Transitional Provisions and Schedules

Part

GEN General Provisions sourcebook

Chapter

Transitional Provisions and Schedules

Printed on: 06/11/2024

Rulebook at: 05/12/2005

Transitional Provisions and Schedules

GEN TP 1

Transitional provisions

GEN TP 1.1

Table: (1) Transitional Provisions applying across the Handbook

(1)

The purpose of these transitional provisions is to assist a smooth transition at commencement. They comprise various technical provisions that will apply across the whole Handbook and achieve results that most people would probably expect to apply in any event.

(2)

These transitional provisions consist of general transitional provisions, which apply at a high level of generality, and more specific transitional provisions in relation to record keeping and notification rules.

(3)

The more specific transitional provisions relating to record keeping and notification rules override the general transitional provisions. Both the general and the more specific transitional provisions do not apply if the context requires otherwise and are subject to any more specific transitional provision elsewhere in the Handbook relating to the matter. For example, COB contains transitional provisions relating to various matters which are limited in duration and which override these transitional provisions in relation to those matters.

(4)

Definitions for these transitional provisions, additional to those in the Glossary, are provided at paragraph 17 of the table.

GEN TP 1.2

Table 2: Transitional Provisions applying across the Handbook

(1)

(2) Material to which the transitional provision applies

(3)

(4) Transitional provision

(5) Transitional provision: dates in force

(6) Handbook provision: coming into force

Every rule in the Handbook, unless the context otherwise requires and subject to any more specific transitional provision relating to the matter

Acts under pre-commencement provisions
Anything done, or having effect as done, under or for the purposes of any pre-commencement provision has effect as if done under or for the purposes of any substantially similar provision in the Handbook.

From commencement of the relevant rule in the Handbook

See schedule of Transitional provisions of the relevant rule

Paragraph 1

For example, a firm may rely on action to establish the best price, taken shortly before commencement for the purposes of an applicable SRO best execution rule, for the purposes of compliance with COB 7.5.5 R (1) (Providing best execution), even if the transaction is executed after commencement.

As paragraph 1

Achieving compliance before commencement.
Anything done before commencement for the purposes of a provision in the Handbook has effect as if done under that provision.

As paragraph 1

Paragraph 3

For example, a firm may allocate responsibility for apportionment and oversight for the purposes of SYSC 2.1.3 R (Apportionment of responsibilities) before commencement, so as to be in compliance at commencement.

As paragraph 1

Series of events
If the application of any provision in the Handbook is dependent on the occurrence of a series of events, some of which occur before, and some of which occur after, commencement, the provision applies with respect to the events that occur after commencement.

As paragraph 1

Paragraph 5

For example, a firm which executes an aggregated order shortly before commencement must comply with COB 7.7.9 R (Requirement for fair allocation) if the allocation occurs after commencement.

As paragraph 1

Deemed references to pre-commencement provisions
Any reference (express or implied) in a provision in the Handbook to a provision of or made under the Act is to be read (so far as the context permits and according to the context) as being or including, in relation to times, circumstances and purposes before commencement, a reference to any substantially similar pre-commencement provision applicable to the firm.

As paragraph 1

Paragraph 7

For example, SUP 11.6.4 R requires certain firms to notify the FSA when a change in control, previously notified under SUP 11.4.2 R, has taken place. Such a firm must notify a change in control that takes place after commencement, even if previously notified under a pre-commencement provision rather than under SUP 11.4.2 R (and SUP 11.6.4 R is to be read as referring to that pre-commencement provision).
Another example is SUP 3.10.6R, which requires an auditor's report on client assets to be provided not more than 53 weeks after the period covered by the previous report on such matters. For the first report after commencement, the period runs from that covered by the report under any substantially similar pre-commencement provision (because of an implied reference to that provision).

