DEC 2
Statutory notice procedure: Warning notice and decision notice procedure
DEC 2.1
Warning notice and decision notice procedure: Introduction
- 01/12/2004
DEC 2.1.1
See Notes
The Act and certain other enactments requires the FSA, when proposing to exercise its powers in certain circumstances, to use the warning notice and decision notice procedure.
- 21/11/2002
DEC 2.1.2
See Notes
The circumstances to which the warning notice and decision notice procedure in DEC apply are set out in DEC 2 Annex 1 G. Three flowcharts are provided in DEC 2 Annex 2 G to DEC 2 Annex 4 G. These illustrate:
(1) the procedure for giving warning notices and decision notices in the case of applications for Part IV permission, applications for approval under section 59 of the Act (Approval for particular arrangements), applications for variation of permission, and for certain other applications (see DEC 2 Annex 2 G);
(2) the procedure for giving warning notices and decision notices in non-application cases (see DEC 2 Annex 3 G); and
(3) the procedure for giving warning notices and decision notices in the case of notifications of a change in control (see DEC 2 Annex 4 G).
- 01/12/2004
DEC 2.1.3
See Notes
- 01/12/2004
DEC 2.2
Warning notice procedure
- 01/12/2004
DEC 2.2.1
See Notes
Under the circumstances listed in DEC 2 Annex 1 G, if FSA staff consider that action is appropriate, they will recommend to the relevant decision maker that a warning notice be given. A specimen warning notice for enforcement cases is at DEC 2 Annex 5 G.
- 01/12/2004
DEC 2.2.2
See Notes
After considering the staff recommendation, the decision maker may:
(1) decide not to take further action (with or without a private warning (see ENF 11.3(Private warnings)); or
- 01/12/2004
DEC 2.2.3
See Notes
In the case of a proposed refusal of an application for approval under section 59 of the Act, the FSA must send a warning notice to all interested parties. Under section 62(5) of the Act (Applications for approval: procedure and right to refer to Tribunal), the interested parties in relation to an application for approval, are:
(1) the applicant;
(2) the person in respect of whom the application is made ('A');
(3) the person by whom A's services are to be retained, if not the applicant.
- 01/12/2004
DEC 2.2.4
See Notes
Under regulation 22 of the OEIC Regulations, in the case of a warning notice concerning a proposed change in respect of an ICVC, the notice must be given to the depositary as well as the ICVC. The only exception is if the proposal is to replace the depositary or any director.
- 01/12/2004
DEC 2.2.5
See Notes
If the FSA decides to give a warning notice to a person, in accordance with section 387 of the Act (Warning notices), the warning notice must:
(1) state the action which the FSA proposes to take;
(2) be in writing;
(3) give the FSA's reasons for the proposed action;
(5) if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it.
- 01/12/2004
DEC 2.2.6
See Notes
- 01/12/2004
DEC 2.2.7
See Notes
The warning notice will contain a statement that the person concerned is entitled to make representations to the FSA. The notice must specify a reasonable period, of at least 28 days from receiving (see DEC 5.3) the warning notice, within which the person to whom it is given may make representations.
- 01/12/2004
DEC 2.2.8
See Notes
The procedures for making representations are set out in DEC 4.4.
- 01/12/2004
DEC 2.2.9
See Notes
The warning notice will contain (where appropriate) a statement that the mediation scheme is available. The applicability of the FSA's mediation scheme is described in DEC App 1.
- 01/12/2004
DEC 2.3
Decision notice procedure
- 01/12/2004
DEC 2.3.1
See Notes
The decision maker will consider any representations made in accordance with DEC 4.4 in relation to a warning notice which has already been given. A decision will be stated in a decision notice or (where appropriate) a notice of discontinuance or other written notice. The decision notice sets out the terms of the decision. A specimen decision notice for enforcement cases is at DEC 2 Annex 6 G.
- 01/12/2004
DEC 2.3.2
See Notes
In accordance with section 388 of the Act (Decision notices), the decision notice must:
(1) be in writing;
(2) give the FSA's reasons for its decision to take the action to which the decision notice relates;
(4) if that section applies, describe its effect and state whether any secondary material exists to which the person concerned must be allowed access under it; and
- 01/12/2004
DEC 2.3.3
See Notes
In the case of a proposed refusal of an application for approval under section 59 of the Act, the FSA must give a decision notice to all interested parties (see DEC 2.2.3 G).
