Office of Public Sector Information
PART XVII continued CHAPTER V continued
(6) “Comparable authorised schemes” means whichever of the following the Authority considers the most appropriate, having regard to the nature of scheme in respect of which the application is made—
(a) authorised unit trust schemes;
(b) authorised open-ended investment companies;
(c) both such unit trust schemes and such companies.
(7) The scheme must take the form of an open-ended investment company or (if it does not take that form) the operator must be a body corporate.
(8) The operator of the scheme must—
(a) if an authorised person, have permission to act as operator;
(b) if not an authorised person, be a fit and proper person to act as operator.
(9) The trustee or depositary (if any) of the scheme must—
(a) if an authorised person, have permission to act as trustee or depositary;
(b) if not an authorised person, be a fit and proper person to act as trustee or depositary.
(10) The operator and the trustee or depositary (if any) of the scheme must be able and willing to co-operate with the Authority by the sharing of information and in other ways.
(11) The name of the scheme must not be undesirable or misleading.
(12) The purposes of the scheme must be reasonably capable of being successfully carried into effect.
(13) The participants must be entitled to have their units redeemed in accordance with the scheme at a price related to the net value of the property to which the units relate and determined in accordance with the scheme.
(14) But a scheme is to be treated as complying with subsection (13) if it requires the operator to ensure that a participant is able to sell his units on an investment exchange at a price not significantly different from that mentioned in that subsection.
(15) Subsection (13) is not to be read as imposing a requirement that the participants must be entitled to have their units redeemed (or sold as mentioned in subsection (14)) immediately following a demand to that effect.
For the purposes of subsections (8)(b) and (9)(b) of section 272, the Authority may take into account any matter relating to—
(a) any person who is or will be employed by or associated with the operator, trustee or depositary in connection with the scheme;
(b) any director of the operator, trustee or depositary;
(c) any person exercising influence over the operator, trustee or depositary;
(d) any body corporate in the same group as the operator, trustee or depositary;
(e) any director of any such body corporate;
(f) any person exercising influence over any such body corporate.
(1) An application under section 272 for an order declaring a scheme to be a recognised scheme must be made to the Authority by the operator of the scheme.
(2) The application—
(a) must be made in such manner as the Authority may direct;
(b) must contain the address of a place in the United Kingdom for the service on the operator of notices or other documents required or authorised to be served on him under this Act;
(c) must contain or be accompanied by such information as the Authority may reasonably require for the purpose of determining the application.
(3) At any time after receiving an application and before determining it, the Authority may require the applicant to provide it with such further information as it reasonably considers necessary to enable it to determine the application.
(4) Different directions may be given, and different requirements imposed, in relation to different applications.
(5) The Authority may require an applicant to present information which he is required to give under this section in such form, or to verify it in such a way, as the Authority may direct.
(1) An application under section 272 must be determined by the Authority before the end of the period of six months beginning with the date on which it receives the completed application.
(2) The Authority may determine an incomplete application if it considers it appropriate to do so; and it must in any event determine such an application within twelve months beginning with the date on which it first receives the application.
(3) If the Authority makes an order under section 272(1), it must give written notice of the order to the applicant.
(1) If the Authority proposes to refuse an application made under section 272 it must give the applicant a warning notice.
(2) If the Authority decides to refuse the application—
(a) it must give the applicant a decision notice; and
(b) the applicant may refer the matter to the Tribunal.
(1) The operator of a scheme recognised by virtue of section 272 must give written notice to the Authority of any proposed alteration to the scheme.
(2) Effect is not to be given to any such proposal unless—
(a) the Authority, by written notice, has given its approval to the proposal; or
(b) one month, beginning with the date on which notice was given under subsection (1), has expired without the Authority having given written notice to the operator that it has decided to refuse approval.
(3) At least one month before any replacement of the operator, trustee or depositary of such a scheme, notice of the proposed replacement must be given to the Authority—
(a) by the operator, trustee or depositary (as the case may be); or
(b) by the person who is to replace him.