As paragraph 1

Time starting before commencement
If, at commencement, time has begun to run for any purpose under any pre-commencement provision applicable to a firm, then:
(1) time will be regarded as having started to run, for the purposes of any substantially similar provision in the Handbook, when it started to run for that other purpose; and
(2) the firm will be relieved of its obligation to comply with the relevant pre-commencement provision if and to the extent that it complies with the substantially similar provision as extended by this transitional provision.

As paragraph 1

Paragraph 9

For example, a UK bank was required to submit Form LE2 within 10 business days after its quarter end by the FSA's Guide to Banking Supervisory Policy. If the quarter end fell five days before commencement, the UK bank must still submit the report within 10 business days, but in accordance with SUP 16.7.8 R (Financial reports: banks).

As paragraph 1

Every rule in the Handbook requiring a record to be made or retained (see schedule 1), unless the context otherwise requires and subject to any more specific transitional provision relating to the matter

Record keeping
A firm will not contravene a rule in the Handbook requiring a record to be made or retained to the extent that the firm:
(1) made a record of the matter before mortgage lender in accordance with the rule or with a substantially similar pre-commencement provision applicable to the firm; and
(2) retains that record as if the rule was in force when the record was made.

From commencement of the relevant rule in the Handbook

See schedule of Transitional provisions of the relevant rule

Paragraph 11

This transitional provision makes specific provision, in relation to record keeping, for the matters covered by paragraphs 1 and 3. It is included for clarity and overrides those general transitional provisions.

As paragraph 11

A firm must retain a record in accordance with a rule in the Handbook requiring a record of that sort to be retained, if the firm was required to make and retain that record before commencement under a substantially similar pre-commencement provision applicable to the firm.

As paragraph 11

Paragraph 13

This transitional provision makes specific provision, in relation to records, for the matters covered by paragraphs 7 and 9. It is included for clarity and overrides those general transitional provisions.

As paragraph 11

Every notification rule in the Handbook (see schedule 2), unless the context otherwise requires and subject to any more specific transitional provision relating to the matter

Notification
A firm (or its auditor or actuary appointed under SUP 4 (Actuaries)) will not contravene a notification rule in the Handbook to the extent that notice of the relevant matter was given to the firm's previous regulator before commencement in accordance with:
(1) the notification rule; or
(2) a substantially similar pre-commencement provision applicable to the firm.

From commencement of the relevant rule in the Handbook

See schedule of Transitional provisions of the relevant rule

Paragraph 15

This transitional provision makes specific provision, in relation to notifications, for the matters covered by paragraphs 1 and 3. It is included for clarity and overrides those general transitional provisions.

As paragraph 15

Paragraphs 1 to 16

Definitions
In these transitional provisions:
(1) "pre-commencement provision" means a provision repealed or revoked by or under the Act or a rule or guidance of the firm's previous regulator, including (where the context permits) any relevant provision which it replaced before commencement;

As paragraph 1

(2) "substantially similar" means substantially similar in purpose and effect; and

(3) a reference to a "provision" in the Handbook means every type of provision, including rules, guidance, provisions in codes, and so on.

Paragraphs 19 to 22

Application for provisions which are not rules
The purpose of paragraphs 19 to 22 is to ensure that the transitional provisions in paragraphs 1 to 10 apply throughout the Handbook.

As paragraphs 19 to 22

Statements of Principle unless the context otherwise requires and subject to any more specific transitional provision relating to the matter

The provisions in paragraphs 1 to 10 apply to every approved person as if the rules in those paragraphs were part of the Statements of Principle.

From commencement of the relevant Statement of Principle

See schedule of Transitional provisions for APER

Code of Practice for Approved Persons and Code of Market Conduct unless the context otherwise requires and subject to any more specific transitional provision relating to the matter

The provisions in paragraphs 1 to 10 apply to every approved person and every person to whom the Code of Market Conduct applies as if the rules in those paragraphs were part of the Code of Practice for Approved Persons and the Code of Market Conduct respectively.

