The Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001

PART III U.K. OTHER EXEMPTIONS

Follow up non-real time communications and solicited real time communications U.K.

11.—(1) Where an authorised person makes or directs a communication (“the first communication”) which is exempt from the scheme promotion restriction because, in compliance with the requirements of another provision of this Order, it is accompanied by certain indications or contains certain information, then the scheme promotion restriction does not apply to any subsequent communication which complies with the requirements of paragraph (2).

(2) The requirements of this paragraph are that the subsequent communication—

(a) is a non-real time communication or a solicited real time communication;

(b) is made by the same person who made the first communication;

(c) is made to a recipient of the first communication;

(d) relates to the same unregulated scheme as the first communication; and

(e) is made within 12 months of the recipient receiving the first communication.

(3) A communication made or directed before this Order comes into force is to be treated as a first communication falling within paragraph (1) if it would have fallen within that paragraph had it been made or directed after this Order comes into force.

Commencement Information

I1 Art. 11 in force at 1.12.2001, see art. 1(2)

Introductions U.K.

12.—(1) If the requirements of paragraph (2) are met, the scheme promotion restriction does not apply to any real time communication which is made with a view to or for the purposes of introducing the recipient to—

(a) an authorised person who carries on one or more relevant scheme activities in relation to units in unregulated schemes; or

(b) a person who is exempt, as a result of an exemption order made under section 38(1) of the Act, in relation to one or more relevant scheme activities.

(2) The requirements of this paragraph are that—

(a) the maker of the communication (“A”) is not a close relative of, nor a member of the same group as, the person to whom the introduction is, or is to be, made;

(b) A does not carry on business in relevant scheme activities in relation to units in unregulated schemes;

(c) A does not receive from any person other than the recipient any pecuniary reward or other advantage arising out of his making the introduction; and

(d) it is clear in all the circumstances that the recipient, in his capacity as an investor, is not seeking and has not sought advice from A as to the merits of participating in an unregulated scheme (or, if the client has sought such advice, A has declined to give it, but has recommended that the recipient seek such advice from an authorised person specialising in that kind of investment).

Commencement Information

I2 Art. 12 in force at 1.12.2001, see art. 1(2)

Generic promotions U.K.

13.  The scheme promotion restriction does not apply to any communication which—

(a) does not relate to units of a particular unregulated scheme identified (directly or indirectly) in the communication; and

(b) does not identify (directly or indirectly) any person who operates a collective investment scheme or sells units.

Commencement Information

I3 Art. 13 in force at 1.12.2001, see art. 1(2)

Investment professionals U.K.

14.—(1) The scheme promotion restriction does not apply to any communication which—

(a) is made only to recipients whom the person making the communication believes on reasonable grounds to be investment professionals; or

(b) may reasonably be regarded as directed only at such recipients.

(2) For the purposes of paragraph (1)(b), if all the conditions set out in paragraph (4)(a) to (c) are met in relation to the communication, it is to be regarded as directed only at investment professionals.

(3) In any other case in which one or more of the conditions set out in paragraph (4)(a) to (c) are met, that fact shall be taken into account in determining whether the communication is directed only at investment professionals (but a communication may still be regarded as so directed even if none of the conditions in paragraph (4) is met).

(4) The conditions are that—

(a) the communication is accompanied by an indication that it is directed at persons having professional experience of participating in unregulated schemes and that the units to which the communication relates are available only to such persons;

(b) the communication is accompanied by an indication that persons who do not have professional experience in participating in unregulated schemes should not rely on it;

(c) there are in place proper systems and procedures to prevent recipients other than investment professionals from acquiring from the person directing the communication, a close relative of his or a company in the same group, units in the scheme to which the communication relates.

(5) “Investment professionals” means—

(a) an authorised person;

(b) a person who is exempt, as a result of an exemption order made under section 38(1) of the Act, in relation to one or more relevant scheme activities;

(c) any other person—

(i) whose ordinary activities involve him in participating in unregulated schemes for the purposes of a business carried on by him; or

(ii) who it is reasonable to expect will so participate for the purposes of a business carried on by him;

(d) a government, local authority (whether in the United Kingdom or elsewhere) or an international organisation;

(e) a person (“A”) who is a director, officer or employee of a person (“B”) falling within any of sub-paragraphs (a) to (d), when the communication is made to A in that capacity and where A’s responsibilities when acting in that capacity involve him in B’s participation in unregulated schemes.

