Related provisions for REC 4.8.2

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DEPP 4.1.1GRP
1All statutory notice decisions under executive procedures will be taken either by a senior staff committee or by an individual FSA staff member.
DEPP 4.1.2GRP
In either case, the decision will be taken by FSA staff who have not been directly involved in establishing the evidence on which the decision is based, except in accordance with section 395(3) of the Act.
DEPP 4.1.3GRP
The FSA's senior executive committee will from time to time determine that particular categories of statutory notice decision to be taken under executive procedures will be taken by a senior staff committee.
DEPP 4.1.5GRP
A senior staff committee may operate through standing or specific sub-committees to consider particular decisions or classes of decision, for which accountability will lie through the committee. Each meeting of a senior staff committee, or sub-committee, will include:(1) an individual with authority to act as its chairman; and(2) at least two other members.
DEPP 4.1.7GRP
Statutory notice decisions to be taken under executive procedures, and not falling within the responsibility of a senior staff committee, will be taken by an individual FSA staff member. The decision will be:(1) made by an executive director of the FSA Board or his delegate (who will be of at least the level of associate);(2) on the recommendation of an FSA staff member of at least the level of associate; and(3) with the benefit of legal advice from an FSA staff member of at least
DEPP 4.1.8GRP
The individual who takes a decision under executive procedures is accountable to the FSA Board directly (if an executive director) or otherwise through line management responsible for the decision concerned.
DEPP 4.1.9GRP
An FSA staff member who considers that a statutory notice decision should be taken above his own level is free to refer that decision to a more senior level. If an FSA staff member consults another staff member about a decision, the decision remains the independent decision of the FSA staff member who consults his colleague, unless it is agreed that the decision should instead be taken by the colleague, and the colleague has the delegated authority to do so.
DEPP 4.1.10GRP
If an individual responsible for a decision under executive procedures (or a more senior FSA staff member with responsibilities in relation to the decision concerned) considers that it warrants collective consideration, the individual may:(1) take the decision himself, following consultation with other FSA staff members, as above; or(2) refer it to a senior staff committee, which will take the decision itself.
DEPP 4.1.13GRP
The procedure for taking decisions under executive procedures will generally be less formal and structured than that for decisions by the RDC. Broadly, however, FSA staff responsible for taking statutory notice decisions under executive procedures will follow a procedure similar to that described at DEPP 3.2.7 G to DEPP 3.2.27 G for the RDC except that:(1) in a case where the decision will be taken by a senior staff committee: (a) the chairman or deputy chairman of the senior
DEPP 2.5.12GRP
FSA staff will usually inform or discuss with the person concerned any action they contemplate before they recommend to the RDC that the FSA takes formal action. The FSA 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 FSA 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;(2) the decision to give a warning notice or decision notice pursuant to section 280(1) or (2)(a) (revocation of recognised
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 FSA will operate a procedure for this5 notice which will be similar to the procedure for a warning notice.5555
DEPP 2.5.17GRP
The FSA 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 FSA decision maker.
DEPP 1.2.5GRP
Decisions on whether to give a statutory notice will be taken by a 'decision maker'. The FSA's assessment of who is the appropriate decision maker is subject to the requirements of section 395 of the Act and will depend upon the nature of the decision, including its complexity, importance and urgency. References to the 'decision maker' in DEPP are to:(1) the Regulatory Decisions Committee (RDC); or(2) FSA staff under executive procedures; or(3) FSA staff under the settlement decision
DEPP 1.2.6GRP
The decision maker will also take decisions associated with a statutory notice (a 'statutory notice associated decision'). Statutory notice associated decisions include decisions:(1) to set or extend the period for making representations;(2) on whether the FSA is required to give a copy of the statutory notice to any third party and, if so, the period for the third party to make representations; and(3) on whether to refuse access to FSA material, relevant to the relevant statutory
DEPP 1.2.7GRP
In each case, the decision maker will make decisions by applying the relevant statutory tests, having regard to the context and nature of the matter, that is, the relevant facts, law, and FSA priorities and policies (including on matters of legal interpretation).
DEPP 1.2.9GRP
DEPP 2 to DEPP 5 set out:(1) which decisions require the giving of statutory notices and who takes them (DEPP 2);(2) the nature and procedures of the RDC (DEPP 3);(3) the procedure for decision making by FSA staff under executive procedures (DEPP 4);(4) the procedure for decision making by FSA staff under the settlement decision procedure (DEPP 5).
DEPP 3.2.11GRP
The RDC has no power under the Act to require persons to attend before it or provide information. It is not a tribunal and will make a decision based on all the relevant information available to it, which may include views of FSA staff about the relative quality of witness and other evidence.
DEPP 3.2.14GRP
If the RDC decides that the FSA should give a warning notice or a first supervisory notice:(1) the RDC will settle the wording of the warning notice or first supervisory notice, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions;(3) the RDC staff will make appropriate arrangements for the notice to be given; and(4) the RDC staff will make appropriate arrangements for the disclosure
DEPP 3.2.24GRP
If the RDC decides that the FSA should give a decision notice or a second supervisory notice:(1) the RDC will settle the wording of the notice which will include a brief summary of the key representations made and how they have been dealt with, and will ensure that the notice complies with the relevant provisions of the Act;(2) the RDC will make any relevant statutory notice associated decisions, including whether the FSA is required to give a copy of the notice to a third party;
DEPP 6.2.1GRP
The FSA 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.(1) The nature, seriousness and impact of the suspected breach, including:(a) whether the breach was deliberate
DEPP 6.2.13GRP
In deciding whether to take action, the FSA 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.
REC 4.8.9GRP