From commencement of the relevant provision of the Code

See schedule of Transitional provisions for APER and MAR

Directions and requirements in the Handbook (that is, provisions with the status letter "D" in the margin or heading) unless the context otherwise requires and subject to any more specific transitional provision relating to the matter

The provisions in paragraphs 1 to 10 apply to every person to whom a direction or requirement in the Handbook applies as if the rules in those paragraphs were part of that direction or requirement .

From commencement of the relevant direction or requirement

See schedule of Transitional provisions of the relevant direction or requirement

Guidance (and other provisions with the status letter "G" in the margin or heading) in the Handbook unless the context otherwise requires and subject to any more specific transitional provision relating to the matter

The provisions in paragraphs 1 to 10 are also relevant to every person to whom any other guidance (or other provision with the status letter "G" in the margin or heading) in the Handbook is relevant as if the rules in those paragraphs were part of that guidance (or other provision).

From commencement of the relevant provision

See schedule of Transitional provisions of the relevant provision

Every rule in the Handbook made by the FSA

Expired

Paragraph 23 and guidance in the Handbook other than in: •COND; •APER; •FIT; •AUTH; •PROF ;•MAR 1

Expired

GEN TP 1.3

(3) Transitional Provisions applying to GEN only

(1)

(2) Material to which the transitional provision applies

(3)

(4) Transitional provision

(5) Transitional provision: dates in force

(6) Handbook provision: coming into force

Expired

Expired

Expired

Expired

GEN 6.1 does not:
(1) apply to an unamended contract of insurance, first entered into on or before 24 July 2003; or
(2) prohibit a firm from claiming on, or making a payment under, a contract of insurance:
(a) in connection with a financial penalty imposed by the FSA pursuant to a warning notice issued before 25 July 2003; or
(b) first entered into between 25 July 2003 and 31 December 2003 in respect of a financial penalty imposed by the FSA by a final notice issued on or before 31 December 2003.
(For these purposes only, a contract of insurance will be regarded as unamended if:
(i) it was amended on or before 24 July 2003; or
(ii) it was amended after 24 July 2003, but the amendments did not affect the duration or scope of any indemnity against a financial penalty imposed by the FSA under the Act.)

From 1 January 2004

1 January 2004

GEN 4.3.1 R

(1) For the purpose of GEN 4.3.1 R (Disclosure in letters to private customers), a regulated activity does not include a regulated mortgage activity or an insurance mediation activity in relation to a non-investment insurance contract.
(2) If a firm in a letter (or electronic equivalent) which it or its employees send to a customer, with a view to or in connection with the firm carrying out a regulated mortgage activity or an insurance mediation activity, makes a statement about its statutory or regulated status under the Act for carrying on a regulated mortgage activity or insurance mediation activity, the firm must include the disclosure in GEN 4 Annex 1.

From 31 October 2004 until 15 July 2005

Apply in relation to regulated mortgage activities from 31 October 2004 and to insurance mediation activities from 14 January 2005.

GEN 4.3.1 R

(1) Transitional provision 6R defers the application of GEN rules so that a firm need only make one change to its statutory status disclosure to reflect the onset of mortgage and non-investment insurance regulation.
However, a firm which undertakes other regulated activities will nevertheless need to comply with GEN 4.3.1 R in relation to those regulated activities, subject to the transitional provision in GEN TP 1.3
(2) A firm may continue to use stationery and similar materials which refer to its membership of self-regulatory schemes superseded by FSA regulation.
In addition, firms undertaking insurance mediation activities in relation to non-investment insurance contracts may wish to take account of the transitional provision in ICOB TR 4.

From 31 October 2004 until 15 July 2005

Apply in relation to regulated mortgage activities from 31 October 2004 and insurance mediation activities from 14 January 2005.

GEN 2 Annex 2

GEN 2 Annex 2 applies to any application received after 1 October 2004 but not determined until after 1 February 2005.

From 1 February 2005

01/10/2005

GEN Sch 1

Record keeping requirements

01/12/2004

GEN Sch 1.1

There are no record keeping requirements in GEN.

01/12/2004

GEN Sch 2

Notification requirements

01/12/2004

GEN Sch 2.1

The aim of the guidance in the following table is to give the reader a quick overall view of the relevant requirements for notification and reporting.

It is not a complete statement of those requirements and should not be relied on as if it were.

01/12/2004

GEN Sch 2.2

Handbook reference

Matter to be notified

Contents of notification

Trigger event

Time allowed

GEN 1.3.2 R

An emergency which makes it impracticable for a firm to comply with a particular rule.

Notification of the emergency and of the steps the firm is taking and proposes to take to deal with its consequences

An emergency which makes it impracticable for a firm to comply with a particular rule.

Notification as soon as practicable

01/12/2004

GEN Sch 3

Fees and other required payments

01/12/2004

GEN Sch 3.1

There are no requirements for fees or other payments in GEN. GEN 3 (FSA fees: general provisions contains general provisions relating to the payment of fees.

01/12/2004

GEN Sch 4

Powers exercised

01/12/2004

GEN Sch 4.1

The following powers and related provisions in or under the Act have been exercised by the FSA to make the rules in GEN:

Section 59 (Approval for particular arrangements)

Section 118(8) (Market abuse)

Section 136(2) (Funding of the legal assistance scheme)

Section 138 (General rule-making power)

Section 139 (Miscellaneous ancillary matters)

Section 140 (Restrictions on managers of authorised unit trust schemes)

Section 141 (Insurance business rules)

Section 142(2) (Insurance business: regulations supplementing Authority's rules)

Section 143 (Endorsement of codes etc)

Section 144 (Price stabilising rules)

Section 145 (Financial promotion rules)

Section 146 (Money laundering rules)

Section 147 (Control of information rules)

Section 149 (Evidential provisions)

Section 150(2) (Actions for damages)

Section 156 (General supplementary powers)

Section 213 (The compensation scheme)

Section 214 (General)

Section 215 (Rights of the scheme in relevant person's insolvency)

Section 216 (Continuity of long-term insurance policies)

Section 217 (Insurers in financial difficulties)

Section 218(2)(b) (Annual report)

Section 223(1) (Management expenses)

Section 226 (Compulsory jurisdiction)

Section 229 (Awards)

Section 234 (Industry funding)

Section 238(5) (Restrictions on promotion)

Section 239 (Single property schemes)

Section 247 (Trust scheme rules)

Section 248 (Scheme particulars rules)

Section 278 (Rules as to scheme particulars)

Section 283(1) (Facilities and information in the United Kingdom)

Section 293 (Notification requirements)

Section 295(3) (Notification: overseas investment exchanges and overseas clearing houses)

Section 322 (Rules applicable to former underwriting members)

Section 332(1) (Rules in relation to persons to whom the general prohibition does not apply)

Section 340 (Appointment)

Paragraph 17 of Schedule 1 (The Financial Services Authority: Fees)

Paragraph 19 of Schedule 3 (EEA Passport Rights: Establishment)

Paragraph 20 of Schedule 3 (EEA Passport Rights: Services)

Paragraph 7(3) of Schedule 17 (The Ombudsman Scheme: Annual reports)

Paragraph 13 of Schedule 17 (Authority's procedural rules)

Regulation 6(1) of the OEIC Regulations (FSA rules)

Article 15 of The Financial Services and Markets Act 2000 (Transitional Provisions) (Ombudsman Scheme and Complaints Scheme) Order 2001 (SI 2001/2326)

The following articles of the Financial Services and Markets Act 2000 (Transitional Provisions, Repeals and Savings) (Financial Services Compensation Scheme) Order 2001 (SI 2001/2967):

articles 4(3) and 4(4) (Pending applications);

article 6(2) (Post-commencement applications);

articles 9(3) and 9(4) (Article 9 defaults occurring before commencement);

article 10(2) (Applications in respect of compulsory liability insurance);

article 12(3) (Applications under the new scheme);

article 23 (Record keeping and reporting requirements relating to pre-commencement acts).

article 15 of the Financial Services and Markets Act 2000 (Variation of Threshold Conditions) Order 2001 (SI 2001/2507)

The following powers and related provisions in the Act have been exercised by the FSA to issue the parts of the codes in GEN:

Section 64(2) (Conduct: statements and codes)

Section 119 (The Code)

Section 120 (Provisions included in the Authority's code by reference to the City Code).

The following powers in the Act have been exercised by the FSA to issue the parts of the statements in GEN:

Section 64 (1) (Conduct: statements and codes)

Section 69 (Statement of policy)including as applied by paragraph 1 of Schedule 5 to the Payment Services Regulations,

Section 124 (Statement of policy)

Section 169(9) (Investigations etc in support of overseas regulator), including as applied by paragraph 3 of Schedule 5 to the Payment Services Regulations

Section 210 (Statements of policy), including as applied by regulation 86(6) of the Payment Services Regulations

Section 395(5) (The Authority's procedures), including as applied by paragraph 7 of Schedule 5 to the Payment Services Regulations.

The following powers and related provisions in or under the Act have been exercised by the FSA in GEN to direct, require or specify:

Section 51 (Applications under this Part)

Section 60 (Applications for approval)

Section 148(3) (Modification or waiver of rules)

Section 182 (Notification)

Section 242 (Applications for authorisation of unit trust schemes)

Section 250(4) and (5) (Modification or waiver of rules)

Section 270(6)(b) (Schemes authorised in designated countries or territories)

Section 274 (Application for recognition of individual schemes)

Section 287 (Application by an investment exchange)

Section 288 (Application by a clearing house)

Section 294(2) (Modification or waiver of rules)

Section 316 (Direction by Authority)

Section 317 (The core provisions)

Section 318 (Exercise of powers through Council)

Regulation 7(3) and (4) of the OEIC Regulations (Modification or waiver of FSA rules)

Regulation 12 of the OEIC Regulations (Authorisation).

article 9D of the Regulated Activities Order (Applications for certificates)

article 9F of the Regulated Activities Order (Revocation of the certificate on request)

The following power in the Act has been exercised by the FSA to make the part of the complaints scheme in GEN:

Paragraph 7 of Schedule 1 (Arrangements for the investigation of complaints).

The following power in the Act has been exercised by the FSA to give the other guidance in GEN: The following powers have been exercised by the FSA to give the other guidance in GEN:

Section 157(1) (Guidance).

GEN 2.1.8 R is made by FOS Ltd in the exercise of its powers referred to in Schedule 4 to DISP

In this Schedule, references to GEN include the Glossary.

The following articles of the Financial Services and Markets Act 2000 (Transitional Provisions, Repeals and Savings) (Financial Services Compensation Scheme) Order 2001 (SI 2001/2967):

articles 4(3) and 4(4) (Pending applications);

article 6(2) (Post-commencement applications);

articles 9(3) and 9(4) (Article 9 defaults occuring before commencement);

article 10(2) (Applications in respect of compulsory liability insurance);

article 12(3) (Applications under the new scheme);

article 23 (Record keeping and reporting requirements relating to pre-commencement acts).

article 15 of the Financial Services and Markets Act 2000 (Variation of Threshold Conditions) Order 2001 (SI 2001/2507)

The following articles of the Regulated Activities Order:

article 9G(1) (Obtaining information form certified persons)

article 9H(1) (Rules prohibiting the issue of electronic money at a discount)

Regulation 3 of the Electronic Commerce Directive (Financial Services and Markets) Regulations 2002 (SI 2002/1775).

Regulation 2 of the Financial Services and Markets Act 2000 (Fourth Motor Insurance Directive) Regulations 2002 (SI 2002/2706).

The following powers and related provisions in the Act have been exercised by the FSA to issue the parts of the codes in GEN:

Section 64(2) (Conduct: statements and codes)

Section 119 (The Code)

Section 120 (Provisions included in the Authority's code by reference to the City Code).

The following powers in the Act have been exercised by the FSA to issue the parts of the statements in GEN:

Section 64 (1) (Conduct: statements and codes)

Section 69 (Statement of policy)

Section 124 (Statement of policy)

Section 169(9) (Investigations etc in support of overseas regulator)

Section 210 (Statements of policy)

Section 395(5) (The Authority's procedures).

The following powers and related provisions in or under the Act have been exercised by the FSA in GEN specify:

Section 51 (Applications under this Part)

Section 60 (Applications for approval)

Section 148(3) (Modification or waiver of rules)

Section 182 (Notification)

Section 242 (Applications for authorisation of unit trust schemes)

Section 250(4) and (5) (Modification or waiver of rules)

Section 270(6)(b) (Schemes authorised in designated countries or territories)

Section 274 (Application for recognition of individual schemes)

Section 287 (Application by an investment exchange)

Section 288 (Application by a clearing house)

Section 294(2) (Modification or waiver of rules)

Section 316 (Direction by Authority)

Section 317 (The core provisions)

Section 318 (Exercise of powers through Council)

Regulation 7(3) and (4) of the OEIC Regulations (Modification or waiver of FSA rules)

Regulation 12 of the OEIC Regulations (Authorisation).

article 9D of the Regulated Activities Order (Applications for certificates)

article 9F of the Regulated Activities Order (Revocation of the certificate on request)

The following power in the Act FSA to make the part of the complaints scheme in GEN:

Paragraph 7 of Schedule 1 (Arrangements for the investigation of complaints).

The following power in the Act has been exercised by the FSA to give the other guidance in GEN:

Section 157(1) (Guidance).

GEN 2.1.8 R is made by FOS Ltd in the exercise of its powers referred to in Schedule 4 to DISP.

In this Schedule, references to GEN include the Glossary.

19/01/2003

GEN Sch 5

Rights of action for damages

01/12/2004

GEN Sch 5.1

The table below sets out the rules in GEN contravention of which by an authorised person may be actionable under section 150 of the Act (Actions for damages) by a person who suffers loss as a result of the contravention.

01/12/2004

GEN Sch 5.2

If a 'Yes' appears in the column headed 'For private person?', the rule may be actionable by a 'private person' under section 150 (or, in certain circumstances, his fiduciary or representative; see article 6(2) and (3)(c) of the Financial Services and Markets Act 2000 (Rights of Action) Regulations 2001 (SI 2001/2256)). A 'Yes' in the column headed 'Removed' indicates that the FSA has removed the right of action under section 150(2) of the Act. If so, a reference to the rule in which it is removed is also given.

01/12/2004

GEN Sch 5.3

The column headed 'For other person?' indicates whether the rule may be actionable by a person other than a private person (or his fiduciary or representative) under article 6(2) and (3) of those Regulations. If so, an indication of the type of person by whom the rule may be actionable is given.

01/12/2004

GEN Sch 5.4

Chapter/Appendix

Section/Annex

Paragraph

Right of action under section 150

For private person?

Removed

For other person?

All rules in GEN with the status letter "E"

GEN 2.1.8 R

All other rules in GEN

Yes

01/12/2004

GEN Sch 6

Rules that can be waived

01/12/2004

GEN Sch 6.1

GEN 1.2.2 R (Referring to approval by the FSA) and the rules in GEN 4 (Statutory status disclosure) can be waived by the FSA under section 148 of the Act (Modification or waiver of rules).

GEN 2.1.8 R is made by FOS Ltd and not by the FSA and cannot be waived by the FSA.

Every other rule in GEN can be waived by the FSA if, and to the extent that, the rules elsewhere in the Handbook which it modifies or to which it otherwise relates can be waived by the FSA.

01/12/2004