(6) For the purposes of paragraph (1), a communication is to be treated as made only to or directed only at investment professionals even if it also made to or directed at other persons to whom it may lawfully be communicated.

(7) In this article—

“government” means the government of the United Kingdom, the Scottish Administration, the Executive Committee of the Northern Ireland Assembly, the National Assembly for Wales and any government of any country or territory outside the United Kingdom;

“international organisation” means any body the members of which comprise—

(a)

states including the United Kingdom or another EEA State; or

(b)

bodies whose members comprise states including the United Kingdom or another EEA State.

Commencement Information

I4 Art. 14 in force at 1.12.2001, see art. 1(2)

One off non-real time communications and solicited real time communications U.K.

15.—(1) The scheme promotion restriction does not apply to a one off communication which is either a non-real time communication or a solicited real time communication.

(2) If both the conditions set out in paragraph (3) are met in relation to a communication it is to be regarded as a one off communication. In any other case in which either of those conditions is met, that fact is to be taken into account in determining whether the communication is a one off communication (but a communication may still be regarded as a one off communication even if neither of the conditions in paragraph (3) is met).

(3) The conditions are that—

(a) the communication is made only to one recipient or only to one group of recipients in the expectation that they would engage in any investment activity jointly;

(b) the communication is not part of an organised marketing campaign.

Commencement Information

I5 Art. 15 in force at 1.12.2001, see art. 1(2)

[F1 One off unsolicited real time communications U.K.

15A.— (1) The scheme promotion restriction does not apply to an unsolicited real time communication if the conditions in paragraph (2) are met.

(2) The conditions in this paragraph are that—

(a) the communication is a one off communication;

(b) the communicator believes on reasonable grounds that the recipient understands the risks associated with engaging in the investment activity to which the communication relates;

(c) at the time the communication is made, the communicator believes on reasonable grounds that the recipient would expect to be contacted by him in relation to the investment activity to which the communication relates.

(3) Paragraphs (2) and (3) of article 15 apply in determining whether a communication is a one off communication for the purposes of this article as they apply for the purposes of article 15.]

Textual Amendments

F1 Art. 15A inserted (1.12.2001) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) Order 2001 (S.I. 2001/2633), arts. 1, 3

Communications required or authorised by enactments U.K.

16.— [F2 (1)] The scheme promotion restriction does not apply to any communication which is required or authorised to be communicated by or under any enactment other than the Act.

[F3 (2) A communication which may be made because a condition imposed by regulation 49 or 50 of the Alternative Investment Fund Managers Regulations 2013 has been met, is to be treated as authorised by those Regulations for the purposes of paragraph (1) in so far as it is made to a professional investor (as defined in regulation 2(1) of those Regulations).

(3) A communication permitted by Article 2.2, 4 or 14.3 of Regulation (EU) No 345/2013 of the European Parliament and the Council of 17 April 2013 on European venture capital funds [F4 as it had effect on the day on which the Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 were made], or by Article 2.2, 4 or 15.3 of Regulation (EU) No 346/2013 of the European Parliament and the Council of 17 April 2013 on European social entrepreneurship funds [F5 as it had effect on the day on which the Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 were made], is to be treated as authorised by another enactment for the purposes of paragraph (1).]

F6 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F2 Art. 16 renumbered as art. 16(1) (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 5(3)(a)

F3 Art. 16(2)(3) inserted (22.7.2013) by The Alternative Investment Fund Managers Regulations 2013 (S.I. 2013/1773), reg. 1, Sch. 2 para. 5(3)(b)

F4 Words in art. 16(3) inserted (20.2.2019) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(3), 50(6)(a)

F5 Words in art. 16(3) inserted (20.2.2019) by The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(3), 50(6)(b)

F6 Art. 16(4) omitted (1.1.2024) by virtue of The Financial Services and Markets Act 2023 (Consequential Amendments) Regulations 2023 (S.I. 2023/1410), regs. 1(2), 6

Commencement Information

I6 Art. 16 in force at 1.12.2001, see art. 1(2)

Persons in the business of placing promotional material U.K.

17.  The scheme promotion restriction does not apply to any communication which is made to a person whose business it is to place, or arrange for the placing of, promotional material provided that it is communicated so that he can place or arrange for placing it.

Commencement Information

I7 Art. 17 in force at 1.12.2001, see art. 1(2)

Existing participants in an unregulated scheme U.K.

