2001 No. 2511
FINANCIAL SERVICES AND MARKETS

The Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001

Made
Laid before Parliament
Coming into force in accordance with regulation 1(1)
The Treasury, in exercise of the powers conferred on them by paragraphs 13(1)(b)(iii), 14(1)(b), 17(a), (b) and (c), 18 and 22 of Schedule 3 to, and sections 417(1)1 and 426 to 428 of, the Financial Services and Markets Act 20002, hereby make the following Regulations:

PART IGeneral

Citation, commencement and interpretation1.

(1)

These Regulations may be cited as the Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001, and come into force on the day on which section 19 of the Act comes into force.

(2)

In these Regulations—

“the 2BCD Regulations” means the Banking Coordination (Second Council Directive) Regulations 19923;

“the Act” means the Financial Services and Markets Act 2000;

“authorised agent” means, in relation to an EEA firm or UK firm, an agent or employee of the firm who has authority to bind the firm in its relations with third parties, and to represent the firm in its relations with the F1FCA, the PRA or the host state regulator (as the case may be) and with the courts in the United Kingdom or the EEA State concerned (as the case may be);

“claims representative”, in relation to a UK firm and an EEA State, means a person who has been designated as the firm’s representative in that EEA State, and has authority—

(a)

to act on behalf of the firm and to represent, or to instruct others to represent, the firm in relation to any matters giving rise to claims made against policies issued by the firm, to the extent that they cover motor vehicles risks situated in the EEA State;

(b)

to pay sums in settlement of such claims (but not to settle such claims); and

(c)

to accept service on behalf of the firm of proceedings in respect of such claims;

“commencement” means the beginning of the day on which section 19 of the Act comes into force;

“contract of insurance”, “contract of general insurance” and “contract of long-term insurance” have the same meaning as in the Regulated Activities Order;

“credit institution” means an EEA firm falling within paragraph 5(b) of Schedule 3;

F2...

“EEA activities” means—

(a)

in relation to an EEA firm, activities which the firm is seeking to carry on in the United Kingdom in exercise of an EEA right;

(b)

in relation to a UK firm, activities which the firm is seeking to carry on in another EEA State in exercise of an EEA right;

F3“EEA mortgage intermediary” means a person falling within paragraph 5(i) of Schedule 3;

“financial institution” means an EEA firm falling within paragraph 5(c) of Schedule 3;

“the Friendly Societies Act” means the Friendly Societies Act 19924;

“health insurance risks”, in relation to an EEA State, means risks of a kind mentioned in paragraph 2 of Schedule 1 to the Regulated Activities Order (sickness), where—

(a)

contracts of insurance covering those risks serve as a partial or complete alternative to the health cover provided by the statutory social security system in that EEA State; and

(b)

the law of that EEA State requires such contracts to be operated on a technical basis similar to life assurance in accordance with all the conditions listed in F4Article 206(2) of the Solvency 2 Directive;

“the Insurance Companies Act” means the Insurance Companies Act 19825;

“insurance firm” means an EEA firm falling within paragraph 5(d) of Schedule 3;

F5“insurance intermediary” means an EEA firm falling within paragraph 5(e) of Schedule 3;

“investment firm” means an EEA firm falling within paragraph 5(a) of Schedule 3;

“the ISD Regulations” means the Investment Services Regulations 19956;

F6“management company” means an EEA firm falling within paragraph 5(f) of Schedule 3;

“national bureau”, in relation to an EEA State, means a professional organisation—

(a)

which has been constituted in that EEA State in accordance with Recommendation No. 5 adopted on 25th January 1949 by the Road Transport Sub-committee of the Inland Transport Committee of the United Nations Economic Commission for Europe; and

(b)

which groups together undertakings which in that EEA State are authorised to conduct the business of motor vehicle liability insurance;

“national guarantee fund”, in relation to an EEA State, means a body—

(a)

which has been set up or authorised in that EEA State in accordance with Article 1(4) of Council Directive 84/5/EEC on the approximation of laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles7; and

(b)

which provides compensation for damage to property or personal injuries caused by unidentified vehicles or vehicles for which the insurance obligation provided for in Article 1(1) of that Directive has not been satisfied;

“the Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 20018;

“relevant motor vehicle risks” means risks of damage arising out of or in connection with the use of motor vehicles on land, including third party risks (but excluding carrier’s liability);

“requisite details”, in relation to a branch, means—

(a)

particulars of the programme of operations carried on, or to be carried on, from the branch, including a description of the particular EEA activities to be carried on, and of the structural organisation of the branch;

(b)

the address in the EEA State in which the branch is, or is to be, established from which information about the business may be obtained; and

(c)

the names of the managers of the business;

“Schedule 3” means Schedule 3 to the Act F7;

“tied agent” has the meaning given in Article F84.1.29 of the markets in financial instruments directive;

F7“UK investment firm” means a UK firm—

(a)

which is an investment firm F9(within the meaning of section 424A of the Act),

(b)

whose EEA right derives from the markets in financial instruments directive.

PART IIExercise of Passport Rights by EEA Firms

Changes relating to EEA firms

F41Management companies, credit institutions and financial institutions: changes to branch details4.

(1)

F42A F43management company, credit institution or financial institution which has established a branch in the United Kingdom in exercise of an EEA right must not make a change in the requisite details of the branch, unless the relevant requirements have been complied with.

(2)

Where the relevant requirements have been complied with, the firm’s permission is to be treated as varied accordingly.

(3)

For the purposes of this regulation, the “relevant requirements” are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (5).

