Decision Notice
On , the Financial Conduct Authority issued a Decision Notice to Geneva Motors
1
NOTICE OF DECISION
ACTION
1.
For the reasons given below, the Authority has decided to cancel Geneva Motor’s Part 4A
permission. The cancellation takes effect on the date of this Notice of Decision.
2.
The effect of the cancellation is that Geneva Motors no longer has permission to carry on any
regulated activities.
DEFINITIONS
3.
The definitions below are used in this Notice of Decision (and in the Annex):
“the Act” means the Financial Services and Markets Act 2000;
“the Authority” means the Financial Conduct Authority;
Notice of Decision
2
“EG” means the Enforcement Guide;
“FDA” means the Firm Details Attestation which Authority-authorised firms are required to
submit to the Authority under SUP 16.10;
“GM” means Geneva Motors;
“GM’s Part 4A permission” means the Part 4A permission granted by the Authority to GM;
“the Handbook” means the Authority’s Handbook of rules and guidance;
“Part 4A permission” means permission to conduct regulated activities, granted by the
Authority under Part 4A of the Act;
“RAG” means regulated activity group as referred to in SUP;
“the Returns” means the CCR007 Consumer Credit data for the period from 1 July 2021 to
30 June 2022 which was due to be submitted to the Authority by 11 August 2022; and
“SUP” means the Supervision Manual, part of the Handbook.
“the Tribunal” means the Upper Tribunal (Tax and Chancery Chamber).
FACTS AND MATTERS
4.
GM was authorised by the Authority on 13 January 2015 and has Part 4A permission to conduct
the following regulated in relation to consumer credit activities:
(i) credit broking;
(ii) debt adjusting; and
(iii) debt counselling.
5.
GM submitted regulatory returns to the Authority for the period 1 July 2020 to 30 June 2021
which show that GM has not generated any income from the regulated activities it is permitted
to carry on.
6.
Furthermore, under SUP 16.3.13R, 16.12.3R, SUP 16.12.4R and SUP 16.12.29CR, GM is
required to submit the Returns to the Authority by the relevant due date. However, GM has
failed to submit the Returns to the Authority.
7.
In addition, under SUP 16.10.4R, 16.10.4AR and 16.10.14AAR, GM is required to submit the
FDA to the Authority by the relevant due date. However, GM has failed to submit the FDA to
the Authority. The Authority therefore considers that GM has failed to provide information to
the Authority as is required by the Handbook, namely the information it is required to provide
in the Returns and the FDA. There are no other matters that suggest GM is carrying on
regulated activities.
8.
On 15 May 2023, the Authority gave GM the Notice which stated that:
(a)
it appears to the Authority that GM is carrying on no regulated activity to which its Part
4A permission relates; and
Notice of Decision
3
(b)
the Authority may take action to cancel GM’s Part 4A permission unless it responds to the
Notice in the manner specified in the directions to the Notice.
9.
GM failed to respond to the Notice.
10.
As a result of the matters specified above, on 29 June 2023, the Authority gave GM the Further
Notice which stated that:
a) the Authority considered that GM is carrying on no regulated activity to which its Part
4A permission relates; and
b) the Authority proposes to cancel GM’s Part 4A permission on 24 July 2023 unless GM
takes the steps specified in the directions to the Further Notice.
11.
GM failed to take the steps specified in the Further Notice.
CANCELLATION OF PART 4A PERMISSION
12.
From the facts and matters described above, and having regard to paragraph 1(3) of Schedule
6A to the Act, the Authority considers that GM is carrying on no regulated activity to which its
Part 4A permission relates. The Authority has therefore decided to cancel GM’s Part 4A
permission. The cancellation of GM’s Part 4A permission takes effect on the date of this Notice
of Decision.
13.
The statutory and regulatory provisions relevant to this Notice of Decision are set out in the
Annexes.
PROCEDURAL MATTERS
14.
This Notice of Decision is given to GM under paragraph 3 of Schedule 6A to the Act (variation
or cancellation of Part 4A permission on initiative of FCA: additional power).
The following paragraphs are important.
Annulment of the Authority’s decision
15.
If GM is aggrieved by the decision to cancel its Part 4A permission as set out in this Notice of
Decision, GM may make an application for an annulment of the Authority’s decision under
paragraph 4 of Schedule 6A to the Act.
16.
GM must submit a completed application for an annulment of the Authority’s decision to the
Authority by 23 July 2024 and in the manner specified by the Authority.
The Tribunal
17.
GM does not have a right to refer the decision to give this Notice of Decision to the Tribunal.
Notice of Decision
18.
The Authority intends to publish such information about the matter to which this Notice of
Decision relates as the Authority considers appropriate. The information may be published in
such manner as the Authority considers appropriate.
19. For more information concerning this matter generally, GM should contact Maciej Alexander
Bajko (direct line: 020 7066 1838).
Anna Couzens
Enforcement and Market Oversight Division
Notice of Decision
5
ANNEX ON CANCELLATION OF PART 4A PERMISSION ON INITIATIVE OF FCA:
ADDITIONAL POWER
RELEVANT STATUTORY PROVISIONS
1.
