Related provisions for PERG 4.10A.28

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PERG 2.8.1GRP
Most regulated activities are subject to exclusions that are set out in the Regulated Activities Order directly following each activity.
PERG 2.8.4GRP
The regulated activity of dealing in investments as principal applies to specified transactions relating to any security or to any contractually based investment (apart from rights under funeral plan contracts or rights to or interests in such contracts). The activity is cut back by exclusions as follows.(1) Of particular significance is the exclusion in article 15 of the Regulated Activities Order (Absence of holding out etc). This applies where dealing in investments as principal
PERG 2.8.5GRP
The regulated activity of dealing in investments as agent applies to specified transactions relating to any security or to any relevant investment. The26 activity is cut back by exclusions as follows.(1) An exclusion applies to certain transactions entered into by an agent who is not an authorised person which depend on him dealing with (or through) an authorised person. It does not apply if the transaction relates to a contract of insurance. There are certain conditions which
PERG 2.8.6GRP
The various activities that involve arranging fall into two general types. These are:33(1) those relating to arranging a particular transaction or a contract, agreement5 or plan variation (articles 25(1), 25A(1), 25A(2A).12 25B(1),5 25C(1) , and 25E(1) 5of the Regulated Activities Order); and53(2) those relating to making arrangements with a view to persons entering into certain transactions (articles 25(2), 25A(2), 25B(2),5 25C(2) , and 25E(2) 5of the Regulated Activities Order).53The
PERG 2.8.6AGRP
3The exclusions in the Regulated Activities Order that relate to the various arranging activities are as follows.(-1) 25Under article 24A(2), an activity that would otherwise be both arranging and bidding in emissions auctions is specifically excluded from arranging because the activity of bidding in emissions auctions does not form part of any other regulated activity (see PERG 2.7.6DG). 228(1) Under article 26, arrangements that do not or would not bring about the transaction
PERG 2.8.6DGRP
(1) 9An activity of a kind specified below is excluded from the regulated activity of operating an electronic system in relation to lending:18(a) dealing in investments as principal;(b) arranging (bringing about) deals in investments;(c) making arrangements with a view to transactions in investments;(d) managing investments; and18(e) advising on investments (except P2P agreements)18.(1A) The regulated activity of advising on P2P agreements does not apply where such advice is given
PERG 2.8.7GRP
The activities of persons appointed under a power of attorney are excluded under article 38 of the Regulated Activities Order, from the regulated activity of managing investments, if specified conditions are satisfied. The exclusion only applies where a person is not carrying on insurance distribution or reinsurance distribution20 and is subject to further limitations discussed below2. In addition, the following exclusions (outlined in PERG 2.9) apply in specified circumstances
PERG 2.8.7DGRP
18The regulated activity of advising on P2P agreements does not apply in so far as the advice is given in the course of carrying on an activity of a kind specified by:(1) article 39F of the Regulated Activities Order (debt collecting); or(2) article 39G of the Regulated Activities Order (debt administration);by a person carrying on that activity not in contravention of the general prohibition.
PERG 2.8.8GRP
The exclusions from the regulated activity of safeguarding and administering investments are as follows.(1) Safeguarding and administration activities carried on by one person are excluded if a specified third party undertakes a responsibility for the assets which is no less onerous than it would have been if he were doing the safeguarding and administration himself. The effect of this is that an authorised person with permission to carry on this regulated activity (or in certain
PERG 2.8.10GRP
10(1) 22The exclusion for business angel-led capital funds (see PERG 2.9.20 G) applies to the activities of managing an AIF, managing a UK UCITS22 and establishing, operating and winding up a collective investment scheme.10There is a third exclusion for insolvency practitioners (see PERG 2.9.25 G).9(2) In addition, there are two further exclusions which apply to the activity of establishing, operating or winding up a collective investment scheme:10(a) the exclusion in PERG 2.9.22
PERG 2.8.16GRP
To the extent that an exclusion applies in relation to a regulated activity, then 'agreeing' to carry on an activity falling within the exclusion will not be a regulated activity. This is the effect of article 4(3) of the Regulated Activities Order.
PERG 8.31.1GRP
The Regulated Activities Order contains a number of exclusions which prevent certain activities from being a regulated activity.
PERG 8.31.3GRP
It is also possible for advice to be excluded if it is given by a person in the course of carrying on a profession or business (other than a regulated activity). This is if it is reasonably to be regarded as necessary for him to give the advice to provide his professional or other services and he is not separately paid for giving the advice (article 67: Activities carried on in the course of a profession or non-investment business). This could arise in the context of advice given