(4)

The requirements of this paragraph are that—

(a)

the firm has given a notice to the F44appropriate UK regulator and to its home state regulator stating the details of the proposed change;

(b)

the F44appropriate UK regulator has received from the home state regulator a notice stating those details; and

(c)

either the F44appropriate UK regulator has informed the firm that it may make the change, or the period of one month beginning with the day on which the firm gave the F44appropriate UK regulator the notice mentioned in sub-paragraph (a) has elapsed.

(5)

The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the F44appropriate UK regulator and to its home state regulator, stating the details of the change.

(6)

The F44appropriate UK regulator must, as soon as practicable after receiving a notice from F45a F46management company, credit institution or financial institution under this regulation, inform the firm of any consequential changes in the applicable provisions (within the meaning of paragraph 13 of Schedule 3).

F47(7)

In this regulation, “the appropriate UK regulator” has the same meaning as in paragraph 13 of Schedule 3.

F48Investment firms: changes to branch details4A.

(1)

An investment firm which has established a branch in the United Kingdom in exercise of an EEA right must not—

(a)

make a change in the requisite details of the branch,

(b)

use, for the first time, any tied agent established in the United Kingdom, or

(c)

cease to use tied agents established in the United Kingdom,

unless the requirements of paragraph (3) have been complied with.

(2)

Where those requirements have been complied with, the firm’s permission is to be treated as varied accordingly.

(3)

The requirements are that—

(a)

the firm has given a notice to its home state regulator stating the details of the proposed change, and

(b)

the period of one month beginning with the day on which the firm gave the notice has elapsed.

(4)

Paragraph (1) does not apply to a change occasioned by circumstances beyond the firm’s control.

F49Management companies: changes to services5.

F50(1)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F51(1A)

A management company which is providing services in the United Kingdom in the exercise of an EEA right must not make a change in any of the matters referred to in regulation 3(2A)(b), unless the relevant requirements have been complied with.

(2)

Where the relevant requirements have been complied with, the firm’s permission is to be treated as varied accordingly.

(3)

For the purposes of this regulation, the “relevant requirements” are that—

(a)

the firm has given a notice to the F52appropriate UK regulator and to its home state regulator stating the details of the proposed change; or

(b)

if the change is occasioned by circumstances beyond the firm’s control, it has as soon as practicable (whether before or after the change) given to the F52appropriate UK regulator and to its home state regulator a notice stating the details of the change.

(4)

The F52appropriate UK regulator must, as soon as practicable after receiving a notice from an investment firm F53or a management company under this regulation, inform the firm of any consequential changes in the applicable provisions (within the meaning of paragraph 14 of Schedule 3).

F54(5)

In this regulation, “the appropriate UK regulator” has the same meaning as in paragraph 14 of Schedule 3.

F55Investment firms: changes to services5A.

(1)

An investment firm which is providing services in the United Kingdom in exercise of an EEA right must not—

(a)

make a change in any of the matters referred to in regulation 3(2)(b),

(b)

use, for the first time, any tied agent to provide services in the United Kingdom, or

(c)

cease to use tied agents to provide services in the United Kingdom,

unless the requirements of paragraph (3) have been complied with.

(2)

Where those requirements have been complied with, the firm’s permission is to be treated as varied accordingly.

(3)

The requirements are that—

(a)

the firm has given a notice to its home state regulator stating the details of the proposed change, and

(b)

the period of one month beginning with the day on which the firm gave the notice has elapsed.

(4)

Paragraph (1) does not apply to a change occasioned by circumstances beyond the firm’s control.

Insurance firms: changes to branch details6.

(1)

An insurance firm which has established a branch in the United Kingdom in exercise of an EEA right must not make a change in any of the details referred to in regulation 2(5)(a) to (c) with respect to the branch, unless the relevant requirements have been complied with.

(2)

Where the relevant requirements have been complied with, the firm’s permission is to be treated as varied accordingly.

(3)

For the purposes of this regulation, the relevant requirements are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (5).

(4)

The requirements of this paragraph are that—

(a)

the firm has given a notice to the F56appropriate UK regulator and to its home state regulator stating the details of the proposed change;

(b)

the F56appropriate UK regulator has received from the home state regulator a notice stating that it has approved the proposed change;

(c)

the period of one month beginning with the day on which the firm gave the F56appropriate UK regulator the notice mentioned in sub-paragraph (a) has elapsed; and

(d)

either—

(i)

a further period of one month has elapsed; or

(ii)

the F56appropriate UK regulator has informed the home state regulator of any consequential changes in the applicable provisions (within the meaning of paragraph 13 of Schedule 3).

(5)

The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the F56appropriate UK regulator and to its home state regulator, stating the details of the change.

(6)

The F56appropriate UK regulator must, as soon as practicable—

(a)

acknowledge receipt of the documents sent under paragraph (4) or (5); and

(b)

in the case of a notice under paragraph (5), inform the firm’s home state regulator of any consequential changes in the applicable provisions (within the meaning of paragraph 13 of Schedule 3).

F57(7)

In this regulation, “the appropriate UK regulator” has the same meaning as in paragraph 13 of Schedule 3.

Insurance firms: changes to services7.

(1)

An insurance firm which is providing services in the United Kingdom in exercise of an EEA right must not make a change in any of the matters referred to in regulation 3(3)(b), (c) or (d), unless the relevant requirements have been complied with.

(2)

Where the relevant requirements have been complied with, the firm’s permission is to be treated as varied accordingly.

(3)

For the purposes of this regulation, the “relevant requirements” are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (5).

