PART 9Enforcement
CHAPTER 2Civil penalties and notices
The FCA: disciplinary measures (procedure)81
1
When determining the type of sanction, and level of any penalty, to be imposed on a person (“P”) under regulation 76, 77 or 78, the FCA must take into account all relevant circumstances, including where appropriate—
a
the gravity and the duration of the contravention or failure;
b
the degree of responsibility of P;
c
the financial strength of P;
d
the amount of profits gained or losses avoided by P;
e
the losses for third parties caused by the contravention or failure;
f
the level of co-operation of P with the FCA;
g
previous contraventions or failures by P; and
h
any potential systemic consequences of the contravention or failure.
F11A
Before imposing a sanction on P under regulation 76, 77 or 78, the FCA must check whether P has any criminal convictions that may be relevant to the determination referred to in paragraph (1).
2
If the FCA proposes to impose a sanction on P under regulation 76, 77 or 78 it must give P a warning notice.
3
Where the FCA proposes to impose a penalty on a PRA-authorised person or on a person who has a qualifying relationship with a PRA-authorised person, it must consult the PRA.
4
Section 387 of FSMA (warning notices) M1 applies in relation to a notice given under paragraph (2) as it applies in relation to a warning notice given by the FCA under that Act, subject to paragraph (5).
5
In complying with section 387(1)(a), a warning notice must—
a
if it is about a proposal to publish a statement, set out the terms of the statement;
b
if it is about a proposal to impose a penalty, specify the amount of the penalty;
c
if it is about a proposal to impose a suspension, limitation or other restriction—
i
state the period for which the suspension, limitation or restriction is to have effect,
ii
sets out the terms of the suspension, limitation or other restriction;
d
if it is about a proposal to cancel, state the date from which the cancellation is to have effect;
e
if it is about a proposal to impose a prohibition on an individual, set out the terms of the proposed prohibition.
6
If the FCA decides to impose a sanction on P under regulation 76, 77 or 78 it must without undue delay give P a decision notice.
7
If the decision is to publish a statement, the decision notice must set out the terms of the statement.
8
If the decision is to impose a penalty, the decision notice must specify the amount of the penalty.
9
If the decision is to impose a suspension, limitation or other restriction, the decision notice must—
a
state the period for which the suspension, limitation or restriction is to have effect;
b
sets out the terms of the suspension, limitation or other restriction.
10
If the decision is to cancel a permission, registration or authorisation, the decision notice must state the date from which the cancellation is to have effect.
11
If the decision is to impose a prohibition on an individual, the decision notice must set out the terms of the prohibition.
12
Section 388 of FSMA (decision notices) M2 applies in relation to a decision notice given under paragraph (6) as it applies in relation to a decision notice given by the FCA under FSMA, subject to paragraph (13).
13
Section 388 of FSMA has effect for the purposes of paragraph (12) as if—
a
in subsection (1)(e)(i) for “this Act” there were substituted “
regulation 93(1) of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017
”
, and
b
subsections (1A) and (2) were omitted.