The Financial Services (Gibraltar) (Amendment) (EU Exit) Regulations 2019

Exercise by UK firms of deemed passport rights in Gibraltar U.K.

9.—(1) Article 4 (exercise by UK firms of deemed passport rights in Gibraltar) is amended as follows.

(2) In paragraph (1)(b) M1 , for “UCITS (as defined in Article 1.2 of the UCITS directive) established in the UK” substitute “ UK UCITS as defined in section 237 M2 of the Act ”.

(3) In paragraph (2) M3 , for “its EEA right” substitute “ the EEA right that such a firm would have had immediately before [F1 IP completion day]”.

(4) In paragraph (3) M4 —

(a) for “, article 77” substitute “ and article 77 ”;

(b) omit “and the Alternative Investment Fund Managers Regulations 2013”;

(c) for “those rights” substitute “ the rights that would before [F2 IP completion day] have derived from that directive ”;

(d) omit the “and” after sub-paragraph (c);

(e) after sub-paragraph (d) insert—

“; and

(e) “host state regulator” are to be treated as references to the Gibraltar Financial Services Commission.”.

(5) After paragraph (3) insert—

“(3A) Paragraph 19 of Schedule 3 is to be read as if—

(a) in sub-paragraph (4)(b)(i), “pursuant to the provisions of the UCITS directive” were omitted;

(b) for sub-paragraph (5ZA) there were substituted—

“(5ZA) This paragraph does not apply to a UK firm which is a reinsurance undertaking that only carries on—

(a) the activity consisting in accepting risks ceded by an insurance undertaking or third-country insurance undertaking, by another reinsurance undertaking or by a third-country reinsurance undertaking as defined in regulation 2(1) of the Solvency 2 Regulations 2015 M5 , or

(b) in the case of the association of underwriters known as Lloyd's, the activity consisting in accepting risks ceded by any member of Lloyd's, or by an insurance undertaking or reinsurance undertaking other than the association of underwriters known as Lloyd's.”;

(c) in sub-paragraph (5C) for “has the meaning given in Article 4.1.3 of the markets in financial instruments directive” there were substituted “ means any of the services and activities listed in Part 3A of Schedule 2 to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 M6 ”;

(d) in sub-paragraph (6) “authorised under the capital requirements directive” were omitted;

(e) in sub-paragraph (7BA)(c)(ii) for “any directly applicable EU regulation made under that directive” there were substituted “ any EU regulation originally made under that directive which is retained direct EU legislation, or any regulations made by the Treasury, or technical standards made by the FCA, under a power substituted for the power of an EU institution to make EU tertiary legislation under that directive ”;

(f) in sub-paragraph (7BB)(b) the words “pursuant to Article 6.1 of the alternative investment fund managers directive” were omitted;

(g) in sub-paragraph (12), paragraph (aa) (but not the “and” immediately after it) were omitted;

(h) sub-paragraph (12ZA) were omitted;

(i) in sub-paragraph (14)—

(i) in paragraph (a), for “in accordance with” there were substituted “ in implementation of ”;

(ii) in paragraph (b) for “are” there were substituted “ deal with matters that immediately before [F3 IP completion day] were ”.

(3B) Paragraph 20 of Schedule 3 is to be read as if—

(a) in sub-paragraph (2B) for “has the meaning given in Article 4.1.3 of the markets in financial instruments directive” there were substituted “ means any of the services and activities listed in Part 3A of Schedule 2 to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 ”;

(b) sub-paragraph (3B) were omitted;

(c) in sub-paragraph (3C)(a), for “as a management company pursuant to the provisions of the UCITS directive” there were substituted “ to carry on the activity specified in Article 51ZA(1) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (managing a UCITS) ”;

(d) in sub-paragraph (3D)(a)(ii), after “pursuant to” there were inserted “ provision made in implementation of ”; and

(e) in sub-paragraph (3E)—

(i) in paragraph (a), for “implementing” there were substituted “ that implemented ”; and

(ii) in paragraph (b), for “any directly applicable EU regulation made under that directive” there were substituted “ any EU regulation originally made under that directive which is retained direct EU legislation, or any regulations made by the Treasury, or technical standards made by the FCA, under a power substituted for the power of an EU institution to make EU tertiary legislation under that directive ”;

(f) in sub-paragraph (4BA) for “under the second sub-paragraph of Article 34.7 of that directive” there were substituted “ as to the identity of the remote members or participants of a multilateral trading facility operated by it ”;

(g) in sub-paragraph (4D) for “which falls within the second sub-paragraph of Article 2(1) of the Solvency 2 Directive” there were substituted “ which is a reinsurance undertaking which only conducts reinsurance activities ”;

(h) in sub-paragraph (4G), for “Community” there were substituted “ UK-Gibraltar ”;

(i) in sub-paragraph (4H)—

(i) in the opening words for “Community” there were substituted “ UK-Gibraltar ”;

(ii) in paragraph (b), for “the EEA” there were substituted “ the United Kingdom or Gibraltar ”;

(iii) in paragraph (c), for the words from “in an EEA State” to the end there were substituted “ in Gibraltar, in a case where the leading insurance undertaking is established in the United Kingdom, or from a head office or branch established in the United Kingdom, in a case where the leading insurance undertaking is established in Gibraltar ”;

(j) in sub-paragraph (4I)—

(i) in paragraph (a), for “Community” there were substituted “ UK-Gibraltar ”; and

(ii) paragraphs (c) and (d) were omitted.