(4)

The requirements of this paragraph are that—

(a)

the firm has given a notice to its home state regulator stating the details of the proposed change; and

(b)

the home state regulator has passed to the F58appropriate UK regulator the information contained in that notice.

(5)

The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given to its home state regulator a notice stating the details of the change.

F59(6)

In this regulation, “the appropriate UK regulator” has the same meaning as in paragraph 14 of Schedule 3.

F60EEA AIFM: changes to branch details or services7A.

(1)

An EEA AIFM which is exercising an EEA right in the United Kingdom deriving from the alternative investment fund managers directive must not make a material change to any of the matters referred to in regulation 2(6)(b) to (e) or 3(5)(b) or (c) unless the relevant requirement has been complied with.

(2)

Where the relevant requirement has been complied with, the EEA AIFM's permission is to be treated as varied accordingly.

(3)

For the purposes of this regulation, the “relevant requirement” is that the home state regulator has informed the appropriate UK regulator that it has approved the proposed change.

(4)

In this regulation “the appropriate UK regulator” has the same meaning as in paragraph 14 of Schedule 3.

F61EEA mortgage intermediary: changes to branch details or services7B.

(1)

An EEA mortgage intermediary which is exercising an EEA right in the United Kingdom deriving from the mortgages directive must not make a material change to any of the matters referred to in regulation 2(8)(b) to (e) or regulation 3(6)(b) to (e) unless the relevant requirements have been complied with.

(2)

Where the relevant requirements have been complied with, the mortgage intermediary's permission is to be treated as varied accordingly.

(3)

For the purposes of this regulation, the “relevant requirements” are those of paragraph (4) or (if the change is occasioned by circumstances beyond the mortgage intermediary's control) paragraph (5).

(4)

The requirements of this paragraph are that—

(a)

the mortgage intermediary has given a notice to the appropriate UK regulator and to its home state regulator stating the details of the proposed change; and

(b)

either the appropriate UK regulator has informed the mortgage intermediary that it may make the change, or the period of one month beginning with the day on which the mortgage intermediary gave the appropriate UK regulator the notice mentioned in sub-paragraph (a) has elapsed.

(5)

The requirements of this paragraph are that the mortgage intermediary has as soon as practicable (whether before or after the change) given a notice to the appropriate UK regulator and to its home state regulator, stating the details of the change.

(6)

The appropriate UK regulator must, as soon as practicable after receiving a notice from a mortgage intermediary under this regulation, inform the mortgage intermediary of any consequential changes in the applicable provisions (within the meaning of paragraph 13 or, as the case may be, paragraph 14 of Schedule 3).

(7)

In this regulation “the appropriate UK regulator” has the same meaning as in paragraph 14 of Schedule 3.

F62Insurance intermediary: changes to branch details or services7C.

(1)

An EEA firm which is exercising an EEA right in the United Kingdom deriving from the insurance distribution directive must not make a material change to any of the matters referred to in regulation 2(9) or regulation 3(4) as the case may be unless the relevant requirements have been complied with.

(2)

Where the relevant requirements have been complied with, the insurance intermediary’s permission is to be treated as varied accordingly.

(3)

For the purposes of this regulation, the “relevant requirements” are those in paragraph (4).

(4)

The requirements of this paragraph are that—

(a)

the firm has given a notice to its home state regulator stating the details of the proposed change; and

(b)

the period of one month beginning with the day on which the firm gave notice has elapsed.

Cancellation of qualification for authorisation

EEA firms ceasing to carry on regulated activities in the United Kingdom8.

Where an EEA firm which is qualified for authorisation under Schedule 3—

(a)

has ceased, or is to cease to carry on regulated activities in the United Kingdom, and

(b)

gives notice of that fact F63to—

(i)

in relation to an EEA firm which is a PRA-authorised person, the PRA;

(ii)

in any other case, the FCA,

the notice is to be treated as a request for cancellation of the firm’s qualification for authorisation under Schedule 3 (and hence as a request under section 34(2) of the Act).

Financial institutions giving up right to authorisation9.

(1)

The F64appropriate UK regulator may, on an application by a financial institution which is qualified for authorisation under Schedule 3, direct that the firm’s qualification for authorisation under Schedule 3 is cancelled from such date as may be specified in the direction.

(2)

The F64appropriate UK regulator must not give such a direction unless—

(a)

the firm has given notice to its home state regulator; and

(b)

the F64appropriate UK regulator has agreed with the home state regulator that the direction should be given.

(3)

The date specified in such a direction—

(a)

must not be earlier than the date requested in the application; but

(b)

subject to that, is to be such date as may be agreed between the F64appropriate UK regulator and the firm’s home state regulator.

(4)

The F64appropriate UK regulator must, as soon as practicable, send a copy of the direction to the firm and to the firm’s home state regulator.

(5)

A firm in respect of which such a direction has been given may (notwithstanding subsection (3) of section 40 of the Act) apply for permission under that section, to take effect not earlier than the date referred to in paragraph (1).

F65(6)

In this regulation, “the appropriate UK regulator” means—

(a)

in relation to an EEA firm which is a PRA-authorised person, the PRA;

(b)

in any other case, the FCA.

F66EEA mortgage intermediaries giving up right to authorisation9A.

(1)

The appropriate UK regulator may, where paragraph (2) or (3) applies, direct that the qualification for authorisation given to an EEA mortgage intermediary under Schedule 3 is cancelled from such date as may be specified in the direction.