18.  The scheme promotion restriction does not apply to any communication which is—

(a) a non-real time communication or a solicited real time communication;

(b) communicated by the operator of an unregulated scheme; and

(c) communicated to persons whom the person making the communication believes on reasonable grounds to be persons who are entitled to units in that scheme.

Commencement Information

I8 Art. 18 in force at 1.12.2001, see art. 1(2)

Group companies U.K.

19.  The scheme promotion restriction does not apply to any communication made by one body corporate in a group to another body corporate in the same group.

Commencement Information

I9 Art. 19 in force at 1.12.2001, see art. 1(2)

Persons in the business of disseminating information U.K.

20.—(1) The scheme promotion restriction does not apply to any communication which is made only to recipients whom the person making the communication believes on reasonable grounds to be persons to whom paragraph (2) applies.

(2) This paragraph applies to—

(a) a person who receives the communication in the course of a business which involves the dissemination through a publication of information concerning investments;

(b) a person whilst acting in the capacity of director, officer or employee of a person falling within sub-paragraph (a) being a person whose responsibilities when acting in that capacity involve him in the business referred to in that sub-paragraph;

(c) any person to whom the communication may otherwise lawfully be made.

Commencement Information

I10 Art. 20 in force at 1.12.2001, see art. 1(2)

F7 ... High net worth individuals U.K.

[F8 21.— (1) If the requirements of paragraphs (4) and (7) are met, the scheme promotion restriction does not apply to any communication which—

(a) is a non-real time communication or a solicited real time communication;

(b) is made to an individual whom the person making the communication believes on reasonable grounds to be a F9 ... high net worth individual;

(c) relates only to units falling within paragraph (8); and

(d) does not invite or induce the recipient to enter into an agreement under the terms of which he can incur a liability or obligation to pay or contribute more than he commits by way of investment.

[F10 (2) “High net worth individual” means an individual—

(a) who has completed and signed, within the period of twelve months ending with the day on which the communication is made, a statement complying with Part 1 of the Schedule; and

(b) whose completion of that statement indicates that they satisfy the conditions set out in the statement to be classified as a high net worth individual.]

(3) The validity of a statement [F11 completed and signed] for the purposes of paragraph (2) is not affected by a defect in the form or wording of the statement, provided that the defect does not alter the statement’s meaning and that the words shown in bold type in Part I of the Schedule are so shown in the statement.

(4) The requirements of this paragraph are that either the communication is accompanied by the giving of a warning [F12 and information] in accordance with paragraphs (5) [F13 , (5A)] and (6) or, where because of the nature of the communication this is not reasonably practicable,—

(a) a warning in accordance with paragraph (5) is given to the recipient orally at the beginning of the communication together with an indication that he will receive the warning in legible form and that, before receipt of that warning, he should consider carefully any decision to participate in a collective investment scheme to which the communication relates; and

(b) a warning [F14 and information] in accordance with paragraphs (5) [F15 , (5A)] and (6) (d) to (h) is sent to the recipient of the communication within two business days of the day on which the communication is made.

(5) The warning must be in the following terms—

• “Reliance on this promotion for the purpose of buying the units to which the promotion relates may expose an individual to a significant risk of losing all of the property or other assets invested.”.

• But, where a warning is sent pursuant to paragraph (4)(b), for the words “this promotion” in both places where they occur there must be substituted wording which clearly identifies the promotion which is the subject of the warning.

[F16 (5A) The warning must be accompanied by the following information—

(a) the full name of the person making the communication, or on whose behalf the communication is made;

(b) a postal or electronic address to which a person should send requests for further information or any other enquiry regarding the matters to which the communication relates; and

(c) if applicable—

(i) the country or territory in which the person making the communication, or on whose behalf the communication is made, is incorporated;

(ii) where different from the information provided under (b), the address of the registered office of the person making the communication, or on whose behalf the communication is made; and

(iii) the company number, or unique identification equivalent to a registered number required by the law of the state in which it is incorporated, of the person making the communication, or on whose behalf the communication is made.]

(6) The warning [F17 and information] must—

(a) be given at the beginning of the communication;

(b) precede any other written or pictorial matter;

(c) be in a font size consistent with the text forming the remainder of the communication;

(d) be indelible;

(e) be legible;

(f) be printed in black, bold type;

(g) be surrounded by a black border which does not interfere with the text of the warning; and

(h) not be hidden, obscured or interrupted by any other written or pictorial matter.

