Financial Services and Markets Act 2000

Part I U.K. Insurance Business Transfer Schemes

Modifications etc. (not altering text)

C1 Sch. 12 Pt. I (paras. 1-6) applied (1.12.2001) by S.I. 2001/3626, arts. 1, 3(c)

1 (1) For the purposes of section 111(2) the appropriate certificates, in relation to an insurance business transfer scheme, are— U.K.

(a) a certificate under paragraph 2;

(b) if sub-paragraph (2) applies, a certificate under paragraph 3;

[F1 (ba) if sub-paragraph (2A) applies, a certificate under paragraph 3A.]

(c) if sub-paragraph (3) applies, a certificate under paragraph 4;

(d) if sub-paragraph (4) applies, a certificate under paragraph 5[F2 ;

(e) if sub-paragraph (5) applies, the certificates under paragraph 5A.]

(2) This sub-paragraph applies if—

(a) [F3 the transferor concerned] is a UK authorised person which has received authorisation under [F4 Article 14 of the Solvency 2 Directive] from [F5 the appropriate regulator]; and

(b) the establishment from which the business is to be transferred under the proposed insurance business transfer scheme is in an EEA State other than the United Kingdom.

[F6 (2A) This sub-paragraph applies if—

(a) the transferor concerned is a UK authorised person which has received authorisation under Article 14 of the Solvency 2 Directive from the appropriate regulator; and

(b) as regards any policy which is included in the proposed transfer and which evidences a contract of insurance (other than reinsurance), the contract was concluded in an EEA State other than the United Kingdom.]

(3) This sub-paragraph applies if—

(a) [F3 the transferor concerned] has received authorisation under [F7 Article 162 of the Solvency 2 Directive] from [F5 the appropriate regulator];

(b) the proposed transfer relates to business which consists of the effecting or carrying out of contracts of long-term insurance; and

(c) as regards any policy which is included in the proposed transfer and which evidences a contract of insurance (other than reinsurance), an EEA State other than the United Kingdom is the State of the commitment.

(4) This sub-paragraph applies if—

(a) [F3 the transferor concerned] has received authorisation under [F8 Article 162 of the Solvency 2 Directive] from [F5 the appropriate regulator];

(b) the business to which the proposed insurance business transfer scheme relates is business which consists of the effecting or carrying out of contracts of general insurance; and

(c) as regards any policy which is included in the proposed transfer and which evidences a contract of insurance (other than reinsurance), the risk is situated in an EEA State other than the United Kingdom.

[F9 (5) This sub-paragraph applies if—

[F10 (a) the transferor concerned has received authorisation under Article 162 of the Solvency 2 Directive from the appropriate regulator; and

(b) the proposed transfer is to a branch or agency, in an EEA State other than the United Kingdom, authorised under that Article.]]

Textual Amendments

F1 Sch. 12 para. 1(1)(ba) inserted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(2)(a)

F2 Sch. 12 para. 1(1)(e) inserted (10.12.2007) by The Reinsurance Directive Regulations 2007 (S.I. 2007/3253), reg. 2(1), Sch. 1 para. 2(5)(a)

F3 Words in Sch. 12 substituted (1.3.2014) by Financial Services (Banking Reform) Act 2013 (c. 33), s. 148(5), Sch. 1 para. 2; S.I. 2014/377, art. 2(1)(a), Sch. Pt. 1

F4 Words in Sch. 12 para. 1(2) substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(2)(b)

F5 Words in Sch. 12 para. 1 substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 6 para. 10 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F6 Sch. 12 para. 1(2A) inserted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(2)(c)

F7 Words in Sch. 12 para. 1(3)(a) substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(2)(d)

F8 Words in Sch. 12 para. 1(4)(a) substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(2)(e)

F9 Sch. 12 para. 1(5) inserted (10.12.2007) by The Reinsurance Directive Regulations 2007 (S.I. 2007/3253), reg. 2(1), Sch. 1 para. 2(5)(d)

F10 Sch. 12 para. 1(5)(a)(b) substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(2)(f)

Modifications etc. (not altering text)

C2 Sch. 12 Pt. I para. 1(2)(a)(3)(a)(4)(a) modified (1.12.2001) by S.I. 2001/3626, arts. 1, 5(2)

Certificates as to margin of solvency U.K.

2 (1) A certificate under this paragraph is to be given— U.K.

(a) by the relevant authority; or

(b) in a case in which there is no relevant authority, by the [F11 appropriate regulator].

(2) A certificate given under sub-paragraph (1)(a) is one certifying that, taking the proposed transfer into account—

(a) the transferee possesses, or will possess before the scheme takes effect, the necessary margin of solvency; or

(b) there is no necessary margin of solvency applicable to the transferee.

