The EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018

[F1 CHAPTER 2 U.K. Temporary limited variation to carry on additional regulated activity

Textual Amendments

F1 Pt. 6 inserted (1.3.2019) by The Financial Services Contracts (Transitional and Saving Provision) (EU Exit) Regulations 2019 (S.I. 2019/405), regs. 1(2), 2

Deemed variation under Part 4A of the Financial Services and Markets Act 2000 U.K.

34.— (1) A person to whom this regulation applies shall be treated as if the person’s permission to carry on a regulated activity in the United Kingdom under Part 4A of the 2000 Act were varied.

(2) The variation is that the regulated activity the person is permitted to carry on includes one specified (by reference to regulations 36 to 39) in regulation 40.

(3) Reference in an enactment to a person’s permission under Part 4A of the 2000 Act (however expressed) is to be read, unless the contrary intention appears, as including a regulated activity which is included in the person’s permission by virtue of this regulation.

(4) Accordingly, a power of a regulator under the 2000 Act is exercisable in respect of such a person, and a regulated activity the person is permitted to carry on by virtue of this regulation, as it is in respect of the person, and a regulated activity the person is, immediately before exit day, permitted to carry on by virtue of Part 4A of that Act.

(5) Such a power is exercisable in relation to, in particular—

(a) the variation or cancellation of a permission to carry on a regulated activity, or

(b) the imposition of requirements, prohibitions or restrictions on a person who has such a permission.

Application of regulation 34 U.K.

35.— (1) Regulation 34 applies to a person who—

(a) is authorised, under the law of the person’s home state, to carry on an activity which is regulated by the person’s home state regulator, F2 ...

(b) satisfies the conditions in regulation 36, 37, 38 or 39, [F3 and

(c) is not a Gibraltar firm.]

(2) If a person satisfies the conditions in regulation 37, 38 or 39, a regulator may direct that, nevertheless, regulation 34 does not apply to the person.

(3) Regulation 34 applies to a person for the period determined in accordance with regulation 41.

Textual Amendments

F2 Word in reg. 35(1)(a) omitted (16.3.2019) by virtue of The Financial Services (Gibraltar) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/589), regs. 1(2), 11(6)(a)

F3 Reg. 35(1)(c) and preceding word inserted (16.3.2019) by The Financial Services (Gibraltar) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/589), regs. 1(2), 11(6)(b)

Conditions to be satisfied for regulation 34 to apply: persons who cease to be authorised on exit day U.K.

36.— (1) The conditions are that the person is one—

(a) who, immediately before exit day—

(i) is authorised to carry on a regulated activity in the United Kingdom by virtue of section 31(1)(b) or (c) of the 2000 Act, and

(ii) is carrying on such an activity [F4 or, subject to paragraph (3), providing a payment service] in the United Kingdom, whether through an establishment in the United Kingdom or otherwise,

(b) who, immediately before exit day, is also authorised to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act,

(c) to whom, on exit day, regulation 11 does not apply, and

(d) who, on exit day, is not authorised to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act, in respect of the regulated activities which, immediately before that day, the person is carrying on by virtue of section 31(1)(b) or (c) of the 2000 Act.

(2) In this regulation—

(a) reference to carrying on a regulated activity at a particular time includes where the performance of a pre-existing contract requires, or may require, a regulated activity to be carried on at another time;

(b) reference to authorisation to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act does not include such an authorisation by virtue of regulation 34.

[F5 (3) The reference to providing a payment service in paragraph (1)(a)(ii) applies only to a credit institution which was providing the service in the United Kingdom immediately before exit day in accordance with the exercise of an EEA passport right under Title 5 of Directive 2013/36/EU as in force immediately before exit day.]

Textual Amendments

F4 Words in reg. 36(1)(a)(ii) inserted (6.9.2019) by The Financial Services (Electronic Money, Payment Services and Miscellaneous Amendments) (EU Exit) Regulations 2019 (S.I. 2019/1212), regs. 1(2), 6(3)(a)

F5 Reg. 36(3) inserted (6.9.2019) by The Financial Services (Electronic Money, Payment Services and Miscellaneous Amendments) (EU Exit) Regulations 2019 (S.I. 2019/1212), regs. 1(2), 6(3)(b)

Conditions to be satisfied for regulation 34 to apply: persons to whom regulation 8 ceases to apply U.K.