- 01/12/2004
DEC 2.3.4
See Notes
In the case of a decision notice concerning a notification of a proposed change in respect of an ICVC, the FSA must give a decision notice to the depositary as well as to the ICVC, if the depositary received the warning notice (see DEC 2.2.4 G).
- 01/12/2004
DEC 2.3.5
See Notes
The decision maker may decide to take action different from that proposed in the warning notice. However, under section 388(2) of the Act, that action must be made under the same Part of the Act as the action proposed in the warning notice.
- 01/12/2004
Further decision notice
DEC 2.3.6
See Notes
Under section 388(3) of the Act, following the giving of a decision notice but before the FSA takes action to which the decision notice relates, the FSA may give the person concerned a further decision notice relating to different action concerning the same matter. Under section 388(4) of the Act, the FSA can only do this if the person receiving the further decision notice gives his consent. In these circumstances the following procedure will apply:
(1)
FSA staff will recommend to the decision maker that a further decision notice be given, either before or after obtaining the person's consent;
(2) the decision maker will consider whether the action proposed in the further decision notice is appropriate in the circumstances;
(3) if the decision maker decides that the action proposed is inappropriate, he will decide not to give the further decision notice. In this case, the original decision notice will stand and the person's rights in relation to that notice will be unaffected. If the person's consent has already been obtained, the FSA will notify him of the decision not to give the further decision notice;
(4) if the decision maker decides that the action proposed is appropriate then, subject to the person's consent being (or having been) obtained, a further decision notice will be given;
(5) a person who had the right to refer the matter to the Tribunal under the original decision notice will have that right under the further decision notice. The time period in which the reference to the Tribunal may be made will begin from the date on which the further decision notice is given.
- 01/12/2004
DEC 2.3.7
See Notes
For the purpose of establishing whether the person receiving the further decision notice gives his consent, the FSA will normally require consent in writing. If the person concerned is an individual, the FSA will normally require a letter or signed memorandum from him recording his consent. If the person concerned is a body corporate or partnership, the FSA will normally require a letter or signed memorandum on behalf of the body corporate or partnership stating its consent.
- 01/12/2004
Notice of discontinuance
DEC 2.3.8
See Notes
If the FSA decides not to take action proposed in a warning notice or the action to which a decision notice relates, section 389 of the Act (Notices of discontinuance) requires the FSA to give a notice of discontinuance to the person to whom the warning notice or decision notice was given. (Section 389 of the Act does not apply if the discontinuance of the proceedings results in the granting of an application made by the person to whom the warning notice (or decision notice) was given.)
- 01/12/2004
DEC 2.3.9
See Notes
A notice of discontinuance:
(1) must identify what proceedings are being discontinued (section 389(3)); and
(2) must state that the FSA may publish information about the matter if the person to whom the notice of discontinuance is given consents (section 391(2)).
- 01/12/2004
DEC 2.3.10
See Notes
Where the FSA is required to give a person a copy of a notice of discontinuance (see DEC 2.4.10 G), the copy must be accompanied by a statement that the FSA may publish information about the matter, so far as relevant to the person to whom the copy is given, if that person consents.
- 01/12/2004
Final notice
DEC 2.3.11
See Notes
Under section 390 of the Act (Final notices), the FSA must give a final notice to the person to whom it has given a decision notice:
(1) if the matter was not referred to the Tribunal within the period of 28 days of the date when the decision notice was given, or within any other period that may be prescribed in the Tribunal rules, in which case the FSA will give a final notice at the same time as it takes the action to which the decision notice relates;
(2) if the matter was referred to the Tribunal within the period of 28 days of the date when the decision notice was given, or within any other period that may be prescribed in the Tribunal rules, in which case the FSA will give a final notice at the same time as it takes action in accordance with any directions given by the Tribunal or the Court under section 137 of the Act (Appeal on a point of law).
- 01/12/2004
DEC 2.3.12
See Notes
A final notice sets out the terms of the statement, order, penalty or other action, and will give details of the date when the action takes effect.
