Exercise of passport rights by UK firms

Part

SUP Supervision manual

Chapter

Exercise of passport rights by UK firms

Printed on: 06/11/2024

Rulebook at: 01/01/2014

SUP 13

Exercise of passport rights by UK firms

SUP 13.1

Application and purpose

01/12/2004

Application

SUP 13.1.1

This chapter applies to a UK firm, that is, a person whose head office is in the United Kingdom and which is entitled to carry on an activity in another EEA State subject to the conditions of a Single Market Directive. Such an entitlement is referred to in the Act as an EEA right and its exercise is referred to in the Handbook as passporting.

01/04/2013

SUP 13.1.2

This chapter also applies to a UK firm which wishes to establish a branch in, or provide cross border services into, Gibraltar. The Financial Services and Markets Act 2000 (Gibraltar) Order 2001 provides that a UK firm is to be treated as having an entitlement corresponding to its EEA right, to establish a branch in, or provide cross border services into, Gibraltar under any of the Single Market Directives. So, references in this chapter to an EEA State or an EEA right include references to Gibraltar and the entitlement under the Gibraltar Order respectively.

01/04/2013

SUP 13.1.3

This chapter does not apply to:

(1) a firm established in an EEA State other than the United Kingdom; passporting by such a firm in or into the United Kingdom is a matter for its Home State regulator although guidance is given in SUP 13A (Qualifying for authorisation under the Act);

(2) other overseas firms (that is, overseas firms established outside the EEA); such firms are not entitled to passport into another EEA State and, where relevant, may need to obtain authorisation in each EEA State in which they carry on business;

(3) any insurance activity by way of provision of services which is provided by an EEA firm participating in a community co-insurance operation otherwise than as leading insurer; article 26.2 of the Second Non-Life Directive provides that only the leading insurer in such an operation is required to complete any passporting formalities (see also article 11 of the Regulated Activities Order); or

(4) the marketing of the units of a UCITS scheme by its management company in another EEA State under the UCITS Directive (see paragraph 20B of Part III of Schedule 3 to the Act and COLL 12.4 (UCITS product passport)).

01/04/2013

SUP 13.1.4

SUP App 3 contains guidance on the Single Market Directives.

01/04/2013

Purpose

SUP 13.1.5

This chapter gives guidance on Schedule 3 to the Act for a UK firm which wishes to exercise its EEA right and establish a branch in, or provide cross border services into, another EEA State. That is, when a UK firm wishes to establish its first branch in, or provide cross border services for the first time into, a particular EEA State.

01/04/2013

SUP 13.1.6

The chapter also explains how a UK firm which has already established a branch in, or is providing cross border services into, another EEA State, may change the details of its branch or of the cross border services it is providing: for example, where a UK firm wishes to establish additional branches in an EEA State in which it has already established a branch where this would result in a change to the details provided previously. Such changes are governed by the EEA Passport Rights Regulations.

01/04/2013

SUP 13.2

Introduction

01/12/2004

SUP 13.2.1

This chapter gives guidance to UK firms. In most cases UK firms will be authorised persons under the Act. However, under the CRD , a subsidiary of a firm which is a credit institution which meets the criteria set out in that Directive also has an EEA right. Such an unauthorised subsidiary is known as a financial institution. References in this chapter to a UK firm include a financial institution.

01/01/2014

SUP 13.2.2

A UK firm should be aware that the guidance is the FSA's interpretation of the Single Market Directives, the Act and the legislation made under the Act. The guidance is not exhaustive and is not a substitute for firms consulting the legislation or taking their own legal advice in the United Kingdom and in the relevant EEA States.

01/04/2013

SUP 13.2.3

In some circumstances, a UK firm that is carrying on business which is outside the scope of the Single Market Directives has a right under the Treaty to carry on that business. For example, for an insurer carrying on both direct insurance and reinsurance business, the authorisation of reinsurance business is not covered by the Insurance Directives. The firm may, however, have rights under the Treaty in respect of its reinsurance business. Such UK firms may wish to consult with the appropriate UK regulator on their particular circumstances (see SUP 13.12.2 G).

01/04/2013

SUP 13.2.4

In SUP 13 the "appropriate UK regulator" amounts to whichever of the FCA and the PRA is the competent authority for authorising the relevant UK firm.

