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PART IIU.K.Exercise of Passport Rights by EEA Firms

Contents of consent notice and regulator’s noticeU.K.

Establishment of a branch: contents of consent noticeU.K.

2.—(1) The following information is prescribed for the purposes of paragraph 13(1)(b)(iii) of Schedule 3 (and is therefore to be included in a consent notice given to the [F1appropriate UK regulator within the meaning of that paragraph] by a firm’s home state regulator pursuant to paragraph 13(1)(a) of Schedule 3).

(2) In the case of an investment firm, the prescribed information is—

(a)a statement that the firm is an investment firm;

(b)the requisite details of the branch; F2...

[F3(c)details of the accredited compensation scheme of which the firm is a member in accordance with Directive 97/9/EC of the European Parliament and of the Council of 3rd March 1997 on investor-compensation schemes; and

(d)a statement of whether the firm intends to use a tied agent established in the United Kingdom.]

[F4(2A) In the case of a management company, the prescribed information is—

(a)a statement that the firm is a management company;

(b)the requisite details of the branch; and

(c)details of any compensation scheme which is intended to protect the branch’s investors.]

(3) In the case of a credit institution, the prescribed information is—

(a)a statement that the firm is a credit institution;

(b)the requisite details of the branch;

(c)the amount of the firm’s own funds (as defined in [F5Article 4(1)(118) of the capital requirements regulation]); and

[F6(d)the own funds requirements under Article 92 of the capital requirements regulation of that institution.]

(4) In the case of a financial institution, the prescribed information is—

(a)a statement that—

(i)the firm is a financial institution;

(ii)the firm is a subsidiary undertaking of a credit institution F7... which is authorised in the EEA State in question and which holds at least 90 per cent of the voting rights in the firm (and for the purpose of this paragraph any two or more credit institutions which are authorised in that EEA State and hold voting rights in the firm are to be treated as a single credit institution, and as being “parent undertakings” of the firm);

(iii)the firm carries on in that EEA State the EEA activities in question;

(iv)the memorandum and articles of association, or other constituent instrument, of the firm permit it to carry on those activities;

(v)the consolidated supervision of the firm’s parent undertaking or, if more than one, any one of them effectively includes supervision of the firm;

(vi)the firm’s parent undertaking has guaranteed or, if more than one, they have jointly and severally guaranteed, the firm’s obligations, with the consent of the home state regulator;

(vii)the firm’s business is being conducted in a prudent manner;

(b)the requisite details of the branch;

(c)the amount of the firm’s own funds (as defined in [F8Article 4(1)(118) of the capital requirements regulation]); and

[F9(d)the own funds requirements under Article 92 of the capital requirements regulation of the firm's parent undertaking.]

(5) In the case of an insurance firm, the prescribed information is—

(a)a scheme of operations prepared in accordance with such requirements as may be imposed by the firm’s home state regulator, setting out (amongst other things) the types of business to be carried on and the structural organisation of the branch;

(b)the name of the firm’s authorised agent;

(c)the address in the United Kingdom from which information about the business may be obtained, and a statement that this is the address for service on the firm’s authorised agent;

(d)in the case of a firm which intends to cover relevant motor vehicle risks, a declaration by the firm that it has become a member of the Motor Insurers' Bureau (being a company limited by guarantee and incorporated under the Companies Act 1929(1) on the 14th June 1946); and

(e)a statement by the firm’s home state regulator attesting that the firm F10... [F11covers the Solvency Capital Requirement calculated in accordance with Article 100 of the Solvency 2 Directive and the minimum capital requirement calculated in accordance with Article 129 of that directive.]

[F12(6) In the case of an EEA AIFM, the prescribed information is—

(a)a statement that the firm is an EEA AIFM;

[F13(aa)particulars of the programme of operations to be carried on through the branch, including a description of the particular EEA activities to be carried on;]

(b)the identity of the AIFs that the EEA AIFM intends to manage;

(c)the organisational structure of the branch;

(d)the address in the home state of each AIF that the EEA AIFM intends to manage from which documents relating to that AIF may be obtained;

(e)the names and contact details of the persons responsible for the management of the branch.

(7) In paragraph (6) “home state” in relation to an AIF means—

(a)the EEA State in which the AIF is authorised or registered, or in the case of multiple authorisations or registrations, the EEA State in which the AIF was first authorised or registered; or

(b)if the AIF is not authorised or registered in an EEA State, the EEA State in which it has its registered office or head office.]

[F14(8) In the case of an EEA mortgage intermediary, the prescribed information is—

(a)a statement that the firm is an EEA mortgage intermediary;

(b)the requisite details of the branch;

(c)whether the EEA mortgage intermediary is a tied mortgage intermediary;

(d)the name and address of the mortgage creditors (if any) to which the EEA mortgage intermediary is tied; and

(e)whether those mortgage creditors (if any) take full and unconditional responsibility for the activities of the EEA mortgage intermediary.]