The Authority’s operational objectives established in section 1B of the Act include protecting
and enhancing the integrity of the UK financial system and securing an appropriate degree of
protection for consumers.
2.
The Authority is authorised by paragraphs 1(1) and (2) of Schedule 6A to the Act to cancel an
Authority-authorised person’s Part 4A permission, if it appears to the Authority that the
Authority-authorised person is carrying on no regulated activity to which the permission
relates.
3.
Paragraph 1(3) of Schedule 6A of the Act provides that the circumstances in which the Authority
may form the view that an Authority-authorised person is carrying on no regulated activity
include (but are not limited to) circumstances where the person fails—
(a)
to provide such information to the Authority as is required by the Handbook
4.
The Authority must exercise its power to cancel an Authority-authorised person’s Part 4A
permission using its additional own initiative power in accordance with the procedure set out
in paragraph 2 of Schedule 6A to the Act.
RELEVANT HANDBOOK PROVISIONS
5.
In exercising its power to cancel an Authority-authorised person’s Part 4A permission, the
Authority must have regard to the regulatory requirements and guidance published in the
Handbook and in regulatory guides, such as EG. The main considerations relevant to the action
stated in this Notice of Decision are set out below.
Relevant Rules
10.
16.3.13R(1) requires that:
“A firm must submit a report required by this chapter in the frequency, and so as to be
received by the [Authority] no later than the due date, specified for that report.”
11.
SUP 16.3.13R(4) states that:
“If the due date for submission of a report required by this chapter is a set period
of time after the end of a half-year, a quarter, or a month, the dates will be
determined by (a) or (b) below except where otherwise indicated:
(a) the firm's accounting reference date;
(b) monthly, 3 monthly or 6 months after the firm's accounting reference date,
as the case may be.”
12.
The specific reporting requirements for GM are set out in SUP 16.12.3R, SUP 16.12.4R and SUP
16.12.29CR which stipulate the type, frequency and due date of the regulatory report which
Notice of Decision
6
GM is required to submit, according to the regulated activities which GM has permission to
conduct:
RAG Number
Return(s)
applicable
(Relevant rule)
Frequency of
return(s) to be
submitted
(Relevant rule)
Due date of return(s)
to be submitted
(Relevant rule)
RAG 12
(Credit-related
regulated activity)
30 business days
(SUP 16.12.29CR)
13.
SUP 16.10.4R specifies that:
“(1) Within 60 business days of its accounting reference date, a firm must check the
accuracy of its firm details through the relevant section of the [Authority] website.
[…]
(3) If any of the details are incorrect, the firm must submit the corrected firm details
to the [Authority] using the appropriate form set out in SUP 15 Ann 3 and in accordance
with SUP 16.10.4AR.”
14.
SUP 16.10.4AR(1) specifies that:
“A firm must submit any corrected firm details under SUP 16.10.14R(3) using the
appropriate online systems accessible through the [Authority’s] website.’’
15.
SUP 16.10.14AAR, which applies where, in complying with SUP 16.10.14R(1), a firm does not
need to submit corrected firm details under SUP 16.10.14R(3), specifics that:
“(2) Within 60 business days of its accounting reference date, a firm must submit a
report to the [Authority] confirming that the firm details which it has checked under
SUP 16.10.14R(1) remain accurate, using the appropriate online systems accessible
through the [Authority’s] website.’’
Guidance concerning the use of the Authority’s additional power to cancel an authorised
firm’s Part 4A permission on its own initiative
16.
Guidance on the use of the Authority’s power to cancel an Authority-authorised person’s Part
4A permissions on its own initiative under Schedule 6A to the Act is set out in SUP and EG.
17.
EG 8.5.2A states that the Authority may cancel the Part 4A permission of a firm that is an
Authority-authorised person, under Schedule 6A of the Act, if:
(1) it appears to the Authority that the firm is carrying on no regulated activity to which
the permission relates; and
(2) the firm has failed to respond as directed by the Authority to notices served by the
Authority to the firm under paragraph 2 of Schedule 6A.
Notice of Decision
7
18.
EG 8.5.2A also states that Schedule 6A specifies that the Authority may form the view that a
firm is carrying on no such regulated activity on the basis of its failure to pay a periodic fee or
levy or provide information to the Authority, in each case as required by the Handbook.
19.
SUP sets out further guidance on the Authority’s power under Schedule 6A of the Act. In
particular, SUP 7.2.2AG(1) states that the Authority may decide to cancel an Authority-
authorised person’s Part 4A permission using its powers under Schedule 6A of the Act:
(1) if that person appears to the Authority not to be carrying on any regulated activity to
which the permission relates, including, without restriction, if the person has failed to:
(a)
provide the Authority with information required under the Handbook; and
(2) if that person, when served by the Authority with two notices under paragraph 2 of
Schedule 6A of the Act, has not:
(a)
responded in the manner directed, in those notices or otherwise, by the
Authority; nor
(b)
taken other steps as may also be directed by the Authority;
the second of which notices will specify the effective date of the proposed cancellation.