(2)

This paragraph applies if the appropriate UK regulator receives notice (“a withdrawal notice”) from the EEA mortgage intermediary's home state regulator stating that the EEA mortgage intermediary's authorisation which gives rise to an EEA right under the mortgages directive has been withdrawn.

(3)

This paragraph applies if—

(a)

despite action taken by the appropriate regulator under section 194C of the Act, the EEA mortgage intermediary persists in contravening an obligation to which Article 34(2) of the mortgages directive applies; and

(b)

the appropriate UK regulator has informed the home state regulator that it intends to direct that the qualification for authorisation given to the EEA mortgage intermediary under Schedule 3 is cancelled.

(4)

Where paragraph (3) applies and the appropriate UK regulator makes a direction under paragraph (1), the appropriate UK regulator must inform the European Commission of that direction without undue delay.

(5)

In this regulation “the appropriate UK regulator” has the same meaning as in paragraph 14 of Schedule 3.

Applications for approval under section 60 by EEA firms

Applications for approval under section 60 by EEA firms10.

In section 60 of the Act (applications for approval for persons to perform controlled functions), “the authorised person concerned” includes—

(a)

F67an EEA firm with respect to which the F68appropriate UK regulator (within the meaning of the relevant paragraph of Schedule 3) has received a consent notice F69or regulator’s notice under paragraph 13 of Schedule 3 or a regulator’s notice under paragraph 14 of that Schedule, and which will be the authorised person concerned if it qualifies for authorisation under that ScheduleF70; and

(b)

an EEA firm which falls within paragraph 5(da) of Schedule 3 which establishes a branch in the United Kingdom.

PART IIIExercise of Passport Rights by UK Firms

Changes relating to UK firms

F71Meaning of “the appropriate UK regulator”10A.

In this Part, “the appropriate UK regulator” means—

(a)

in relation to a UK firm which is a PRA-authorised person, the PRA;

(b)

in any other case, the FCA.

UKF72... F73management companies, credit institutions and financial institutions: changes to branch details11.

(1)

A UK firm which has exercised an EEA right, deriving from F74... F75the UCITS directive or the F76capital requirements directive, to establish a branch must not make a change in the requisite details of the branch unless the requirements of paragraph (2) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (3) have been complied with.

(2)

The requirements of this paragraph are that—

(a)

the firm has given a notice to the Authority and to the host state regulator stating the details of the proposed change;

(b)

the Authority has given the host state regulator a notice under paragraph (5)(a); and

(c)

either the host state regulator has informed the firm that it may make the change, or the period of one month beginning with the day on which the firm gave the host state regulator the notice mentioned in sub-paragraph (a) has elapsed.

(3)

The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to the host state regulator, stating the details of the change.

(4)

the Authority must, within the period of one month beginning with the day on which it received the notice referred to in paragraph (2)(a), either consent to the change or refuse to consent to the change.

(5)

If the Authority consents to the change, it must—

(a)

give a notice to the host state regulator informing it of the details of the proposed change; and

(b)

inform the firm that if has given that notice, stating the date on which it did so.

(6)

If the Authority refuses to consent to the change—

(a)

the firm may refer the matter to the Tribunal; and

(b)

the Authority must give notice to the firm of the refusal, stating the reasons for it, and giving an indication of the firm’s right to refer the matter to the Tribunal, and the procedure on such a reference.

(7)

The Authority may not refuse to consent to the change unless, having regard to the change and to the EEA activities which the firm is seeking to carry on, it doubts the adequacy of the administrative structure or the financial situation of the firm; and in reaching a determination as to the adequacy of the administrative structure, the Authority may have regard to the adequacy of management, systems and controls and the presence of relevant skills needed for the EEA activities to be carried on.

F77UK investment firms: changes to branch details11A.

(1)

A UK investment firm which has exercised an EEA right deriving from the markets in financial instruments directive to establish a branch must not—

(a)

make a change in the requisite details of the branch,

(b)

use, for the first time, any tied agent established in the EEA State in which the branch is established, or

(c)

cease to use tied agents established in the EEA State in which the branch is established,

unless the requirements of paragraph (2) have been complied with.

(2)

The requirements are that—

(a)

the firm has given a notice to the Authority stating the details of the proposed change, and

(b)

the period of one month beginning with the day on which the firm gave the notice has elapsed.

(3)

The Authority must, as soon as reasonably practicable after receiving a notice under paragraph (2), inform the host state regulator of the proposed change.

(4)

Paragraph (1) does not apply to a change occasioned by circumstances beyond the firm’s control.

UKF78... F79management companies: changes to services12.

(1)

A UK firm which is providing services in exercise of an EEA right, deriving from F80... F81the UCITS directive, must not make a change in the programme of operations, or the EEA activities, to be carried on in exercise of that right, unless the relevant requirements have been complied with.

(2)

For the purposes of this regulation, the “relevant requirements” are that—

(a)

the firm has given a notice to the Authority and to the host state regulator stating the details of the proposed change; or

(b)

if the change is occasioned by circumstances beyond the firm’s control, it has as soon as practicable (whether before or after the change) given a notice to the Authority and to the host state regulator, stating the details of the change.

F82UK investment firms: changes to services12A.

(1)

A UK investment firm which is providing services in a particular EEA State in exercise of an EEA right deriving from the markets in financial instruments directive must not—

(a)

make a change in the programme of operations, or the EEA activities, to be carried on in exercise of that right,

(b)

use, for the first time, any tied agent to provide services in the territory of that State, or

(c)

cease to use tied agents to provide services in the territory of that State,

unless the requirements of paragraph (2) have been complied with.

