a case is resolved following the publication of a warning notice statement, the FCA will consider on a case-by-case basis whether to update its website to explain what the outcome was of the case described in the warning notice statement. Where the warning notice statement was issued on an anonymised basis, the FCA will at the same time consider the extent to which it is appropriate to identify the subject of the statement.
EG 6.2.21RP
3It is important that the FCA maintains an accurate public record. One of the ways the FCA does this is by publishing1 the reasons for variations of Part 4A permission, the imposition of requirements and variations of the approval of SMF managers1. The FCA will always aim to balance1 the interests of consumers and the possibility of unfairness to the person subject to the FCA's action. The FCA will publish relevant details of1 fundamental and non-fundamental variations of Part
EG 6.2.22RP
3The FCA will amend the Financial Services Register to reflect a firm’s actual Part 4A permission or the terms of an SMF manager’s actual approval under section 59 of the Act1 following any variation.
SUP 10C.10.2GRP
Unless the context otherwise requires, in SUP 10C.10 (Application for approval and withdrawing an application for approval) to SUP 10C.15 (Forms and other documents and how to submit them to the FCA), where reference is made to a firm, this includes an applicant for Part 4A permission and other persons seeking to carry on regulated activities as a relevant authorised person.
SUP 10C.10.3GRP
(1) Section 59 of the Act (Approval for particular arrangements) says that a firm must take reasonable care to ensure that no one performs an FCA controlled function (including an FCA-designated senior management function) unless that person is acting in accordance with an approval given by the FCA.(2) That means that where a candidate will be performing one or more FCA-designated senior management functions, a firm must take reasonable care to ensure that the candidate does not
SUP 10C.10.4GRP
(1) If a person performs an FCA controlled function (including an FCA-designated senior management function) without approval, it is not only the firm that is accountable. Under section 63A of the Act (Power to impose penalties), if the FCA is satisfied that:(a) a person (‘P’) has at any time performed an FCA controlled function without approval; and(b) at that time P knew, or could reasonably be expected to have known, that P was performing an FCA controlled function without
SUP 10C.10.5GRP
In accordance with section 60 of the Act (Applications for approval), applications must be submitted by, or on behalf of, the firm itself, not by:(1) the FCA candidate; or(2) (where the FCA candidate works for the firm'sparent undertaking or holding company) by the firm'sparent undertaking or holding company.
SUP 10C.10.6GRP
(1) The firm that is employing the FCA candidate to perform the FCA-designated senior management function will usually make the submission itself. (SUP 10C.10.7G describes some common situations.) (2) Where a firm has outsourced the performance of an FCA-designated senior management function, the details of the outsourcing determines whom the FCA anticipates will submit the FCA-approved persons application forms.(3) The firm which is outsourcing is referred to as ‘A’ and the
SUP 10C.10.7GRP
Outsourcing arrangements1Outsourcing arrangementsExplanationSubmitting formFirm A to firm BThe FCA will consider A to have taken reasonable care if it enters into a contract with B under which B is responsible for ensuring that the relevant FCA-designated senior management functions are performed by FCA-approved SMF managers, and that it is reasonable for A to rely on this.Firm B submits FCA-approved persons forms on behalf of firm A.Outsourcing by A to B (both being a member
SUP 10C.10.8DRP
(1) An application by a firm for the FCA's approval under section 59 of the Act (Approval for particular arrangements) for the performance of an FCA-designated senior management function must be made by completing Form A (SUP 10C Annex 2D), except where SUP 10C.10.9D requires Form E.(2) If a firm must make an application using Form A, it must use Form A (shortened form) if:(a) the person has current approved person approval to perform:(i) an FCA controlled function that is a significant
SUP 10C.10.10GRP
SUP 10C.15 (Forms and other documents and how to submit them to the FCA) explains how applications should be submitted.
SUP 10C.10.11GRP
An application by a firm for the FCA's approval under section 59 of the Act (Approval for particular arrangements) for the performance of an FCA-designated senior management function should be accompanied by a statement of responsibilities.
SUP 10C.10.14GRP
Under section 60A of the Act, before a firm makes an application for approval, it should be satisfied that the candidate is a fit and proper person to perform the function to which the application relates. In deciding that question, the firm should have particular regard to whether the candidate, or any person who may perform a function on the candidate's behalf:(1) has obtained a qualification; (2) has undergone, or is undergoing, training; (3) possesses a level of competence;
SUP 10C.10.15GRP
For guidance on criteria that a firm should use for assessing whether an FCA candidate is fit and proper (including the FCArules referred to in SUP 10C.10.14G), see FIT.
SUP 10C.10.18GRP
Subject to SUP 10C.10.18A, the5firm should not send a copy of the certificate to the FCA.
SUP 10C.10.24GRP
The Act sets out the time that the FCA has to consider an application and come to a decision.
SUP 10C.10.25GRP
In any case, where the application for approval is made by a person applying for a Part 4A permission, the FCA has until the end of whichever of the following periods ends last: (1) the period within which an application for that permission must be determined; and(2) the period of three months from the time it receives a properly completed application.
SUP 10C.10.27GRP
The FCA will deal with cases more quickly than this whenever circumstances allow and will try to meet the standard response times published on the website and in its Annual Report. However, the processing time will be longer than the published standard response times if:(1) an application is incomplete when received; or(2) the FCA has knowledge that, or reason to believe that, the information is incomplete.
SUP 10C.10.28GRP
Before making a decision to grant the application or give a warning notice, the FCA may ask the firm for more information about the FCAcandidate. If it does this, the three-month period in which the FCA must determine a completed application:(1) will stop on the day the FCA requests the information; and(2) will start running again on the day on which the FCA finally receives all the requested information.
SUP 10C.10.29GRP
If there is a delay in processing the application within the standard response time, the FCA will tell the firm making the application as soon as this becomes apparent.
SUP 10C.10.30GRP
(1) Application forms must always be completed fully and honestly. Further notes on how to complete the form are contained in each form. (2) If forms are not completed fully and honestly, applications will be subject to investigation and the FCA candidate's suitability to be approved to undertake an FCA controlled function will be called into question. (3) A person who provides information to the FCA that is false or misleading may commit a criminal offence and could face prosecution
SUP 10C.10.31GRP
The FCA may grant an application only if it is satisfied that the FCA candidate is a fit and proper person to perform the FCA-designated senior management function stated in the application form. Responsibility lies with the firm making the application to satisfy the FCA that the FCA candidate is fit and proper to perform the FCA-designated senior management function applied for.
SUP 10C.10.32GRP
For further guidance on criteria for assessing whether an FCA candidate is fit and proper for the purposes of SUP 10C.10.31G, see FIT.
SUP 10C.10.33GRP
The FCA must:(1) grant the application; (2) grant the application subject to conditions or limitations (see SUP 10C.12 for more information); or(3) refuse the application.
SUP 10C.10.34GRP
Whenever it grants an application, the FCA will confirm this in writing to all interested parties.
SUP 10C.10.35GRP
If the FCA proposes to take the steps in SUP 10C.10.33G(2) or(3) in relation to one or more FCA-designated senior management 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 10C.10.36RRP
A firm notifying the FCA of its withdrawal of an application for approval must use Form B (SUP 10A Annex 5R).
SUP 10C.10.38GRP
SUP 10C.15 (Forms and other documents and how to submit them to the FCA) explains how a notice of withdrawal should be submitted.
SUP 10C.13.1GRP
This section deals with variation of a conditional approval at the:(1) request of the firm; and(2) initiative of the FCA.
SUP 10C.13.2GRP
(1) In particular, this section sets out the FCA’s policies about varying conditional approvals at the request of a firm, as required by section 63ZD of the Act (Statement of policy relating to conditional approval and variation). (2) This section does not deal with the FCA’s policies on varying a condition on its own initiative. DEPP 8 deals with that.
SUP 10C.13.3GRP
A firm may apply to the FCA to change a conditional approval. The changes for which a firm may apply are:(1) a variation of the condition;(2) removal of the condition; and(3) the imposition of a new condition.
SUP 10C.13.4GRP
(1) If a firm is applying for a change of the type described in SUP 10C.13.3G(1) or SUP 10C.13.3G(2), the firm should apply to the FCA if the FCA imposed that condition, even if the approval was given by the PRA. (2) If the firm is applying for the imposition of a new condition, the firm should apply to the FCA if the approval to which the application relates was given by the FCA.(3) In other cases, the application should be to the PRA.
SUP 10C.13.6DRP
An application by a firm to the FCA under section 63ZA of the Act (Variation of senior manager's approval at request of relevant authorised persons) must be made by using Form I (SUP 10C Annex4D).
SUP 10C.13.8GRP
SUP 10C.15 (Forms and other documents and how to submit them to the FCA) explains how applications to vary a conditional approval should be submitted.