20.
SUP 7.2.2CG states that, apart from the circumstances described in SUP 7.2.2AG(1), the
Authority may also form the view, under Schedule 6A of the Act, that a firm is no longer
conducting any regulated activity to which its permission relates in light of, without restriction:
(1) one or more reports, provided to the Authority by the firm, under SUP 16 or
otherwise, indicating that it is no longer doing so.
21.
SUP 7.2.2DG states that:
(1) the Authority’s additional own-initiative variation power under Schedule 6A to the Act
(which includes the power to cancel the Part 4A permission of an Authority-authorised
firm under Schedule 6A of the Act and references to “additional own-initiative
variation power in the remainder of this Notice should be read as such) has, unlike
the Authority’s own-initiative variation power under section 55J of the Act, a single
basis: that it appears to the Authority that the relevant Authority-authorised person
is not carrying on any regulated activity to which its Part 4A permission relates.
(2) if the Authority uses its additional own-initiative variation power, it is therefore more
likely to cancel the relevant firm’s Part 4A permission, rather than merely varying it
by removing or amending the description of one or more such activities or by
imposing one or more limitations.
(3) the Authority will, however, consider all relevant facts and circumstances, including,
without restriction:
(a) the relevant firm’s responses, if any, to the notices given by the Authority under
paragraph 2 of Schedule 6A; and
Notice of Decision
(b) if applicable, the factors described in SUP 6.4.22G, including whether there are
any matters relating to the firm requiring investigation,
before deciding whether to use its additional own-initiative variation power and whether to use
it to cancel or vary.
22.
SUP 7.2.7G(1) states that a firm has no right of referral to the Tribunal in respect of the
Authority exercising its additional own-initiative variation power, under Schedule 6A to the Act,
on the Authority-authorised firm’s Part 4A permission.
1
ANNULMENT OF DECISION TO CANCEL OR VARY A PART 4A PERMISSION UNDER
SCHEDULE 6A
1.
If any person currently or previously holding a permission given by the Authority under Part
4A of the Financial Services and Markets Act 2000 (“the Act”) is aggrieved by the Authority’s
decision to cancel or vary their Part 4A permission under paragraph 1 of Schedule 6A to the
Act, they may apply to the Authority under paragraph 4 of Schedule 6A to the Act for an
annulment of that decision.
2.
As required by paragraph 4 of Schedule 6A to the Act, a completed application for annulment
must be made before the end of the period of 12 months beginning with the day on which
the cancellation or variation took effect. An application for annulment can, however, be made
before the relevant cancellation or variation takes effect.
3.
Paragraph 4 of Schedule 6A to the Act requires the Authority to determine an application for
annulment before the end of the period of 6 months, beginning with the date on which the
Authority received the completed application.
4.
Paragraph 4 of Schedule 6A to the Act permits an application for annulment to be withdrawn
by the applicant firm, by giving the Authority written notice, at any time before the Authority
determines the application.
5.
A completed application, signed where indicated, must be submitted via Connect (a hard copy
application form can be provided upon request).
6.
Paragraph 5 of Schedule 6A to the Act permits the Authority to annul a decision to cancel or
vary an Authority-authorised firm’s Part 4A permission with conditions but specifies that the
Authority can only annul, with or without conditions, if it is satisfied that it is just and
reasonable to do so in all the circumstances.
7.
Paragraph 5 of Schedule 6A to the Act provides that the Authority’s power to annul with
conditions includes the power:
(a) to remove or describe differently a regulated activity specified in the permission, and
(b) to withdraw or vary an approval given under section 59 of the Act that has effect in
relation to the carrying on of a regulated activity specified in the permission,
provided that the activity in question was one to which the permission related immediately
before the decision being annulled was taken.
8.
The effect of an annulment, as set out in paragraph 6 of Schedule 6A to the Act, is that the
cancellation or variation in question is treated as not having taken place. Firms considering
whether to apply for annulment should note that, as a result, all of the statutory and other
obligations to which the firm, their staff and others would have otherwise been subject, had
there been no cancellation or variation, will, subject to the below, retrospectively apply to
them on any annulment.
9.
Under paragraph 6 of Schedule 6A to the Act, where, as a result of an annulment, a person
becomes subject to an obligation imposed by or under primary or secondary UK or devolved
or retained direct EU legislation, and the Authority has functions in relation to that obligation,
the Authority is permitted to treat that person as not having become subject to that
obligation. The Authority calls this a forbearance power.
2
10.
The Authority’s approach to retrospectively forbearing in relation to such an obligation for the
benefit of a firm and its employees will be informed by whether the firm continued, between
the relevant cancellation or variation and the annulment, to conduct any regulated or other
activity for which it required its cancelled or unvaried permission.
11.
Firms should note, however, that they should be prepared to justify such activity when
applying for annulment and that such activity may well lead the Authority to decide not to
annul. They should consider our Perimeter Guidance manual so as to avoid, following
cancellations or variations of their Part 4A permissions, breaching the Act and thereby
potentially committing criminal offences by carrying on regulated or other activity for which
they need their cancelled or unvaried permissions. While such a breach will be cured by
annulment, such activity may, as already noted, lead the Authority not to annul.