(3) A certificate under sub-paragraph (1)(b) is one certifying that the [F12 appropriate regulator] has received from the authority which it considers to be the authority responsible for supervising persons who effect or carry out contracts of insurance in the place to which the business is to be transferred [F13 certification] that, taking the proposed transfer into account—

(a) the transferee possesses or will possess before the scheme takes effect the margin of solvency required under the law applicable in that place; or

(b) there is no such margin of solvency applicable to the transferee .

(4) “Necessary margin of solvency” means the margin of solvency required in relation to the transferee, taking the proposed transfer into account, under the law which it is the responsibility of the relevant authority to apply.

(5) “Margin of solvency” means the excess of the value of the assets of the transferee over the amount of its liabilities.

(6) “Relevant authority” means—

(a) if the transferee is an EEA firm falling within paragraph 5(d) [F14 or (da)] of Schedule 3, its home state regulator;

[F15 (aa) if the transferee is a non-EEA branch, the supervisory authority of the EEA State in which the transferee is situated or, where appropriate, the supervisory authority of an EEA State which supervises the state of solvency of the entire business of the transferee’s agencies and branches within the EEA in accordance with Article 167 of the Solvency 2 Directive;]

(b) if the transferee is a Swiss general insurer, the authority responsible in Switzerland for supervising persons who effect or carry out contracts of insurance;

(c) if the transferee is an authorised person not falling within [F16 paragraph (a), (aa)] or (b)[F17 —

(i) the PRA, if the transferee is a PRA-authorised person with a Part 4A permission or with permission under Schedule 4;

(ii) the FCA, if the transferee is a person with a Part 4A permission or with permission under Schedule 4 but is not a PRA-authorised person.]

(7) In sub-paragraph (6), any reference to a transferee of a particular description includes a reference to a transferee who will be of that description if the proposed scheme takes effect.

[F18 (7A) “Supervisory authority” has the same meaning as in the Solvency 2 Directive.]

(8) “Swiss general insurer” means a body—

(a) whose head office is in Switzerland;

(b) which has permission to carry on regulated activities consisting of the effecting and carrying out of contracts of general insurance; and

(c) whose permission is not restricted to the effecting or carrying out of contracts of reinsurance.

[F19 (9) “Non-EEA branch” means a branch or agency which has received authorisation under Article 162 of the Solvency 2 Directive.]

Textual Amendments

F11 Words in Sch. 12 para. 2(1)(b) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 6 para. 11(2)(a) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F12 Words in Sch. 12 para. 2(3) substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 6 para. 11(2)(b) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F13 Word in Sch. 12 para. 2(3) inserted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 6 para. 11(3) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F14 Words in Sch. 12 para. 2(6)(a) inserted (10.12.2007) by The Reinsurance Directive Regulations 2007 (S.I. 2007/3253), reg. 2(1), Sch. 1 para. 2(5)(e)(i)

F15 Sch. 12 para. 2(6)(aa) substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(3)(a)

F16 Words in Sch. 12 para. 2(6)(c) substituted (10.12.2007) by The Reinsurance Directive Regulations 2007 (S.I. 2007/3253), reg. 2(1), Sch. 1 para. 2(5)(e)(iii)

F17 Sch. 12 para. 2(6)(c)(i)(ii) substituted for words (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 6 para. 11(4) (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F18 Sch. 12 para. 2(7A) substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(3)(b)

F19 Sch. 12 para. 2(9) substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(3)(c)

Modifications etc. (not altering text)

C3 Sch. 12 paras. 2, 3 applied (with modifications) by S.I. 2001/3626, art. 5(2A) (as inserted (1.9.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) (No. 3) Order 2013 (S.I. 2013/1765), arts. 1, 5(4)(c))

Certificates as to [F20 consultation] U.K.

Textual Amendments

F20 Word in Sch. 12 para. 3 heading substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(4)

3 U.K. A certificate under this paragraph is one given by the [F21 appropriate regulator] and certifying that the host State regulator has been notified of the proposed scheme and that—

(a) that regulator has responded to the notification; or

(b) that it has not responded but the period of three months beginning with the notification has elapsed.

Textual Amendments

F21 Words in Sch. 12 para. 3 substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 6 para. 12 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C3 Sch. 12 paras. 2, 3 applied (with modifications) by S.I. 2001/3626, art. 5(2A) (as inserted (1.9.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) (No. 3) Order 2013 (S.I. 2013/1765), arts. 1, 5(4)(c))

[F22 Certificates as to consent U.K.

Textual Amendments

F22 Sch. 12 para. 3A and cross-heading inserted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(5)

3A. U.K. A certificate under this paragraph is one given by the appropriate regulator and certifying that in respect of each contract concluded in an EEA State other than the United Kingdom the authority responsible for supervising persons who effect or carry out contracts of insurance in the EEA State in which that contract was concluded has been notified of the proposed scheme and that—

(a) the authority has consented to the proposed scheme; or

(b) the authority has not responded but the period of three months beginning with the notification has elapsed.]

Certificates as to long-term business U.K.

