SCHEDULE 3EEA Passport Rights
Part III Exercise of Passport Rights by UK Firms
Services
20
(1)
F1Subject to F2sub-paragraphs (4D) to F3(4I), a UK firm may not exercise an EEA right to provide services unless the firm has given the F4appropriate UK regulator, in the specified way, notice of its intention to provide services (“a notice of intention”) which—
(a)
identifies the activities which it seeks to carry out by way of provision of services; and
(b)
includes such other information as may be specified.
(2)
F5Subject to sub-paragraph (2A), the activities identified in a notice of intention may include activities which are not regulated activities.
F6(2A)
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.
(2B)
In sub-paragraph (2A) “ancillary services” has the meaning given in Article 4.1.3 of the markets in financial instruments directive.
(3)
If the firm’s EEA right derives from F7the F8capital requirements directive, F9markets in financial instruments directive F10, the mortgages directive or the UCITS directive, the F4appropriate UK regulator must, within one month of receiving a notice of intention, send a copy of it to the host state regulator F11with such other information as may be specified.
F12(3ZA)
If the firm's EEA right derives from the UCITS directive, the F4appropriate UK regulator must provide information about the compensation scheme with the information provided to the host state regulator under sub-paragraph (3).
F13(3A)
If the firm’s EEA right derives from F14the Solvency 2 Directive, the F4appropriate UK regulator must, within one month of receiving the notice of intention—
(a)
give notice in specified terms (“a consent notice”) to the host state regulator; or
(b)
give written notice to the firm of—
(i)
its refusal to give a consent notice; and
(ii)
its reasons for that refusal.
F15(3AA)
Where the PRA is the appropriate UK regulator, it must consult the FCA before deciding whether to give a consent notice.
(3AB)
Where the FCA is the appropriate UK regulator, it must consult the PRA before deciding whether to give a consent notice in relation to a UK firm whose immediate group includes a PRA-authorised person.
F16(3B)
If the firm’s EEA right derives from the insurance mediation directive and the EEA State in which the firm intends to provide services has 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 provide services in its territory—
(a)
the F4appropriate UK regulator must, within one month of receiving the notice of intention, send a copy of it to the host state regulator;
(b)
the F4appropriate UK regulator, when it sends the copy in accordance with sub-paragraph (a), must give written notice to the firm concerned that it has done so; and
(c)
the firm concerned must not provide the services to which its notice of intention relates until one month, beginning with the date on which it receives the notice under sub-paragraph (b), has elapsed.
F17(3C)
If 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 F4appropriate UK regulator must send with the documentation provided to the host state regulator under sub-paragraph (3)—
(a)
confirmation that the firm has been authorised as a management company pursuant to the provisions of the UCITS directive;
(b)
a description of the scope of the management company's authorisation; and
(c)
details of any restriction on the types of UCITS that the management company is authorised to manage.
F18(3D)
If the firm’s EEA right derives from the alternative investment fund managers directive, the appropriate UK regulator must—
(a)
if the condition in sub-paragraph (3E) is satisfied—
(i)
within one month of receiving the firm’s notice of intention, send a copy of the firm’s notice of intention to the host state regulator;
(ii)
send with that notice confirmation that the firm has been authorised by it pursuant to F19Article 6.1 of that directive, with such other information as may be specified; and
(iii)
immediately notify the firm that it has given the notice and confirmation to the host state regulator; or
(b)
give the firm written notice of its refusal to send a copy of the notice of intention to the host state regulator and its reasons for that refusal.
(3E)
The condition is that the appropriate UK regulator is satisfied that the firm complies, and will continue to comply, with—
(a)
the provisions implementing the alternative investment fund managers directive, and
(b)
any directly applicable EU regulation made under that directive.
(4)
F21(4A)
If the firm is given notice under sub-paragraph (3A)(b) F22or (3D)(b), it may refer the matter to the Tribunal.