12.
In respect of a cancellation, where an applicant firm has not conducted any regulated or other
activity for which it would have needed its cancelled permission, since that cancellation took
effect, the Authority considers that it may usually be appropriate to forbear in relation to all
the obligations, described above, that would otherwise apply to the firm and its staff
retrospectively on annulment.
13.
In respect of a cancellation, where an applicant firm has, since the cancellation, conducted
regulated or other activity for which it needed its cancelled Part 4A permission, the Authority
considers that, if it annuls despite that activity, it will not usually be appropriate to forbear in
relation to any obligations retrospectively applicable, during the period of that activity, as a
result of the annulment.
14.
Accordingly, during the period of any such activity, a firm considering making an application
for annulment should continue to comply, to the extent it is able to do so, with the statutory
and other requirements, including those imposed by the Authority’s Handbook, to which it
would be subject but for the cancellation.
15.
In respect of a variation, the Authority intends to adopt a similar approach, and forbear in
relation to the obligations, if any, which were lifted by the variation and which the firm
becomes subject to retrospectively on annulment, subject to the firm not having undertaken
regulated or other activity for which it would have needed its unvaried permission, since the
variation took effect.
16.
To the extent that such a firm is unable to precisely comply with such requirements, if
enforced by the Authority or another UK regulator, it should consider how it can do so through
other means. As stated in SUP 7.4, we may take the extent of such compliance into account
when determining such a firm’s application for annulment.
17.
The annulment application form enables an applicant to specify particular obligations that in
relation to which it would like the Authority to forbear, whether retrospectively or
prospectively (i.e., from the date an annulment takes effect), whether in its favour or in
favour of any other person.
18.
Where forbearance is granted, whether retrospectively or prospectively, it cannot operate in
respect of obligations that applied to the firm during the relevant period in any event, i.e. for
some reason other than the retrospective nature of annulment.
19.
The Authority intends to use its forbearance power when it considers that the effect of an
annulment creates unfairness.
3
20.
The Authority is required by Schedule 6A to the Act to notify those in whose favour it uses
this power.
21.
In determining whether to exercise its power to grant an annulment with or without conditions
or to refuse to grant an annulment, the Authority must have regard to the regulatory
requirements and guidance published in the Handbook and in regulatory guides, such as EG.
The main considerations relevant to the Authority’s decision to grant an annulment (with or
without conditions) are set out in SUP 7.4.
FEES/DISP/COMP
22.
The Fees Manual (“FEES”), Dispute Resolution: Complaints sourcebook (“DISP”) and
Compensation sourcebook (“COMP”), chapters of the Handbook, contain rules making
provision for and guidance as to the effect of annulment.
23.
In summary, the effect of annulment is that any fees and levies that arose while the
authorised person’s Part 4A permission was cancelled become payable (unless the authorised
person has previously advised the Authority that it is exempt). Where the deadline for
obligations relating to the provision of information or payment of the various fees and levies
has passed before annulment, the relevant rules and guidance within FEES delay those
deadlines.
24.
The fees and levies the Authority collects and the relevant rules and guidance within FEES
are: Authority fees (FEES 4); Financial Ombudsman Service (FEES 5); Financial Services and
Compensation Scheme (FEES 6); Single Finance Guidance Body (SFGB – FEES 7A); Devolved
Debt Advice Levy (FEES 7B); Temporary Permissions Regime and Financial Service Contracts
Regime – SFGB Levy (FEES 7C); Temporary Permissions – Devolved Authorities Levy (FEES
7D); and Illegal Money Laundering Levy (FEES 13 and 13A).
DISP
25.
Where there is a complaint about an authorised person’s activities during the period when its
Part 4A permission was cancelled, the effect of an annulment is that the Ombudsman Service
may be able to consider the complaint (further to DISP 2.3.6G).
26.
Where a deadline for a complaints report that is to be submitted to the Authority in accordance
with DISP 1.10.5R occurs during the period of cancellation, the effect of an annulment is that
the authorised person must submit such report to the Authority within 30 business days of
the date on which the annulment takes effect (further to DISP 1.10.5AR).
COMP
27.
The effect of an annulment is that an authorised person will be treated as a participant firm
for the Financial Services and Compensation Scheme (“FSCS”) purposes for claims that may
arise in the period between cancellation and annulment (further to COMP 6.2.5G).
Right to refer matter to the Tribunal
28.
Under paragraph 7 of Schedule 6A to the Act, if an applicant submits a completed application
to annul by the date and in the form specified and the Authority determines that application
in accordance with paragraph 5(2) of Schedule 6A to the Act, by either deciding to grant the
annulment (with or without such conditions as the Authority considers appropriate) or by
refusing to grant the annulment, the applicant (and the Authority) will have the right to refer
the matter to the Tribunal.
29.
In determining a reference to the Tribunal, the Tribunal may give such directions, and may
make such provision, as it considers reasonable for placing the person and other persons in
the same position (as nearly as may be) as if the permission had not been cancelled.