(7) The requirements of this paragraph are that the communication is accompanied by an indication—

(a) that it is exempt from the restriction on the promotion of unregulated schemes (in section 238 of the Act) on the grounds that the communication is made to a F18 ... high net worth individual;

(b) of the requirements that must be met for an individual to qualify as a F19 ... high net worth individual;

(c) that any individual who is in any doubt about the units to which the communication relates should consult an authorised person specialising in advising in participation in unregulated schemes.

(8) A unit falls within this paragraph if it is in an unregulated scheme which invests wholly or predominantly in the shares in or debentures of one or more unlisted companies.

(9) “Business day” means any day except a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.

(10) “Unlisted company” has the meaning given in the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001.]

Textual Amendments

F7 Word in art. 21 heading omitted (31.1.2024) by virtue of The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(2)

F8 Art. 21 substituted (3.3.2005) by The Financial Services and Markets Act 2000 (Financial Promotion and Promotion of Collective Investment Schemes) (Miscellaneous Amendments) Order 2005 (S.I. 2005/270), art. 1(1), Sch. 2 para. 1 (with art. 5)

F9 Word in art. 21(1)(b) omitted (31.1.2024) by virtue of The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(3)

F10 Art. 21(2) substituted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(4)

F11 Words in art. 21(3) substituted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(5)

F12 Words in art. 21(4) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(6)(a)

F13 Word in art. 21(4) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(6)(b)

F14 Words in art. 21(4)(b) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(6)(a)

F15 Word in art. 21(4)(b) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(6)(b)

F16 Art. 21(5A) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(7)

F17 Words in art. 21(6) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(8)

F18 Word in art. 21(7)(a) omitted (31.1.2024) by virtue of The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(3)

F19 Word in art. 21(7)(b) omitted (31.1.2024) by virtue of The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 12(3)

High net worth companies, unincorporated associations etc. U.K.

22.—(1) The scheme promotion restriction does not apply to any communication which—

(a) is made only to recipients whom the person making the communication believes on reasonable grounds to be persons to whom paragraph (2) applies; or

(b) may reasonably be regarded as directed only at persons to whom paragraph (2) applies.

(2) This paragraph applies to—

[F20 (a) any body corporate which has, or which is a member of the same group as an undertaking which has, a called-up share capital or net assets of not less than—

(i) if the body corporate has more than 20 members or is a subsidiary undertaking of an undertaking which has more than 20 members, £500,000;

(ii) otherwise, £5 million;]

(b) any unincorporated association or partnership which has net assets of not less than £5 million;

(c) the trustee of a high value trust;

(d) any person (“A”) whilst acting in the capacity of director, officer or employee of a person (“B”) falling within any of sub-paragraphs (a) to (c), where A’s responsibilities, when acting in that capacity, involve him in B’s participation in unregulated schemes;

(e) any person to whom the communication might otherwise lawfully be made.

(3) For the purposes of paragraph (1)(b)—

(a) if all the conditions set out in paragraph (4)(a) to (c) are met in relation to the communication, it is to be regarded as directed at persons to whom paragraph (2) applies;

(b) in any other case in which one or more of those conditions are met, that fact is to be taken into account in determining whether the communication is directed at persons to whom paragraph (2) applies (but a communication may still be regarded as so directed even if none of the conditions in paragraph (4) is met).

(4) The conditions are that—

(a) the communication includes an indication of the description of persons to whom it is directed and an indication of the fact that the units to which it relates are available only to such persons;

(b) the communication includes an indication that persons of any other description should not rely upon it;

(c) there are in place proper systems and procedures to prevent recipients other than persons to whom paragraph (2) applies from acquiring from the person directing the communication, a close relative of his or a company in the same group, units in the scheme to which the communication relates.

(5) In this article—

• “called-up share capital” has the meaning given in [F21 section 547 of the Companies Act 2006];

• “high value trust” means a trust where the aggregate value of the cash and investments which form part of the trust’s assets (before deducing the amount of its liabilities)—

  (a)

  is £10 million or more; or

  (b)

  has been £10 million or more at any time during the year immediately preceding the date on which communication in question was first made or directed;

• “net assets” has the meaning given in [F22 section 831 of the Companies Act 2006].