(3C) Paragraph 20B of Schedule 3 is to be read as if—

(a) in sub-paragraph (1), for “UCITS established in the United Kingdom” there were substituted “ UK UCITS as defined in section 237 ”;

(b) the words “or in regulations made by the European Commission under the UCITS directive” were omitted;

(c) in sub-paragraph (3)(c), after “imposed by” there were inserted “ provision made in implementation of ”.

(3D) Paragraph 20C of Schedule 3 is to be read as if—

(a) in sub-paragraph (5)—

(i) in paragraph (a), for sub-paragraphs (i) and (ii) there were substituted—

“(i) the provisions that implemented the alternative investment fund managers directive,

(ii) any EU regulation originally made under that directive which is retained direct EU legislation, and

(iii) any regulations made by the Treasury, or technical standards made by the FCA, under a power substituted for the power of an EU institution to make EU tertiary legislation under that directive, and”, and

(ii) in paragraph (b)(ii), for “another EEA State” there were substituted “ an EEA State ”;

(b) in sub-paragraph (12), in the definitions of “feeder AIF” and “master AIF”, after “directive” there were inserted “ (reading references to an AIF as references to an AIF as defined by regulation 3 of the Alternative Investment Fund Managers Regulations 2013) ”.”M7 .

(6) In paragraph (4) M8 , for “that right” substitute “ the right conferred by that Article before [F4 IP completion day]”.

(7) After paragraph (4) insert—

“(5) Paragraph 28(1)(a) of Schedule 3 is to be read as if for “Article 20.1” there were substituted “ Article 20(1)(a) and (b) ”.

(6) Paragraph 29 of Schedule 3 is to be read as if—

(a) the words “in accordance with paragraph 5 of Article 45 of the alternative investment fund managers directive” were omitted;

(b) for “provide the information or to take the steps referred to in that paragraph” there were substituted “ provide the Gibraltar Financial Services Commission with information falling under its responsibility, or to take the necessary steps to put an end to a breach of the law of Gibraltar which implemented the alternative investment fund managers directive ”.”.

Textual Amendments

F1 Words in reg. 9(3) substituted (30.12.2020) by The Financial Services and Economic and Monetary Policy (Consequential Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1301), regs. 1, 3, Sch. para. 32(e)(i)

F2 Words in reg. 9(4)(c) substituted (30.12.2020) by The Financial Services and Economic and Monetary Policy (Consequential Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1301), regs. 1, 3, Sch. para. 32(e)(ii)

F3 Words in reg. 9(5) substituted (30.12.2020) by The Financial Services and Economic and Monetary Policy (Consequential Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1301), regs. 1, 3, Sch. para. 32(e)(iii)

F4 Words in reg. 9(6) substituted (30.12.2020) by The Financial Services and Economic and Monetary Policy (Consequential Amendments) (EU Exit) Regulations 2020 (S.I. 2020/1301), regs. 1, 3, Sch. para. 32(e)(iv)

Modifications etc. (not altering text)

C1 Pts. 2, 3 applied (31.12.2020) by The Taxes (Amendments) (EU Exit) Regulations 2019 (S.I. 2019/689), regs. 1, 38 (with regs. 39-41); 2020 c. 1, Sch. 5 para. 1(1)

Commencement Information

I1 Reg. 9 in force at 31.12.2020 on IP completion day (in accordance with 2020 c. 1, Sch. 5 para. 1(1)), see reg. 1(3)

Marginal Citations

M1 Article 4(1) was substituted by S.I. 2012/2017.

M2 The definition of “UK UCITS” in section 237 was inserted by S.I. 2011/1613 and amended by S.I. 2013/1388.

M3 Article 4(2) was amended by S.I. 2012/2017.

M4 Article 4(3) was amended by S.I. 2014/1292.

M5 S.I. 2015/575; the definition of “third-country reinsurance undertaking” is inserted by S.I. 2019/407.

M6 S.I. 2001/544; Part 3A of Schedule 2 is inserted by S.I. 2018/1403.

M7 S.I. 2013/1773.

M8 There have been amendments of Article 4(4) but none is relevant.