(4B)
If the firm’s EEA right derives from F23the Solvency 2 Directive F24 or from F25the alternative investment fund managers directive, the markets in financial instruments directive F26 or the UCITS directive, it must not provide the services to which its notice of intention relates until it has received written notice under sub-paragraph (4).
F27(4BA)
If the firm's EEA right derives from the markets in financial instruments directive, the F4appropriate UK regulator must comply as soon as reasonably practicable with a request for information under the second sub-paragraph of Article 31.6 of that directive from the host state regulator.
F28(4BB)
If the firm’s EEA right derives from the mortgages directive it must not provide the services to which its notice of intention relates until one month, beginning with the date on which it receives the notice under sub-paragraph (4), has elapsed.
(4C)
Rules may specify the procedure to be followed by the F4appropriate UK regulator under this paragraph.
F29(4D)
This paragraph does not apply to F30a UK firm which falls within the second sub-paragraph of Article 2(1) of the Solvency 2 Directive.
F31(4E)
This paragraph does not apply to a UK firm having an EEA right which is subject to the conditions of the emission allowance auctioning regulation, in respect of its exercise of that EEA right.
F32(4F)
This paragraph does not apply to—
(a)
the operator of a UCITS established in the United Kingdom seeking to exercise an EEA right to market the units of that UCITS in the territory of another EEA State; or
(b)
a UK firm seeking to exercise an EEA right under the alternative investment fund managers directive to market an AIF.
F33(4G)
This paragraph does not apply to a UK firm exercising an EEA right to enter into a Community co-insurance contract if it is not the leading insurance undertaking.
(4H)
In this paragraph “Community co-insurance contract” means a contract of insurance which—
(a)
covers one or more risks that are within any of classes 3 to 16 of Annex I of the Solvency 2 Directive;
(b)
covers a large risk situated within the EEA which is not covered in whole or in part by another contract of insurance;
(c)
provides that the risk to which it relates is covered by an overall premium and for the same period by two or more insurance undertakings each for its own part as a co-insurer, at least one of which enters into the contract from a head office or branch established in an EEA State other than that of the leading insurance undertaking; and
(d)
provides that one of the co-insurers is the leading insurance undertaking.
(4I)
In this paragraph—
(a)
“leading insurance undertaking” means the insurance undertaking which under the Community co-insurance contract is specified as such and assumes fully the leader’s role including in particular—
(i)
being treated as covering the whole risk; and
(ii)
determining the terms and conditions of insurance and rating;
(b)
“large risk” has the meaning given in Article 13(27) of the Solvency 2 Directive but as if the risks referred to in point (c) of the first sub-paragraph of Article 13(27) included risks insured by professional associations, joint ventures, or temporary groupings.
F34(5)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6)
“Specified” means specified in rules.
F35Information for host state regulator
20ZA
(1)
The F36appropriate UK regulator must keep a record of the confirmation and other information provided to the host state regulator under paragraph 19(4) or paragraph 20(3C) in relation to a UK firm which is a management company.
(2)
The F36appropriate UK regulator must inform the host state regulator whenever there is a change in the confirmation or other information referred to in sub-paragraph (1).
F37(3)
The appropriate UK regulator must inform the host state regulator whenever it withdraws the authorisation of a credit institution in respect of which a notice under paragraph 19(6) or paragraph 20(3) has been given.
F38(4)
The appropriate UK regulator must inform the host state regulator whenever it—
(a)
withdraws the authorisation of a UK firm that exercises an EEA right under the mortgages directive to establish a branch or provide services in an EEA State other than the United Kingdom; or
(b)
varies the Part 4A permission of such a firm, so that the firm no longer has permission to carry on any activity to which the mortgages directive relates.
(5)
The appropriate UK regulator must provide the information referred to in sub-paragraph (4) as soon as possible and, at the latest, within 14 days of—
(a)
the date of the direction given in accordance with section 33(2) withdrawing the firm’s status as an authorised person, or
(b)
the date on which the variation of the Part 4A permission takes effect.