37.— (1) The conditions are that the person is one—

(a) to whom regulation 8 ceases to apply, in accordance with regulation 17,

(b) who, on that regulation ceasing to apply, is not authorised to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act that the person is, immediately before that regulation ceases to apply, permitted to carry on by virtue of that regulation,

(c) who, immediately before that regulation ceases to apply, is carrying on a regulated activity in the United Kingdom which is not, immediately after that regulation ceases to apply, a regulated activity the person is authorised to carry on by virtue of section 31(1)(a) of the 2000 Act, and

(d) who, on that regulation ceasing to apply, is authorised to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act.

(2) In this regulation, reference to authorisation to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act does not include such an authorisation by virtue of regulation 34.

Conditions to be satisfied for regulation 34 to apply: persons to whom regulation 11 ceases to apply U.K.

38.— (1) The conditions are that the person is one—

(a) to whom regulation 11 ceases to apply, in accordance with regulation 17,

(b) who, on that regulation ceasing to apply, is not authorised to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act that the person is, immediately before that regulation ceases to apply, permitted to carry on by virtue of that regulation, and

(c) who, immediately before that regulation ceases to apply, is carrying on a regulated activity in the United Kingdom which is not, on that regulation ceasing to apply, a regulated activity the person is authorised to carry on by virtue of section 31(1)(a) of the 2000 Act.

(2) In this regulation, reference to authorisation to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act does not include such an authorisation by virtue of regulation 34.

Conditions to be satisfied for regulation 34 to apply: persons to whom regulation 28 ceases to apply U.K.

39.— (1) The conditions are that the person is one—

(a) to whom regulation 28 ceases to apply, in accordance with regulation 41(3),

(b) who, immediately before that regulation ceases to apply, is carrying on a regulated activity in the United Kingdom which is not, immediately after that regulation ceases to apply, a regulated activity the person is authorised to carry on by virtue of section 31(1)(a) of the 2000 Act, and

(c) who, on that regulation ceasing to apply, is not authorised to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act that the person is, immediately before that regulation ceases to apply, permitted to carry on by virtue of that regulation.

(2) In this regulation, reference to authorisation to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act does not include such an authorisation by virtue of regulation 34.

Regulated activities to which regulation 34 applies U.K.

40.— (1) A regulated activity included in those which a person is permitted to carry on by virtue of regulation 34 is one—

(a) which is necessary for the performance of a pre-existing contract,

(b) which is a carried on for the purposes of performing such a contract,

(b) which is not a regulated activity the person is authorised to carry on by virtue of section 31(1)(a) of the 2000 Act, and

(c) to which paragraph (2) applies.

(2) This paragraph applies to a regulated activity—

(a) in the case of a person who satisfies the conditions in regulation 36, which the person is, immediately before exit day, authorised to carry on in the United Kingdom by virtue of section 31(1)(b) or (c) of the 2000 Act;

(b) in the case of a person who satisfies the conditions in regulation 37, which the person is, immediately before the day on which regulation 8 ceases to apply, permitted to carry on in the United Kingdom by virtue of that regulation;

(c) in the case of a person who satisfies the conditions in regulation 38, which the person is, immediately before the day on which regulation 11 ceases to apply, permitted to carry on in the United Kingdom by virtue of that regulation;

(d) in the case of a person who satisfies the conditions in regulation 39, which the person is, immediately before the day on which regulation 28 ceases to apply, permitted to carry on in the United Kingdom by virtue of that regulation.

(3) For the purposes of paragraph (1), the performance of a pre-existing contract includes the performance of an obligation under the contract which is contingent or conditional.

(4) The person is also permitted to carry on a regulated activity which is necessary—

(a) for the purposes of reducing the financial risk of—

(i) a party to a pre-existing contract, or

(ii) a third-party affected by the performance of a pre-existing contract;

(b) in order to transfer the property, rights or liabilities under a pre-existing contract to a person authorised to carry on a regulated activity by virtue of section 31(1)(a) of the 2000 Act (other than by virtue of these Regulations);

(c) in order to comply with a requirement imposed by or under an enactment.

(5) A person is only permitted to carry on a regulated activity in so far as is necessary for the purposes specified in paragraph (1) or (3).

(6) This regulation is subject to the power of a regulator to vary or cancel a permission under Part 4A of the 2000 Act.]