Textual Amendments

F7Words in reg. 2(4)(a)(ii) omitted (9.2.2011 for specified purposes, 30.4.2011 in so far as not already in force) by virtue of The Electronic Money Regulations 2011 (S.I. 2011/99), reg. 1(2), Sch. 4 para. 11(c) (with reg. 3)

F14Reg. 2(8) inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 9(3) (with Pt. 4)

Commencement Information

I1Reg. 2 in force at 1.12.2001, see reg. 1(1)

[F15Prescribed cases: establishmentU.K.

2A.—(1) The case in paragraph (2) is prescribed for the purposes of paragraph 13(1C) of Schedule 3 to the Act (establishment).

[F16(2) The case is the receipt by the FCA of a consent notice in respect of an investment firm to which the obligation in Article 28(2) of the capital requirements directive applies, where the investment firm intends to provide services or activities in the United Kingdom which consist of or include dealing on its own account.]]

Textual Amendments

Provision of services: contents of regulator’s noticeU.K.

3.—(1) The following information is prescribed for the purposes of paragraph 14(1)(b) of Schedule 3 (and is therefore to be included in a regulator’s notice given to the [F17appropriate UK regulator within the meaning of that paragraph] by a firm’s home state regulator pursuant to that paragraph).

(2) [F18Subject to paragraph (2ZA), in] the case of an investment firm, the prescribed information is—

(a)a statement that the firm is an investment firm; F19...

(b)particulars of the programme of operations to be carried on in the United Kingdom, including a description of the particular EEA activities to be carried on [F20; and

(c)a statement of whether the firm intends to use a tied agent to provide services in the United Kingdom]

[F21(2ZA) In the case of an investment firm exercising the right under Article [F2234.6] of the markets in financial instruments directive, the prescribed information is—

(a)a statement that the firm is an investment firm; and

(b)a statement that the firm intends to exercise that right in the United Kingdom.]

[F23(2A) In the case of a management company, the prescribed information is—

(a)a statement that the firm is a management company;

(b)particulars of the programme of operations to be carried on in the United Kingdom including a description of the particular EEA activities to be carried on; and

(c)details of any compensation scheme which is intended to protect investors.]

(3) In the case of an insurance firm, the prescribed information is—

(a)a statement of the classes of business which the firm is authorised to carry on in accordance with [F24Article 14 of the Solvency 2 Directive];

(b)the name and address of the firm;

(c)the nature of the risks or commitments which the firm proposes to cover in the United Kingdom;

(d)in the case of a firm which intends to cover relevant motor vehicle risks—

(i)the name and address of the claims representative; and

(ii)a declaration by the firm that it has become a member of the Motor Insurers' Bureau; and

(e)a statement by the firm’s home state regulator attesting that the firm F25... [F26covers the Solvency Capital Requirement calculated in accordance with Article 100 of the Solvency 2 Directive and the minimum capital requirement calculated in accordance with Article 129 of that directive.]

[F27(4) In the case of an insurance intermediary, the prescribed information is that the firm intends to carry on insurance mediation or reinsurance mediation (in each case, within the meaning of the insurance mediation directive) by providing services in the United Kingdom.]

[F28(5) In the case of an EEA AIFM, the prescribed information is—

(a)a statement that the firm is an EEA AIFM;

(b)if the EEA AIFM wishes to manage an AIF in the United Kingdom—

(i)particulars of the programme of operations to be carried on in the United Kingdom, including a description of the particular EEA activities to be carried on; and

(ii)the identity of the AIFs that the EEA AIFM intends to manage; and

(c)if the EEA AIFM wishes to market an AIF in the United Kingdom—

(i)the documents and information set out in Annex IV to the alternative investment fund managers directive; and

(ii)a statement to the effect that the AIFM concerned is authorised to manage AIFs with a particular management strategy.]

[F29(6) In the case of an EEA mortgage intermediary, the prescribed information is—

(a)a statement that the firm is an EEA mortgage intermediary;

(b)particulars of the services to be carried on in the United Kingdom;

(c)whether the EEA mortgage intermediary is a tied mortgage intermediary;

(d)the name and address of the mortgage creditors (if any) to which the EEA mortgage intermediary is tied; and

(e)whether those mortgage creditors (if any) take full and unconditional responsibility for the activities of the EEA mortgage intermediary.]