The Authority may make rules imposing duties or liabilities on the operator of a scheme recognised under section 270 or 272 for purposes corresponding to those for which rules may be made under section 248 in relation to authorised unit trust schemes.
The Authority may direct that a scheme is to cease to be recognised by virtue of section 270 or revoke an order under section 272 if it appears to the Authority—
(a) that the operator, trustee or depositary of the scheme has contravened a requirement imposed on him by or under this Act;
(b) that the operator, trustee or depositary of the scheme has, in purported compliance with any such requirement, knowingly or recklessly given the Authority information which is false or misleading in a material particular;
(c) in the case of an order under section 272, that one or more of the requirements for the making of the order are no longer satisfied; or
(d) that none of paragraphs (a) to (c) applies, but it is undesirable in the interests of the participants or potential participants that the scheme should continue to be recognised.
(1) If the Authority proposes to give a direction under section 279 or to make an order under that section revoking a recognition order, it must give a warning notice to the operator and (if any) the trustee or depositary of the scheme.
(2) If the Authority decides to give a direction or make an order under that section—
(a) it must without delay give a decision notice to the operator and (if any) the trustee or depositary of the scheme; and
(b) the operator or the trustee or depositary may refer the matter to the Tribunal.
(1) In this section a “relevant recognised scheme” means a scheme recognised under section 270 or 272.
(2) If it appears to the Authority that—
(a) the operator, trustee or depositary of a relevant recognised scheme has contravened, or is likely to contravene, a requirement imposed on him by or under this Act,
(b) the operator, trustee or depositary of such a scheme has, in purported compliance with any such requirement, knowingly or recklessly given the Authority information which is false or misleading in a material particular,
(c) one or more of the requirements for the recognition of a scheme under section 272 are no longer satisfied, or
(d) none of paragraphs (a) to (c) applies, but the exercise of the power conferred by this section is desirable in order to protect the interests of participants or potential participants in a relevant recognised scheme who are in the United Kingdom,
it may direct that the scheme is not to be a recognised scheme for a specified period or until the occurrence of a specified event or until specified conditions are complied with.
(1) A direction takes effect—
(a) immediately, if the notice given under subsection (3) states that that is the case;
(b) on such date as may be specified in the notice; or
(c) if no date is specified in the notice, when the matter to which it relates is no longer open to review.
(2) A direction may be expressed to take effect immediately (or on a specified date) only if the Authority, having regard to the ground on which it is exercising its power under section 281, considers that it is necessary for the direction to take effect immediately (or on that date).
(3) If the Authority proposes to give a direction under section 281, or gives such a direction with immediate effect, it must give separate written notice to the operator and (if any) the trustee or depositary of the scheme concerned.
(4) The notice must—
(a) give details of the direction;
(b) inform the person to whom it is given of when the direction takes effect;
(c) state the Authority’s reasons for giving the direction and for its determination as to when the direction takes effect;
(d) inform the person to whom it is given that he may make representations to the Authority within such period as may be specified in it (whether or not he has referred the matter to the Tribunal); and
(e) inform him of his right to refer the matter to the Tribunal.
(5) The Authority may extend the period allowed under the notice for making representations.
(6) If, having considered any representations made by a person to whom the notice was given, the Authority decides—
(a) to give the direction in the way proposed, or
(b) if it has been given, not to revoke the direction,
it must give separate written notice to the operator and (if any) the trustee or depositary of the scheme concerned.
(7) If, having considered any representations made by a person to whom the notice was given, the Authority decides—
(a) not to give the direction in the way proposed,
(b) to give the direction in a way other than that proposed, or
(c) to revoke a direction which has effect,
it must give separate written notice to the operator and (if any) the trustee or depositary of the scheme concerned.
(8) A notice given under subsection (6) must inform the person to whom it is given of his right to refer the matter to the Tribunal.
(9) A notice under subsection (7)(b) must comply with subsection (4).
(10) If a notice informs a person of his right to refer a matter to the Tribunal, it must give an indication of the procedure on such a reference.
(11) This section applies to the variation of a direction on the Authority’s own initiative as it applies to the giving of a direction.
(12) For the purposes of subsection (1)(c), whether a matter is open to review is to be determined in accordance with section 391(8).
(1) The Authority may make rules requiring operators of recognised schemes to maintain in the United Kingdom, or in such part or parts of it as may be specified, such facilities as the Authority thinks desirable in the interests of participants and as are specified in rules.
(2) The Authority may by notice in writing require the operator of any recognised scheme to include such explanatory information as is specified in the notice in any communication of his which—
(a) is a communication of an invitation or inducement of a kind mentioned in section 21(1); and
(b) names the scheme.
(3) In the case of a communication originating outside the United Kingdom, subsection (2) only applies if the communication is capable of having an effect in the United Kingdom.
(1) An investigating authority may appoint one or more competent persons to investigate on its behalf—
(a) the affairs of, or of the manager or trustee of, any authorised unit trust scheme,
(b) the affairs of, or of the operator, trustee or depositary of, any recognised scheme so far as relating to activities carried on in the United Kingdom, or
(c) the affairs of, or of the operator, trustee or depositary of, any other collective investment scheme except a body incorporated by virtue of regulations under section 262,
if it appears to the investigating authority that it is in the interests of the participants or potential participants to do so or that the matter is of public concern.
(2) A person appointed under subsection (1) to investigate the affairs of, or of the manager, trustee, operator or depositary of, any scheme (scheme “A”), may also, if he thinks it necessary for the purposes of that investigation, investigate—
(a) the affairs of, or of the manager, trustee, operator or depositary of, any other such scheme as is mentioned in subsection (1) whose manager, trustee, operator or depositary is the same person as the manager, trustee, operator or depositary of scheme A;
(b) the affairs of such other schemes and persons (including bodies incorporated by virtue of regulations under section 262 and the directors and depositaries of such bodies) as may be prescribed.
(3) If the person appointed to conduct an investigation under this section (“B”) considers that a person (“C”) is or may be able to give information which is relevant to the investigation, B may require C—
(a) to produce to B any documents in C’s possession or under his control which appear to B to be relevant to the investigation,
(b) to attend before B, and
(c) otherwise to give B all assistance in connection with the investigation which C is reasonably able to give,
and it is C’s duty to comply with that requirement.
(4) Subsections (5) to (9) of section 170 apply if an investigating authority appoints a person under this section to conduct an investigation on its behalf as they apply in the case mentioned in subsection (1) of that section.
(5) Section 174 applies to a statement made by a person in compliance with a requirement imposed under this section as it applies to a statement mentioned in that section.
(6) Subsections (2) to (4) and (6) of section 175 and section 177 have effect as if this section were contained in Part XI.
(7) Subsections (1) to (9) of section 176 apply in relation to a person appointed under subsection (1) as if—
(a) references to an investigator were references to a person so appointed;
(b) references to an information requirement were references to a requirement imposed under section 175 or under subsection (3) by a person so appointed;
(c) the premises mentioned in subsection (3)(a) were the premises of a person whose affairs are the subject of an investigation under this section or of an appointed representative of such a person.
(8) No person may be required under this section to disclose information or produce a document in respect of which he owes an obligation of confidence by virtue of carrying on the business of banking unless subsection (9) or (10) applies.
(9) This subsection applies if—
(a) the person to whom the obligation of confidence is owed consents to the disclosure or production; or
(b) the imposing on the person concerned of a requirement with respect to information or a document of a kind mentioned in subsection (8) has been specifically authorised by the investigating authority.
(10) This subsection applies if the person owing the obligation of confidence or the person to whom it is owed is—
(a) the manager, trustee, operator or depositary of any collective investment scheme which is under investigation;
(b) the director of a body incorporated by virtue of regulations under section 262 which is under investigation;
(c) any other person whose own affairs are under investigation.
(11) “Investigating authority” means the Authority or the Secretary of State.
Financial Services and Markets Act 2000