SUP 10C.13.9GRP
The FCA has until the end of the period of three months from the time it receives a properly completed application to consider the application and come to a decision.
SUP 10C.13.10GRP
The FCA must either grant the application or, if it proposes not to grant an application, issue a warning notice (see DEPP 2).
SUP 10C.13.11GRP
The FCA may refuse an application if it appears to the FCA that it is desirable to do so to advance one or more of its operational objectives.
SUP 10C.13.12GRP
Before making a decision to grant the application or give a warning notice, the FCA may ask the firm for more information. If it does this, the three-month period in which the FCA must determine a completed application:(1) will stop on the day the FCA requests the information; and(2) will start running again on the day on which the FCA finally receives all the requested information.
SUP 10C.13.13GRP
Whenever it grants an application, the FCA will confirm this in writing to all interested parties.
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 10C.13.15RRP
A firm notifying the FCA of its withdrawal of an application for variation of an approval must use Form B (SUP 10A Annex 5R).
SUP 10C.13.18GRP
The FCA’s policy on approving or refusing a request for a variation is the same as it is for imposing conditions on approval (see SUP 10C.12 (Conditional and time-limited approvals)).
SUP 10C.13.19GRP
(1) An example of a situation in which the FCA would consider varying a condition would be a competency-related condition which required a training course to be completed (see, in particular, SUP 10C.12.24G for this type of condition).(2) If the firm later concludes that a different course would be better, the firm may apply for a variation of the condition.
SUP 10C.13.20GRP
Another example of a situation in which the FCA would consider varying a condition would be a condition relating to a remedial programme (see SUP 10C.12.41G). If the remedial programme is changed, it may be appropriate to change the condition.
SUP 10C.13.21GRP
(1) Other examples of where the FCA may agree to removing a condition are where:(a) the approved person's role has changed so that the reason for the condition originally being imposed no longer applies; or(b) new information has come to light that removes any doubt about the approved person's competence so a condition is no longer necessary.(2) For example, the FCA may agree to removing a condition about the scope of the approved person's role of the type described in SUP 10
SUP 10C.13.22GRP
See SUP 10C.12.38G for another example of a case where the FCA may agree to removing a condition (condition imposed pending reorganisation).
SUP 10C.13.23GRP
Under section 63ZB of the Act (Variation of senior manager's approval on initiative of regulator), the FCA may vary an approval given by the FCA or the PRA for the performance of a designated senior management function if the FCA considers that it is desirable to do so to advance one or more of its operational objectives.
SUP 10C.13.24GRP
The FCA may vary an approval by:(1) imposing a condition; (2) varying a condition; (3) removing a condition; or(4) limiting the period for which the approval is to have effect.
SUP 10C.13.25GRP
More information about the FCA's powers to vary a condition on its own initiative, including its policy on using these powers, can be found in DEPP 8.
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 2.5.3GRP
FCA6 staff under executive procedures will take the decision to give a warning notice if the FCA6 proposes to:66(1) refuse an application for a Part 4A permission6 or to refuse an application to cancel a Part 4A permission6;66(2) impose a limitation or a requirement which was not applied for, or specify a narrower description of regulated activity than that applied for, on the grant of a Part 4A permission6;6(3) refuse an application to vary a Part 4A permission6, or to restrict
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 2.5.6AGRP
6FCA staff under executive procedures will take the decision where the FCA is proposing or deciding to:(1) refuse its consent to the granting by the PRA of an application for a Part 4A permission, or give its consent subject to conditions; (2) refuse its consent to the granting by the PRA of an application for the variation of a Part 4A permission, or give its consent subject to conditions; or(3) refuse its consent to the granting by the PRA of an application to perform a controlled
DEPP 2.5.7GRP
The RDC will take the decision to give a supervisory notice exercising the FCA's6own-initiative powers6 (by removing a regulated activity, by imposing a limitation or requirement or by specifying a narrower description of regulated activity) if the action involves a fundamental variation or requirement6 (see DEPP 2.5.8 G). Otherwise, the decision to give the supervisory notice6 will be taken by FCA6 staff under executive procedures.66666
DEPP 2.5.7AGRP
3Notwithstanding DEPP 2.5.7 G, FCA6 staff under executive procedures will be the decision maker whenever a firm agrees not to contest the FCA's6 exercise of its own-initiative powers,6 including where the FCA's6 action involves a fundamental variation or requirement.666666
DEPP 2.5.8BGRP
9Notwithstanding DEPP 2.5.7G, FCA staff under executive procedures will be the decision maker whenever all of the interested parties (as defined by section 63ZC(6) of the Act) agree not to contest the FCA’s exercise of its power under section 63ZB of the Act.
DEPP 2.5.8CGRP
9The FCA’s statement of policy on the use of the power to vary an SMF manager’s approval on its own initiative is set out in DEPP 8.
DEPP 2.5.9GRP
FCA6 staff under executive procedures will take the following statutory notice decisions:6(1) the refusal of an application for listing of securities;(2) the suspension of listing on the FCA's6 own initiative or at the request of the issuer;6(3) [deleted]22(4) the discontinuance of listing of securities at the issuer's request;(5) the exercise of any of the powers in sections 87K or 87L of the Act in respect of a breach of any applicable provision; and2(6) [deleted]22(7) the refusal
DEPP 2.5.10GRP
The RDC will take statutory notice decisions relating to the discontinuance of listing of securities on the FCA's6 own initiative.6
DEPP 2.5.11GRP
If securities have matured or otherwise ceased to exist the FCA6 will remove any reference to them from the official list. This is a purely administrative process, and not a discontinuance of listing in the sense used in Part 6 of the Act. Decisions relating to imposition of limitations or other restrictions of sponsors and primary information providers.66
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 2.5.12GRP
FCA6 staff will usually inform or discuss with the person concerned any action they contemplate before they recommend to the RDC that the FCA6 takes formal action. The FCA6 may also be invited to exercise certain powers by the persons who would be affected by the exercise of those powers. In these circumstances if the person concerned has agreed to or accepted the action proposed then the decisions referred to in DEPP 2.5.13 G will be taken by FCA6 staff under executive procedures
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 2.5.16GRP
A notice under paragraph 15A(4) of Schedule 3 to5 the Act relating to the application by an EEA firm for approval to manage a UCITS scheme5 is not a warning notice, but the FCA6 will operate a procedure for this5 notice which will be similar to the procedure for a warning notice.55565
DEPP 2.5.17GRP
The FCA6 expects to adopt a procedure in respect of notices under enactments other than the Act which is similar to that for statutory notices under the Act, but which recognises any differences in the legislative framework and requirements. DEPP 2 Annex 1 and DEPP 2 Annex 2 therefore identify notices to be given pursuant to other enactments and the relevant FCA6 decision maker.66
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 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.4Alternatively, they may enter into a focused resolution agreement and in this way partly contest the proposed action (see DEPP 5.1.8AG to DEPP 5.1.8DG).54(1A) 5Further, even if the person subject to enforcement action wishes to fully contest the proposed enforcement action, they may choose to do so by (i) agreeing to the FCA issuing the required
DEPP 5.1.2GRP
A person who is or may be subject to enforcement action may wish to discuss the proposed action with FCA4 staff through settlement discussions.4
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 5.1.4GRP
FCA4staff and the person concerned may agree that neither the FCA4 nor the person concerned would seek to rely against the other on any admissions or statements made in the course of their settlement discussions if the matter is considered subsequently by the RDC or the Tribunal.44
DEPP 5.1.5GRP
(1) The settlement decision makers may, but need not, participate in the discussions exploring possible settlement.(2) If the settlement decision makers have not been involved in the discussions, but an agreement has been reached, they may ask to meet the relevant FCA4 staff or the person concerned in order to assist in the consideration of the proposed settlement.4
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 5.1.7GRP
The settlement decision makers may:(1) accept the proposed settlement by deciding to give a statutory notice based on the terms of the settlement; or(2) decline the proposed settlement;whether or not the settlement decision makers have met with the relevant FCA4 staff or the person concerned.4
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 5.1.8BGRP
5The terms of any proposed focused resolution agreement:(1) will be put in writing and be agreed by FCA staff and the person concerned;(2) may refer to a draft of the proposed warning notice; and (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 material) of the Act to notice of, or access
DEPP 5.1.8CGRP
5Where the proposed settlement is on the basis of a focused resolution agreement, the role of the settlement decision makers shall be as follows:(1) The settlement decision makers will decide whether or not to give a warning notice. (For the avoidance of doubt, the settlement decision makers may meet the relevant FCA staff or the person concerned in accordance with DEPP 5.1.5G and any such meeting shall not affect the settlement decision makers’ ability to decide whether or not
DEPP 5.1.8DGRP
5For the avoidance of doubt, the decision whether to agree a proposed focused resolution agreement is entirely within the discretion of the settlement decision makers.
