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PART IIIU.K.Exercise of Passport Rights by UK Firms

Changes relating to UK firmsU.K.

[F1Meaning of “the appropriate UK regulator”U.K.

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.]

Textual Amendments

UK F2... [F3management companies], credit institutions and financial institutions: changes to branch detailsU.K.

11.—(1) A UK firm which has exercised an EEA right, deriving from F4... [F5the UCITS directive] or the [F6capital 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.

Textual Amendments

Commencement Information

I1Reg. 11 in force at 1.12.2001, see reg. 1(1)

[F7UK investment firms: changes to branch detailsU.K.

11A.—(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.]

Textual Amendments

UK F8... [F9management companies]: changes to servicesU.K.

12.—(1) A UK firm which is providing services in exercise of an EEA right, deriving from F10... [F11the 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.

Textual Amendments

Commencement Information

I2Reg. 12 in force at 1.12.2001, see reg. 1(1)

[F12UK investment firms: changes to servicesU.K.

12A.—(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.]

Textual Amendments

UK insurance firms: changes to relevant EEA details of branchesU.K.

13.—(1) A UK firm which has exercised an EEA right, deriving from [F13the 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.

Textual Amendments

Commencement Information

I3Reg. 13 in force at 1.12.2001, see reg. 1(1)

Relevant EEA details for the purposes of regulation 13U.K.

14.—(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.

Commencement Information

I4Reg. 14 in force at 1.12.2001, see reg. 1(1)

UK insurance firms: changes to relevant UK details of branchesU.K.

15.—(1) A UK firm which has exercised an EEA right, deriving from [F14the 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.

Textual Amendments

Commencement Information

I5Reg. 15 in force at 1.12.2001, see reg. 1(1)

UK insurance firms: changes to servicesU.K.

16.—(1) A UK firm which is providing services in exercise of an EEA right, deriving from [F15the 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.

Textual Amendments

Commencement Information

I6Reg. 16 in force at 1.12.2001, see reg. 1(1)

Relevant details for the purposes of regulation 16U.K.

17.  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.

Commencement Information

I7Reg. 17 in force at 1.12.2001, see reg. 1(1)

[F16Full-scope UK AIFM: changes to branch details or servicesU.K.

17A.—(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 [F172(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.]

Textual Amendments

[F18UK firm exercising an EEA right under the mortgages directive: changes to branch details or servicesU.K.

17B.—(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.]

Textual Amendments

F18Reg. 17B 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(7) (with Pt. 4)

[F19UK firm exercising an EEA right under the insurance distribution directive: changes to branch details or servicesU.K.

17C.—(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.]

Textual Amendments

[F19Relevant details for the purpose of regulation 17CU.K.

17D.  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.]

Textual Amendments

Offences relating to failure to notify changesU.K.

18.—(1) If a UK firm which is not an authorised person contravenes the prohibition imposed by regulation 11(1), [F2011A(1),] 12(1), [F2012A(1),] 13(1), 15(1), [F2116(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.

Textual Amendments

Commencement Information

I8Reg. 18 in force at 1.12.2001, see reg. 1(1)