Related provisions for PERG 4.6.28

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PERG 2.8.2GRP
Three9 exclusions apply10 to the regulated activity of accepting deposits. The first is that a10deposit taker providing its services as an electronic commerce activity from another EEA State into the United Kingdom (see PERG 2.9.18 G) does not carry on a regulated activity. The second relates to a firm with a Part 4A permission to manage an AIF or manage a UCITS (see PERG 2.9.22 G (Managers of UCITS and AIFs)).10 There is also excluded from accepting deposits any activity which
PERG 2.8.3GRP
The following activities are excluded from both the regulated activities of effecting and carrying out contracts of insurance.(1) In specified circumstances, the activities of an EEA firm when participating in a Community co-insurance operation are excluded. A Community co-insurance operation is defined in the Solvency II Directive.1111(2) In specified circumstances, activities that are carried out in connection with the provision of on-the-spot accident or breakdown assistance
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 (apart from rights under funeral plan contracts or rights to or interests in such rights). In addition, the 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
PERG 2.8.6AGRP
3The exclusions in the Regulated Activities Order that relate to the various arranging activities are as follows.(-1) 8Under 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 2.7.6D G).(1) Under article 26, arrangements that do not or would not bring about the transaction to
PERG 2.8.6CGRP
9The following activities are excluded from the regulated activity of credit broking:Introducing by individuals in the course of canvassing off trade premises(1) Activities carried on by an individual by canvassing off trade premises:(a) a restricted-use credit agreement to finance a transaction between the lender or a member of the lender's group and the borrower; or(b) a regulated consumer hire agreement;are excluded from credit broking, as long as the individual does not carry
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 2.8.7BGRP
The following exclusions from assisting in the administration and performance of a contract of insurance also apply to a person in specified circumstances:(1) while acting as trustee or personal representative (see PERG 2.9.3 G); or(2) in connection with the carrying on of a profession or of a business not otherwise consisting of regulated activities (see PERG 2.9.5 G); or(3) as an incoming ECA provider (see PERG 2.9.18 G); or(4) as a provider of non-motor goods or services related
PERG 2.8.7CGRP
(1) 9Activities carried on by:(a) the lender or owner under the agreement;(b) the supplier in relation to the credit agreement;(c) a credit broker who has acquired the business of the person who was the supplier in relation to the credit agreement; or(d) a person who would be a credit broker but for the exclusion in PERG 2.8.6CG (1) where the agreement was made in consequence of an introduction (by that person or another person) to which that exclusion applies;are excluded from
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 2.8.9GRP
Exclusions from the regulated activity of sending dematerialised instructions apply in relation to certain types of instructions sent in the operation of the system maintained under the Uncertificated Securities Regulations 2001 (SI 2001/3755). The various exclusions relate to the roles played by participating issuers, settlement banks and network providers (such as Internet service providers) and to instructions sent in connection with takeover offers (as long as specified conditions
PERG 2.8.10GRP
10(1) The exclusion for incoming ECA providers (see PERG 2.9.18 G) applies to the range of activities specified as being regulated in relation to AIFs and collective investment schemes (see PERG 2.7.13A G). The exclusion for business angel-led capital funds (see PERG 2.9.20 G) applies to the activities of managing an AIF, managing a UCITS and establishing, operating and winding up a collective investment scheme.10There is a third exclusion for insolvency practitioners (see PERG
PERG 2.8.11GRP
Three9 exclusions apply to10 the range of activities specified as being regulated in relation to stakeholder pension schemesand personal pension schemes2. The first10 relates to incoming ECA providers (see PERG 2.9.18 G). The second relates to firms with a Part 4A permission to manage an AIF or manage a UCITS (see PERG 2.9.22 G (Managers of UCITS and AIFs)).10The third relates to insolvency practitioners (see PERG 2.9.25 G).9109
PERG 2.8.12AGRP
3Advice given by an unauthorised person in relation to a home finance transaction or advising on regulated credit agreements for the acquisition of land12 in the circumstances referred to in PERG 2.8.6AG (5)(a) or (b) (Arranging deals in investments and arranging a home finance transaction) is also excluded. In addition:(1) the following exclusions apply in specified circumstances where a person is advising on investments, advising on regulated credit agreements for the acquisition
PERG 2.8.13GRP
Electronic commerce activities provided by an incoming ECA provider are excluded from the regulated activities that relate expressly to business carried on at Lloyds (see PERG 2.9.18 G). A firm with a Part 4A permission to manage an AIF or manage a UCITS is also excluded from carrying on a regulated activity if the person carries on that activity in connection with, or for the purposes of, managing an AIF or managing a UCITS (see PERG 2.9.22 G).10 Otherwise the only exclusions