(2)

The requirements are that—

(a)

the firm has given a notice to the Authority stating the details of the proposed change, and

(b)

the period of one month beginning with the day on which the firm gave the notice has elapsed.

(3)

The Authority must, as soon as reasonably practicable after receiving a notice under paragraph (2), inform the host state regulator of the proposed change.

(4)

Paragraph (1) does not apply to a change occasioned by circumstances beyond the firm’s control.

UK insurance firms: changes to relevant EEA details of branches13.

(1)

A UK firm which has exercised an EEA right, deriving from F83the Solvency 2 Directive, to establish a branch must not make a change in the relevant EEA details (as defined in regulation 14), unless the requirements of paragraph (2) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (3) have been complied with.

(2)

The requirements of this paragraph are that—

(a)

the firm has given a notice to the Authority and to the host state regulator stating the details of the proposed change;

(b)

the Authority has given the host state regulator a notice under paragraph (5)(a);

(c)

the period of one month beginning with the day on which the firm gave the Authority the notice mentioned in sub-paragraph (a) has elapsed; and

(d)

either—

(i)

a further period of one month has elapsed; or

(ii)

the Authority has informed the firm of any consequential changes in the applicable provisions (within the meaning of paragraph 19 of Schedule 3) of which the Authority has been notified by the host state regulator.

(3)

The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to the host state regulator, stating the details of the change.

(4)

The Authority must, within one month of receiving the notice referred to in paragraph (2)(a), either consent to the change or refuse to consent to the change.

(5)

If the Authority consents to the change, it must—

(a)

give a notice to the host state regulator informing it of the details of the proposed change; and

(b)

inform the firm that it has given that notice, stating the date on which it did so.

(6)

If the Authority refuses to consent to the change—

(a)

the firm may refer the mater to the Tribunal; and

(b)

the Authority must give notice to the firm of the refusal, stating the reasons for it, and giving an indication of the firm’s right to refer the matter to the Tribunal, and the procedure on such a reference.

(7)

The Authority may not refuse to consent to the change unless, having regard to the change, the Authority has reason—

(a)

to doubt the adequacy of the firm’s administrative structure or financial situation, or

(b)

to question the reputation, qualifications or experience of the directors or managers of the firm or the authorised agent,

in relation to the business conducted, or to be conducted, through the branch.

Relevant EEA details for the purposes of regulation 1314.

(1)

For the purposes of regulation 13, the relevant EEA details, with respect to a branch, are—

(a)

the address of the branch;

(b)

the name of the UK firm’s authorised agent and, in the case of a member of Lloyd's, confirmation that the authorised agent has power to accept service of proceedings on behalf of Lloyd's;

(c)

the classes or parts of classes of business carried on, or to be carried on, and the nature of the risks or commitments covered, or to be covered, in the EEA State concerned;

(d)

details of the structural organisation of the branch;

(e)

the guiding principles as to reinsurance of business carried on, or to be carried on, in the EEA State concerned, including the firm’s maximum retention per risk or event after all reinsurance ceded;

(f)

estimates of—

(i)

the costs of installing administrative services and the organisation for securing business in the EEA State concerned;

(ii)

the resources available to cover those costs; and

(iii)

if contracts of a kind falling within paragraph 18 of Schedule 1 to the Regulated Activities Order (assistance) are, or are to be, effected or carried out, the resources available for providing assistance;

(g)

for each of the first three years following the establishment of the branch—

(i)

estimates of the firm’s margin of solvency and the margin of solvency required, and the method of calculation;

(ii)

if the firm carries on, or intends to carry on, business comprising the effecting or carrying out of contracts of long-term insurance, the details mentioned in paragraph (2) as respects the business carried on, or to be carried on, in the EEA State concerned; and

(iii)

if the firm carries on, or intends to carry on, business comprising the effecting or carrying out of contracts of general insurance, the details mentioned in paragraph (3) as respects the business carried on, or to be carried on, in the EEA State concerned;

(h)

if the insurer covers, or intends to cover, relevant motor vehicle risks, details of the firm’s membership of the national bureau and the national guarantee fund in the EEA State concerned; and

(i)

if the firm covers, or intends to cover, health insurance risks, the technical bases used, or to be used, for calculating premiums in respect of such risks.

(2)

The details referred to in paragraph (l)(g)(ii) are—

(a)

the following information, on both optimistic and pessimistic bases, for each type of contract or treaty—

(i)

the number of contracts or treaties expected to be issued;

(ii)

the total premium income, both gross and net of reinsurance ceded; and

(iii)

the total sums assured or the total amounts payable each year by way of annuity;

(b)

detailed estimates, on both optimistic and pessimistic bases, of income and expenditure in respect of direct business, reinsurance acceptances and reinsurance cessions; and

(c)

estimates relating to the financial resources intended to cover underwriting liabilities.

(3)

The details referred to in paragraph (1)(g)(iii) are—

(a)

estimates relating to expenses of management (other than costs of installation), and in particular those relating to current expenses and commissions;

(b)

estimates relating to premiums or contributions (both gross and net of all reinsurance ceded) and to claims (after all reinsurance recoveries); and

(c)

estimates relating to the financial resources to cover underwriting liabilities.

Annotations:
Commencement Information

I14Reg. 14 in force at 1.12.2001, see reg. 1(1)

UK insurance firms: changes to relevant UK details of branches15.

