A letter From the FCA to UK CFD Brokers
2 February 2016
Client take-on review in firms offering contract for difference (CFD) products
We have recently reviewed the procedures for taking on new clients in a sample of ten firms
that offer CFD products. We reviewed:
• the firms’ approaches to assessing the appropriateness of CFD trading for prospective
• initial disclosures to clients
• anti-money laundering (AML) controls
• client categorisation
We have identified several areas of concern which we wish to highlight to firms across the
industry. In this letter we explain the issues we have identified and ask you to consider
whether your firm complies with FCA requirements for sales of CFD products.
NB - Contracts for difference, Spread bets and ‘Rolling Spot’ FX are all designated as a type of
‘CFD’ under our Handbook's Glossary of definitions, which in turn are a type of derivative.
Focus of our review
The review sampled ten firms that offer CFD products to clients on a non-advised basis. We
included a range of firms from the sector to cover smaller and larger firms.
The key focus of the review was to assess the client take-on procedures against the
requirements of the COBS and SYSC rules (set out in the annex to this letter). We expect all
firms to ensure that their client take-on process meets these requirements.
You should consider the points we raise in this letter regarding the process that your firm
follows when taking on new clients. If, when reviewing your processes, you identify any areas
of concern, we expect you to have regard to Principle 6 (Customers’ interests) as well as
Principle 11 (Relations with regulators) and act accordingly.
Results from our review
• we saw a range of approaches to completing the appropriateness assessment, most of
which were not in line with COBS 10
• most risk warnings issued to clients who failed the appropriateness assessments were
• anti-money laundering controls in place to manage the increased risks posed by higher
risk clients were insufficient
These findings also suggest that firms may not be acting in the best interests of their clients
and treating them fairly, bringing into question firms’ compliance with COBS 2.1.1R and the
All firms operating in this sector should ensure that they comply with the FCA’s requirements
when making non-advised sales of CFDs.
Areas of concern
CFDs are complex, leveraged products that can put clients at risk of losing more than their
original investment. Our review identified several key areas of concern, in particular, the
inability of some firms to assess appropriateness and to warn clients for whom CFDs are not
We saw that many firms in our sample:
• gathered insufficient detail regarding the types of service, transaction and designated
investments with which the client is familiar (COBS 10.2.2R(1))
• did not take into account the nature, volume and/or frequency of the client’s previous
transactional experience or the time period over which such transactions had been
carried out (COBS 10.2.2R(2))
• used a scoring system that gave too much weight to a number of other less relevant
factors (e.g. age, length of time at address), so that the client’s relevant knowledge
and experience no longer determined the outcome of the appropriateness assessment
• did not assess whether CFDs were appropriate for the client and instead asked the
client to self-certify that they understood the risks of the investment e.g. by ticking a
box to confirm this (COBS 10.2.1R(1))
• did not assess the client’s level of experience and knowledge, for example they did not
assess the client’s education or identify their profession, or relevant former profession
We also saw evidence of poorly worded risk warnings that did not set out the nature and risks
of CFD products in a manner that was clear, fair and not misleading (COBS 4.2.1R and
We saw that many firms had not established a process to assess whether clients who fail the
appropriateness assessment (and who have received a risk warning letter), but who
nonetheless wish to trade in CFDs, should be allowed to proceed with CFD transactions (COBS
We are also concerned that some firms in our sample did not have AML systems and controls
in place which were proportionate to the nature, scale and complexity of their activities. In
particular, we found that:
• although firms were conducting adequate customer due diligence (CDD) on standard
risk clients, predominantly through the use of electronic identification systems, many
were not conducting enhanced due diligence on clients identified as high risk
• client AML risk assessments did not often consider a range of factors and instead
focused on jurisdictional risk, limiting their effectiveness
The review assessed firms’ approaches to categorising clients. We had been concerned that
firms offering CFD products might be incorrectly categorising clients as ‘professional’.
However, we were encouraged to see that eight of the ten firms that we assessed had
classified all of their clients as ‘retail’, giving them the highest level of protection.