- 01/12/2004
DEC 2.4
Third party rights and access to FSA material
- 01/12/2004
DEC 2.4.1
See Notes
Sections 393 (Third party rights) and 394 (Access to FSA material) of the Act confer additional procedural rights relating to third parties and to disclosure of FSA material. These rights apply in certain warning notice and decision notice cases referred to in section 392 of the Act (Application of sections 393 and 394). The cases in which these additional rights apply are identified in DEC 2 Annex 1 G by asterisks; these are generally cases in which the warning notice or decision notice is given on the FSA's own initiative rather than in response to an application or notification made to the FSA.
- 01/12/2004
Access to FSA material
DEC 2.4.2
See Notes
If section 394 of the Act (Access to FSA material) applies and the FSA gives a person a warning notice or decision notice, it must under section 394(1) allow that person ('A') access to:
(1) the material on which the FSA relied in taking the decision which gave rise to the obligation to give the warning notice (or the decision notice); and
- 01/12/2004
DEC 2.4.3
See Notes
However, the duty under section 394(1) is qualified in the following ways:
(1) under section 394(2), the FSA does not have to allow A access to material that is excluded material;
(2) under section 394(2)(a) and (b), the FSA does not have to allow A access to material if this:
(a) relates to a case involving a person other than A; and
(b) was taken into account in A's case only for the purpose of comparison with other cases;
(3) under section 394(3), the FSA may refuse A access to particular material to which it would otherwise have to allow him access if, in the FSA's opinion, allowing him access to the material would not be in the public interest or would not be fair, having regard to:
(a) the likely significance of the material to the person concerned in relation to the matter about which he has been given a notice; and
(b) the potential prejudice to the commercial interests of a person (other than A) which would be caused by the material's disclosure.
- 01/12/2004
DEC 2.4.4
See Notes
If under section 394(2) the FSA does not allow A access to material because it is excluded material consisting of a protected item, it must give A written notice of the existence of the protected item and of the FSA's decision not to allow him access to it (section 394(4)).
- 01/12/2004
DEC 2.4.5
See Notes
If under section 394(3) the FSA refuses to allow A access to particular material, it must give him written notice of the refusal and the reasons for it (section 394(5)).
- 01/12/2004
DEC 2.4.6
See Notes
If the FSA receives a request for access to material, the FSA may within a reasonable period after the request was made:
(1) provide facilities for the inspection and photocopying of the material that it considers it is required to disclose; or
(2) provide a photocopy of the material.
The FSA will provide the first photocopy of the material free of charge, but will charge for subsequent copies it provides to the same person.- 01/12/2004
Third party rights
DEC 2.4.7
See Notes
If section 393 (Third party rights) applies and any of the reasons given in the warning notice relate to a matter which:
(1) identifies a person ("the third party") other than the person to whom the warning notice is given; and
(2) in the FSA's opinion is prejudicial to the third party;
then the FSA must give the third party, in accordance with section 393 of the Act, a copy of the warning notice.- 01/12/2004
DEC 2.4.8
See Notes
A copy of the warning notice will not be given if the FSA considers that this would be impracticable, or the FSA has already given the third party a separate warning notice about the same matter. Similarly, a copy of the warning notice will not be given if the FSA gives the third party such a notice at the same time as it gives the warning notice which identifies him.
- 01/12/2004
DEC 2.4.9
See Notes
- 01/12/2004
DEC 2.4.10
See Notes
The FSA must give a copy of the notice of discontinuance, decision notice or final notice (as appropriate) to a third party who has been given a copy of the warning notice or decision notice (section 393(14), 393(5) and 390(1) of the Act).
- 01/12/2004
DEC 2.4.11
See Notes
If the FSA gives a copy of a warning notice or decision notice to a third party, the copy must be accompanied by an indication of the third party's right under section 393(9) to refer the case to the Tribunal and the procedure on such a referral.
- 01/12/2004
DEC 2.4.12
See Notes
If the FSA gives a copy of a warning notice or decision notice to a third party, the provisions about access to FSA material also apply to the third party (DEC 2.4.2 G to DEC 2.4.6 G). Under section 393(12), the material that the FSA must disclose under section 394 is material that relates to the matter that identifies the third party.