NOTICE OF DECISION
ACTION
1.
For the reasons given below, the Authority has decided to cancel Geneva Motor’s Part 4A
permission. The cancellation takes effect on the date of this Notice of Decision.
2.
The effect of the cancellation is that Geneva Motors no longer has permission to carry on any
regulated activities.
DEFINITIONS
3.
The definitions below are used in this Notice of Decision (and in the Annex):
“the Act” means the Financial Services and Markets Act 2000;
“the Authority” means the Financial Conduct Authority;
Notice of Decision
2
“EG” means the Enforcement Guide;
“FDA” means the Firm Details Attestation which Authority-authorised firms are required to
submit to the Authority under SUP 16.10;
“GM” means Geneva Motors;
“GM’s Part 4A permission” means the Part 4A permission granted by the Authority to GM;
“the Handbook” means the Authority’s Handbook of rules and guidance;
“Part 4A permission” means permission to conduct regulated activities, granted by the
Authority under Part 4A of the Act;
“RAG” means regulated activity group as referred to in SUP;
“the Returns” means the CCR007 Consumer Credit data for the period from 1 July 2021 to
30 June 2022 which was due to be submitted to the Authority by 11 August 2022; and
“SUP” means the Supervision Manual, part of the Handbook.
“the Tribunal” means the Upper Tribunal (Tax and Chancery Chamber).
FACTS AND MATTERS
4.
GM was authorised by the Authority on 13 January 2015 and has Part 4A permission to conduct
the following regulated in relation to consumer credit activities:
(i) credit broking;
(ii) debt adjusting; and
(iii) debt counselling.
5.
GM submitted regulatory returns to the Authority for the period 1 July 2020 to 30 June 2021
which show that GM has not generated any income from the regulated activities it is permitted
to carry on.
6.
Furthermore, under SUP 16.3.13R, 16.12.3R, SUP 16.12.4R and SUP 16.12.29CR, GM is
required to submit the Returns to the Authority by the relevant due date. However, GM has
failed to submit the Returns to the Authority.
7.
In addition, under SUP 16.10.4R, 16.10.4AR and 16.10.14AAR, GM is required to submit the
FDA to the Authority by the relevant due date. However, GM has failed to submit the FDA to
the Authority. The Authority therefore considers that GM has failed to provide information to
the Authority as is required by the Handbook, namely the information it is required to provide
in the Returns and the FDA. There are no other matters that suggest GM is carrying on
regulated activities.
8.
On 15 May 2023, the Authority gave GM the Notice which stated that:
(a)
it appears to the Authority that GM is carrying on no regulated activity to which its Part
4A permission relates; and
Notice of Decision
3
(b)
the Authority may take action to cancel GM’s Part 4A permission unless it responds to the
Notice in the manner specified in the directions to the Notice.
9.
GM failed to respond to the Notice.
10.
As a result of the matters specified above, on 29 June 2023, the Authority gave GM the Further
Notice which stated that:
a) the Authority considered that GM is carrying on no regulated activity to which its Part
4A permission relates; and
b) the Authority proposes to cancel GM’s Part 4A permission on 24 July 2023 unless GM
takes the steps specified in the directions to the Further Notice.
11.
GM failed to take the steps specified in the Further Notice.
CANCELLATION OF PART 4A PERMISSION
12.
From the facts and matters described above, and having regard to paragraph 1(3) of Schedule
6A to the Act, the Authority considers that GM is carrying on no regulated activity to which its
Part 4A permission relates. The Authority has therefore decided to cancel GM’s Part 4A
permission. The cancellation of GM’s Part 4A permission takes effect on the date of this Notice
of Decision.
13.
The statutory and regulatory provisions relevant to this Notice of Decision are set out in the
Annexes.
PROCEDURAL MATTERS
14.
This Notice of Decision is given to GM under paragraph 3 of Schedule 6A to the Act (variation
or cancellation of Part 4A permission on initiative of FCA: additional power).
The following paragraphs are important.
Annulment of the Authority’s decision
15.
If GM is aggrieved by the decision to cancel its Part 4A permission as set out in this Notice of
Decision, GM may make an application for an annulment of the Authority’s decision under
paragraph 4 of Schedule 6A to the Act.
16.
GM must submit a completed application for an annulment of the Authority’s decision to the
Authority by 23 July 2024 and in the manner specified by the Authority.
The Tribunal
17.
GM does not have a right to refer the decision to give this Notice of Decision to the Tribunal.
Notice of Decision
18.
The Authority intends to publish such information about the matter to which this Notice of
Decision relates as the Authority considers appropriate. The information may be published in
such manner as the Authority considers appropriate.
19. For more information concerning this matter generally, GM should contact Maciej Alexander
Bajko (direct line: 020 7066 1838).
Anna Couzens
Enforcement and Market Oversight Division
Notice of Decision
5
ANNEX ON CANCELLATION OF PART 4A PERMISSION ON INITIATIVE OF FCA:
ADDITIONAL POWER
RELEVANT STATUTORY PROVISIONS
1.