Textual Amendments

F20 Art. 22(2)(a) substituted (5.6.2002) by The Financial Services and Markets Act 2000 (Financial Promotion and Miscellaneous Amendments) Order 2002 (S.I. 2002/1310), arts. 1, 3(3)

F21 Words in art. 22(5) substituted (12.5.2011) by The Companies Act 2006 (Consequential Amendments and Transitional Provisions) Order 2011 (S.I. 2011/1265), arts. 1(2), 14(3)(a)

F22 Words in art. 22(5) substituted (12.5.2011) by The Companies Act 2006 (Consequential Amendments and Transitional Provisions) Order 2011 (S.I. 2011/1265), arts. 1(2), 14(3)(b)

Commencement Information

I11 Art. 22 in force at 1.12.2001, see art. 1(2)

Sophisticated investors U.K.

23.—(1) “Certified sophisticated investor” means a person—

(a) who has a current certificate in writing or other legible form signed by an authorised person to the effect that he is sufficiently knowledgeable to understand the risks associated with participating in unregulated schemes; and

(b) who has signed, within the period of twelve months ending with the day on which the communication is made, a statement in the following terms:

• “I make this statement so that I can receive promotions which are exempt from the restriction on promotion of unregulated schemes in the Financial Services and Markets Act 2000. The exemption relates to certified sophisticated investors and I declare that I qualify as such. I accept that the schemes to which the promotions will relate are not authorised or recognised for the purposes of that Act. I am aware that it is open to me to seek advice from an authorised person who specialises in advising on this kind of investment”.

[F23 (1A) The validity of a statement signed in accordance with paragraph (1)(b) is not affected by a defect in the wording of the statement, provided that the defect does not alter the statement’s meaning.]

(2) If the requirements of paragraph (3) are met, the scheme promotion restriction does not apply to any communication which—

(a) is made to a certified sophisticated investor; and

(b) does not invite or induce the recipient to participate in an unregulated scheme operated by the person who has signed the certificate referred to in paragraph (1)(a) or to acquire units from that person.

(3) The requirements of this paragraph are that the communication is accompanied by an indication—

(a) that it is exempt from the scheme promotion restriction (in section 238 of the Financial Services and Markets Act 2000) on the communication of invitations or inducements to participate in unregulated schemes on the ground that it is made to a certified sophisticated investor;

(b) of the requirements that must be met for a person to qualify as a certified sophisticated investor;

(c) that buying the units to which the communication relates may expose the individual to a significant risk of losing all of the property invested;

(d) that any individual who is in any doubt about the investment to which the invitation or inducement relates should consult an authorised person specialising in advising on investments of the kind in question.

(4) For the purposes of paragraph (1)(a), a certificate is current if it is signed and dated not more than three years before the date on which the communication is made.

Textual Amendments

F23 Art. 23(1A) inserted (3.3.2005) by The Financial Services and Markets Act 2000 (Financial Promotion and Promotion of Collective Investment Schemes) (Miscellaneous Amendments) Order 2005 (S.I. 2005/270), art. 1(1), Sch. 2 para. 2 (with art. 5)

Commencement Information

I12 Art. 23 in force at 1.12.2001, see art. 1(2)

[F24 Self-certified sophisticated investors U.K.

23A.— [F25 (1) “Self-certified sophisticated investor” means an individual—

(a) who has completed and signed, within the period of twelve months ending with the day on which the communication is made, a statement complying with Part 2 of the Schedule; and

(b) whose completion of that statement indicates that they satisfy the conditions set out in the statement to be classified as a self-certified sophisticated investor.]

(2) The validity of a statement [F26 completed and signed] for the purposes of paragraph (1) is not affected by a defect in the form or wording of the statement, provided that the defect does not alter the statement’s meaning and that the words shown in bold type in Part II of the Schedule are so shown in the statement.

(3) If the requirements of paragraphs (4) and (7) are met, the scheme promotion restriction does not apply to any communication which—

(a) is made to an individual whom the person making the communication believes on reasonable grounds to be a self-certified sophisticated investor;

(b) relates only to units falling within paragraph (8); and

(c) does not invite or induce the recipient to enter into an agreement under the terms of which he can incur a liability or obligation to pay or contribute more than he commits by way of investment.