DEPP 5.1.8EGRP
(1) 5The purpose of this section is to define a procedure (the “expedited reference procedure”) enabling a person subject to enforcement action to challenge the proposed action before the Tribunal without engaging with the FCA’s internal decision-making process.(2) DEPP 5.1.8FG to DEPP 5.1.8IG set out the circumstances in which the expedited reference procedure is available, the steps a person must take to make use of the procedure, and how the procedure operates, depending on
DEPP 5.1.8FGRP
5The expedited reference procedure is available only if:(1) the proposed action requires the FCA to issue a warning notice; (2) the FCA considers that it has a sufficient understanding of the nature and gravity of the breach to make a reasonable assessment of the appropriate penalty or other outcome; and(3) the FCA has communicated that assessment to the person concerned.
DEPP 5.1.8GGRP
5To use the expedited reference procedure, the person subject to enforcement action must notify the FCA that they:(1) wish to make an expedited reference to the Tribunal; and(2) waive and will not exercise any rights under section 387(2) of the Act in respect of the warning notice given (or to be given) in relation to the proposed action.
DEPP 5.1.8HGRP
5To use the expedited reference procedure before a warning notice has been given:(1) the notification set out in DEPP 5.1.8GG must be given to FCA staff; (2) the decision to issue a warning notice will then be taken by the settlement decision makers; and(3) the decision to issue a decision notice will also be taken by the settlement decision makers, taking into consideration any representations by any third party under section 393 of the Act or any interested party under section
DEPP 5.1.8JGRP
5Once a decision notice has been given as part of the expedited reference procedure (whether by the settlement decision makers or the RDC), it is the responsibility of the person subject to enforcement action to seek to refer the matter to the Tribunal under the Act if they so wish. If the matter is not referred to the Tribunal within the time required under section 390(1) of the Act, the FCA will, on taking the action to which the decision notice relates, give a final notice
DEPP 5.1.8KGRP
5If FCA staff consider that it is appropriate to publish information about the matter to which a warning notice falling within section 391(1ZB) of the Act relates and is given by the settlement decision makers, they will make a recommendation to the settlement decision makers that such information should be published.
DEPP 5.1.8LGRP
5The settlement decision makers will then consider whether it is appropriate in all the circumstances to publish information about the matter to which the warning notice falling within section 391(1ZB) of the Act relates. The FCA's policy on publishing such information is set out in EG 6.
DEPP 5.1.8MGRP
5If the settlement decision makers propose that the FCA should publish information about the matter to which a warning notice falling within section 391(1ZB) of the Act relates:(1) the settlement decision makers will settle the wording of the statement it proposes the FCA should publish (warning notice statement);(2) the FCA staff will make appropriate arrangements for the warning notice statement that the settlement decisions makers propose the FCA should publish to be given
DEPP 5.1.8NGRP
5If no response to the proposed warning notice statement is received, the FCA will make appropriate arrangements to publish the warning notice statement.
DEPP 5.1.8OGRP
5If the settlement decision makers receive a response from the person to whom the proposed warning notice statement was given, the settlement decision makers will consider their response and decide whether it is appropriate in all the circumstances to publish information about the matter to which the warning notice relates.
DEPP 5.1.8PGRP
5If the settlement decision makers decide that the FCA should publish a warning notice statement:(1) the settlement decision makers will notify the relevant parties (including the relevant FCA staff) in writing of that decision;(2) the settlement decision makers will settle the wording of the warning notice statement; and(3) the FCA will make appropriate arrangements for the warning notice statement to be published.
DEPP 5.1.8QGRP
5If the settlement decision makers decide that the FCA should not publish a warning notice statement they will notify the relevant parties (including the relevant FCA staff) in writing of that decision.
DEPP 5.1.9GRP
The FCA4 and other parties may agree to mediation as a way of facilitating settlement in appropriate cases.4
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
SUP 15.3.1RRP
A firm must notify the FCA11 immediately it becomes aware, or has information which reasonably suggests, that any of the following has occurred, may have occurred or may occur in the foreseeable future:2929(1) the firm failing to satisfy one or more of the threshold conditions; or(2) any matter which could have a significant adverse impact on the firm's reputation; or(3) any matter which could affect the firm's ability to continue to provide adequate services to its customers
SUP 15.3.2GRP
The circumstances which may give rise to any of the events in SUP 15.3.1 R are wide-ranging and the probability of any matter resulting in such an outcome, and the severity of the outcome, may be difficult to determine. However, the FCA11 expects firms to consider properly all potential consequences of events.2929
SUP 15.3.3GRP
In determining whether the FCA11 should be notified of29 an event that may occur in the foreseeable future, a firm should consider both the probability of the event happening and the severity of the outcome should it happen. 29
SUP 15.3.5GRP
A firm making a notification in accordance with SUP 15.3.1 R should consider the guidance in SUP 15.7.2 G and notify the FCA11 by telephone if appropriate.2929
SUP 15.3.7GRP
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.29292929
SUP 15.3.7AGRP
10Although PRIN does not apply to a firm in relation to its carrying on of auction regulation bidding, the FCA29expects to be given notice of events that are material to the FCA's29supervision of that business and so firms carrying on that business should have regard to the guidance in SUP 15.3.8 G to SUP 15.3.10 G.2929
SUP 15.3.8GRP
Compliance with Principle 11 includes, but is not limited to, giving the FCA11 notice of:2929(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
SUP 15.3.9GRP
The period of notice given to the FCA11 will depend on the event, although the FCA11 expects a firm to discuss relevant matters with it at an early stage, before making any internal or external commitments. 2929
SUP 15.3.10GRP
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
SUP 15.3.11RRP
(1) A firm must notify the FCA11 of:2929(a) a significant breach of a rule (which includes a Principle, a Statement of Principle or a COCONrule)20; or2020(aa) a significant breach of any requirement imposed by the CCA or by regulations or an order made under the CCA (except if the breach is an offence, in which case (c) applies), but any notification under (aa) is required to be made only to the FCA; or 14(b) a breach of any requirement imposed by the Act or by regulations
SUP 15.3.13GRP
In assessing whether an event that may occur in the foreseeable future should be notified to the FCA11 a firm should consider the guidance in SUP 15.3.3 G.2929
SUP 15.3.15RRP
A firm must notify the FCA11 immediately if:29(1) civil proceedings are brought against the firm and the amount of the claim is significant in relation to the firm's financial resources or its reputation; or(2) any action is brought against the firm under section 71 of the Act (Actions for damages) or section 138D24 (Actions for damages); or(3) disciplinary measures or sanctions have been imposed on the firm by any statutory or regulatory authority, competition authority, 21professional
SUP 15.3.17RRP
A firm must notify the FCA11 immediately if one of the following events arises and the event is significant:2929(1) it becomes aware that an employee may have committed a fraud against one of its customers; or(2) it becomes aware that a person, whether or not employed by it, may have committed a fraud against it; or(3) it considers that any person, whether or not employed by it, is acting with intent to commit a fraud against it; or(4) it identifies irregularities in its accounting
SUP 15.3.19GRP
The notifications under SUP 15.3.17 R are required as the FCA11 needs to be aware of the types of fraudulent and irregular activity which are being attempted or undertaken, and to act, if necessary, to prevent effects on consumers or other firms. A notification under SUP 15.7.3 G should provide all relevant and significant details of the incident or suspected incident of which the firm is aware.2929
SUP 15.3.20GRP
In addition, the firm may have suffered significant financial losses as a result of the incident, or may suffer reputational loss, and the FCA11 will wish to consider this and whether the incident suggests weaknesses in the firm'sinternal controls.2929
SUP 15.3.21RRP
A firm must notify the FCA11 immediately of any of the following events:2929(1) the calling of a meeting to consider a resolution for winding up the firm; or(2) an application to dissolve the firm or to strike it off the Register of Companies; or(3) the presentation of a petition for the winding up of the firm; or(4) the making of, or any proposals for the making of, a composition or arrangement with any one or more of its creditors; or(5) an application for the appointment of
SUP 15.3.22DRP
3SUP 15.3.23 D to SUP 15.3.25 D are given in relation to the exercise of the powers of the Society and of the Council generally, with a view to achieving the objective of enabling the FCA11 to:2929(1) comply with its general duty under section 314 of the Act (Regulators’29 general duty);29(2) determine whether underwriting agents, or approved persons acting for them or on their behalf, are complying with the requirements imposed on them by or under the Act;(3) enforce the provisions
SUP 15.3.23DRP
3The Society must immediately inform the FCA11 in writing if it becomes aware that any matter likely to be of material concern to the FCA11 may have arisen in relation to:2929(1) the regulated activities for which the Society has permission; or (2) underwriting agents; or (3) approved persons or individuals acting for or on behalf of underwriting agents.