PERG 2.8.14GRP
Entering as provider into afuneral plan contract is not treated as a regulated activity where:(1) the contract is one under which the sums received from the customer will be applied towards a contract of insurance on the life of the person whose funeral is to be provided or be held on trust for the purpose of providing a funeral; in each case certain specified conditions must be met for the exclusion to apply; or(2) the customer and the provider intend or expect that the funeral
PERG 2.8.14BGRP
3The following exclusions apply in specified circumstances where a person is administering a home finance transaction:55(1) while acting as trustee or personal representative (see PERG 2.9.3 G);(2) in connection with the carrying on of a profession or of a business not otherwise consisting of regulated activities (see PERG 2.9.5 G);10(3) as an incoming ECA provider (see PERG 2.9.18 G)109(4) in connection with, or for the purposes of, managing a UCITS or managing an AIF and the
PERG 2.8.14ZCGRP
(1) 9The exclusion for electronic commerce activities by an incoming ECA provider (see PERG 2.9.18 G) applies to entering into a regulated credit agreement as lender and exercising, or having the right to exercise, the lender's rights and duties under a regulated credit agreement.(2) There is also an exclusion from entering into a regulated credit agreement as lender and exercising, or having the right to exercise, the lender's rights and duties under a regulated credit agreement
PERG 2.8.14ZDGRP
(1) 9The exclusions for electronic commerce activities provided by an incoming ECA provider and an activity carried on by a local authority (see PERG 2.9.23 G) also apply to the regulated activities of entering into a regulated consumer hire agreement as owner and exercising, or to having the right to exercise, the owner's rights and duties under a regulated consumer hire agreement.
PERG 2.8.14CGRP
(1) 9The exclusions relating to activities carried on by members of the legal profession (see PERG 2.8.6CG (6)), and to electronic commerce activities by an incoming ECA provider (see PERG 2.9.18 G) apply to providing credit information services and providing credit references.(2) The exclusions for activities carried on by a local authority (see PERG 2.9.23 G) and insolvency practitioners (see PERG 2.9.25 G) also apply to providing credit information services.
PERG 2.8.15GRP
A person who agrees to carry on certain other regulated activities (which is itself a regulated activity see PERG 2.7.21 G) does not require authorisation where the person concerned is an overseasperson and the agreement is reached as a result of a legitimate approach (see PERG 2.9.12 G). For this exclusion to apply, the agreement must be one to arrange deals, manage investments, assist in the administration and performance of a contract of insurance, safeguard and administer
COBS 5.2.1RRP
This section applies to a firm1carrying on 1an electronic commerce activity1from an establishment in the United Kingdom, with or for a person in the United Kingdom or another EEA State1.
COBS 5.2.3RRP
If a firm refers to price, it must do so clearly and unambiguously, indicating whether the price is inclusive of tax and delivery costs.[Note: article 5(2) of the E-Commerce Directive]
COBS 5.2.4RRP
A firm must ensure that commercial communications which are part of, or constitute, an information society service, comply with the following conditions:(1) the commercial communication must be clearly identifiable as such;(2) the person on whose behalf the commercial communication is made must be clearly identifiable;(3) promotional offers must be clearly identifiable as such, and the conditions that must be met to qualify for them must be easily accessible and presented clearly
COBS 5.2.5RRP
An unsolicited commercial communication sent by e-mail by a firm established in the United Kingdom must be identifiable clearly and unambiguously as an unsolicited commercial communication as soon as it is received by the recipient. [Note: article 7(1) of the E-Commerce Directive]
COBS 5.2.6RRP
A firm must (except when otherwise agreed by parties who are not consumers):(1) give an ECA recipient at least the following information, clearly, comprehensibly and unambiguously, and prior to the order being placed by the recipient of the service:(a) the different technical steps to follow to conclude the contract;(b) whether or not the concluded contract will be filed by the firm and whether it will be accessible;(c) the technical means for identifying and correcting input
COBS 5.2.7RRP
For the purposes of COBS 5.2.6 R (3), an order and an acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them. [Note: article 11(1) of the E-Commerce Directive]
MCOB 2.7A.1RRP
1This section applies to a firm carrying on an electronic commerce activity from an establishment in the United Kingdom, with or for a person in the United Kingdom or another EEA state, in relation to a home finance transaction.
MCOB 2.7A.2RRP
A firm must make at least the following information easily, directly and permanently accessible to the recipients of the information society services it provides:(1) its name;(2) the geographic address at which it is established;(3) the details of the firm, including its e-mail address, which allow it to be contacted rapidly and communicated with in a direct and effective manner;(4) an appropriate statutory status disclosure statement (GEN 4 Annex 1 R), together with a statement