Textual Amendments

F22Word in reg. 3(2ZA) substituted (29.6.2017 for specified purposes, 3.7.2017 for specified purposes, 31.7.2017 for specified purposes, 3.1.2018 in so far as not already in force) by The Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017 (S.I. 2017/701), reg. 1(2)(3)(4)(6), Sch. 3 para. 5(3) (with reg. 7)

F29Reg. 3(6) inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 9(4) (with Pt. 4)

Commencement Information

I2Reg. 3 in force at 1.12.2001, see reg. 1(1)

[F30Notice of qualification for authorisationU.K.

3A.  The appropriate UK regulator must notify the other regulator when an EEA 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.]

Textual Amendments

Changes relating to EEA firmsU.K.

[F31Management] companies, credit institutions and financial institutions: changes to branch detailsU.K.

4.—(1) [F32A] [F33management 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 [F34appropriate UK regulator] and to its home state regulator stating the details of the proposed change;

(b)the [F34appropriate UK regulator] has received from the home state regulator a notice stating those details; and

(c)either the [F34appropriate 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 [F34appropriate 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 [F34appropriate UK regulator] and to its home state regulator, stating the details of the change.

(6) The [F34appropriate UK regulator] must, as soon as practicable after receiving a notice from [F35a] [F36management 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).

[F37(7) In this regulation, “the appropriate UK regulator” has the same meaning as in paragraph 13 of Schedule 3.]

Textual Amendments

Commencement Information

I3Reg. 4 in force at 1.12.2001, see reg. 1(1)

[F38Investment firms: changes to branch detailsU.K.

4A.—(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.]

Textual Amendments

[F39Management] companies: changes to servicesU.K.

5.—F40(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F41(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 [F42appropriate 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 [F42appropriate UK regulator] and to its home state regulator a notice stating the details of the change.

(4) The [F42appropriate UK regulator] must, as soon as practicable after receiving a notice from an investment firm [F43or 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).

[F44(5) In this regulation, “the appropriate UK regulator” has the same meaning as in paragraph 14 of Schedule 3.]

Textual Amendments

Commencement Information

I4Reg. 5 in force at 1.12.2001, see reg. 1(1)

[F45Investment firms: changes to servicesU.K.

5A.—(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.]

Textual Amendments

Insurance firms: changes to branch detailsU.K.

6.—(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 [F46appropriate UK regulator] and to its home state regulator stating the details of the proposed change;

(b)the [F46appropriate 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 [F46appropriate 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 [F46appropriate 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 [F46appropriate UK regulator] and to its home state regulator, stating the details of the change.

(6) The [F46appropriate 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).

[F47(7) In this regulation, “the appropriate UK regulator” has the same meaning as in paragraph 13 of Schedule 3.]

Textual Amendments

Commencement Information

I5Reg. 6 in force at 1.12.2001, see reg. 1(1)

Insurance firms: changes to servicesU.K.

7.—(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 [F48appropriate 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.

[F49(6) In this regulation, “the appropriate UK regulator” has the same meaning as in paragraph 14 of Schedule 3.]

Textual Amendments

Commencement Information

I6Reg. 7 in force at 1.12.2001, see reg. 1(1)

[F50EEA AIFM: changes to branch details or servicesU.K.

7A.—(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.]

Textual Amendments

[F51EEA mortgage intermediary: changes to branch details or servicesU.K.

7B.—(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.]

Textual Amendments

F51Reg. 7B inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 9(5) (with Pt. 4)

Cancellation of qualification for authorisationU.K.

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

8.  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 [F52to—

(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).

Textual Amendments

Commencement Information

I7Reg. 8 in force at 1.12.2001, see reg. 1(1)

Financial institutions giving up right to authorisationU.K.

9.—(1) The [F53appropriate 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 [F53appropriate UK regulator] must not give such a direction unless—

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

(b)the [F53appropriate 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 [F53appropriate UK regulator] and the firm’s home state regulator.

(4) The [F53appropriate 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).

[F54(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.]

Textual Amendments

Commencement Information

I8Reg. 9 in force at 1.12.2001, see reg. 1(1)

[F55EEA mortgage intermediaries giving up right to authorisationU.K.

9A.—(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.]

Textual Amendments

F55Reg. 9A inserted (20.4.2015 for specified purposes, 21.12.2015 for specified purposes, 21.3.2016 in so far as not already in force) by The Mortgage Credit Directive Order 2015 (S.I. 2015/910), art. 1(5), Sch. 1 para. 9(6) (with Pt. 4)

Applications for approval under section 60 by EEA firmsU.K.

Applications for approval under section 60 by EEA firmsU.K.

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

(a) [F56an EEA firm with respect to which the [F57appropriate UK regulator (within the meaning of the relevant paragraph of Schedule 3)] has received a consent notice [F58or 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 Schedule][F59; and

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

Textual Amendments

Commencement Information

I9Reg. 10 in force at 1.12.2001, see reg. 1(1)

(1)

1929 c. 23. Repealed by the Companies Act 1948 (c. 38).