SCHEDULE 3EEA Passport Rights
Part III Exercise of Passport Rights by UK Firms
Establishment
19
(1)
A UK firm may not exercise an EEA right to establish a branch unless three conditions are satisfied.
(2)
The first is that the firm has given the Authority, in the specified way, notice of its intention to establish a branch (“a notice of intention”) which—
(a)
identifies the activities which it seeks to carry on through the branch; and
(b)
includes such other information as may be specified.
(3)
The activities identified in a notice of intention may include activities which are not regulated activities.
(4)
The second is that the Authority has given notice in specified terms (“a consent notice”) to the host state regulator.
(5)
The third is that—
(a)
the host state regulator has notified the firm (or, where the EEA right in question derives from any of the insurance directives, the Authority) of the applicable provisions; or
(b)
two months have elapsed beginning with the date on which the Authority gave the consent notice.
(6)
If the firm’s EEA right derives from the investment services directive or the second banking coordination directive and the first condition is satisfied, the Authority must give a consent notice to the host state regulator unless it has reason to doubt the adequacy of the firm’s resources or its administrative structure.
(7)
If the firm’s EEA right derives from any of the insurance directives and the first condition is satisfied, the Authority must give a consent notice unless it has reason—
(a)
to doubt the adequacy of the firm’s resources or its administrative structure, or
(b)
to question the reputation, qualifications or experience of the directors or managers of the firm or the person proposed as the branch’s authorised agent for the purposes of those directives,
in relation to the business to be conducted through the proposed branch.
(8)
If the Authority proposes to refuse to give a consent notice it must give the firm concerned a warning notice.
(9)
If the firm’s EEA right derives from any of the insurance directives and the host state regulator has notified it of the applicable provisions, the Authority must inform the firm of those provisions.
(10)
Rules may specify the procedure to be followed by the Authority in exercising its functions under this paragraph.
(11)
If the Authority gives a consent notice it must give written notice that it has done so to the firm concerned.
(12)
If the Authority decides to refuse to give a consent notice—
(a)
it must, within three months beginning with the date when it received the notice of intention, give the person who gave that notice a decision notice to that effect; and
(b)
that person may refer the matter to the Tribunal.
(13)
In this paragraph, “applicable provisions” means the host state rules with which the firm will be required to comply when conducting business through the proposed branch in the EEA State concerned.
(14)
In sub-paragraph (13), “host state rules” means rules—
(a)
made in accordance with the relevant single market directive; and
(b)
which are the responsibility of the EEA State concerned (both as to implementation and as to supervision of compliance) in accordance with that directive.
(15)
“Specified” means specified in rules.