MCOB 2.7A.4RRP
A firm must ensure that commercial communications which are part of, or constitute, an information society service, comply with the following conditions:(1) the commercial communication must be clearly identifiable as such;(2) the person on whose behalf the commercial communication is made must be clearly identifiable; (3) promotional offers must be clearly identifiable as such, and the conditions that must be met to qualify for them must be easily accessible and presented clearly
MCOB 2.7A.6RRP
A firm must (except when otherwise agreed by parties who are not consumers):(1) give an ECA recipient at least the following information, clearly, comprehensibly and unambiguously, and before the order is placed by the recipient of the service:(a) the different technical steps to follow to conclude the contract;(b) whether or not the concluded contract will be filed by the firm and whether it will be accessible;(c) the technical means for identifying and correcting input errors
MCOB 2.7A.7RRP
Contractual terms and conditions provided by a firm to an ECA recipient must be made available in a way that allows the recipient to store and reproduce them.[Note: article 10(3) of the E-Commerce Directive]
EG 19.9.1RP
1The FCA will exercise the power to make an electronic commerce activity direction on a case-by-case basis. When deciding whether to make a direction, the FCA will undertake an assessment of whether the circumstances of the particular case meet the policy conditions set out in regulation 6.
EG 19.9.2RP
1On obtaining information concerning possible financial crime facilitated through or involving an incoming ECA provider, or detriment to UK markets or UK ECA recipients caused by the activities of an incoming ECA provider, the FCA will contact the relevant EEA regulator of the incoming ECA provider. The FCA would expect the relevant EEA regulator to consider the matter, investigate it where appropriate and keep the FCA informed about what action, if any, was being taken. The FCA
EG 19.9.3RP
1However, there are likely to be circumstances in which the FCA will need to use the electronic commerce activity direction power. Examples could include where it was necessary to stop the behaviour complained of, or to make the continued provision of services by the incoming ECA provider conditional upon compliance with specified requirements. Overall, the FCA may use the direction power: (1) where: (a) the behaviour complained of was causing, or had the potential to cause,
EG 19.9.4RP
1The question of whether the FCA decides to prevent or prohibit the incoming electronic commerce activity, or to make it subject to certain requirements (for example, compliance with specified rules), will depend on the overall circumstance of the case. A relevant consideration will be whether the FCA is satisfied that its concerns over the incoming electronic commerce activity can be adequately addressed through the imposition of a requirement, rather than a complete prohibition
EG 19.9.5RP
1The FCA may consider that a case is urgent, in particular, where: (1) the information available to it indicates serious concerns about the incoming electronic commerce activity that need to be addressed immediately; and (2) circumstances indicate that it is appropriate to use the direction power immediately to prohibit the incoming electronic commerce activity, or to make the carrying on of the activity subject to specified requirements.
EG 19.9.7RP
1The FCA's decision to make, revoke or vary an electronic commerce activity direction will generally be taken by the RDC Chairman. However, this is subject to two exceptions. (1) In an urgent case and if the Chairman is not available, the decision will be taken by an RDC Deputy Chairman and where possible, but subject to the need to act swiftly, one other RDC member. (2) If a provider who has been notified of the FCA's intention to make
PERG 5.12.7GRP
Section 418 of the Act extends the meaning that 'carry on regulated activity in the United Kingdom' would normally have by setting out additional cases in which a person who would not otherwise be regarded as carrying on the activity in the United Kingdom is to be regarded as doing so. Each of the following cases thus amounts to carrying on a regulated activity in the United Kingdom:(1) where a UK-based person carries on a regulated activity in another EEA State in the exercise
PERG 5.12.15GRP
The E-Commerce Directive removes restrictions on the cross-border provision of services by electronic means, introducing a country of origin approach to regulation. This requires EEA States to impose certain requirements on the outward provision of such services and to lift them from inward providers. The E-Commerce Directive defines an e-commerce service (termed an information society service) as any service, normally provided for remuneration, at a distance, by electronic means,
PERG 5.12.16GRP
The E-Commerce Directive does not remove the IDD5 requirement for persons taking up or pursuing insurance distribution5 for remuneration to be registered in their Home State. Nor does it remove the requirement for EEA-based intermediaries to acquire passporting rights in order to establish branches in the United Kingdom (see PERG 5.12.7 G5) in relation to electronic commerce activity carried on from an establishment in the United Kingdom) or provide services on a cross–border
PERG 5.12.17GRP
Put shortly, the E-Commerce Directive relates to services provided into the United Kingdom from other EEA States and from the United Kingdom into other Member States. In broad terms, such cross-border insurance distribution5 services provided by an EEA firm into the United Kingdom (via electronic commerce activity or distance means) will generally be subject to IDD5 registration in, and conduct of business regulation of, the intermediary's EEA State of origin. By contrast, insurance
ICOBS 3.2.1RRP
This section applies to a firm carrying on an electronic commerce activity from an establishment in the United Kingdom, with or for a person in the United Kingdom or another EEA State.
ICOBS 3.2.6RRP
A firm must (except when otherwise agreed by parties who are not consumers):(1) give an ECA recipient the following information, clearly, comprehensibly and unambiguously, and prior to the order being placed by the recipient of the service:(a) the different technical steps to follow to conclude the contract;(b) whether or not the concluded contract will be filed by the firm and whether it will be accessible;(c) the technical means for identifying and correcting input errors prior
ICOBS 3.2.7RRP
Contractual terms and conditions provided by a firm to an ECA recipient must be made available in a way that allows the recipient to store and reproduce them.[Note: article 10(3) of the E-Commerce Directive]
PERG 4.11.5GRP
For the purposes of regulated mortgage activities, sections 418(2), (4), (5), (5A) and (6) are relevant, as follows:(1) Section 418(2) refers to a case where a UK-based person carries on a regulated activity in another EEA State in the exercise of rights under a Single Market Directive. The only Single Market Directives which are relevant to mortgages are the CRD and the MCD.44(2) Section 418(4) refers to the case where a UK-based person carries on a regulated activity and the
PERG 4.11.8GRP
The FCA's view of the effect of the Act and Regulated Activities Order in various territorial scenarios is set out in the remainder of this section. In those scenarios:(1) the term "service provider" is used to describe a person carrying on any of the regulated mortgage activities;(2) the term "borrower" refers to a borrower who is an individual and not a trustee; the position of a borrower acting as a trustee is not considered; and(3) it is assumed that the activity is not an
PERG 4.11.12GRP
If a service provider is overseas, the question of whether that person is carrying on a regulated activity in the United Kingdom will depend upon:(1) the type of regulated activity being carried on;(2) section 418 of the Act;(3) the residence and location of the borrower;(4) the application of the overseas persons exclusion in article 72(5A) to (5F) of the Regulated Activities Order; and(5) whether the service provider is carrying on an electronic commerce activity.The factors
PERG 4.11.21GRP
The E-Commerce Directive removes restrictions on the cross-border provision of services by electronic means, introducing a country of origin approach to regulation. This requires EEA States to impose their requirements on the outward provision of such services and to lift them from inward providers. The E-Commerce Directive contains only a few exceptions, termed derogations, from this principle. The E-Commerce Directive defines an e-commerce service (termed an information society
CONC 2.8.1RRP
This section applies to a firm carrying on an electronic commerce activity from an establishment in the UK with or for a person in the UK or another EEA State.
CONC 2.8.6RRP
A firm must (except when otherwise agreed by parties who are not consumers):(1) give an ECA recipient at least the following information, clearly, comprehensibly and unambiguously, and prior to the order being placed by the recipient of the service:(a) the different technical steps to follow to conclude the contract;(b) whether or not the concluded contract will be filed1by the firm and whether it will be accessible;1(c) the technical means for identifying and correcting input
CONC 2.8.8RRP
Contractual terms and conditions provided by a firm to an ECA recipient must be made available in a way that allows the recipient to store and reproduce them.[Note: article 10(3) of the E-Commerce Directive]
EG 6.3.1RP
1This is discussed in paragraphs 19.9.9 and 19.9.10 of this guide.
SUP 13A.1.1GRP
(1) 1This chapter applies to an EEA firm that wishes to exercise an entitlement to establish a branch in, or provide cross border services into, the United Kingdom under a Single Market Directive or the auction regulation7. (The Act refers to such an entitlement as an EEA right and its exercise is referred to in the Handbook as "passporting".) (See SUP App 3 (Guidance on passporting issues) for further guidance on passporting.)The chapter does not, apart from in SUP 13A.6G (rules
SUP 13A.1.2GRP
This chapter does not apply to:(1) an EEA firm that wishes to carry on in the United Kingdom activities which are outside the scope of its EEA right and the scope of a permission granted under Schedule 4 to the Act; in this case the EEA firm requires a "top-up permission" under Part 4A16 of the Act (see the appropriate UK regulator's website www.fca.org.uk/firms/authorisation/apply-authorisation for the FCA and www.bankofengland.co.uk/pra/Pages/authorisations/newfirm/default.aspx
PERG 8.12.4GRP
The exemption applies whether or not the financial promotion is made from the United Kingdom. However, there is the exception that, if it is an unsolicited real time financial promotion, it must be made from a place outside the United Kingdom and be for the purposes of a business carried on entirely outside the United Kingdom. To give effect to the principle of country of origin regulation of information society services as required by the E-Commerce Directive, article 12(7) of
PERG 8.12.18GRP
The purpose of these 1exemptions1 is to ensure that, subject to certain conditions, the restriction in section 21 of the Act does not apply to those who merely transport the financial promotions of other persons. Obvious examples here are postal and Internet service providers, courier companies and telecommunications companies. PERG 8.6.5 G explains that such persons may not be regarded as communicating a financial promotion simply because they have distributed it. Article 18
PERG 8.12.38GRP
Article 20B gives effect to the provisions of the E- Commerce Directive by exemptingelectronic commerce communications made from an establishment in an EEA State other than the United Kingdom to an ECA recipient in the United Kingdom2. However, article 20B does not apply to the following communications:2(1) an advertisement by the operator of a UCITS of units in that scheme; or(2) an invitation or inducement to enter into a contract of insurance where:(a) it is made by an undertaking
PERG 8.14.22GRP
A certified high net worth individual is an individual who has signed a statement in the form prescribed in Part I (Statement for certified high net worth individuals) of Schedule 5 to the Financial Promotion Order. This requires the individual to certify that he has earned at least £100,000 or have held net assets to the value of more than £250,000 throughout the financial year before the date of the certificate. Where the financial promotion is an outgoing electronic commerce
PERG 8.14.27GRP
To be a sophisticated investor for the purposes of article 50, the recipient of a financial promotion must have a current certificate from an authorised person stating that he has enough knowledge to be able to understand the risks associated with the description of investment to which the financial promotion relates. Where the financial promotion is an outgoing electronic commerce communication3, the certificate may be signed by a person who is entitled, under the law of an EEA
PERG 8.14.31GRP
The exemption is subject to certain conditions. In broad terms, these are that the financial promotion must be accompanied by an indication:(1) that the directors or promoters of the company have taken all reasonable care to ensure that the financial promotion is true and not misleading;(2) that the directors or promoters have not limited their liability;(3) that any person who is in doubt about the investment should consult an authorised person; and(4) that:(a) the directors
PERG 2.9.1GRP
The various exclusions outlined below deal with a range of different circumstances.(1) Each set of circumstances described in PERG 2.9.3 G to PERG 2.9.17 G has some application to several regulated activities relating to securities, structured deposits,18relevant investments orhome finance transactions.4 They have no effect in relation to the separate regulated activities of accepting deposits, issuing electronic money,9effecting or carrying out contracts of insurance, bidding
PERG 2.9.18GRP
(1) In accordance with article 3(2) of the E-Commerce Directive, all requirements on persons providing electronic commerce activities into the United Kingdom from the EEA are lifted, where these fall within the co-ordinated field and would restrict the freedom of such a firm to provide services. The coordinated field includes any requirement of a general or specific nature concerning the taking up or pursuit of electronic commerce activities. Authorisation requirements fall within
CASS 1.3.4RRP
1CASS does not apply to an incoming ECA provider acting as such.
EG 19.8.1RP
1The FCA has powers under regulation 6 of the ECD Regulations, provided certain policy and procedural conditions are met, to direct that an incoming ECA provider may no longer carry on a specified incoming electronic commerce activity, or may only carry it on subject to specified requirements.
EG 3.4.1RP
1Where the FCA has decided that an investigation is appropriate (see chapter 2) and it appears to it that there are circumstances suggesting that contraventions or offences set out in section 168 may have happened, the FCA will normally appoint investigators pursuant to section 168. Where the circumstances do not suggest any specific breach or contravention covered by section 168, but, the FCA still has concerns about a firm, an appointed representative, a recognised investment
PERG 8.30.3GRP
Taking electronic commerce as an example, the use of electronic decision trees does not present any novel problems. The provider of the service will be giving advice for the purpose of article 53(1)1 only if the service results in something more than a generic recommendation, as with a paper version.
COBS 18.10.1RRP

1The COBS provisions in the table apply to a UCITS qualifier and a service company:

COBS

Description

4

Communications to clients, but only in relation to communicating or approving a financial promotion

5.2

E-Commerce

12.4

Research recommendations: required disclosures

3
SYSC 13.1.4GRP
2SYSC 13 does not apply to an incoming ECA provider acting as such.