(1)

A UK firm which has exercised an EEA right, deriving from F84the Solvency 2 Directive, to establish a branch must not make a change falling within paragraph (2) with respect to the branch, unless—

(a)

the firm has given a notice to the Authority stating the details of the proposed change at least one month before the change is effected; or

(b)

if the change is occasioned by circumstances beyond the firm’s control, the firm has as soon as practicable (whether before or after the change) given a notice to the Authority stating the details of the change.

(2)

A change falls within this paragraph if it is a change in any of the information which the UK firm was required to provide to the Authority by or under paragraph 19(2) of Schedule 3, other than a change in the relevant EEA details referred to in regulation 13.

UK insurance firms: changes to services16.

(1)

A UK firm which is providing services in exercise of an EEA right, deriving from F85the Solvency 2 Directive, must not make a change in the relevant details (as defined in regulation 17), unless the relevant requirements have been complied with.

(2)

For the purposes of this regulation, the “relevant requirements” are those of paragraph (3) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (4).

(3)

The requirements of this paragraph are that—

(a)

the firm has given a notice to the Authority stating the details of the proposed change; and

(b)

the Authority has given the host state regulator a notice under paragraph (6)(a).

(4)

The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority stating the details of the change.

(5)

The Authority must, within one month of receiving a notice under paragraph (3)(a), either consent to the change or refuse to consent to the change.

(6)

If the Authority consents to the change, it must—

(a)

give a notice to the host state regulator informing it of the details of the proposed change; and

(b)

inform the firm that it has given that notice, stating the date on which it did so.

(7)

If the Authority refuses to consent to the change—

(a)

the firm may refer the matter to the Tribunal; and

(b)

the Authority must give notice to the firm of the refusal, stating the reasons for it, and giving an indication of the firm’s right to refer the matter to the Tribunal, and the procedure on such a reference.

Relevant details for the purposes of regulation 1617.

The relevant details for the purposes of regulation 16 are—

(a)

the EEA State in which the EEA activities are carried on, or are to be carried on;

(b)

the nature of the risks or commitments covered, or to be covered, in the EEA State concerned;

(c)

if the firm covers, or intends to cover, relevant motor vehicle risks—

(i)

the name and address of the claims representative; and

(ii)

details of the firm’s membership of the national bureau and the national guarantee fund in the EEA State concerned; and

(d)

if the insurer covers, or intends to cover, health insurance risks, the technical bases used, or to be used, for calculating premiums in respect of such risks.

Annotations:
Commencement Information

I17Reg. 17 in force at 1.12.2001, see reg. 1(1)

F86Full-scope UK AIFM: changes to branch details or services17A.

(1)

A full-scope UK AIFM which has exercised an EEA right, deriving from the alternative investment fund managers directive, to establish a branch must not change any of the matters referred to in regulation F872(6)(aa) to (e) unless the relevant requirements have been complied with.

(2)

A full-scope UK AIFM which is providing services in exercise of an EEA right deriving from the alternative investment fund managers directive, other than the EEA right to market an AIF, must not change—

(a)

the programme of operations, or the EEA activities, to be carried out in exercise of that right,

(b)

the EEA States, other than the United Kingdom, in which it manages AIFs, or

(c)

the identity of the AIFs it manages in those States,

unless the relevant requirements have been complied with.

(3)

A full-scope UK AIFM which is marketing an AIF in exercise of an EEA right deriving from the alternative investment fund managers directive, must not make a material change to any of the following matters, unless the relevant requirements have been complied with—

(a)

the programme of operations identifying the AIF the AIFM intends to market and information on where the AIF is established;

(b)

the AIF rules or instruments of incorporation;

(c)

identification of the depositary of the AIF;

(d)

the description of, or any information on, the AIF available to investors;

(e)

where the master AIF is established, if the AIF is a feeder AIF;

(f)

any additional information referred to in Article 23.1 of the alternative investment fund managers directive, for each AIF the AIFM intends to market;

(g)

the EEA States, other than the United Kingdom, in which the AIFM intends to market the units or shares of the AIF to professional investors;

(h)

information about arrangements made for the marketing of the AIF and, where relevant, arrangements established to prevent the AIF from being marketed to retail investors, including in the case where the AIFM relies on the activities of independent entities to provide investment services in respect of the AIF.

(4)

For the purposes of this regulation, the “relevant requirements” in the case of a planned change are that—

(a)

the AIFM has given written notice of the change to the appropriate UK regulator at least one month before implementing the change; and

(b)

either—

(i)

the appropriate UK regulator has consented to the change; or

(ii)

the appropriate UK regulator has not objected to the change in the period of one month beginning on the day on which the firm gave notice.

(5)

For the purposes of this regulation, the “relevant requirements” in the case of an unplanned change are that—

(a)

the AIFM has given written notice of the change to the appropriate UK regulator as soon as reasonably practicable and, at the latest, immediately after an unplanned change has occurred; and

(b)

the appropriate UK regulator has not objected to the change.

(6)

If a planned change would mean the AIFM no longer complied with an implementing provision, the appropriate UK regulator must inform the AIFM without undue delay that—

(a)

the FCA objects to the change; and

(b)

the AIFM must not implement the change.

(7)

If—

(a)

a planned change is implemented, or

(b)

an unplanned change takes place,

as a result of which the AIFM no longer complies with an implementing provision, the appropriate UK regulator must take steps to ensure that the AIFM complies with that provision or ceases to exercise the EEA right.

(8)

If a change notified under paragraph (4)(a) or (5)(a) does not affect compliance with an implementing provision, the appropriate UK regulator must—

(a)

give a notice to the host state regulator informing it of the change; and

(b)

inform the firm that it has given the notice, stating the date on which it did so.