Given the poor results that we observed across our sample, we are concerned that there is a
high risk that CFD providers industry-wide are not meeting the requirements of the rules when
taking on new clients and/or are failing to do enough to prevent financial crime.
In particular, it appears that firms may not have processes that allow them to assess the
appropriateness of CFD trading for prospective clients, which could result in firms failing to
identify clients for whom CFDs are not appropriate. We were also concerned to find that firms’
communications did not meet our expectations. As an example, risk warnings given to clients
did not convey in a clear and fair way that the product was not appropriate for the customer.
Please see the annex for further details of the relevant rules and money laundering
We ask you to consider whether your firm complies with FCA requirements for sales of CFD
products and the points we raise in this letter regarding the process that your firm follows
when taking on new clients.
Executive Director of Supervision
Investment, Wholesale & Specialists Division
Principle 1 of our Principles for Businesses requires firms to conduct their business with
integrity. Principle 2 requires firms to conduct their business with due skill, care and diligence.
Principle 3 requires firms to take reasonable care to organise and control their affairs
responsibly and effectively, with adequate risk management systems. Principle 6 requires firms
to pay due regard to the interests of their customers and treat them fairly. Principle 7 requires
firms to pay due regard to the information needs of its clients, and communicate information
to them in a way which is clear, fair and not misleading.
COBS 10 sets out firms’ obligations in relation to assessing appropriateness. In particular:
(1) When providing a service to which this chapter applies, a firm must ask the client to
provide information regarding his knowledge and experience in the investment field relevant to
the specific type of product or service offered or demanded so as to enable the firm to assess
whether the service or product envisaged is appropriate for the client.
(2) When assessing appropriateness, a firm:
(a) must determine whether the client has the necessary experience and knowledge in
order to understand the risks involved in relation to the product or service offered
(b) may assume that a professional client has the necessary experience and knowledge
in order to understand the risks involved in relation to those particular investment
services or transactions, or types of transaction or product, for which the client is
classified as a professional client.
[Note: article 19(5) of MiFID and article 36 of the MiFID implementing Directive]
The information regarding a client's knowledge and experience in the investment field includes,
to the extent appropriate to the nature of the client, the nature and extent of the service to be
provided and the type of product or transaction envisaged, including their complexity and the
risks involved, information on:
(1) the types of service, transaction and designated investment with which the client is
(2) the nature, volume, frequency of the client's transactions in designated investments and
the period over which they have been carried out;
(3) the level of education, profession or relevant former profession of the client.
[Note: article 37(1) of the MiFID implementing Directive]
(1) If a firm considers, on the basis of the information received to enable it to assess
appropriateness, that the product or service is not appropriate to the client, the firm must
warn the client.
(2) This warning may be provided in a standardised format.
[Note: article 19(5) of MiFID]
If a client asks a firm to go ahead with a transaction, despite being given a warning by the
firm, it is for the firm to consider whether to do so having regard to the circumstances.
COBS 2.1.1R sets out the client’s best interests rule:
(1) A firm must act honestly, fairly and professionally in accordance with the best interests of
its client (the client's best interests rule).
(2) This rule applies in relation to designated investment business carried on:
(a) for a retail client; and
(b) in relation to MiFID or equivalent third country business, for any other client.
(3) For a management company, this rule applies in relation to any UCITS scheme or EEA
UCITS scheme the firm manages.
[Note: article 19(1) of MiFID] and article 14(1)(a) and (b) of the UCITS Directive]
COBS 4.2.1R sets out the fair, clear and not misleading rule:
(1) A firm must ensure that a communication or a financial promotion is fair, clear and not
(2) This rule applies in relation to:
(a) a communication by the firm to a client in relation to designated investment
business other than a third party prospectus;
(b) a financial promotion communicated by the firm that is not:
(i) an excluded communication;
(ii) a non-retail communication;
(iii) a third party prospectus; and
(c) a financial promotion approved by the firm.