Key steps in the section 298 and (for RAPs) regulation 5 procedure3

The FSA will:

Guidance

(1)

give written notice to the recognised body (or applicant);

The notice will state why the FSA intends to take the action it proposes to take, and include an invitation to make representations, and the date by which representations should be made .

(2)

take such steps as it considers reasonably practicable to bring the notice to the attention of the members of the recognised body or of the applicant, as the case may be;

The FSA will also notify persons individually (as far as it considers it reasonably practicable to do so) if it considers that the action it proposes to take would affect them adversely in a way which would be different from its effect on other persons of the same class.

(3)

publish the notice so as to bring it to the attention of other persons likely to be affected;

(4)

receive representations from the recognised body or applicant concerned, any member of the recognised body or applicant, and any other person who is likely to be affected by the action the FSA proposes to take;

The FSA will not usually consider oral representations without first receiving written representations from the person concerned. It will normally only hear oral representations from the recognised body (or applicant) itself or of a person whom it has notified individually, on request.

(5)

write promptly to any person who requests the opportunity to make oral representations if it decides not to hear that person's representations;

The FSA will indicate why it will not hear oral representations and the FSA will allow the person concerned further time to respond.

(6)

have regard to representations made;

(7)

(when it has reached its decision) notify the recognised body (or applicant) concerned in writing.

(8)

(if it has decided to give a direction, or revoke or refuse to make a recognition order) take such steps as it considers reasonably practicable to bring its decision to the attention of members of the recognised body or applicant and to other persons likely to be affected.

The FSA will usually give notice of its decision to the same persons and in the same manner as it gave notice of its intention to act.