(4) The requirements of this paragraph are—

F27 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) F28 ... that either the communication is accompanied by the giving of a warning [F29 and information] in accordance with paragraphs (5) [F30 , (5A)] and (6) or, where because of the nature of the communication this is not reasonably practicable,—

(i) a warning in accordance with paragraph (5) is given to the recipient orally at the beginning of the communication together with an indication that he will receive the warning in legible form and that, before receipt of that warning, he should consider carefully any decision to participate in a collective investment scheme to which the communication relates; and

(ii) a warning [F31 and information] in accordance with paragraphs (5) [F32 , (5A)] and (6) (d) to (h) is sent to the recipient of the communication within two business days of the day on which the communication is made.

(5) The warning must be in the following terms—

• “Reliance on this promotion for the purpose of buying [F33 the] units to which the promotion relates may expose an individual to a significant risk of losing all of the property or other assets invested.”.

• But, where a warning is sent pursuant to paragraph (4)(b), for the words “this promotion” in both places where they occur there must be substituted wording which clearly identifies the promotion which is the subject of the warning.

[F34 (5A) The warning must be accompanied by the following information—

(a) the full name of the person making the communication, or on whose behalf the communication is made;

(b) a postal or electronic address to which a person should send requests for further information or any other enquiry regarding the matters to which the communication relates; and

(c) if applicable—

(i) the country or territory in which the person making the communication, or on whose behalf the communication is made, is incorporated;

(ii) where different from the information provided under (b), the address of the registered office of the person making the communication, or on whose behalf the communication is made; and

(iii) the company number, or unique identification equivalent to a registered number required by the law of the state in which it is incorporated, of the person making the communication, or on whose behalf the communication is made.]

(6) The warning [F35 and information] must—

(a) be given at the beginning of the communication;

(b) precede any other written or pictorial matter;

(c) be in a font size consistent with the text forming the remainder of the communication;

(d) be indelible;

(e) be legible;

(f) be printed in black, bold type;

(g) be surrounded by a black border which does not interfere with the text of the warning; and

(h) not be hidden, obscured or interrupted by any other written or pictorial matter.

(7) The requirements of this paragraph are that the communication is accompanied by an indication—

(a) that it is exempt from the scheme promotion restriction (in section 238 of the Act) on the communication of invitations or inducements to participate in unregulated schemes on the ground that it is made to a self-certified sophisticated investor;

(b) of the requirements that must be met for an individual to qualify as a self-certified sophisticated investor;

(c) that any individual who is in any doubt about the investment to which the invitation or inducement relates should consult an authorised person specialising in advising on investments of the kind in question.

(8) A unit falls within this paragraph if it is in an unregulated scheme which invests wholly or predominantly in the shares in or debentures of one or more an unlisted companies.

(9) “Business day” means any day except a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.

(10) “Unlisted company” has the meaning given in the Financial Services and Markets Act 2000 (Financial Promotion) Order 2001.]

Textual Amendments

F24 Art. 23A inserted (3.3.2005) by The Financial Services and Markets Act 2000 (Financial Promotion and Promotion of Collective Investment Schemes) (Miscellaneous Amendments) Order 2005 (S.I. 2005/270), art. 1(1), Sch. 2 para. 3 (with art. 5)

F25 Art. 23A(1) substituted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 13(2)

F26 Words in art. 23A(2) substituted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 13(3)

F27 Art. 23A(4)(a) and word revoked (1.7.2005) by The Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) (Amendment) Order 2005 (S.I. 2005/1532), arts. 1, 2(2)(a)

F28 Words in art. 23A(4)(b) revoked (1.7.2005) by The Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) (Amendment) Order 2005 (S.I. 2005/1532), arts. 1, 2(2)(b)

F29 Words in art. 23A(4)(b) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 13(4)(a)

F30 Word in art. 23A(4)(b) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 13(4)(b)

F31 Words in art. 23A(4)(b)(ii) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 13(4)(a)

F32 Word in art. 23A(4)(b)(ii) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 13(4)(b)

F33 Word in art. 23A(5) inserted (1.7.2005) by The Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) (Amendment) Order 2005 (S.I. 2005/1532), arts. 1, 2(2)(c)

F34 Art. 23A(5A) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 13(5)

F35 Words in art. 23A(6) inserted (31.1.2024) by The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 13(6)

Associations of high net worth or sophisticated investors U.K.