(9)

If the appropriate UK regulator objects to a change under paragraph (6), takes steps under paragraph (7) or refuses to give notice to the host state regulator under paragraph (8)—

(a)

the AIFM may refer the matter to the Tribunal; and

(b)

the appropriate UK regulator must give notice to the AIFM of the reasons for its decision to object, to take such steps or to refuse to give such notice.

(10)

In this regulation—

“depositary” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013;

“feeder AIF” has the meaning given in Article 4.1(m) of the alternative investment fund managers directive;

“implementing provision” means a provision implementing the alternative investment fund managers directive or a provision of any directly applicable EU regulation made under that directive;

“master AIF” has the meaning given in Article 4.1(y) of that directive;

“retail investor” has the meaning given in Article 4.1(aj) of that directive.

F88UK firm exercising an EEA right under the mortgages directive: changes to branch details or services17B.

(1)

A mortgage intermediary which has exercised an EEA right deriving from the mortgages directive to establish a branch or provide services must not make any material change to the requisite details of the branch or to the services to be carried on in exercise of that EEA right unless the requirements of paragraph (2) have been complied with.

(2)

The requirements are that—

(a)

the mortgage intermediary has given a notice to the appropriate UK regulator stating the details of the proposed change, and

(b)

the period of one month beginning with the day on which the mortgage intermediary gave the notice has elapsed.

(3)

The appropriate UK regulator must, as soon as reasonably practicable after receiving a notice under paragraph (2), inform the host state regulator of the proposed change.

(4)

Paragraph (1) does not apply to a change occasioned by circumstances beyond the mortgage intermediary's control.

F89UK firm exercising an EEA right under the insurance distribution directive: changes to branch details or services17C.

(1)

A UK firm which has exercised an EEA right deriving from the insurance distribution directive to establish a branch or provide services must not make any material change to the relevant details (as defined in regulation 17D) unless the requirements of paragraph (2) have been complied with.

(2)

The requirements are that—

(a)

the UK firm has given a notice to the appropriate UK regulator stating the details of the proposed change, and

(b)

the period of one month beginning with the day on which the UK firm gave the notice has elapsed.

(3)

The appropriate UK regulator must, as soon as reasonably practicable, and in any event within a period of one month beginning with the day on which the notice under paragraph (2)(a) was received, inform the host state regulator of the proposed change.

F89Relevant details for the purpose of regulation 17C17D.

The relevant details for the purposes of regulation 17C are—

(a)

the name, address and, where applicable the registration number of the intermediary;

(b)

the category of intermediary and, if applicable, the name of any insurance or reinsurance undertaking represented;

(c)

the relevant classes of insurance, if applicable; and

(d)

where the intermediary has established a branch or permanent presence—

(i)

the address in the host Member State from which documents may be obtained; and

(ii)

the name of any person responsible for the management of the branch or permanent presence.

Offences relating to failure to notify changes18.

(1)

If a UK firm which is not an authorised person contravenes the prohibition imposed by regulation 11(1), F9011A(1), 12(1), F9012A(1), 13(1), 15(1), F9116(1) or 17C(1) it is guilty of an offence, punishable—

(a)

on summary conviction, by a fine not exceeding the statutory maximum; or

(b)

on conviction on indictment, by a fine.

(2)

In proceedings for an offence under paragraph (1), it is a defence for the firm to show that it took all reasonable precautions and exercised all due diligence to avoid committing the offence.

UK firms: scope of outward passport

UK firms: scope of outward passport19.

F92(1)

Where—

(a)

the activities identified in a notice of intention under paragraph 19 or 20 of Schedule 3 include (in accordance with paragraph 19(3) or 20(2) of that Schedule) any activity which is not a regulated activity, and

(b)

that activity is one which the UK firm in question is able to carry on in the EEA State in question without contravening any provision of the law of the United Kingdom (or any part of the United Kingdom),

the UK firm is to be treated, for the purposes of the exercise of its EEA right, as being authorised to carry on that activity.

F93(2)

Where—

(a)

the activities of a UK firm which pursues the activity of reinsurance (within the meaning of F94Article 13(7) of the Solvency 2 Directive) includes any activity which is not a regulated activity, and

(b)

that activity is one which the UK firm in question is able to carry on in the EEA State in question without contravening any provision of the law of the United Kingdom (or any part of the United Kingdom),

the UK firm is to be treated, for the purpose of the exercise of its EEA right, as being authorised to carry on that activity.

F95PART 3ATREATY FIRMS

Notice of qualification for authorisation19A.

The appropriate UK regulator must notify the other regulator when a Treaty firm qualifies for authorisation where—

(a)

the PRA is the appropriate UK regulator;

(b)

the FCA is the appropriate UK regulator and the EEA firm intends to carry on a PRA-regulated activity in the United Kingdom.

PART IVTransitional Provisions

Changes relating to EEA firms: procedures partly completed at commencement20.

(1)

If before commencement—

(a)

an EEA firm which was a European institution within the meaning of the 2BCD Regulations gave a notice under paragraph 4(1)(a) of Schedule 2 to those Regulations (changes to details of branch), and

(b)

not all the other requirements set out in paragraph 4(1) of that Schedule were satisfied,

the notice is to be treated as given under regulation 4(4)(a), and the other requirements set out in regulation 4(4) treated as satisfied to the extent to which the corresponding requirements in paragraph 4(1) of that Schedule had been satisfied.