- 01/12/2004
DEC 2 Annex 1
Statutory notice procedure: Warning notice and decision notice procedure
- 01/12/2004
See Notes
List of warning notices and decision notices under the Act (other than Part VI)and certain other enactments
| Note: Third party rights and access to FSA material apply to the powers listed in this table where indicated by an asterisk * (see DEC 2.4) | |||
| Section of the Act | Description | Handbook reference | Decision maker |
| 52(6)(a)/52(9)(a) | when the FSA is proposing/deciding to grant an application for a Part IV permission with a limitation or a requirement which was not applied for, or with a narrower description of regulated activity than that applied for | AUTH 3 | RDC |
| 52(6)(b)/(9) (b) | when the FSA is proposing/deciding to grant an application to vary a firm's Part IV permission but, otherwise than as part of the application, to restrict the Part IV permission (either by imposing a limitation or requirement which was not applied for or by specifying a narrower description of regulated activity than that applied for) | SUP 6 | RDC / executive procedures (Note 1) |
| 52(7)/(9)(c) | when the FSA is proposing/deciding to refuse an application for a Part IV permission | AUTH 3 | RDC |
| 52(7)/(9)(c) | when the FSA is proposing/deciding to refuse an application to vary a firm's Part IV permission | SUP 6 | RDC / executive procedures (Note 1) |
| 52(7)/(9)(c) | when the FSA is proposing/deciding to refuse an application to cancel a firm's Part IV permission | SUP 6 | RDC |
| 54(1)/(2) | when the FSA is proposing/deciding to cancel a firm's Part IV permission otherwise than at its request* | ENF 5 | RDC |
| 57(1)/(3) | when the FSA is proposing/deciding to make a prohibition order against an individual* | ENF 8 | RDC |
| 58(3)/(4) | when the FSA is proposing/deciding to refuse an application for the variation or revocation of a prohibition order | ENF 8 | RDC |
| 62(2)/(3) | when the FSA is proposing/deciding to refuse an application for approval of a person performing a controlled function under section 59 of the Act (in conjunction with an application for Part IV permission) | AUTH 6 | RDC |
| 62(2)/(3) | when the FSA is proposing/deciding to refuse an application for approval of a person performing a controlled function (otherwise than in conjunction with an application for Part IV permission) | SUP 10 | RDC |
| 63(3)/(4) | when the FSA is proposing/deciding to withdraw approval from an approved person * | ENF 8 | RDC |
| 67(1)/(4) | when the FSA is proposing/deciding to take action against an approved person by exercising the disciplinary powers conferred by section 66* | ENF 11/12/13 | RDC |
| 76(4)/(5) | when the FSA is proposing/deciding to refuse an application for listing of securities | LR 2 and 3 | RDC |
| 78(10)/(11)(a) | when the FSA has suspended the listing of securities and is proposing/deciding to refuse an application by an issuer for cancellation of the suspension | LR 5 | RDC/ Executive procedures |
| 87M(2)/(3) | when the FSA is proposing/deciding to publish a statement censuring an issuer of transferable securities, a person offering transferable securities to the public or a person requesting the admission of transferable securities to trading on a regulated market. | ENF 21 | RDC |
| 88(4) | when the FSA is proposing/deciding to (1) refuse a person's application for approval as a sponsor; or (2) on its own initiative, cancel a person's approval as a sponsor | LR 8 | RDC |
| 88(4) | when the FSA is proposing/deciding to cancel a person's approval as a sponsor at the sponsor's request | ENF 21 | Executive procedures |
| 89(2)/(3) | when the FSA is proposing/deciding to publish a statement censuring a sponsor | ENF 21 | RDC |
| 92(1)/(4) | when the FSA is proposing/deciding to take action against any person described under section 91 for breach of LR | ENF 21 | RDC |
| 126(1)/127(1) | when the FSA is proposing/deciding to impose a sanction for market abuse * | ENF 14 | RDC |
| 183(3)/186(1) | when the FSA is proposing/deciding to object to a change in control following receipt of a notice of control | SUP 11 | Executive procedures |
| 185(3)/(4) | when the FSA is proposing/deciding to approve a change in control following receipt of a notice of control but subject to conditions | SUP 11 | Executive procedures |
| 187(1)/(3) and 188(1) | when the FSA is proposing/deciding to object to a person who has failed to submit a notice of control or a notice on acquiring, or increasing, control, or to object to an existing controller | SUP 11 | Executive procedures |
| 200(4)/(5) | when the FSA is proposing/deciding to refuse an application for variation or rescission of a requirement imposed on an incoming firm | ENF 4 | RDC / executive procedures (Note 1) |
| 207(1)/208(1) | when the FSA is proposing/deciding to publish a statement in respect of an authorised person (under section 205) or impose a financial penalty on an authorised person (under section 206)* | ENF 11/12 | RDC |