SUP 15.3.24DRP
3The Society must inform the FCA11 if it commences investigations or disciplinary proceedings relating to apparent breaches:2929(1) of the Act or requirements made under the Act, including the threshold conditions or the Principles or other rules, by an underwriting agent; or(2) of the Statements of Principle by an individual or other person who carries out controlled functions for or on behalf of an underwriting agent.
SUP 15.3.25DRP
3The Society must inform the FCA11 if it commences investigations or disciplinary proceedings which do not fall within the scope of SUP 15.3.24 D but which:2929(1) involve an underwriting agent, or an approved person who carries out controlled functions for it or on its behalf; or (2) may indicate that an individual acting for or on behalf of an underwriting agent may not be a fit and proper person to perform functions in relation to regulated activities.
SUP 15.3.26RRP
15A full-scope UK AIFM must notify the FCA before implementing any material changes to the conditions under which it was granted permission to manage an AIF, in particular to the information it provided in its application for that permission. [Note: article 10(1) of AIFMD]
SUP 15.3.27GRP
15Changes that the FCA would expect to be notified of under SUP 15.3.26 R include:(1) an AIFM being appointed to manage another AIF;(2) the appointment of a different depositary for an AIF the AIFM manages; and(3) the appointment of any new senior personnel if the AIFM is not required to apply for the FCA's approval for that appointment under section 59 of the Act.
SUP 15.3.27ARRP
19A full-scope UK AIFM must notify the FCA of material changes under SUP 15.3.26 R in the following manner:(1) for the management of a new AIF or a new investment compartment of an AIF, by using the form in SUP 15 Annex 6A R; (2) for changes of senior personnel whose appointment is not required to be approved by the FCA under section 59 of the Act, by using the form in SUP 15 Annex 6B R; and(3) for all other material changes, by using the form in SUP 15 Annex 6C R .
SUP 15.3.28RRP
15Where a small authorised UK AIFM no longer meets the conditions in regulation 917 (meaning of “small AIFM”)19 of the AIFMD UK regulation it must:171619(1) immediately notify the FCA using the form in SUP 15 Annex 6D R;19 and(2) within 30 calendar days, apply to the FCA for a variation of its permission to become a full-scope UK AIFM.[Note: article 3(3) second and third paragraphs of AIFMD]
SUP 15.3.29RRP
(1) 19A small authorised UK AIFM must notify the FCA before it starts to manage a new AIF or a new investment compartment of an AIF using the form in SUP 15 Annex 6A R.(2) (1) does not apply where:(a) the management of the new AIF or investment compartment would result in the AIFM exceeding the relevant threshold of assets under management so that it will no longer meet the conditions in regulation 9 (meaning of "small AIFM") of the AIFMD UK regulation (see SUP 15.3.28 R); or
SUP 15.3.30DRP
(1) 19A small registered UK AIFM must notify the FCA of changes in the following manner:(a) for the management of a new AIF or a new investment compartment of an AIF, by using the form in SUP 15 Annex 6A R;(b) (a) does not apply where:(i) the management of the new AIF or investment compartment would result in the AIFM exceeding the relevant threshold of assets under management so that it will no longer meet the conditions in regulation 9 (meaning of "small AIFM") of the AIFMD
SUP 15.3.31GRP
19A EuSEF manager or a EuVECA manager should notify the FCA of the following changes in the following manner:(1) for changes to senior personnel, by using the form in SUP 15 Annex 6B R; and (2) for changes to the jurisdiction in which its EuSEF or EuVECA is marketed or to market a new EuSEF or EuVECA, by using the form in SUP 15 Annex 6F G
SUP 15.3.32RRP
(1) 21A firm must notify the FCA if it has or may have committed a significant infringement of any applicable competition law.(2) A firm must make the notification as soon as it becomes aware, or has information which reasonably suggests, that a significant infringement has, or may have, occurred.(3) (a) A firm must make the notification in writing unless (3)(b) applies.(b) A firm may make the notification orally where it has made or will make an oral application for leniency
SUP 15.3.35GRP
(1) 21Where a firm notifies the FCA under SUP 15.3.32R, the firm should not infer or assume that any lack of (or delay in) a response, objection or enforcement activity by the FCA or any other competition authority means that the agreement or conduct:(a) does not infringe competition law; or (b) is, or will be, immune from enforcement.(2) Notification under SUP 15.3.32R is not sufficient to constitute an application for leniency or immunity from penalty in any subsequent investigation
REC 2.3.1UKRP
Schedule to the Recognition Requirements Regulations, Paragraph 12(1) The [UK RIE] must have financial resources sufficient for the proper performance of its [ relevant functions] as a [UK RIE].(2) In considering whether this requirement is satisfied, the [FCA]5must (without prejudice to the generality of regulation 6(1)) take into account all the circumstances, including the [UK RIE's] connection with any person , and any activity carried on by the [UK RIE], whether or not it
REC 2.3.3GRP
In determining whether a UK recognised body has financial resources sufficient for the proper performance of its relevant functions, the FCA5 may have regard to:5(1) the operational and other risks to which the UK recognised body is exposed;(2) if the UK recognised body guarantees the performance of transactions in specified investments, the counterparty and market risks to which it is exposed in that capacity; 5(3) the amount and composition of the UK recognised body's capital;(4)
REC 2.3.4GRP
The FCA5 will usually rely on a UK recognised body's published and internal management accounts and financial projections, provided that those accounts and projections are prepared in accordance with UK, US or international accounting standards. 5
REC 2.3.5GRP
In assessing whether a UK recognised body has sufficient financial resources in relation to counterparty and market risks, the FCA5 may have regard to:5(1) the amount and liquidity of its financial assets and the likely availability of liquid financial resources to the UK recognised body during periods of major market turbulence or other periods of major stress for the UK financial system;3 and(2) the nature and scale of the UK recognised body's exposures to counterparty and market
REC 2.3.6GRP
In assessing whether a UK recognised body has sufficient financial resources in relation to operational and other risks, the FCA5 may have regard to the extent to which, after allowing for the financial resources necessary to cover counterparty and market risks, the UK recognised body's financial resources are sufficient and sufficiently liquid:5(1) to enable the UK recognised body to continue carrying on properly the regulated activities that it expects to carry on; and(2) to
REC 2.3.7GRP
In considering whether a UK recognised body has sufficient financial resources in relation to operational and other risks, the FCA5 will normally have regard to two components: eligible financial resources and net capital.454
REC 2.3.9GRP
4(1) 4The FCA5 considers that a UK RIE which at any time holds:5(a) eligible financial resources not less than the greater of:(i) the amount calculated under the standard approach; and (ii) the amount calculated under the risk-based approach; and (b) net capital not less than the amount of eligible financial resources determined under (1)(a);will, at that time, have sufficient financial resources to meet the recognition requirement in respect of operational and other risks unless
REC 2.3.10GRP
4The FCA5 would expect to provide a UK recognised body with individual guidance, issued with a frequency determined in accordance with the usual prudential cycle for such bodies, communicated from time to time,6 on the amount of eligible financial resources which it considers would be sufficient for the UK recognised body to hold in respect of operational and other risks6 to satisfy the recognition requirements. In formulating its individual guidance, the FCA5 will ordinarily
REC 2.3.12GRP
4For the purposes of REC 2.3, "net capital" should be in the form of equity. For this purpose, the FCA5 considers that common stock, retained earnings, disclosed reserves and other instruments classified as common equity tier one capital or additional tier one capital constitute equity. The FCA5 considers that, when calculating its net capital, a UK recognised body:55(1) should deduct holdings of its own securities, or those of any undertaking in the same group as the UK recognised
REC 2.3.13GRP
(1) 4Under the standard approach, the amount of eligible financial resources is equal to six months of operating costs.(2) Under the standard approach, the FCA5 assumes liquid financial assets are needed to cover the costs that would be incurred during an orderly wind-down of the UK recognised body'sexempt activities, while continuing to satisfy all the recognition requirements and complying with any other obligations under the Act (including the obligations to pay periodic fees
REC 2.3.15GRP
4For the purposes of calculating the risk-based approach, the FCA5 would normally expect the UK RIE to provide the FCA5 with an annual financial risk assessment that identifies the risks to its business. As a financial risk assessment is likely to form an integral part of the UK RIE's management process and decision-making culture, the FCA5 would normally expect it to be approved by the UK RIE'sgoverning body.555
REC 2.3.16GRP
4The FCA5 would normally expect to use the most recent6 financial risk assessment prepared by the UK RIE in the course of preparing individual guidance, issued in accordance with the usual prudential cycle for such bodies,6 on the amount of financial resources that it considers is sufficient for a UK RIE to hold6 to satisfy the recognition requirements. The financial risk assessment would provide the basis for calculating the amount of eligible financial resources that should
REC 2.3.17GRP
4The financial risk assessment should be based on a methodology which provides a reasonable estimate of the potential business losses which a UK RIE might incur in stressed but plausible market conditions. The FCA5 would expect a UK RIE to carry out a financial risk assessment at least once in every twelve-month period, or more frequently if there are material changes in the nature, scale or complexity of the UK RIE's operations or its business plans that suggest such financial
REC 2.3.18GRP
4The FCA5 would normally expect a financial risk assessment to include a description of the methodology applied by the UK RIE to arrive at the proposal made in accordance with REC 2.3.17G (5).5
REC 2.3.19GRP
4Where a UK RIE is a member of a group, the FCA5 would normally expect the annual risk assessment to be accompanied by a consolidated balance sheet: 5(1) of any group in which the UK RIE is a subsidiary undertaking; or(2) (if the UK RIE is not a subsidiary undertaking in any group) of any group of which the UK RIE is a parent undertaking.