The Authority’s operational objectives established in section 1B of the Act include protecting
and enhancing the integrity of the UK financial system and securing an appropriate degree of
protection for consumers.
2.
The Authority is authorised by paragraphs 1(1) and (2) of Schedule 6A to the Act to cancel an
Authority-authorised person’s Part 4A permission, if it appears to the Authority that the
Authority-authorised person is carrying on no regulated activity to which the permission
relates.
3.
Paragraph 1(3) of Schedule 6A of the Act provides that the circumstances in which the Authority
may form the view that an Authority-authorised person is carrying on no regulated activity
include (but are not limited to) circumstances where the person fails—
(a)
to provide such information to the Authority as is required by the Handbook
4.
The Authority must exercise its power to cancel an Authority-authorised person’s Part 4A
permission using its additional own initiative power in accordance with the procedure set out
in paragraph 2 of Schedule 6A to the Act.
RELEVANT HANDBOOK PROVISIONS
5.
In exercising its power to cancel an Authority-authorised person’s Part 4A permission, the
Authority must have regard to the regulatory requirements and guidance published in the
Handbook and in regulatory guides, such as EG. The main considerations relevant to the action
stated in this Notice of Decision are set out below.
Relevant Rules
10.
16.3.13R(1) requires that:
“A firm must submit a report required by this chapter in the frequency, and so as to be
received by the [Authority] no later than the due date, specified for that report.”
11.
SUP 16.3.13R(4) states that:
“If the due date for submission of a report required by this chapter is a set period
of time after the end of a half-year, a quarter, or a month, the dates will be
determined by (a) or (b) below except where otherwise indicated:
(a) the firm's accounting reference date;
(b) monthly, 3 monthly or 6 months after the firm's accounting reference date,
as the case may be.”
12.
The specific reporting requirements for GM are set out in SUP 16.12.3R, SUP 16.12.4R and SUP
16.12.29CR which stipulate the type, frequency and due date of the regulatory report which
Notice of Decision
6
GM is required to submit, according to the regulated activities which GM has permission to
conduct:
RAG Number
Return(s)
applicable
(Relevant rule)
Frequency of
return(s) to be
submitted
(Relevant rule)
Due date of return(s)
to be submitted
(Relevant rule)
RAG 12
(Credit-related
regulated activity)
30 business days
(SUP 16.12.29CR)
13.
SUP 16.10.4R specifies that:
“(1) Within 60 business days of its accounting reference date, a firm must check the
accuracy of its firm details through the relevant section of the [Authority] website.
[…]
(3) If any of the details are incorrect, the firm must submit the corrected firm details
to the [Authority] using the appropriate form set out in SUP 15 Ann 3 and in accordance
with SUP 16.10.4AR.”
14.
SUP 16.10.4AR(1) specifies that:
“A firm must submit any corrected firm details under SUP 16.10.14R(3) using the
appropriate online systems accessible through the [Authority’s] website.’’
15.
SUP 16.10.14AAR, which applies where, in complying with SUP 16.10.14R(1), a firm does not
need to submit corrected firm details under SUP 16.10.14R(3), specifics that:
“(2) Within 60 business days of its accounting reference date, a firm must submit a
report to the [Authority] confirming that the firm details which it has checked under
SUP 16.10.14R(1) remain accurate, using the appropriate online systems accessible
through the [Authority’s] website.’’
Guidance concerning the use of the Authority’s additional power to cancel an authorised
firm’s Part 4A permission on its own initiative
16.
Guidance on the use of the Authority’s power to cancel an Authority-authorised person’s Part
4A permissions on its own initiative under Schedule 6A to the Act is set out in SUP and EG.
17.
EG 8.5.2A states that the Authority may cancel the Part 4A permission of a firm that is an
Authority-authorised person, under Schedule 6A of the Act, if:
(1) it appears to the Authority that the firm is carrying on no regulated activity to which
the permission relates; and
(2) the firm has failed to respond as directed by the Authority to notices served by the
Authority to the firm under paragraph 2 of Schedule 6A.
Notice of Decision
7
18.
EG 8.5.2A also states that Schedule 6A specifies that the Authority may form the view that a
firm is carrying on no such regulated activity on the basis of its failure to pay a periodic fee or
levy or provide information to the Authority, in each case as required by the Handbook.
19.
SUP sets out further guidance on the Authority’s power under Schedule 6A of the Act. In
particular, SUP 7.2.2AG(1) states that the Authority may decide to cancel an Authority-
authorised person’s Part 4A permission using its powers under Schedule 6A of the Act:
(1) if that person appears to the Authority not to be carrying on any regulated activity to
which the permission relates, including, without restriction, if the person has failed to:
(a)
provide the Authority with information required under the Handbook; and
(2) if that person, when served by the Authority with two notices under paragraph 2 of
Schedule 6A of the Act, has not:
(a)
responded in the manner directed, in those notices or otherwise, by the
Authority; nor
(b)
taken other steps as may also be directed by the Authority;
the second of which notices will specify the effective date of the proposed cancellation.
20.