(2)

If before commencement—

(a)

an EEA firm which was a European investment firm within the meaning of the ISD Regulations gave a notice under paragraph 5(1)(a) of Schedule 3 to those Regulations (changes to details of branch), and

(b)

not all the other requirements set out in paragraph 5(1) of that Schedule were satisfied,

the notice is to be treated as given under regulation 4(4)(a), and the other requirements set out in regulation 4(4) treated as satisfied to the extent to which the corresponding requirements in paragraph 5(1) of that Schedule had been satisfied.

(3)

In a case falling within paragraph (1) or (2), regulation 4(6) applies unless the F96Financial Services Authority had, before commencement, complied with the duty in regulation 8(3) of the 2BCD Regulations or regulation 8(4) of the ISD Regulations.

(4)

If before commencement—

(a)

an EEA firm which was an EC company within the meaning of the Insurance Companies Act gave a notice under paragraph 2(2)(a) of Schedule 2F to that Act10 (changes to details of branch), and

(b)

not all the other requirements set out in paragraph 2(2) of that Schedule were satisfied,

the notice is to be treated as given under regulation 6(4)(a), and the other requirements set out in regulation 6(4) treated as satisfied to the extent to which the corresponding requirements in paragraph 2(2) of that Schedule had been satisfied.

(5)

In a case falling within paragraph (4), regulation 6(6) applies except to the extent that the duty in paragraph 2(4) of Schedule 2F to the Insurance Companies Act had been complied with before commencement.

(6)

If before commencement—

(a)

an EEA firm which was an EC company within the meaning of the Insurance Companies Act gave a notice under paragraph 9(2)(a) of Schedule 2F to that Act (changes relating to the provision of services), and

(b)

the requirement in paragraph 9(2)(b) of that Schedule was not satisfied,

the notice is to be treated as given under regulation 7(4)(a).

Changes relating to UK firms: procedures partly completed at commencement21.

(1)

If before commencement a UK firm gave notice under paragraph 5(1)(a) of Schedule 6 to the 2BCD Regulations or paragraph 6(1)(a) of Schedule 6 to the ISD Regulations (changes to details of branch)—

(a)

the notice is to be treated as given under regulation 11(2)(a), and

(b)

any notice given under paragraph 5(1)(b) of Schedule 6 to the 2BCD Regulations or paragraph 6(1)(b) of Schedule 6 to the ISD Regulations is to be treated as given under regulation 11(2)(b),

unless paragraph (2) applies.

(2)

This paragraph applies if, before commencement, either—

(a)

all the requirements set out in paragraph 5(1) of Schedule 6 to the 2BCD Regulations or paragraph 6(1) of Schedule 6 to the ISD Regulations had been satisfied, or

(b)

in response to the notice a notice of refusal was given to the firm under paragraph 6(5)(b) of Schedule 6 to the 2BCD Regulations or paragraph 7(5)(b) of Schedule 6 to the ISD Regulations, and the refusal was not at commencement capable of being reversed on an appeal, reference to a tribunal or a review as mentioned in paragraph 7(5) of Schedule 6 to the ISD Regulations.

(3)

If before commencement a UK firm gave notice under paragraph 2(2)(a) of Schedule 2G to the Insurance Companies Act11 or Schedule 13B to the Friendly Societies Act12 (changes to details of branch)—

(a)

the notice is to be treated as given to the F97Financial Services Authority under regulation 13(2)(a), and

(b)

the other requirements set out in regulation 13(2) are to be treated as satisfied to the extent to which the corresponding requirements in paragraph 2(2) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act had been satisfied,

unless paragraph (4) applies.

(4)

This paragraph applies if, before commencement, either—

(a)

all the requirements set out in paragraph 2(2) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act had been satisfied, or

(b)

in response to the notice a notice of refusal was given to the firm under paragraph 2(5)(b) of that Schedule.

(5)

If before commencement a UK firm gave notice under paragraph 6(2)(a) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act (changes relating to the provision of services)—

(a)

the notice is to be treated as given to the F97Financial Services Authority under regulation 16(3)(a) and

(b)

if a notice was sent under paragraph 6(2)(b) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act, that notice is to be treated as given under regulation 16(3)(b),

unless, before commencement, the firm had been notified under paragraph 6(5)(a) or (b) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act of the decision taken in response to the notice.

Nick Ainger
Tony McNulty
Two of the Lords Commissioners of Her Majesty’s Treasury
(This note is not part of the Regulations)

These Regulations make provision about the exercise of “passport” rights in accordance with Schedule 3 to the Financial Services and Markets Act 2000 (“the Act”). Those are rights under the EC single market directives relating to financial services for an undertaking authorised in one EEA State to establish a branch or provide services in another EEA State.

Part I makes provision for citation, commencement and interpretation.

Part II prescribes the information which must be provided in connection with the establishment of a branch, or the provision of services, by an EEA firm in the UK in exercise of its passport rights. It also makes provision about the procedure to be followed, and the information to be provided, in the event of changes affecting an EEA firm’s activities in the UK. It provides for the cancellation of EEA firms' qualification for authorisation under the Act in certain circumstances.

Part III makes provision about the procedure to be followed, and the information to be provided, when there are changes affecting a UK firm which has exercised its passport rights to establish a branch, or provide services, in another EEA State. Part III also makes provision about the scope of a UK firm’s outward passport in relation to activities which are not regulated activities under the Act: regulation 19 provides that, for the purposes of its passport rights, a UK firm is treated as being authorised to carry on such activities provided UK law does not prevent it from carrying them on in the EEA State in question.

Part IV makes transitional provision relating to cases where the procedures applying to changes in activities carried on pursuant to passport rights had been partly completed at commencement.