24.  The scheme promotion restriction does not apply to any non-real time communication or solicited real time communication which—

(a) is made to an association [F36 , or to a member of an association,] the membership of which the person making the communication believes on reasonable grounds comprises wholly or predominantly persons who are—

(i) F37 ... high net worth individuals within the meaning of article 21;

(ii) high net worth persons falling within article 22(2)(a) to (d);

(iii) certified sophisticated investors within the meaning of article 23 [F36 or 23A]; and

(b) does not invite or induce the recipient to enter into an agreement under the terms of which he can incur a liability or obligation to pay or contribute more than he commits by way of investment.

Textual Amendments

F36 Words in art. 24(a) inserted (1.7.2005) by The Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) (Amendment) Order 2005 (S.I. 2005/1532), arts. 1, 2(3)

F37 Word in art. 24(a)(i) omitted (31.1.2024) by virtue of The Financial Services and Markets Act 2000 (Financial Promotion) (Amendment) (No. 2) Order 2023 (S.I. 2023/1411), arts. 1(2), 14

Commencement Information

I13 Art. 24 in force at 1.12.2001, see art. 1(2)

Settlors, trustees and personal representatives U.K.

25.  The scheme promotion restriction does not apply to any communication which is made—

(a) by an authorised person when acting as a settlor or grantor of a trust, a trustee or a personal representative;

(b) to a trustee of the trust, a fellow trustee or a fellow personal representative (as the case may be),

if the communication is made for the purposes of the trust or estate.

Commencement Information

I14 Art. 25 in force at 1.12.2001, see art. 1(2)

Beneficiaries of trust, will or intestacy U.K.

26.  The scheme promotion restriction does not apply to any communication which is made—

(a) by an authorised person when acting as a settlor of a trust, trustee or personal representative to a beneficiary under the trust, will or intestacy; or

(b) by an authorised person who is a beneficiary under a trust, will or intestacy to another beneficiary under the same trust, will or intestacy,

if the communication relates to the management or distribution of that trust fund or estate.

Commencement Information

I15 Art. 26 in force at 1.12.2001, see art. 1(2)

Remedy following report by Parliamentary Commissioner for Administration U.K.

27.  The scheme promotion restriction does not apply to any communication made or directed by a person for the purpose of enabling any injustice, stated by the Parliamentary Commissioner for Administration in a report under section 10 of the Parliamentary Commissioner Act 1967(1) to have occurred, to be remedied with respect to the recipient.

Commencement Information

I16 Art. 27 in force at 1.12.2001, see art. 1(2)

Persons placing promotional material in particular publications U.K.

28.  The scheme promotion restriction does not apply to any communication received by a person who receives the publication in which the communication is contained because he has himself placed an advertisement in that publication.

Commencement Information

I17 Art. 28 in force at 1.12.2001, see art. 1(2)

[F38 Open-ended investment companies authorised in Northern Ireland U.K.

29.— (1) The scheme promotion restriction does not apply in relation to a scheme constituted by an authorised Northern Ireland open-ended investment company.

(2) In this article—

(a) “authorised Northern Ireland open-ended investment company” means a body incorporated by virtue of regulations made under section 1 of the Open-Ended Investment Companies Act (Northern Ireland) 2002 in respect of which an authorisation order is in force; and

(b) “authorisation order” means an order made under (or having effect as made under) any provision of those regulations which is made by virtue of section 1(2)(1) of that Act (provision corresponding to Chapter 3 of Part 17 of the Act).]

Textual Amendments

F38 Art. 29 inserted (5.9.2003) by The Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes etc.) (Exemptions) (Amendment) Order 2003 (S.I. 2003/2067), arts. 1(2)(a), 2(3)

EEA management companies U.K.

F39 30.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F39 Art. 30 omitted (31.12.2020) by virtue of The Collective Investment Schemes (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/325), regs. 1(2), 50(7) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)

[F40 Communications required by the PRIIPs regulation: key information document U.K.

31.   [F41 The scheme promotion restriction does not apply to any communication required by Article 13 of Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products.]]

Textual Amendments

F40 Art. 31 inserted (1.1.2018) by The Packaged Retail and Insurance-based Investment Products Regulations 2017 (S.I. 2017/1127), reg. 1, Sch. 2 para. 3

F41 Art. 31 omitted (22.11.2024 for specified purposes) by virtue of The Consumer Composite Investments (Designated Activities) Regulations 2024 (S.I. 2024/1198), reg. 2(1)(c)(2), Sch. 1 para. 3

(1)

1967 c. 13. This Act has been amended by the Parliamentary Commissioner Act 1994 (c. 14).