The Equivalence Determinations for Financial Services (Amendment etc.) (EU Exit) Regulations 2020

Regulation 2

SCHEDULE 3 Regulatory decisions

Regulatory decisions for EEA benchmarks for the purposes of Article 30(1) of the Benchmarks Regulation

1.—(1) The FCA may include, in the FCA register, a benchmark or a combination of benchmarks provided by an administrator located in an EEA state, for the purposes of Article 30(1) of the Benchmarks Regulation, where the following conditions are met—

(a) an equivalence direction has been made that makes a determination in relation to that EEA state for the purposes set out in paragraph 1(1) or (2) of Schedule 1 to the 2019 Regulations;

(b) the administrator is authorised or registered, and is subject to supervision, in that EEA state;

(c) the FCA is notified by the administrator of—

(i) its consent that its actual or prospective benchmarks may be used by supervised entities in the United Kingdom;

(ii) the list of the benchmarks for which they have given consent to be used in the United Kingdom; and

(iii) the authority responsible for its supervision in that EEA state; and

(d) relevant cooperation arrangements have been established in relation to that EEA state.

(2) In this paragraph, “FCA register” means the register of administrators and benchmarks established and maintained by the FCA in accordance with Article 36(1) of the Benchmarks Regulation.

Regulatory decisions for credit rating agencies for the purposes of Article 5(2) and (4) of CRAR

2.—(1) A credit rating agency established in an EEA state may be certified by the FCA for the purposes of Article 5(2) of CRAR, provided that—

(a) the credit rating agency is authorised or registered in and is subject to supervision in that EEA state;

(b) an equivalence direction has been made that makes a determination in relation to that EEA state for the purposes set out in paragraph 3 of Schedule 1 to the 2019 Regulations;

(c) relevant cooperation arrangements have been established in relation to that EEA state; and

(d) the credit ratings issued by the credit rating agency and its credit rating activities are not of systemic importance to the financial stability or integrity of the financial markets of the United Kingdom.

(2) A credit rating agency established in that EEA state may be granted exemption for the purposes of Article 5(4) of CRAR—

(a) on a case-by-case basis from complying with some or all of the requirements set out in Section A of Annex I and Article 7(4) of CRAR if the credit rating agency demonstrates that the requirements are not proportionate in view of the nature, scale and complexity of its business and the nature and range of its issuing of credit ratings;

(b) from the requirement of physical presence in the United Kingdom where such a requirement would be too burdensome and disproportionate in view of the nature, scale and complexity of its business and the nature and range of its issuing of credit ratings.

(3) When assessing an application under regulation 4 for an exemption referred to in sub-paragraph (2), the FCA must consider the size of the credit rating agency established in that EEA state, having regard to the nature, scale and complexity of its business and the nature and range of its issuing of credit ratings, as well as the impact of the credit ratings issued by the credit rating agency on the financial stability and integrity of the financial markets of the United Kingdom.

Regulatory decisions for EEA CSDs for the purposes of Article 25(4) of CSDR

3.—(1) An EEA CSD authorised in an EEA state that intends to provide, on or after IP completion day, the core services referred to in points (1) and (2) of Section A of the Annex to CSDR in relation to financial instruments constituted under the law applicable within the United Kingdom or to set up a branch in the United Kingdom is subject to the procedure referred to in sub-paragraphs (2) to (4) of this paragraph.

(2) After consulting the authority referred to in sub-paragraph (3), the Bank may recognise an EEA CSD authorised in an EEA state for the purposes of Article 25(4) of CSDR that has applied for recognition to provide the services referred to in sub-paragraph (1), where the following conditions are met—

(a) an equivalence direction has been made that makes a determination in relation to that EEA state for the purposes set out in paragraph 3A of Schedule 1 to the 2019 Regulations;

(b) the EEA CSD is subject to effective authorisation, supervision and oversight or, if the securities settlement system is operated by a central bank, oversight, ensuring full compliance with the prudential requirements applicable in that EEA state;

(c) relevant cooperation arrangements have been established in relation to that EEA state; and

(d) where relevant, the EEA CSD has taken the necessary measures to allow its users to comply with the relevant law applicable within the United Kingdom or any part of the United Kingdom and the adequacy of those measures has been confirmed by the Bank.

(3) When assessing whether the conditions referred to in sub-paragraph (2) are met, the Bank must consult the EEA regulator entrusted with the authorisation, supervision and oversight of EEA CSDs in that EEA state.

(4) A regulatory decision in accordance with this paragraph—

(a) may be granted only for services listed in the Annex to CSDR; and

(b) must specify the services the EEA CSD is recognised to provide or perform.

Regulatory decisions for trade repositories for the purposes of Article 77(2) of EMIR

4.  The FCA may grant recognition to a trade repository established in an EEA state for the purposes of Article 77(2) of EMIR only if—

(a) the trade repository is authorised and subject to supervision in that EEA state;

(b) an equivalence direction has been made that makes a determination in relation to that EEA state for the purposes set out in paragraph 4A of Schedule 1 to the 2019 Regulations; and

(c) relevant cooperation arrangements have been established in relation to that EEA state.

Regulatory decisions for the purposes of Article 46(2) of MiFIR

5.  The FCA may register a firm established in an EEA state that has applied in relation to the provision of investment services or the performance of activities listed in Article 46(1) of MiFIR in the United Kingdom, for the purposes of Article 46(2) of MiFIR, only where the following conditions are met—

(a) an equivalence direction has been made that makes a determination in relation to that EEA state for the purposes set out in paragraph 8 of Schedule 1 to the 2019 Regulations;

(b) the firm is authorised in the jurisdiction where its head office is established to provide the investment services or activities to be provided in the United Kingdom and it is subject to effective supervision and enforcement ensuring a full compliance with the requirements applicable in that EEA state; and

(c) relevant cooperation arrangements have been established in relation to that EEA state.

Regulatory decisions for the purposes of Article 19(4) of SFTR

6.  The FCA may recognise a trade repository established in an EEA state for the purposes of Article 19(4) of SFTR only where the following conditions are met—

(a) the trade repository is authorised and subject to effective supervision in that EEA state;

(b) an equivalence direction has been made that makes a determination in relation to that EEA state for the purposes set out in paragraph 10(1) of Schedule 1 to the 2019 Regulations; and

(c) relevant cooperation arrangements have been established in relation to that EEA state.