| 245(1)/(2) | when the FSA is proposing/deciding to refuse an application for an authorisation order declaring a unit trust scheme to be an AUT | COLL 2 and CIS 16 | RDC / executive procedures (Note 2) |
| 252(1)/(4) | when the FSA is proposing/deciding to refuse approval of a proposal to replace the trustee or manager of an AUT | COLL 2 and CIS 16 | Executive procedures |
| 255(1)/(2) | when the FSA is proposing/deciding to make an order under section 254 revoking the authorisation order of an AUT * | ENF 16 | RDC |
| 260(1)/(2) | when the FSA, on an application to revoke or vary a direction under section 257, proposes/decides to refuse to revoke or vary the direction or proposes/decides to vary the direction otherwise than in accordance with the application | ENF 16 | RDC |
| 264(2)/265(4) (Note 3) | when the FSA is notifying/deciding not to withdraw a notice, to the operator and relevant EEA State authorities, that the way in which a collective investment scheme constituted in another EEA State intends to invite persons in the United Kingdom to participate in the scheme does not comply with UK law | COLL 9 and CIS 16 | Executive procedures |
| 269(1)/(2) | when the FSA , on an application under subsection (4) or (5) of section 267 by an operator of a section 264 recognised scheme to revoke or vary a direction that the promotion of the scheme be suspended, proposes/decides to refuse the application or to vary the direction otherwise than in accordance with the application | ENF 16 | RDC |
| 271(1)/(3) | when the FSA is proposing/deciding to refuse approval of a collective investment scheme as a recognised scheme under section 270 | COLL 9 and CIS 16 | Executive procedures |
| 276(1)/(2) | when the FSA is proposing/deciding to refuse an application for an order declaring a collective investment scheme to be a recognised scheme under section 272 | COLL 9 and CIS 16 | Executive procedures |
| 280(1)/(2) | when the FSA is proposing/deciding to direct that a section 270 recognised scheme is to cease to be recognised or to revoke a section 272 order in respect of a recognised scheme * | ENF 16 | RDC |
| 321(8)/(9) | when the FSA is proposing/deciding to refuse an application for variation or revocation of a direction or a requirement imposed on a former underwriting member of Lloyd's* | None | RDC |
| 331(1)/(3) | when the FSA is proposing/deciding to make an order disapplying the exemption from the general prohibition under section 327* | ENF 18 | RDC |
| 331(7)/(8) | when the FSA is proposing/deciding to refuse an application for the variation or revocation of an order made under section 329* | ENF 18 | RDC |
| 345(2)/(3) | when the FSA is proposing/deciding to disqualify an auditor or actuary from being the auditor of, or acting as an actuary for, any authorised person or class of authorised person or from being the auditor of any AUT or ICVC * | ENF 17 | RDC |
| 385(1)/386 (1) | when the FSA is proposing/deciding to exercise the power under section 384(5) to require a person to pay restitution* | ENF 9 | RDC |
| Paragraph 15(6)(c) of Schedule 3 (Note 3) | when the FSA is notifying/ deciding not to withdraw a notice issued to an EEA UCITS management company wishing to deal in units in a collective investment scheme in the United Kingdom and relevant EEA State authorities, that the way in which the EEA UCITS management company intends to market a relevant scheme in the United Kingdom does not comply with UK law. | AUTH 5 | Executive procedures |
| Paragraph 19(8)/(12) of Schedule 3 | when the FSA is proposing/deciding to refuse to give a consent notice to a UK firm wishing to establish a branch under an EEA right | SUP 13SUP 13 | RDC |
| Section of the Building Societies Act 1986 (Note 5) | Description | Handbook reference | Decision maker |
| 36A(5)/(5A) (Note 6) | when the FSA is proposing/deciding to issue a prohibition order under section 36A prohibiting the continuance or carrying on of an activity and requiring the disposal of assets acquired or otherwise in a building society's possession by virtue of the activity, where the society has failed to carry into effect a restructuring plan which it has been directed to carry out by the FSA under section 36(8) | None | RDC |
| 46A(1)(a)/(3) (a) (Note 7) | when the FSA is proposing/deciding to give a direction under section 36(3), (5), (6), (7) or (10) requiring a building society to submit for its approval a restructuring plan or to submit to the society's members the requisite transfer resolutions for a transfer of the society's business to a company or (if such a direction is given) imposing limitations on the issue of shares, acceptance of deposits or making of loans or requiring the society to take certain steps or refrain from certain action or requiring the removal of a director or other officer (Note 8)* | None | RDC |
