ENFG 3.4 FCA guidance and supporting materials

The FCA uses guidance and other materials to supplement the Principles or other rules where it considers that this would help firms to decide what action they need to take to meet the necessary standard.

Guidance is not binding on those to whom the FCA’s rules apply. Nor are the variety of materials (such as case studies showing good or bad practice, FCA speeches and generic letters written by the FCA to chief executives in particular sectors) published to support the rules and guidance in the Handbook. These materials are intended to illustrate ways (but not the only ways) in which a person can comply with the relevant rules. If a firm has complied with the Principles and other rules, it does not matter whether it has also complied with other material the FCA has issued (see DEPP 6.2.1G(4)).

Guidance and supporting materials are, however, potentially relevant to an enforcement case and a decision maker may take them into account in considering the matter. Examples of the ways in which the FCA may seek to use guidance and supporting materials in an enforcement context include, but are not limited to:

1. (1)

   helping to assess whether it could reasonably have been understood or predicted at the time that the conduct in question fell below the standards required by the Principles;

2. (2)

   explaining the regulatory context;

3. (3)

   informing a view of the overall seriousness of the breaches;

4. (4)

   informing the consideration of a firm’s defence that the FCA was judging the firm on the basis of retrospective standards; and

5. (5)

   being considered as part of expert or supervisory statements in relation to the relevant standards at the time.

The extent to which guidance and supporting materials are relevant will depend on all the circumstances of the case. It is for the decision maker – whether the RDC, Tribunal or an executive decision maker – to determine this on a case-by-case basis.

The FCA may take action in areas in which it has not issued guidance or supporting materials.