PERG 8.31.5GRP
Certain of the exclusions in the Regulated Activities Order that apply to the regulated activity of advising on investments are not available where the advice either relates to a contract of insurance or amounts to insurance distribution or reinsurance distribution3. This results from the requirements of the IDD3 and is explained in more detail in PERG 5 (Guidance on insurance distribution3 activities).
PERG 4.10A.1GRP
Article 4(4B) of the Regulated Activities Order says that certain exclusions in the Regulated Activities Order do not apply in certain cases; briefly, those are cases which were covered by the MCD as it applied to the United Kingdom before IP completion day4, and the effect of the legislation which refers to those cases has been preserved. This section explains the situations in which this applies. References in this section to agreements or activities covered by, regulated under
PERG 5.6.10GRP
Article 27 of the Regulated Activities Order (Enabling parties to communicate) contains an exclusion that applies to arrangements which might otherwise bring within article 25(2) those who merely provide the means by which one party to a transaction (or potential transaction) is able to communicate with other parties. Simply providing the means by which parties to a transaction (or potential transaction) are able to communicate with each other is excluded from article 25(2) only.
PERG 5.6.12GRP
Article 28 of the Regulated Activities Order (Arranging transactions to which the arranger is a party) excludes from the regulated activities in article 25(1) and 25(2) arrangements made for or with a view to contracts of insurance when:(1) the person (P) making the arrangements is the only policyholder; or(2) P, as a result of the transaction, would become the only policyholder.
PERG 7.2.1GRP
Advice is excluded by article 54 of the Regulated Activities Order from the regulated activities of advising on investments, advising on regulated credit agreements for the acquisition of land2,3advising on a home finance transaction1and advising on conversion or transfer of pension benefits3 if:1(1) the advice is given in a publication or service that is in one of three formats (see PERG 7.4.3 G and PERG 7.4.4 G); and(2) the principal purpose of the particular format is neither
PERG 7.2.2GRP
If a person would, but for the exclusion, be carrying on the regulated activities of advising on investments, advising on regulated credit agreements for the acquisition of land,3advising on a home finance transaction or advising on conversion or transfer of pension benefits3, or any or each of them1, and will be doing so as a business in the United Kingdom (see PERG 7.3), he may wish to apply to the FCA for a certificate that the exclusion applies (see PERG 7.6). However, a person
PERG 7.3.8GRP
If a person is carrying on the business of advising on investments, advising on regulated credit agreements for the acquisition of land,9 advising on a home finance transaction or advising on conversion or transfer of pension benefits9 in the United Kingdom, he will not require authorisation if:41(1) he is able to rely on an exclusion; in addition to the exclusions already mentioned (in articles 54 and 72 of the Regulated Activities Order), other exclusions that may be relevant
PERG 7.4.2GRP
But the exclusion applies only if the principal purpose of the publication or service is not:(1) to advise on securities or structured deposits9 or relevant investments or P2P agreements or7home finance transactions1 or amounts to carrying9 on advising on conversion or transfer of pension benefits; 5 or15(2) to lead or enable persons:(a) to buy, sell, subscribe for or underwrite securities, structured deposits9 or relevant investments; or1(aa) to enter into a relevant article
PERG 4.7.2GRP
The Regulated Activities Order contains an exclusion which has the effect of preventing certain activities of trustees, nominees and personal representatives from amounting to entering into a regulated mortgage contract. There is also an exclusion for local authorities and their wholly-owned subsidiaries.21 These are1 referred to in PERG 4.10 (Exclusions applying to more than one regulated activity).In addition, there1are 3 exclusions 3 where both the lender and borrower are overseas,
PERG 4.9.2GRP
To the extent that an exclusion applies in relation to a regulated activity, then 'agreeing' to carry on an activity within the exclusion will not be a regulated activity. This is the effect of article 4(3) of the Regulated Activities Order.
PERG 4.10B.2GRP
Article 72I of the Regulated Activities Order excludes CBTL business from the regulated activities listed in PERG 2.9.28G.
PERG 7.6.11GRP
If the FCA decides to grant the application it will issue a certificate. The certificate will normally be granted for an indefinite period. It will state what it is that the FCA considers constitutes the periodical or service in relation to which the FCA is satisfied that the exclusion in article 54 of the Regulated Activities Order applies. In many cases this will be self-evident. But it may sometimes be necessary to include further details in the certificate indicating what
PERG 4.13.2GRP
3The bodies in PERG 4.13.1 G are exempt in relation to the regulated activity of arranging the variation of a regulated mortgage contract (article 25A(1)(b) of the Regulated Activities Order).
TC App 1.1.1RRP