SUP 7.2.2CG states that, apart from the circumstances described in SUP 7.2.2AG(1), the
Authority may also form the view, under Schedule 6A of the Act, that a firm is no longer
conducting any regulated activity to which its permission relates in light of, without restriction:
(1) one or more reports, provided to the Authority by the firm, under SUP 16 or
otherwise, indicating that it is no longer doing so.
21.
SUP 7.2.2DG states that:
(1) the Authority’s additional own-initiative variation power under Schedule 6A to the Act
(which includes the power to cancel the Part 4A permission of an Authority-authorised
firm under Schedule 6A of the Act and references to “additional own-initiative
variation power in the remainder of this Notice should be read as such) has, unlike
the Authority’s own-initiative variation power under section 55J of the Act, a single
basis: that it appears to the Authority that the relevant Authority-authorised person
is not carrying on any regulated activity to which its Part 4A permission relates.
(2) if the Authority uses its additional own-initiative variation power, it is therefore more
likely to cancel the relevant firm’s Part 4A permission, rather than merely varying it
by removing or amending the description of one or more such activities or by
imposing one or more limitations.
(3) the Authority will, however, consider all relevant facts and circumstances, including,
without restriction:
(a) the relevant firm’s responses, if any, to the notices given by the Authority under
paragraph 2 of Schedule 6A; and
Notice of Decision
(b) if applicable, the factors described in SUP 6.4.22G, including whether there are
any matters relating to the firm requiring investigation,
before deciding whether to use its additional own-initiative variation power and whether to use
it to cancel or vary.
22.
SUP 7.2.7G(1) states that a firm has no right of referral to the Tribunal in respect of the
Authority exercising its additional own-initiative variation power, under Schedule 6A to the Act,
on the Authority-authorised firm’s Part 4A permission.
1
ANNULMENT OF DECISION TO CANCEL OR VARY A PART 4A PERMISSION UNDER
SCHEDULE 6A
1.
If any person currently or previously holding a permission given by the Authority under Part
4A of the Financial Services and Markets Act 2000 (“the Act”) is aggrieved by the Authority’s
decision to cancel or vary their Part 4A permission under paragraph 1 of Schedule 6A to the
Act, they may apply to the Authority under paragraph 4 of Schedule 6A to the Act for an
annulment of that decision.
2.
As required by paragraph 4 of Schedule 6A to the Act, a completed application for annulment
must be made before the end of the period of 12 months beginning with the day on which
the cancellation or variation took effect. An application for annulment can, however, be made
before the relevant cancellation or variation takes effect.
3.
Paragraph 4 of Schedule 6A to the Act requires the Authority to determine an application for
annulment before the end of the period of 6 months, beginning with the date on which the
Authority received the completed application.
4.
Paragraph 4 of Schedule 6A to the Act permits an application for annulment to be withdrawn
by the applicant firm, by giving the Authority written notice, at any time before the Authority
determines the application.
5.
A completed application, signed where indicated, must be submitted via Connect (a hard copy
application form can be provided upon request).
6.
Paragraph 5 of Schedule 6A to the Act permits the Authority to annul a decision to cancel or
vary an Authority-authorised firm’s Part 4A permission with conditions but specifies that the
Authority can only annul, with or without conditions, if it is satisfied that it is just and
reasonable to do so in all the circumstances.
7.
Paragraph 5 of Schedule 6A to the Act provides that the Authority’s power to annul with
conditions includes the power:
(a) to remove or describe differently a regulated activity specified in the permission, and
(b) to withdraw or vary an approval given under section 59 of the Act that has effect in
relation to the carrying on of a regulated activity specified in the permission,
provided that the activity in question was one to which the permission related immediately
before the decision being annulled was taken.
8.
The effect of an annulment, as set out in paragraph 6 of Schedule 6A to the Act, is that the
cancellation or variation in question is treated as not having taken place. Firms considering
whether to apply for annulment should note that, as a result, all of the statutory and other
obligations to which the firm, their staff and others would have otherwise been subject, had
there been no cancellation or variation, will, subject to the below, retrospectively apply to
them on any annulment.
9.
Under paragraph 6 of Schedule 6A to the Act, where, as a result of an annulment, a person
becomes subject to an obligation imposed by or under primary or secondary UK or devolved
or retained direct EU legislation, and the Authority has functions in relation to that obligation,
the Authority is permitted to treat that person as not having become subject to that
obligation. The Authority calls this a forbearance power.
2
10.
The Authority’s approach to retrospectively forbearing in relation to such an obligation for the
benefit of a firm and its employees will be informed by whether the firm continued, between
the relevant cancellation or variation and the annulment, to conduct any regulated or other
activity for which it required its cancelled or unvaried permission.
11.
Firms should note, however, that they should be prepared to justify such activity when
applying for annulment and that such activity may well lead the Authority to decide not to
annul. They should consider our Perimeter Guidance manual so as to avoid, following
cancellations or variations of their Part 4A permissions, breaching the Act and thereby
potentially committing criminal offences by carrying on regulated or other activity for which
they need their cancelled or unvaried permissions. While such a breach will be cured by
annulment, such activity may, as already noted, lead the Authority not to annul.
12.
In respect of a cancellation, where an applicant firm has not conducted any regulated or other
activity for which it would have needed its cancelled permission, since that cancellation took
effect, the Authority considers that it may usually be appropriate to forbear in relation to all
the obligations, described above, that would otherwise apply to the firm and its staff
retrospectively on annulment.
13.
In respect of a cancellation, where an applicant firm has, since the cancellation, conducted
regulated or other activity for which it needed its cancelled Part 4A permission, the Authority
considers that, if it annuls despite that activity, it will not usually be appropriate to forbear in
relation to any obligations retrospectively applicable, during the period of that activity, as a
result of the annulment.
14.
Accordingly, during the period of any such activity, a firm considering making an application
for annulment should continue to comply, to the extent it is able to do so, with the statutory
and other requirements, including those imposed by the Authority’s Handbook, to which it
would be subject but for the cancellation.
15.
In respect of a variation, the Authority intends to adopt a similar approach, and forbear in
relation to the obligations, if any, which were lifted by the variation and which the firm
becomes subject to retrospectively on annulment, subject to the firm not having undertaken
regulated or other activity for which it would have needed its unvaried permission, since the
variation took effect.
16.
To the extent that such a firm is unable to precisely comply with such requirements, if
enforced by the Authority or another UK regulator, it should consider how it can do so through
other means. As stated in SUP 7.4, we may take the extent of such compliance into account
when determining such a firm’s application for annulment.
17.
The annulment application form enables an applicant to specify particular obligations that in
relation to which it would like the Authority to forbear, whether retrospectively or
prospectively (i.e., from the date an annulment takes effect), whether in its favour or in
favour of any other person.
18.
Where forbearance is granted, whether retrospectively or prospectively, it cannot operate in
respect of obligations that applied to the firm during the relevant period in any event, i.e. for
some reason other than the retrospective nature of annulment.
19.
The Authority intends to use its forbearance power when it considers that the effect of an
annulment creates unfairness.
3
20.
The Authority is required by Schedule 6A to the Act to notify those in whose favour it uses
this power.
21.
In determining whether to exercise its power to grant an annulment with or without conditions
or to refuse to grant an annulment, the Authority must have regard to the regulatory
requirements and guidance published in the Handbook and in regulatory guides, such as EG.
The main considerations relevant to the Authority’s decision to grant an annulment (with or
without conditions) are set out in SUP 7.4.
FEES/DISP/COMP
22.
The Fees Manual (“FEES”), Dispute Resolution: Complaints sourcebook (“DISP”) and
Compensation sourcebook (“COMP”), chapters of the Handbook, contain rules making
provision for and guidance as to the effect of annulment.
23.
In summary, the effect of annulment is that any fees and levies that arose while the
authorised person’s Part 4A permission was cancelled become payable (unless the authorised
person has previously advised the Authority that it is exempt). Where the deadline for
obligations relating to the provision of information or payment of the various fees and levies
has passed before annulment, the relevant rules and guidance within FEES delay those
deadlines.
24.
The fees and levies the Authority collects and the relevant rules and guidance within FEES
are: Authority fees (FEES 4); Financial Ombudsman Service (FEES 5); Financial Services and
Compensation Scheme (FEES 6); Single Finance Guidance Body (SFGB – FEES 7A); Devolved
Debt Advice Levy (FEES 7B); Temporary Permissions Regime and Financial Service Contracts
Regime – SFGB Levy (FEES 7C); Temporary Permissions – Devolved Authorities Levy (FEES
7D); and Illegal Money Laundering Levy (FEES 13 and 13A).
DISP
25.
Where there is a complaint about an authorised person’s activities during the period when its
Part 4A permission was cancelled, the effect of an annulment is that the Ombudsman Service
may be able to consider the complaint (further to DISP 2.3.6G).
26.
Where a deadline for a complaints report that is to be submitted to the Authority in accordance
with DISP 1.10.5R occurs during the period of cancellation, the effect of an annulment is that
the authorised person must submit such report to the Authority within 30 business days of
the date on which the annulment takes effect (further to DISP 1.10.5AR).
COMP
27.
The effect of an annulment is that an authorised person will be treated as a participant firm
for the Financial Services and Compensation Scheme (“FSCS”) purposes for claims that may
arise in the period between cancellation and annulment (further to COMP 6.2.5G).
Right to refer matter to the Tribunal
28.
Under paragraph 7 of Schedule 6A to the Act, if an applicant submits a completed application
to annul by the date and in the form specified and the Authority determines that application
in accordance with paragraph 5(2) of Schedule 6A to the Act, by either deciding to grant the
annulment (with or without such conditions as the Authority considers appropriate) or by
refusing to grant the annulment, the applicant (and the Authority) will have the right to refer
the matter to the Tribunal.
29.
In determining a reference to the Tribunal, the Tribunal may give such directions, and may
make such provision, as it considers reasonable for placing the person and other persons in
the same position (as nearly as may be) as if the permission had not been cancelled.