| 46A(1)(b)/(3) (b) (Note 7) | when the FSA is proposing/deciding to give a direction under section 42B(1) (other than a direction varying a previous direction with the agreement of the building society concerned) that a building society transfers all its engagements to one or more other building societies under section 94 or that it transfers its business to an existing company under section 97* | None | RDC / executive procedures (Note 9) |
| 93(6) (Note 10) | when the FSA, on an amalgamation between building societies each of which has a Part IV permission to accept deposits, notifies the successor society of the terms of its Part IV permission | None | RDC / executive procedures (Note 11) |
| Section of the Credit Unions Act 1979 | Description | Handbook reference | Decision maker |
| 20 | where the FSA is proposing to cancel or suspend the registration of a credit union or to petition for the winding up of a credit union | CRED 15 Annex 1 G | RDC |
| Section of the Friendly Societies Act 1992 (Note 5) | Description | Handbook reference | Decision maker |
| 58A(1)(a)/(3) (a) (Note 12) | when the FSA is proposing/deciding to give a direction under section 54 or section 55 requiring a friendly society to take or refrain from taking steps where certain activities have become disproportionate to those of the friendly society group or, as the case may be, the society, or varying such a direction other than at the request of the society* | None | RDC |
| 58A(1)(b)/(3) (b) (Note 12) | when the FSA is proposing/deciding to give a direction under section 90 providing for a transfer of the engagements of a friendly society * | None | RDC |
| 85(4A) (Note 10) | when the FSA , on an amalgamation between friendly societies each of which has a Part IV permission , notifies the successor society of the terms of its Part IV permission | None | RDC / executive procedures (Note 11) |
| OEIC Regulations reference | Description | Handbook reference | Decision maker |
| Regulation 16(1)/(2) | when the FSA is proposing/deciding to refuse an application for an authorisation order in respect of a proposed ICVC | COLL 2 and CIS 16 | RDC / executive procedures (Note 2) |
| Regulation 22(1)/(2)/(4)/ (5) | when the FSA is proposing/deciding to refuse approval of (or, having given a warning notice , deciding to approve (Note 4)) a proposal to replace the depositary or director of an ICVC , or any other proposal/decision falling within regulation 21 | COLL 2 and CIS 16 | Executive procedures |
| Regulation 24(1)/(2) | when the FSA is proposing/deciding to revoke an authorisation order relating to an ICVC under regulation 23(1)* | ENF 16 | RDC |
| Regulation 28(1)/(2) | when the FSA is proposing/deciding to refuse an application to revoke or vary a direction in accordance with a request under regulation 25(7) or to vary the direction in accordance with the application | ENF 16 | RDC |
| Paragraph 20 of schedule 5 | when the FSA is proposing/deciding to use the disqualification powers under section 249(1)* | ENF 17 | RDC |
| Insurance Intermediaries Order reference | Description | Handbook reference | Decision maker |
| Article 95(2)/(3) | when the FSA is proposing/deciding not to include, or to remove, an appointed representative from the Register* | SUP 12.4.10G | RDC |
| Article 95(7)/(8) | when the FSA is proposing/deciding to refuse an application to revoke a determination not to include, or to remove, an appointed representative from the Register* | SUP 12.4.10G | RDC |
| Note 1: The decision will be made by the RDC if it involves a fundamental (see DEC 4.1.5 G) change to the nature of a permission. | |||
| Note 2: The decision will be made by the RDC if it relates to an application for an authorisation order by an authorised fund manager who is not the operator of an existing AUT or ICVC. | |||
| Note 3: Although the notice under section 265(4) is a decision notice, the notice under section 264(2) is not a warning notice. The FSA will operate a procedure compliant with section 264 for the section 264(2) notice, which will be similar to the procedure for a warning notice. | |||
| Note 4: The FSA must give a decision notice under regulation 22(5) of the OEIC Regulations when, having given a warning notice, it decides to approve a proposal. But this decision notice has the effect of a written notice giving the FSA's approval under regulation 21(3)(a) of the OEIC Regulations. Although the FSA will comply with the statutory requirements regarding the giving of decision notices, DEC should otherwise be read as if the decision notice was a written notice granting an application. | |||
| Note 5: As amended by the Financial Services and Markets Act 2000 (Mutual Societies) Order 2001 (SI 2001/2617). | |||