1Activity

Products/Sectors

Is there an appropriate qualification4requirement?

4

Designated investment business carried on for a retail client

Providing basic advice

1.

Stakeholder products excluding a deposit-based stakeholder product

No

Advising or giving personal recommendations (as relevant)13

2.

Giving personal recommendations on securities13 which are not stakeholder pension schemes, personal pension schemes7 or broker funds

Yes

3.

Giving personal recommendations on derivatives13

Yes2

4.

Giving personal recommendations on retail investment products13 which are not broker funds

66

Yes2

5.

Giving personal recommendations on13Friendly Societylife policies where the employee is not reasonably expected to receive a remuneration of greater than £1000 a year in respect of such sales

No2

6.

Giving personal recommendations on13Friendly Society tax-exempt policies (other than Holloway sickness policies where the Holloway policy special application conditions are met)5

Yes2

7.

Giving personal recommendations on long-term care insurance contracts13

Yes2

8.

Giving personal recommendations on investments13 in the course of corporate finance business

Yes2

9.

Advising on syndicate participation at Lloyd's

Yes2

129A.

Advising on P2P agreements

Yes

Undertaking the activity in column 2

10.

Broker fund adviser

Yes

11.

Pension transfer specialist

Yes2

Giving personal recommendations13 and dealing

12.

Giving personal recommendations on and dealing in securities13 which are not stakeholder pension schemes, personal pension schemes7 or broker funds

Yes

13.

Giving personal recommendations on and dealing in derivatives13

Yes2

4Dealing

13A.8

Securities which are not stakeholder pension schemes, personal pension schemes7 or broker funds

No

413B.8

Derivatives

No

15MiFID business bidding

13C15

emissions auction products15

No15
8 14

Managing

14.

Investments

Yes

Overseeing on a day-to-day basis

15.

Operating a collective investment scheme or undertaking the activities of a trustee or depositary of a collective investment scheme

Yes

16.

Safeguarding and administering investments or holding client money

Yes2

17.

Administrative functions in relation to managing investments

Yes2

18.

Administrative functions in relation to effecting or carrying out contracts of insurance which are life policies

Yes2

19.

Administrative functions in relation to the operation of stakeholder pension schemes

Yes2

Mortgage Activity10 and reversion activity carried on for a customer

10

910Advising; arranging (bringing about) an execution-only sale, excluding variations to an existing home finance transaction except where the effect is to change all or part of the home finance transaction from one interest rate to another.

See Note 3, which for the avoidance of doubt forms part of this rule.

20

Regulated mortgage contracts for a non-business purpose

Yes

20A

Regulated mortgage contracts for a business purpose

No

21

Equity release transactions

Yes

9Designing scripted questions for execution-only sales

21A

Regulated mortgage contracts for a non-business purpose

Yes

21B

Regulated mortgage contracts for a business purpose

No

22

Equity release transactions

Yes

Overseeing execution-only sales on a day-to-day basis9

9

23.

Equity release transactions

Yes

11MCD credit agreement activities carried on for consumers

11manufacturing

23A

an MCD credit agreement

No

11entering into a regulated mortgage contract or entering into a regulated credit agreement as lender

23B

an MCD credit agreement

No

11arranging (bringing about) regulated mortgage contracts or acting as an MCD credit broker

23C

an MCD credit agreement

No

11advising on a regulated mortgage contract or advising on a regulated credit agreement for the acquisition of land

23D

an MCD credit agreement

No

11directly managing or supervising employees who carry on any of the MCD credit agreement activities 23A to 23D

23E

an MCD credit agreement

No

[Note: article 9(1) of the MCD]11

Non-investment insurance business carried on for a consumer

Giving personal recommendations13

24.

Giving personal recommendations on non-investment insurance contracts13

No

3Regulated sale and rent back activity carried on for a customer

Advising

25.

Regulated sale and rent back agreements

No

Overseeing an execution-only sale10 on a day-to-day basis

10

26.

Regulated sale and rent back agreements

No

16Regulated funeral plan activity carried on for a customer

16Dealing in investments as agent

27

Funeral plan contracts

No

16Arranging (bringing about) deals in investments

28

Funeral plan contracts

No

16Making arrangements with a view to transactions in investments

29

Funeral plan contracts

No

16Managing investments

30

Funeral plan contracts

No

16Safeguarding and administering investments

31

Funeral plan contracts

No

16Sending dematerialised instructions

32

Funeral plan contracts

No

16Causing dematerialised instructions to be sent

33

Funeral plan contracts

No

16Advising on investments

34

Funeral plan contracts

No

16Entering as provider into a funeral plan contract

35

Funeral plan contracts

No

16Carrying out a funeral plan contract as provider

36

Funeral plan contracts

No

16Agreeing to carry on a regulated activity

37

Funeral plan contracts

No

Notes:

1.

In the Appendix the heading and types of business specified in the headings are to be read in conjunction with the paragraphs appearing beneath them.

2.

Thus, for example, paragraph 24,13 consistent with the heading above it, refers only to personal recommendations given in relation to13non-investment insurance contracts given to a consumer.10

33

122A.

In relation to activity number 9A, see TC 2.1.5HR and TC 2.1.6R(2). There is no qualification for this activity in the list of qualifications set out in TC Appendix 4E. However, the effect of TC 2.1.5HR is that an employeeadvising on P2P agreements must be qualified to the same standard as if that employee were providing investment advice to retail clients on retail investment products.

103.

For the purpose of product numbers 20, 20A and 21 the activity of arranging (bringing about) referred to in the activity column:

(a) includes activity which would be arranging (bringing about) but for the exclusion in article 28A of the Regulated Activities Order; and

(b) does not include activities which taken on their own would not fall within the definition of that activity. For these purposes no account should be taken of the fact that for an activity to be a regulated activity it must be carried on by way of business (see PERG 4.3).

4.

In this Appendix, paragraphs 23A, 23B, 23C, 23D and 23E relate to the implementation of article 9(1) of the MCD. The specified activities do not, in and of themselves, attract a qualification requirement. However, where those activities overlap with those specified under the heading "mortgage activity and reversion activity carried on for a customer", qualification requirements may apply.