[Note: article 19(2) of MiFID, recital 52 to the MiFID implementing Directive and article 77 of
the UCITS Directive]
SYSC 6.3 sets out firms’ obligations in relation to AML controls. In particular:
A firm must ensure the policies and procedures established under SYSC 6.1.1R include
systems and controls that:
(1) enable it to identify, assess, monitor and manage money laundering risk; and
(2) are comprehensive and proportionate to the nature, scale and complexity of its activities.
A firm must carry out a regular assessment of the adequacy of these systems and controls to
ensure that they continue to comply with SYSC 6.3.1R.
In identifying its money laundering risk and in establishing the nature of these systems and
controls, a firm should consider a range of factors, including:
(1) its customer, product and activity profiles;
(2) its distribution channels;
(3) the complexity and volume of its transactions;
(4) its processes and systems; and
(5) its operating environment.
A firm should ensure that the systems and controls include:
(1) appropriate training for its employees in relation to money laundering;
(2) appropriate provision of information to its governing body and senior management,
including a report at least annually by that firm's money laundering reporting officer (MLRO)
on the operation and effectiveness of those systems and controls;
(3) appropriate documentation of its risk management policies and risk profile in relation to
money laundering, including documentation of its application of those policies (see SYSC 9);
(4) appropriate measures to ensure that money laundering risk is taken into account in its
day-to-day operation, including in relation to:
(a) the development of new products;
(b) the taking-on of new customers; and
(c) changes in its business profile; and
(5) appropriate measures to ensure that procedures for identification of new customers do not
unreasonably deny access to its services to potential customers who cannot reasonably be
expected to produce detailed evidence of identity.
Money Laundering Regulations 2007
Regulation 14: Enhance customer due diligence and ongoing monitoring (only
sections applicable to our findings have been detailed below):
(1) A relevant person must apply on a risk-sensitive basis enhanced customer due diligence
measures and enhanced ongoing monitoring:
(a) in accordance with paragraphs (2) to (4);
(b) in any other situation which by its nature can present a higher risk of money
laundering or terrorist financing.
(2) Where the customer has not been physically present for identification purposes, a relevant
person must take specific and adequate measures to compensate for the higher risk, for
example, by applying one or more of the following measures:
(a) ensuring that the customer’s identity is established by additional documents, data
(b) supplementary measures to verify or certify the documents supplied, or requiring
confirmatory certification by a credit or financial institution which is subject to the
money laundering directive;
(c) ensuring that the first payment is carried out through an account opened in the
customer’s name with a credit institution.
(4) A relevant person who proposes to have a business relationship or carry out an occasional
transaction with a politically exposed person must:
(a) have approval from senior management for establishing the business relationship
with that person;
(b) take adequate measures to establish the source of wealth and source of funds
which are involved in the proposed business relationship or occasional transaction; and
(c) where the business relationship is entered into, conduct enhanced ongoing
monitoring of the relationship.
(5) In paragraph (4), “a politically exposed person” means a person who is?
(a) an individual who is or has, at any time in the preceding year, been entrusted with
a prominent public function by:
(i) a state other than the United Kingdom;
(ii) a Community institution; or
(iii) an international body, including a person who falls in any of the
categories listed in paragraph 4(1)(a) of Schedule 2;
(b) an immediate family member of a person referred to in sub-paragraph (a), including
a person who falls in any of the categories listed in paragraph 4(1)(c) of Schedule 2; or
(c) a known close associate of a person referred to in sub-paragraph (a), including a
person who falls in either of the categories listed in paragraph 4(1)(d) of Schedule 2. 5
(6) For the purpose of deciding whether a person is a known close associate of a person
referred to in paragraph (5)(a), a relevant person need only have regard to information which
is in his possession or is publicly known.
Financial Crime: A Guide for Firms
Other reference material:
FSA implementation factsheet on appropriateness: http://www.fsa.gov.uk/pubs/other/im...tsheet.pdf
ESMA investor warning on CFDs: