SCHEDULE 3EEA Passport Rights
Part III Exercise of Passport Rights by UK Firms
Establishment
19
(1)
(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)
F3Subject to sub-paragraph (5B), the activities identified in a notice of intention may include activities which are not regulated activities.
F4(4)
The second is that—
(a)
the Authority has given notice in specified terms (“a consent notice”) to the host state regulator; and
(b)
where the firm is a management company which wishes to pursue the activity of collective portfolio management referred to in Annex II to the UCITS directive, the Authority has provided to the host state regulator—
(i)
confirmation that the firm has been authorised as a management company pursuant to the provisions of the UCITS directive;
(ii)
a description of the scope of the management company's authorisation; and
(iii)
details of any restriction on the types of UCITS that the management company is authorised to manage.
F5(5)
The third is—
(a)
if the EEA right in question derives from the insurance mediation directive, that one month has elapsed beginning with the date on which the firm received notice, in accordance with sub-paragraph (11), that the Authority has given a consent notice;
(b)
in any other case, that either—
(i)
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
(ii)
two months have elapsed beginning with the date on which the Authority gave the consent notice.
F6(5ZA)
This paragraph does not apply to a UK firm having an EEA right which is subject to the conditions of the reinsurance directive.
F7(5A)
If—
(a)
the EEA right in question derives from the insurance mediation directive, and
(b)
the EEA State in which the firm intends to establish a branch has not notified the Commission, in accordance with Article 6(2) of that directive, of its wish to be informed of the intention of any UK firm to establish a branch in its territory,
the second and third conditions do not apply (and so the firm may establish the branch to which its notice of intention relates as soon as the first condition is satisfied).
F8(5B)
If the firm is a UK investment firm, a notice of intention may not include ancillary services unless such services are to be provided in connection with the carrying on of one or more investment services and activities.
(5C)
In sub-paragraph (5B) “ ancillary services ” has the meaning given in Article 4.1.3 of the markets in financial instruments directive.
(6)
If the firm’s EEA right derives from F9the banking consolidation directive, F10F11. . . or, in the case of a credit institution authorised under the banking consolidation directive, the markets in financial instruments 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.
F12(6A)
If the firm's EEA right derives from the UCITS directive and the first condition is satisfied, the Authority must give a consent notice and information about the compensation scheme to the host state regulator unless it has reason to doubt the adequacy of the firm's resources or its administrative structure, and must do so within two months beginning with the date on which it received the firm's notice of intention.
(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.
F13(7A)
If—
(a)
the firm’s EEA right derives from the insurance mediation directive,
(b)
the first condition is satisfied, and
(c)
the second condition applies,
the Authority must give a consent notice, and must do so within one month beginning with the date on which it received the firm’s notice of intention.
F14(7B)
If the firm is a UK investment firm and the first condition is satisfied, the Authority must give a consent notice to the host state regulator within three months beginning with the date on which it received the firm's notice of intention unless the Authority has reason to doubt the adequacy of the firm's resources or its administrative structure.
(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, F15within the relevant period, give the person who gave that notice a decision notice to that effect; and
(b)
that person may refer the matter to the Tribunal.
F16(12ZA)
If the firm's EEA right derives from the UCITS directive, the Authority must inform F17ESMA and the Commission if it decides to refuse to give a consent notice, giving the reasons for that refusal.
F18(12A)
In sub-paragraph (12), “ the relevant period ” means—
(a)
if the firm’s EEA right derives from the UCITS directive, two months beginning with the date on which the Authority received the notice of intention;
(b)
in any other case, three months beginning with that date.
(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.