| Note 6: There is no right to refer a decision to issue a prohibition order under section 36A to the Tribunal. Accordingly, a decision notice under section 36A(5A) is not required to give an indication of whether any such right exists. A decision notice under section 36A(5A) may only relate to the issue of a prohibition order under section 36A. Where such a decision notice is given, no final notice is required under section 390 of the Act and the FSA may issue the order at the same time as or after giving the decision notice. For the purposes of section 391 of the Act (Publication), the decision notice is treated as if it were a final notice. | |||
| Note 7: These powers become exercisable by the FSA if a building society fails to comply with any of the following requirements imposed by the Building Societies Act 1986: section 5(1)(a) or (b) (purpose or principal purpose and principal office); section 6(1) (the lending limit); and section 7(1) (the funding limit). | |||
| Note 8: The warning notice and decision notice must set out the terms of the direction which the FSA proposes/has decided to give. A decision notice given under section 46A(3) must give an indication of the society's right, given by section 46A(5), to have the matter referred to the Tribunal. A decision notice under section 46A(3) may only relate to action under the same section of the Building Societies Act 1986 as the action proposed in the warning notice. A final notice under section 390 of the Act must set out the terms of the direction and state the date from which it takes effect. Section 392 of the Act is to be read as if it included references to a warning notice given under section 46A(1) and a decision notice given under section 46A(3). | |||
| Note 9: The decision will be made under executive procedures if the society has agreed to the giving of the direction and its terms. | |||
| Note 10: The FSA notifies the successor of the permission by giving it a decision notice. The decision notice is not preceded by the giving of a warning notice. No final notice is required under section 390 of the Act and for the purposes of section 391 of the Act (Publication), the decision notice is treated as if it were a final notice. The giving of permission is treated for the purposes of section 55 of the Act (Right to refer matters to the Tribunal) as if it were the determination of an application made by the successor under Part IV of the Act . Part IX of the Act (Hearings and appeals) accordingly applies, but with the omission of section 133(9), which would otherwise prevent the FSA from giving the permission on the terms notified in the decision notice until after any reference and appeal. | |||
| Note 11: The decision will be made under executive procedures where the terms of the permission have been agreed with the successor. | |||
| Note 12: The warning notice and decision notice must set out the terms of the direction which the FSA proposes/has decided to give and any specification of when the society is to comply with it. A decision notice given under section 58A(3) must give an indication of the society's right, given by section 58A(5), to have the matter referred to the Tribunal. A decision notice under section 58A(3) may only relate to action under the same section of the Friendly Societies Act 1992 as the action proposed in the warning notice. A final notice under section 390 of the Act must set out the terms of the direction and state the date from which it takes effect. Section 392 of the Act is to be read as if it included references to a warning notice given under section 58A(1) and a decision notice given under section 58A(3). | |||
- 01/07/2005
DEC 2 Annex 2
Statutory notice procedure: Warning notice and decision notice procedure
- 01/12/2004
See Notes
The FSA's decision making procedure for applications concerning Part IV permission, applications for approval under section 59 of the Act, and for certain other applications involving warning and decision notices
- 01/12/2004
DEC 2 Annex 3
Statutory notice procedure: Warning notice and decision notice procedure
- 01/12/2004
See Notes
The FSA's decision making procedure in non-application cases involving warning and decision notices
- 01/12/2004
DEC 2 Annex 4
Statutory notice procedure: Warning notice and decision notice procedure
- 01/12/2004
See Notes
The FSA's decision making procedure on notification of a change in control involving warning and decision notices
- 01/12/2004
DEC 2 Annex 5
Specimen Warning Notice
- 01/12/2004
See Notes
This annex consists only of one or more forms or templates. Forms and templates are to be found through the 'Forms' link under Useful Links section at www.fsahandbook.info or on the Handbook CD-ROM.
- 01/12/2004
DEC 2 Annex 6
Specimen Decision Notice
- 01/12/2004
See Notes
This annex consists only of one or more forms or templates. Forms and templates are to be found through the 'Forms' link under Useful Links section at www.fsahandbook.info or on the Handbook CD-ROM.
- 01/12/2004