C24 Part V Performance of Regulated Activities
Approval
C1I1C2C3C459 Approval for particular arrangements.
C51
An authorised person (“A”) must take reasonable care to ensure that no person performs a controlled function under an arrangement entered into by A in relation to the carrying on by A of a regulated activity, unless the Authority approves the performance by that person of the controlled function to which the arrangement relates.
2
An authorised person (“A”) must take reasonable care to ensure that no person performs a controlled function under an arrangement entered into by a contractor of A in relation to the carrying on by A of a regulated activity, unless the Authority approves the performance by that person of the controlled function to which the arrangement relates.
3
“Controlled function” means a function of a description specified in rules.
4
The Authority may specify a description of function under subsection (3) only if, in relation to the carrying on of a regulated activity by an authorised person, it is satisfied that the first, second or third condition is met.
5
The first condition is that the function is likely to enable the person responsible for its performance to exercise a significant influence on the conduct of the authorised person’s affairs, so far as relating to the regulated activity.
6
The second condition is that the function will involve the person performing it in dealing with customers of the authorised person in a manner substantially connected with the carrying on of the regulated activity.
7
The third condition is that the function will involve the person performing it in dealing with property of customers of the authorised person in a manner substantially connected with the carrying on of the regulated activity.
8
Neither subsection (1) nor subsection (2) applies to an arrangement which allows a person to perform a function if the question of whether he is a fit and proper person to perform the function is reserved under any of the single market directives F1or the emission allowance auctioning regulation to an authority in a country or territory outside the United Kingdom.
9
In determining whether the first condition is met, the Authority may take into account the likely consequences of a failure to discharge that function properly.
10
“Arrangement”—
a
means any kind of arrangement for the performance of a function of A which is entered into by A or any contractor of his with another person; and
b
includes, in particular, that other person’s appointment to an office, his becoming a partner or his employment (whether under a contract of service or otherwise).
11
“Customer”, in relation to an authorised person, means a person who is using, or who is or may be contemplating using, any of the services provided by the authorised person.
59AF2Specifying functions as controlled functions: supplementary
1
The FCA must—
a
keep under review the exercise of its power under section 59(3)(a) to specify any significant-influence function as a controlled function, and
b
exercise that power in a way that it considers will minimise the likelihood that approvals fall to be given by both the FCA and the PRA in respect of the performance by a person of significant-influence functions in relation to the carrying on of a regulated activity by the same PRA-authorised person.
2
The FCA and the PRA must each consult the other before exercising any power under section 59(3)(a).
3
Any reference in this section to the exercise of a power includes its exercise by way of amendment or revocation of provision previously made in the exercise of the power.
4
“Approval” means an approval under section 59.
5
Any expression which is used both in this section and section 59 has the same meaning in this section as in that section.
59BRole of FCA in relation to PRA decisions
1
The FCA may arrange with the PRA that in such cases as may be described in the arrangements the PRA may give approval under section 59 without obtaining the consent of the FCA.
2
Arrangements under this section must be in writing, and must specify the date on which they come into force.
3
The regulators must publish any arrangements under this section in such manner as they think fit.
4
Section 59(4)(b) has effect subject to any arrangements in force under this section.
C6I2C7C8C960 Applications for approval.
1
An application for the F3appropriate regulator's approval under section 59 may be made by the authorised person concerned.
2
The application must—
a
be made in such manner as the F3appropriate regulator may direct; and
b
contain, or be accompanied by, such information as the F3appropriate regulator may reasonably require.
C10F53
At any time after the application is received and before it is determined, the appropriate regulator may require the applicant to provide it with such further information as it reasonably considers necessary to enable it to determine the application or, as the case requires, to decide whether to give consent.
4
5
Different directions may be given, and different requirements imposed, in relation to different applications or categories of application.
6
“The authorised person concerned” includes a person who has applied for permission under F6Part 4A and will be the authorised person concerned if permission is given.
F47
The PRA must consult the FCA before—
a
giving a direction under subsection (2)(a) in relation to a class of applicants, or
b
imposing a requirement under subsection (2)(b) on a class of applicants.
8
The PRA must as soon as practicable notify the FCA of the receipt or withdrawal of an application to the PRA, unless the case is one in which by virtue of arrangements under section 59B the consent of the FCA is not required.
9
“The appropriate regulator”—
a
in relation to a controlled function which is of a description specified in rules made by the FCA, means the FCA;
b
in relation to a controlled function which is of a description specified in rules made by the PRA, means the PRA, and for the purposes of subsection (3) also includes the FCA in cases where the consent of the FCA is required.
I3C11C1261 Determination of applications.
1
The Authority may grant an application made under section 60 only if it is satisfied that the person in respect of whom the application is made (“the candidate”) is a fit and proper person to perform the function to which the application relates.
2
In deciding that question, the Authority may have regard (among other things) to whether the candidate, or any person who may perform a function on his behalf—
a
has obtained a qualification,
b
has undergone, or is undergoing, training, or
c
possesses a level of competence,
required by general rules in relation to persons performing functions of the kind to which the application relates.
C13C14C153
The Authority must, before the end of the period of three months beginning with the date on which it receives an application made under section 60 (“the period for consideration”), determine whether—
a
to grant the application; or
b
to give a warning notice under section 62(2).
4
If the Authority imposes a requirement under section 60(3), the period for consideration stops running on the day on which the requirement is imposed but starts running again—
a
on the day on which the required information is received by the Authority; or
b
if the information is not provided on a single day, on the last of the days on which it is received by the Authority.
5
A person who makes an application under section 60 may withdraw his application by giving written notice to the Authority at any time before the Authority determines it, but only with the consent of—
a
the candidate; and
b
the person by whom the candidate is to be retained to perform the function concerned, if not the applicant.
I4C16C1762 Applications for approval: procedure and right to refer to Tribunal.
1
If the Authority decides to grant an application made under section 60 (“an application”), it must give written notice of its decision to each of the interested parties.
2
If the Authority proposes to refuse an application, it must give a warning notice to each of the interested parties.
3
If the Authority decides to refuse an application, it must give a decision notice to each of the interested parties.
4
If the Authority decides to refuse an application, each of the interested parties may refer the matter to the Tribunal.
5
“The interested parties”, in relation to an application, are—
a
the applicant;
b
the person in respect of whom the application is made (“A”); and
c
the person by whom A’s services are to be retained, if not the applicant.
I5C18C19C2063 Withdrawal of approval.
C211
The Authority may withdraw an approval given under section 59 if it considers that the person in respect of whom it was given is not a fit and proper person to perform the function to which the approval relates.
2
When considering whether to withdraw its approval, the Authority may take into account any matter which it could take into account if it were considering an application made under section 60 in respect of the performance of the function to which the approval relates.
C21C223
If the Authority proposes to withdraw its approval, it must give each of the interested parties a warning notice.
C23C214
If the Authority decides to withdraw its approval, it must give each of the interested parties a decision notice.
C215
If the Authority decides to withdraw its approval, each of the interested parties may refer the matter to the Tribunal.
C216
“The interested parties”, in relation to an approval, are—
a
the person on whose application it was given (“A”);
b
the person in respect of whom it was given (“B”); and
c
the person by whom B’s services are retained, if not A.
Pt. V (ss. 56-71) modified (1.12.2001) by S.I. 2001/3592, arts. 1(2), 114(3)(a), 128(3)(a) (with art. 23(2))