4 U.K. A certificate under this paragraph is one given by the [F23 appropriate regulator] and certifying that the authority responsible for supervising persons who effect or carry out contracts of insurance in the State of the commitment has been notified of the proposed scheme and that—

(a) that authority has consented to the proposed scheme; or

(b) the period of three months beginning with the notification has elapsed and that authority has not refused its consent.

Textual Amendments

F23 Words in Sch. 12 para. 4 substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 6 para. 13 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C4 Sch. 12 paras. 4, 5 applied (with modifications) by S.I. 2001/3626, art. 5(2A) (as inserted (1.9.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) (No. 3) Order 2013 (S.I. 2013/1765), arts. 1, 5(4)(c))

Certificates as to general business U.K.

5 U.K. A certificate under this paragraph is one given by the [F24 appropriate regulator] and certifying that the authority responsible for supervising persons who effect or carry out contracts of insurance in the EEA State in which the risk is situated has been notified of the proposed scheme and that—

(a) that authority has consented to the proposed scheme; or

(b) the period of three months beginning with the notification has elapsed and that authority has not refused its consent.

Textual Amendments

F24 Words in Sch. 12 para. 5 substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 6 para. 14 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

Modifications etc. (not altering text)

C4 Sch. 12 paras. 4, 5 applied (with modifications) by S.I. 2001/3626, art. 5(2A) (as inserted (1.9.2013) by The Financial Services Act 2012 (Consequential Amendments and Transitional Provisions) (No. 3) Order 2013 (S.I. 2013/1765), arts. 1, 5(4)(c))

[F25 Certificates as to legality and as to consent U.K.

Textual Amendments

F25 Sch. 12 para. 5A and cross-heading inserted (10.12.2007) by The Reinsurance Directive Regulations 2007 (S.I. 2007/3253), reg. 2(1), Sch. 1 para. 2(5)(f)

5A (1) The certificates under this paragraph are to be given— U.K.

(a) in the case of the certificate under sub-paragraph (2), by [F26 the appropriate regulator];

(b) in the case of the certificate under sub-paragraph (3), by the relevant authority.

(2) A certificate given under this sub-paragraph is one certifying that the relevant authority has been notified of the proposed scheme and that—

(a) the relevant authority has consented to the proposed scheme; or

(b) the period of three months beginning with the notification has elapsed and that relevant authority has not refused its consent.

(3) A certificate given under this sub-paragraph is one certifying that the law of the EEA State in which the transferee is set up permits such a transfer.

[F27 (4) “Relevant authority” means the supervisory authority (within the meaning of the Solvency 2 Directive) of the EEA State in which the transferee is set up.]]

Textual Amendments

F26 Words in Sch. 12 para. 5A substituted (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3), Sch. 6 para. 15 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F27 Sch. 12 para. 5A(4) substituted (1.1.2016) by The Solvency 2 Regulations 2015 (S.I. 2015/575), reg. 1(2), Sch. 1 para. 18(6)

Interpretation of Part I U.K.

6 (1) “State of the commitment”, in relation to a commitment entered into at any date, means— U.K.

(a) if the policyholder is an individual, the State in which he had his habitual residence at that date;

(b) if the policyholder is not an individual, the State in which the establishment of the policyholder to which the commitment relates was situated at that date.

(2) “Commitment” means a commitment represented by contracts of insurance of a prescribed class.

(3) References to the EEA State in which a risk is situated are—

(a) if the insurance relates to a building or to a building and its contents (so far as the contents are covered by the same policy), to the EEA State in which the building is situated;

(b) if the insurance relates to a vehicle of any type, to the EEA State of registration;

(c) in the case of policies of a duration of four months or less covering travel or holiday risks (whatever the class concerned), to the EEA State in which the policyholder took out the policy;

(d) in a case not covered by paragraphs (a) to (c)—

(i) if the policyholder is an individual, to the EEA State in which he has his habitual residence at the date when the contract is entered into; and

(ii) otherwise, to the EEA State in which the establishment of the policyholder to which the policy relates is situated at that date.

[F28 (4) If the insurance relates to a vehicle dispatched from one EEA State to another, in respect of the period of 30 days beginning with the day on which the purchaser accepts delivery a reference to the EEA State in which a risk is situated is a reference to the State of destination (and not, as provided by sub-paragraph (3)(b), to the State of registration).]

Textual Amendments

F28 Sch. 12 para. 6(4) added (5.9.2007) by The Financial Services and Markets Act 2000 (Motor Insurance) Regulations 2007 (S.I. 2007/2403), reg. 2(2)

Commencement Information

I1 Sch. 12 Pt I para. 6 wholly in force at 1.12.2001; Sch. 12 Pt. I para. 6 not in force at Royal Assent see s. 431(2); Sch. 12 para. 6(2) in force at 25.2.2001 by S.I. 2001/516, art. 2(b), Sch. Pts. 1, 3; Sch. 12 Pt. I para. 6 in force in so far as not already in force at 1.12.2001 by S.I. 2001/3538, art. 2(1)