REC 2.3.20GRP
4The FCA5 would expect to consider the relevant annual6 financial risk assessment, any proposal with respect to an operational risk buffer and, if applicable, the consolidated balance sheet, in formulating, in accordance with the usual prudential cycle for UK RIEs,6 its guidance on the amount of eligible financial resources it considers to be sufficient for the UK RIE to hold for6 the recognition requirements. In formulating its guidance, the FCA5 would, where relevant, consider
REC 2.3.21GRP
4The FCA5 would normally consider a UK recognised body to be failing the recognition requirements if it held financial resources less than the amount calculated under REC 2.3.9G (1)(a)(i) (in respect of UK RIEs). The FCA5 therefore expects a UK recognised body to hold an operational risk buffer of a sufficient amount in excess of this minimum, to ensure that it is at all times able to comply with its regulatory obligations.555
REC 2.3.22GRP
(1) [deleted]55(2) The FCA5 would normally expect a UK RIE to hold, in addition to the minimum amount determined under REC 2.3.9G (1)(a)(i), an operational risk buffer consistent with a risk-based approach.5(a) Where the amount of eligible financial resources calculated by a UK RIE under REC 2.3.17G (5) (the risk-based approach) is greater than the amount of eligible financial resources calculated under REC 2.3.13 G (the standard approach), and the difference is of an amount sufficient
SUP 10A.13.1GRP
In accordance with section 59 of the Act (Approval for particular arrangements), where a candidate will be performing one or more FCA controlled functions, a firm must take reasonable care to ensure that the candidate does not perform these functions unless he has prior approval from the FCA.
SUP 10A.13.2GRP
If a person performs an FCA controlled function without approval it is not only the firm that is accountable. Under section 63A of the Act (Power to impose penalties), if the FCA is satisfied that:(1) a person (“P”) has at any time performed an FCA controlled function without approval; and(2) at that time P knew, or could reasonably be expected to have known, that P was performing an FCA controlled function without approval;it may impose a penalty on P of such amount as it considers
SUP 10A.13.3DRP
An application by a firm for the FCA's approval under section 59 of the Act (Approval for particular arrangements) must be made by completing Form A (except where SUP 10A.14.4 D requires a Form E).
SUP 10A.13.5GRP
(1) In accordance with section 60 of the Act (Applications for approval), applications must be submitted by, or on behalf of, the firm itself, not by:(a) the FCAcandidate; or(b) (where the FCAcandidate works for the firm'sparent undertaking or holding company) by the firm'sparent undertaking or holding company.(2) Usually this will be the firm that is employing the FCAcandidate to perform the FCA controlled function. Where a firm has outsourced the performance of an FCA controlled
SUP 10A.13.6GRP
Outsourcing arrangementsOutsourcing arrangementsSubmitting formFirm A to firm BThe FCA will consider A to have taken reasonable care if it enters into a contract with B under which B is responsible for ensuring that the relevant FCA controlled functions are performed by FCA-approved persons, and that it is reasonable for A to rely on thisFirm B submits FCA-approved persons forms on behalf of firm AOutsourcing by A to B (both being a member of the same United Kingdom group and
SUP 10A.13.7GRP
Where the notification of an appointed representative (SUP 12.7.1 R) is linked to an application for approval (SUP 10A.13 (Applications for approval and withdrawing an application for approval)), any delay in receiving the notification under SUP 12.7.1 R may delay the FCA's approval of the individuals employed by that appointed representative who will be performing FCA controlled functions for the firm.
SUP 10A.13.8GRP
The Act sets out the time that the FCA has to consider an application and come to a decision.
SUP 10A.13.9GRP
In any case where the application for approval is made by a person applying for permission under Part 4A of the Act, the FCA has until the end of whichever of the following periods ends last: (1) the period within which an application for that permission must be determined; and(2) the period of three months from the time it receives a properly completed application.
SUP 10A.13.11GRP
The FCA must either grant the application or, if it proposes not to grant an application, issue a warning notice (see DEPP 2). The FCA will deal with cases more quickly than this whenever circumstances allow and will try to meet the standard response times published on the website and in its Annual Report. However, if an application is incomplete when received, or the FCA has knowledge that, or reason to believe that, the information is incomplete, then the processing time will
SUP 10A.13.12GRP
Application forms must always be completed fully and honestly. Further notes on how to complete the form are contained in each form. If forms are not completed fully and honestly, applications will be subject to investigation and the FCAcandidate's suitability to be approved to undertake an FCA controlled function will be called into question. A person who provides information to the FCA that is false or misleading may commit a criminal offence, and could face prosecution under
SUP 10A.13.13GRP
If there is a delay in processing the application within the standard response time, the FCA will tell the firm making the application as soon as this becomes apparent.
SUP 10A.13.14GRP
Before making a decision to grant the application or give a warning notice, the FCA may ask the firm for more information about the FCA candidate. If it does this, the three-month period in which the FCA must determine a completed application:(1) will stop on the day the FCA requests the information; and(2) will start running again on the day on which the FCA finally receives all the requested information.
SUP 10A.13.15GRP
The FCA may grant an application only if it is satisfied that the FCA candidate is a fit and proper person to perform the FCA controlled function stated in the application form. Responsibility lies with the firm making the application to satisfy the FCA that the FCA candidate is fit and proper to perform the FCA controlled function applied for.
SUP 10A.13.16GRP
For further guidance on criteria for assessing whether a FCA candidate is fit and proper, see FIT.
SUP 10A.13.17GRP
Whenever it grants an application, the FCA will confirm this in writing to all interested parties.
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 10A.13.19RRP
A firm notifying the FCA of its withdrawal of 1an application for approval must notify the FCA, using Form B, in the form set out in SUP 10A Annex 5R.
EG 19.34.1RP
1The MiFI Regulations in part implement MiFID. The FCA has investigative and enforcement powers in relation to both criminal and non-criminal breaches of the MiFI Regulations (including requirements imposed on persons subject to the MiFI Regulations by MiFIR and any directly applicable EU regulation made under MiFIR or MiFID). The MiFI Regulations impose requirements on:(1) persons holding positions in relevant contracts for commodity derivatives trading on trading venues and
EG 19.34.2RP
1The FCA’s approach to enforcing under the MiFI Regulations, whether the person is authorised or not, will mirror our general approach to enforcing the Act, as set out in EG 2. We will seek to exercise our enforcement powers in a manner that is transparent, proportionate, responsive to the issue and consistent with our publicly stated policies. We will also seek to ensure fair treatment when exercising our enforcement powers. Finally, we will aim to change the behaviour of the
EG 19.34.3RP
1The regulatory powers which the MiFI Regulations provide to the FCA include:(1) the power to require information and appoint investigators;(2) powers of entry and inspection;(3) the power to publicly censure;(4) the power to impose financial penalties;(5) the power to apply for an injunction or restitution order;(6) the power to require restitution; (7) the power to impose limitation, restriction or requirement; and(8) the power to prosecute relevant offences.
EG 19.34.4RP
1In addition, the MiFI Regulations provide the power to require the removal of persons from the management board of an investment firm, a credit institution or a recognised investment exchange. This is a supervisory power, rather than a disciplinary one, and it may be exercised whenever the FCA deems it necessary for the purpose of any of our functions under MiFID or MiFIR.
EG 19.34.5RP
1The MiFI Regulations, for the most part, mirror the FCA’s investigative, sanctioning and regulatory powers under the Act. The FCA has decided to adopt procedures and policies in relation to the use of those powers akin to those we have under the Act. Key features of the FCA’s approach are described below.
EG 19.34.7RP
1The FCA will notify the subject of the investigation that we have appointed investigators to carry out an investigation under the MiFI Regulations and the reasons for the appointment, unless notification is likely to prejudice the investigation or otherwise result in it being frustrated. The FCA expects to carry out a scoping visit early on in the enforcement process in most cases. The FCA’s policy in non-criminal investigations under the MiFI Regulations is to use powers to
EG 19.34.9RP
1The MiFI Regulations do not require the FCA to have published procedures for commencing criminal prosecutions. However, in these situations the FCA expects that we will normally follow our decision making procedures for the equivalent decisions under the Act, as set out in EG 12.
EG 19.34.10RP
1The MiFI Regulations do not require the FCA to have published procedures to apply to the court for an injunction or restitution order. However, the FCA will normally follow our decision making procedures for the equivalent decisions under the Act, as set out in EG 10 and EG 11.
EG 19.34.11RP
1The MiFI Regulations require the FCA to give third party rights as set out in section 393 of the Act and to give access to certain material as set out in section 394 of the Act.
EG 19.34.12RP
1Certain FCA decisions (for example a requirement to reduce the size of a position, publication of a statement and the imposition of a penalty) may be referred to the Tribunal by an aggrieved party.
EG 19.34.13RP
1When determining whether to take action to impose a penalty or to issue a public censure under the MiFI Regulations the FCA’s policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. The FCA’s policy in relation to determining the level of a financial penalty includes having regard, where relevant, to DEPP 6.5 to DEPP 6.5D.
EG 19.34.14RP
1As with cases under the Act, the FCA may settle or mediate appropriate cases involving non-criminal breaches of the MiFI Regulations to assist us to exercise our functions under the MiFI Regulations in the most efficient and economic way. See DEPP 5, DEPP 6.7 and EG 5 for further information on the settlement process and the settlement discount scheme.
EG 19.34.15RP
1The FCA will apply the approach to publicity that is outlined in EG 6, read in light of the applicable publicity provisions in section 391D of the Act.
EG 19.34.17RP
1This power may be used where the FCA considers that the removal is necessary for the purpose of exercising functions under MiFID or MiFIR. Examples of where this power may be used include, but are not limited to, ensuring that all members of the management body:(1) are of sufficiently good repute;(2) possess sufficient knowledge, skills and experience to perform their duties;(3) commit sufficient time to perform their functions;(4) do not hold too many directorships;(5) act with
EG 19.34.18RP
1The FCA will have regard to all relevant circumstances, on a case-by-case basis, taking into account the specific circumstances of the investment firm, credit institution or recognised investment exchange and the member of the management board. The FCA will exercise this power fairly and proportionately.
EG 19.34.19RP
1It should be noted that, while the FCA will have regard to the range of regulatory tools at its disposal, we are not required to exhaust all other options before imposing the requirement to remove a person from the management board.
EG 19.34.20RP
1The FCA will take into account all relevant circumstances when considering whether to require the removal to occur immediately or on a specified date.
EG 19.34.21RP
1The MiFI Regulations apply section 169 of the Act which requires the FCA to publish a statement of policy on the conduct of certain interviews in response to requests from overseas regulators. For the purposes of the MiFI Regulations the FCA will follow the procedures described in DEPP 7.
IFPRU 4.7.1GRP
The FCA expects a firm to ensure that no LGD estimate is less than zero.
IFPRU 4.7.2GRP
The FCA does not expect a firm to be using zero LGD estimates in cases other than where it had cash collateral supporting the exposures.
IFPRU 4.7.3GRP
The FCA expects a firm to justify any low LGD estimates using analysis on volatility of sources of recovery, notably on collateral, and cures (see IFPRU 4.7.5 G). This includes:(1) recognising that the impact of collateral volatility on low LGDs is asymmetric, as surpluses over amounts owed need to be returned to borrowers and that this effect may be more pronounced when estimating downturn, rather than normal period LGDs; and(2) recognising the costs and discount rate associated
IFPRU 4.7.4GRP
To ensure that the impact of collateral volatility is taken into account, the FCA expects a firm's LGD framework to include non-zero LGD floors which are not solely related to administration costs (see article 179(1)(f) of the EU CRR).
IFPRU 4.7.5GRP
Where a firm wishes to include cures in its LGD estimates, the FCA expects it to do this on a cautious basis, with reference to both its current experience and how this is expected to change in downturn conditions. In particular, this involves being able to articulate clearly both the precise course of events that will allow such cures to take place and any consequences of such actions for other elements of its risk quantification. For example:(1) where cures are driven by the
IFPRU 4.7.6GRP
To ensure that estimates of LGDs take into account the most up-to-date experience, the FCA expects a firm to take account of data for relevant incomplete workouts (ie, defaulted exposures for which the recovery process is still in progress, with the result that the final realised losses in respect of those exposures are not yet certain) (see article 179(1)(c) of the EU CRR).
IFPRU 4.7.7GRP
To ensure that sovereign LGD models are sufficiently conservative in view of the estimation error that may arise from the lack of data on losses to sovereigns, the FCA expects a firm to apply a 45% LGD floor to each unsecured exposure in the sovereign asset class (see article 179(1)(a) of the EU CRR).
IFPRU 4.7.8GRP
The FCA believes that an average reduction in property sales prices of 40% from their peak price, prior to the market downturn, forms an appropriate reference point when assessing downturn LGD for UK mortgage portfolios. This reduction captures both a fall in the value of the property due to house price deflation, as well as a distressed forced sale discount.
IFPRU 4.7.9GRP
Where a firm adjusts assumed house price values within its LGD models to take account of current market conditions (for example, appropriate house price indices), the FCA recognises that realised falls in market values may be captured automatically. A firm adopting such approaches may remove observed house price falls from its downturn house price adjustment so as not to double count. A firm wishing to apply such an approach must seek the consent of the FCA and be able to demonstrate
IFPRU 4.7.10GRP
To ensure that its LGD estimates are oriented towards downturn conditions, the FCA expects a firm to have a process through which it:(1) identifies appropriate downturn conditions for each IRB exposure class within each jurisdiction;(2) identifies adverse dependencies, if any, between default rates and recovery rates; and(3) incorporates adverse dependencies, if identified, between default rates and recovery rates in the firm's estimates of LGD in a manner that meets the requirements
IFPRU 4.7.11GRP
To ensure that its LGD estimates incorporate material discount effects, the FCA expects a firm's methods for discounting cash flows to take account of the uncertainties associated with the receipt of recoveries for a defaulted exposure. For example, by adjusting cash flows to certainty-equivalents or by using a discount rate that embodies an appropriate risk premium; or by a combination of the two.
IFPRU 4.7.12GRP
If a firm intends to use a discount rate that does not take full account of the uncertainty in recoveries, the FCA expects it to be able to explain how it has otherwise taken into account that uncertainty for the purposes of calculating LGDs. This can be addressed by adjusting cash flows to certainty-equivalents or by using a discount rate that embodies an appropriate risk premium for defaulted assets, or by a combination of the two (see article 5(2) of the EU CRR).
IFPRU 4.7.13GRP
The FCA expects a firm using advanced IRB approaches to have done the following in respect of wholesale LGD estimates:(1) applied LGD estimates at transaction level;(2) ensured that all LGD estimates (both downturn and non-downturn) are cautious, conservative and justifiable, given the paucity of observations. Under article 179(1)(a) of the EU CRR, estimates must be derived using both historical experience and empirical evidence, and not be based purely on judgemental consideration.
IFPRU 4.7.14GRP
The FCA uses a framework for assessing the conservatism of a firm's wholesale LGD models for which there are a low number of defaults. This framework is set out in IFPRU 4 Annex 2G (Wholesale LGD and EAD framework) and does not apply to sovereign LGD estimates which are floored at 45%. This framework is also in the process of being used to assess the calibration of a firm's material LGD-models for low-default portfolios.
IFPRU 4.7.15GRP
In the following cases, the FCA expects a firm to determine the effect of applying the framework in IFPRU 4 Annex 2G (Wholesale LGD and EAD framework) to models which include LGD values that are based on fewer than 20 'relevant' data points (as defined in IFPRU 4 Annex 2G):(1) the model is identified for review by the FCA; or(2) the firm submits a request for approval for a material change to its LGD model.
IFPRU 4.7.16GRP
The FCA considers that both of the following approaches in relation to calculating unexpected loss of defaulted assets are acceptable in principle:(1) the independent calculation approach; and1(2) subtraction of the best estimate of expected loss from post-default LGD.
IFPRU 4.7.17GRP
Where an independent calculation approach is adopted for the calculation of unexpected loss on defaulted assets, the FCA expects a firm to ensure that estimates are at least equal, at a portfolio level, to a 100% risk weight, ie,1 8% capital requirement on the amount outstanding net of provisions (see article 181(1)(h) of the EU CRR).
IFPRU 4.7.18GRP
The extent to which a borrower's assets are already given as collateral will clearly affect the recoveries available to unsecured creditors. If the degree to which assets are pledged is substantial, this will be a material driver of LGDs on such exposures. Although potentially present in all transactions, the FCA expects a firm to be particularly aware of this driver in situations in which borrowing on a secured basis is the normal form of financing, leaving relatively few assets
IFPRU 4.7.19GRP
The FCA expects a firm to take into account the effect of assets being substantially used as collateral for other obligations estimating LGDs for borrowers for which this is the case. The FCA expects a firm not to use unadjusted data sets that ignore this impact, and note that it is an estimate for downturn conditions that is normally required. In the absence of relevant data to estimate this effect, conservative LGDs potentially of 100% are expected to be used (see articles
RCB 2.3.1GRP
To enable the FCA to be satisfied that the issuer and the proposed owner will comply with requirements imposed on the issuer or owner, as the case may be, by or under the RCB Regulations, the applicant should use the application form to provide relevant details of the proposed covered bond or programme and demonstrate how each of the requirements will be complied with.
RCB 2.3.2GRP
(1) The FCA's application form covers both issuer registration and covered bond registration as the FCA will not normally consider applications for issuer registration in isolation from the application for registration of the covered bond.(2) An issuer which has been admitted to the register of issuers should use the same form to apply for registration of subsequent covered bonds or programmes.(3) The issuer does not need to apply for registration of individual issuances from
RCB 2.3.3GRP
In relation to registration of an issuer of regulated covered bonds, the FCA will need to be satisfied that the issuer's compliance with the requirements of the regulatory system has been adequate and does not give rise to any material cause for concern over the issuer's ability to issue regulated covered bonds in compliance with the RCB Regulations.
RCB 2.3.6GRP
The FCA will:(1) expect the issuer to demonstrate that it has in place appropriate systems, controls, procedures and policies, including in relation to risk management, underwriting, arrears and valuation; (2) expect the issuer to demonstrate that the cash-flows generated by the assets would be sufficient to meet the payments due in a timely manner including under conditions of economic stress and in the event of the failure of the issuer;(3) take account of any over collateralisation
RCB 2.3.7GRP
The risk factors which the FCA will take into account in assessing the issuer's and owner's compliance with Regulations 17(2)(d) (general requirements on issuer in relation to the asset pool) and 23(2) (requirements on owner relating to the asset pool) will include credit risk of the assets, concentration risk, market risk and counterparty risk.
RCB 2.3.8GRP
(1) The credit risk of an asset is the risk of loss if another party fails to perform its obligations or fails to perform them in a timely fashion.(2) Where, for example, the asset pool includes residential mortgages the relevant factors which the FCA may consider include: (a) whether the asset pool contains (or could contain) loans made to individuals who have been made bankrupt or have had court judgments made against them;(b) the extent to which the asset pool contains (or
RCB 2.3.9GRP
Concentration risk is the risk of loss from exposures being limited in number or variety. The relevant factors the FCA may consider include:(1) the level of granularity of the asset pool (i.e. what is the number and size distribution of assets in the pool); (2) whether the borrowers or collateral is unduly concentrated in a particular industry, sector, or geographical region.
RCB 2.3.10GRP
Market risk is the risk that arises from fluctuations in the values of, or income from, assets or in interest or exchange rates. The relevant factors the FCA may consider include whether the hedging agreements (defined in Regulation 1(2) of the RCB Regulations as agreements entered into or assets held as protection against possible financial loss) adequately protect against any adverse mismatched cash-flows due to changes in market variables.
RCB 2.3.11GRP
Counterparty risk is the risk that the counterparty to a transaction could default before the final settlement of the transactions cash flows. The relevant factors the FCA may consider include whether the:(1) counterparty has an appropriate credit rating;(2) counterparty can unilaterally terminate the hedging agreement, and if so under what circumstances;(3) contractual arrangements contain appropriate termination procedures (for example, what provisions apply in the event of
RCB 2.3.12GRP
(1) The FCA will assess each risk factor separately and then assess any inter-dependencies and correlations to form a judgment on the quality of the asset pool as a whole. For example, an asset pool which is of high credit quality and so low risk due to a combination of factors such as owner occupation, low income multiples, full valuation methodologies, and a strong payments track record, may permit another factor such as high loan-to-value ratios, that would otherwise be considered
RCB 2.3.13GRP
In assessing whether the asset pool is of sufficient quality, the FCA will have regard to the requirements in relation to the collateralisation of real estate2referred to in article 208 of the EUCRR2 and the valuation rules in article 229(1) of the EUCRR2. 22
RCB 2.3.14GRP
The FCA expects the issuer to demonstrate that there are provisions in the covered bond or programme that adequately deal with:(1) the identification and rectification of any breach of Regulations 17(2) (general requirements on issuer in relation to the asset pool) and 24 (requirements on owner relating to the asset pool) of the RCB Regulations;(2) the appointment of replacements for parties, for example servicers, cash managers or paying agents; and(3) the orderly winding-up
RCB 2.3.15GRP
The FCA expects the issuer to demonstrate, as part of showing that Regulations 17 (general requirements on issuer in relation to the asset pool) and 24 (requirements on owner relating to the asset pool) of the RCB Regulations will be complied with, that there are provisions in the covered bond or programme which enable the views and interests of investors in the regulated covered bond to be taken account of in an appropriate and timely way by a suitably qualified, adequately resourced,
RCB 2.3.17GRP
(1) The FCA expects legal advice to deal adequately with at least the following matters in relation to the actual or proposed arrangements:(a) whether the transfer of the assets to the owner would be upheld in the event of liquidation or administration, or similar collective insolvency proceedings, of the issuer or the transferor (if different from the issuer);(b) the risk of the transfer of an asset to the owner being re-characterised as the creation of a security interest;(c)
RCB 2.3.18GRP
(1) The FCA expects the report from the accountants to address at least the following matters:(a) that the level of over collateralisation meets the limits set out in the covered bond arrangements which are designed to ensure compliance with the requirement that the asset pool is capable of covering claims attaching to the bond in Regulation 17 (requirements on issuer in relation to the asset pool) of the RCB Regulations; and(b) that appropriate due diligence procedures (which
RCB 2.3.19GRP
The FCA's use of its power under Regulation 12 of the RCB Regulations (requirement of further information to determine application) may include requiring the issuer to provide copies of the advice or reports referred to in RCB 2.3.16 D to the FCA.
RCB 2.3.20GRP
1Assets which would be eligible for inclusion in a liquidity buffer under BIPRU 12.7 can be liquid assets for the purposes of limb (a) of the definition of liquid assets in Regulation 1(2) of the RCB Regulations. The FCA will also expect that liquid assets which consist of deposits should be held in the same currency or currencies as the regulated covered bonds issued by the issuer.
EG 19.35.1RP
1The DRS Regulations implement MiFID. The FCA has investigation and enforcement powers in relation to both criminal and non-criminal breaches of the DRS Regulations (including requirements imposed on persons subject to the DRS Regulations by MiFIR and any directly applicable EU regulation made under MiFIR or MiFID). The DRS Regulations impose requirements on data reporting services providers (“DRSPs”) which are entities authorised or verified to provide services of:(1) publishing
EG 19.35.2RP
1The FCA’s approach to enforcing the DRS Regulations will mirror our general approach to enforcing the Act, as set out in EG 2. We will seek to exercise our enforcement powers in a manner that is transparent, proportionate, responsive to the issue, and consistent with our publicly stated policies. We will also seek to ensure fair treatment when exercising our enforcement powers. Finally, we will aim to change the behaviour of the person who is the subject of our action, to deter
EG 19.35.3RP
1The regulatory powers which the DRS Regulations provide to the FCA include:(1) the power to require information and appoint investigators;(2) powers of entry and inspection;(3) the power of public censure;(4) the power to impose financial penalties;(5) the power to impose a limitation or other restrictions;(6) the power to apply for an injunction;(7) the power to require restitution; and(8) the power to prosecute unauthorised providers.
EG 19.35.4RP
1In addition, the DRS Regulations provide the power for the FCA to take criminal or non-criminal action for misleading the FCA.
EG 19.35.5RP
1The DRS Regulations, for the most part, mirror the FCA’s investigative, sanctioning and regulatory powers under the Act. The FCA has decided to adopt procedures and policies in relation to the use of those powers akin to those we have under the Act. Key features of the FCA’s approach are described below.
EG 19.35.7RP
1The FCA will notify the subject of the investigation that we have appointed investigators to carry out an investigation under the DRS Regulations and the reasons for the appointment, unless notification is likely to prejudice the investigation or otherwise result in it being frustrated. The FCA expects to carry out a scoping visit early on in the enforcement process in most cases. The FCA’s policy in non-criminal investigations under the DRS Regulations is to use powers to compel
EG 19.35.9RP
1For decisions made by executive procedures the procedures to be followed will be those described in DEPP 4.
EG 19.35.10RP
1The DRS Regulations do not require the FCA to have published procedures for commencing criminal prosecutions. However, in these situations the FCA expects that we will normally follow our decision making procedures for the equivalent decisions under the Act, as set out in EG 12.
EG 19.35.11RP
1The DRS Regulations do not require the FCA to have published procedures to apply to the court for an injunction or restitution order. However, the FCA will normally follow our decision making procedure for the equivalent decisions under the Act, as set out in EG 10 and EG 11.
EG 19.35.12RP
1The DRS Regulations require the FCA to give third party rights as set out in section 393 of the Act and to give access to certain material as set out in section 394 of the Act.
EG 19.35.13RP
1Certain FCA decisions (for example the publication of a statement and the imposition of a penalty) may be referred to the Tribunal by an aggrieved party.
EG 19.35.14RP
1When determining whether to take action to impose a penalty or to issue a public censure under the DRS Regulations the FCA’s policy includes having regard to the relevant factors in DEPP 6.2 and DEPP 6.4. The FCA’s policy in relation to determining the level of a financial penalty includes having regard, where relevant, to DEPP 6.5 to DEPP 6.5D.
EG 19.35.15RP
1As with cases under the Act, the FCA may settle or mediate appropriate cases involving non-criminal breaches of the DRS Regulations to assist us to exercise our functions under the DRS Regulations in the most efficient and economic way.[Note: See DEPP 5, DEPP 6.7 and EG 5 for further information on the settlement process and the settlement discount scheme.]
EG 19.35.16RP
1The FCA will apply the approach to publicity that is outlined in EG 6, read in light of applicable publicity provisions in section 391D of the Act.
EG 19.35.17RP
1The DRS Regulations apply section 169 of the Act which requires the FCA to publish a statement of policy on the conduct of certain interviews in response to requests from overseas regulators. For the purposes of the DRS Regulations the FCA will follow the procedures described in DEPP 7.
IFPRU 8.1.1RRP
(1) This section applies to an IFPRU investment firm.(2) This section does not apply to an exempt IFPRU commodities firm if the conditions in (2) are met.(3) The conditions are:(a) article 498 of the EU CRR (Exemptions for commodities dealers) applies to it;(b) the exempt IFPRU commodities firm is not a member of a FCAconsolidation group or non-EEA sub-group;(c) each investment firm in the group that the exempt IFPRU commodities firm belongs to meets the conditions in article
IFPRU 8.1.2GRP
This section contains:(1) rules that exercise the discretion afforded to the FCA as competent authority under article 18 of the EU CRR (Methods of prudential consolidation); and(2) guidance on the criteria that the FCA will take into account when considering whether to grant a permission to a firm on a case-by-case basis for the individual consolidation method under article 9 of the EUCRR (Individual consolidation method).
IFPRU 8.1.4RRP
In carrying out the calculations for the purposes of Part One, Title II, Chapter 2 of the EU CRR (Prudential consolidation), a firm (for whom the FCA is the consolidating supervisor) must include the proportion according to the share of capital held of participations in institutions and financial institutions managed by an undertaking included in the consolidation together with one or more undertakings not included in the consolidation, where those undertakings' liability is limited
IFPRU 8.1.5RRP
In carrying out the calculations for the purposes of Part One, Title II, Chapter 2 of the EU CRR (Prudential consolidation), a firm (for whom the FCA is the consolidating supervisor) must carry out a full consolidation of any undertaking with whom it has an article 18(5) relationship.[Note: article 18(5) of the EU CRR]
IFPRU 8.1.6GRP
Article 9(2) of the EU CRR (Individual consolidation method) requires a firm, which is a parent institution, to demonstrate fully to the FCA, as competent authority, that there are no material practical or legal impediments to the prompt transfer of own funds of the subsidiary referred to in article 9(1) of the EUCRR, or repayment of liabilities when due by that subsidiary to the firm.
IFPRU 8.1.7GRP
The FCA will assess an application for individual consolidation against articles 9 and 396(2) (Compliance with large exposure requirements) of the EU CRR on a case-by-case basis. The FCA will assess whether it is still appropriate to permit the treatment if doing so risks conflict with its statutory objectives. The FCA will apply a high level of scrutiny to applications under article 9 of the EU CRR, consistent with the previous solo consolidation regime.
IFPRU 8.1.8GRP
When making its assessment, the FCA will consider whether any minority interest may represent an impediment of any kind to the prompt transfer of own funds or repayment of liabilities from the subsidiary to the parent undertaking. To reassure the FCA, the parent institution should demonstrate that any minority interest in a subsidiary will not result in the potential blocking or delay of prompt transfer of own funds or repayment of liabilities. Therefore, it may be possible for
IFPRU 8.1.9GRP
The FCA will consider the non-exhaustive criteria below when determining whether the condition in article 9(2) of the EU CRR is met:(1) the speed with which funds can be transferred or liabilities repaid to the firm and the simplicity of the method for the transfer or repayment; (2) whether there are any interests other than those of the firm in the subsidiary and what impact those other interests may have on the firm's control over the subsidiary and the ability of the firm to
IFPRU 8.1.10GRP
The FCA will assess applications to exclude entities from the scope of prudential consolidation against article 19(2) of the EU CRR on a case-by-case basis. The FCA will only grant this treatment with respect to undertakings where one of the conditions in article 19(2) is met. The FCA will still make a judgement as to whether it is appropriate to grant this treatment even where one of the conditions in article 19(2) is met.
IFPRU 8.1.12GRP
If several undertakings meet the criteria in IFPRU 8.1.11 G (2) and are collectively of non-negligible interest with respect to the specified objectives, the FCA will not agree to exclude them all from the consolidation.
IFPRU 8.1.13GRP
The FCA may request a firm to provide information about the undertakings excluded from consolidation.
IFPRU 8.1.14GRP
Article 113(6) of the EU CRR (Intra-group credit risk exemption) permits a firm, subject to conditions, to apply a 0% risk-weighting for exposures to certain entities within its FCAconsolidation group, namely its parent undertaking, its own subsidiaries and subsidiaries of its parent undertaking. Article 400(1)(f) of the EU CRR then fully exempts such exposures from the large exposures limit stipulated in article 395(1) of the EUCRR (Limits to large exposures).
IFPRU 8.1.15GRP
The FCA will assess core UK group applications against article 113(6) on a case-by-case basis. The FCA expects to approve this treatment for core UK groupundertakings if the conditions stipulated in article 113(6) are met. A firm should note that the FCA will still make a wider judgement whether it is appropriate to grant this treatment even where the conditions in article 113(6) are met. It is the FCA's intention to continue to apply a high level of scrutiny to applications under
IFPRU 8.1.16GRP
In relation to article 113(6)(d), the FCA expects the condition to be satisfied if the counterparty is: (1) incorporated in the UK; or(2) an undertaking of a type that falls within the scope of the Council Regulation of 29 May 2000 on insolvency proceedings (Regulation 1346/2000/EC) and it is established in the UK other than by incorporation, and if the firm can demonstrate that the counterparty's centre of main interests is situated in the UK within the meaning of that Regul
IFPRU 8.1.17GRP
In relation to article 113(6)(e), the FCA will consider the following non-exhaustive criteria when assessing whether this condition has been met:(1) the speed with which funds can be transferred or liabilities repaid to the firm and the simplicity of the method for the transfer or repayment. As part of the FCA's overall assessment, it would consider ownership of 100% of the subsidiary as one of the indicators that prompt transfer of own funds is likely to be achieved;(2) whether
IFPRU 8.1.19GRP
When demonstrating how article 113(6)(e) of the EU CRR is met, the FCA considers that, for a counterparty which is not a firm, the application should include a legally binding agreement between the firm and the counterparty. This agreement will be to promptly, on demand, by the firm increase the firm'sown funds by an amount required to ensure that the firm complies with the provisions contained in Part Two of the EU CRR (Own funds) and any other requirements relating to capital
IFPRU 8.1.20GRP
For the purpose of article 113(6)(e), the FCA considers that the agreement to increase the firm'sown funds may be limited to capital resources available to the undertaking and may reasonably exclude such amount of capital resources that, if transferred to the firm, would cause the undertaking to become balance sheet insolvent in the manner contemplated in section 123(2) of the Insolvency Act 1986.
IFPRU 8.1.21GRP
The FCA will expect a firm to which this section applies not to use any member of its core UK group (which is not a firm) to route lending or to have exposures to any third party in excess of the limits stipulated in article 395(1) of the EU CRR (Limits to large exposures).