RCB 6.2.1GRP
When making a decision on an application for registration under the RCB Regulations, or in relation to material changes to the contractual terms of the regulated covered bond, or in relation to a change of owner, or when seeking to use direction, revocation or penalty powers, the RCB Regulations require the FSA to give the subject of the intended action a warning notice and a decision notice. The recipient of a warning notice has the right to make representations to the decision
RCB 6.2.3GRP
DEPP 2 Annex 1 G identifies the relevant decision maker in relation to warning notices and decision notices issued by the FSA under the RCB Regulations.
DEPP 2.2.3GRP
The decision maker will:(1) consider whether the material on which the recommendation is based is adequate to support it; the decision maker may seek additional information about or clarification of the recommendation, which may necessitate additional work by the relevant FSA staff;(2) satisfy itself that the action recommended is appropriate in all the circumstances;(3) decide whether to give the notice and the terms of any notice given.
DEPP 2.2.4GRP
If the FSA decides to take no further action and the FSA had previously informed the person concerned that it intended to recommend action, the FSA will communicate this decision promptly to the person concerned.
LR 8.6.4GRP
When considering an application for approval as a sponsor the FSA may:(1) carry out any enquiries and request any further information which it considers appropriate, including consulting other regulators;(2) request that the applicant or its specified representative answer questions and explain any matter the FSA considers relevant to the application;(3) take into account any information which it considers appropriate in relation to the application.22(4) [deleted]22[Note: The
SUP 6.3.40GRP
DEPP9gives guidance on the FSA's decision making procedures including the procedures it will follow if it proposes to refuse an application for variation of Part IV permission either in whole or in part (for example, an application granted by the FSA but subject to limitations or requirements not applied for).9
DEPP 2.3.1GRP
If a decision maker is asked to decide whether to give a decision notice or second supervisory notice, it will:(1) review the material before it;(2) consider any representations made (whether written, oral or both) and any comments by FSA staff or others in respect of those representations;(3) decide whether to give the notice and the terms of any notice given.
DEPP 2.3.5GRP
Under section 388(3) of the Act, following the giving of a decision notice but before the FSA takes action to which the decision notice relates, the FSA may give the person concerned a further decision notice relating to different action concerning the same matter. Under section 388(4) of the Act, the FSA can only do this if the person receiving the further decision notice gives its consent. In these circumstances the following procedure will apply:(1) FSA staff will recommend
REC 2A.4.9GRP
Where the FSA is proposing or deciding to publish a statement censuring an RAP or impose a penalty on the RAP under regulation 5A of the RAP Regulations, the FSA's decision maker will be the RDC. This is to ensure that the FSA's power to censure or impose a penalty on an RAP has the same layer of separation in the decision making process, and is exercised consistently with, similar penalty and censure powers of the FSA under other legislation. The RDC will make its decisions following
PR 3.1.9RRP
The FSA will follow the executive procedures for statutory notice decisions and statutory notice associated decisions if it:(1) proposes to refuse to approve a prospectus; or(2) decides to refuse to approve a prospectus after having given the applicant a written notice.Note: DEPP 44 sets out the executive procedures for statutory notice decisions and statutory notice associated decisions.4
LR 5.5.1GRP
The decision-making procedures that the FSA will follow when it cancels, suspends or refuses a request by an issuer2 to suspend, cancel or 2restore listing are set out in DEPP (Decision Procedure and Penalties)1.11
DEPP 2.1.4GRP
FSA staff responsible for the taking of a statutory notice decision under executive procedures may refer the matter to the RDC for the RDC to decide whether to give the statutory notice if:(1) the RDC is already considering, or is shortly to consider, a closely related matter; and(2) the relevant FSA staff believe, having regard to all the circumstances, that the RDC should have responsibility for the decision. The relevant considerations might include: (a) the desirability of
DEPP 1.1.1GRP
1This manual (DEPP) is relevant to firms, approved persons and other persons, whether or not they are regulated by the FSA. It sets out:(1) the FSA's decision-making procedure for giving statutory notices. These are warning notices, decision notices and supervisory notices (DEPP 1.2 to DEPP 5);(2) the FSA's policy with respect to the imposition and amount of penalties under the Act (see DEPP 6);(2A) 2the FSA's policy with respect to the imposition of suspensions or restrictions,
DTR 1.4.5GRP
The decision-making procedures to be followed by the FSA when it:(1) requires the suspension of trading of a financial instrument; or(2) refuses an application by an issuer to lift a suspension made under section 96C;are set out in DEPP1.1
RCB 4.2.3GRP
(1) When deciding whether to take enforcement action under Part 7 of the RCB Regulations, and what form that enforcement action should take, the FSA will consider all relevant factors, including:(a) the relevant factors on decisions to take action set out in DEPP 6.2.1 G;(b) whether any contractual or other arrangements agreed between the parties can be used effectively to address any perceived failure under the RCB Regulations; and(c) the interests of investors in the relevant