01/04/2013

SUP 13.3

Establishing a branch in another EEA State

01/12/2004

What constitutes a branch

SUP 13.3.1

Guidance on what constitutes a branch is given in SUP App 3 . Note that if a UK MiFID investment firm is seeking to use a tied agent established in another EEA State, the rules in SUP 13 will apply as if that firm were seeking to establish a branch in that EEA State unless the firm has already established a branch in that EEA State (paragraph 20A of Schedule 3 to the Act).

01/04/2013

The conditions for establishing a branch

SUP 13.3.2

A UK firm other than a UK pure reinsurer cannot establish a branch in another EEA State for the first time under an EEA right unless the relevant conditions inparagraphs 19(2), (4) and (5) of Part III of Schedule 3 to the Act are satisfied. It is an offence for a UK firm which is not an authorised person to contravene this prohibition (paragraph 21 of Part III of Schedule 3 to the Act). These conditions are that:

(1) the UK firm has given the appropriate UK regulator, in accordance with the appropriate UK regulator's rules (see SUP 13.5.1 R) or the directly applicable regulations made under the CRD (see SUP 13.5.1 R), notice of its intention to establish a branch (known as a notice of intention) which:

(a) identifies the activities which it seeks to carry on through the branch; and
(b) includes such other information as may be specified by the appropriate UK regulator (see SUP 13.5.1 R) or by the directly applicable regulations made under the CRD (see SUP 13.5.1 R);

(2) the appropriate UK regulator has given notice (known as a consent notice) to the Host State regulator;
(2A) if the UK firm's EEA right relates to providing collective portfolio management services under the UCITS Directive, the FCA has provided to the Host State regulator:

(a) confirmation that the firm has been authorised as a management company under the provisions of the UCITS Directive;
(b) a description of the scope of the firm's authorisation; and
(c) details of any restriction on the types of EEA UCITS scheme that the firm is authorised to manage; and

(a) if the UK firm's EEA right derives from the Insurance Mediation Directive one month has elapsed beginning on the date on which the UK firm received notice that the appropriate UK regulator had given a consent notice as described in SUP 13.3.6 G (1) (see SUP 13.3.2A G);
(b) in any other case (except for a firm passporting under AIFMD):

(i) the Host State regulator has notified the UK firm (or, where the UK firm is passporting under the Insurance Directives, the PRA) of the applicable provisions or, in the case of a UK firm passporting under MiFID or the UCITS Directive, that the branch may be established; or
(ii) two months have elapsed beginning with the date on which the appropriate UK regulator gave the consent notice.

01/01/2014

SUP 13.3.2A

If the UK firm is passporting under the Insurance Mediation Directive and the EEA State in which the UK firm is seeking to establish a branch has not notified the European Commission of its wish to be informed of the intention of persons to establish a branch in its territory in accordance with article 6(2) of that directive, SUP 13.3.2 G (2) and SUP 13.3.2 G (3) do not apply. Accordingly, the UK firm may establish the branch to which its notice of intention relates as soon as the conditions referred to in SUP 13.3.2 G (1) are satisfied.The list of EEA States that have notified the European Commission of their wish to be informed in accordance with article 6(2) of the Insurance Mediation Directive is published on the FCA's website at www.fca.org.uk .

01/04/2013

SUP 13.3.2B

An appointed representative appointed by a firm to carry on insurance mediation activity on its behalf may establish a branch in another EEA State under the Insurance Mediation Directive. In this case, the notice of intention in SUP 13.3.2 G (1) should be given to the appropriate UK regulator by the firm on behalf of the appointed representative.

01/04/2013

SUP 13.3.2D

A tied agent appointed by a MiFID investment firm to carry on investment services and activities (and ancillary services where relevant) does not have its own passporting right to establish a branch in another EEA State. However, a MiFID investment firm remains free to appoint a tied agent to do business in another EEA State and where it does so, the tied agent will benefit from its passport.

01/04/2013

SUP 13.3.2E

Once authorised in the United Kingdom, a UK pure reinsurer has an automatic EEA right to carry on reinsurance business in another EEA State by establishing a branch in that state or providing cross border services into that state. There are no additional requirements to be satisfied before the firm can commence business in that state.

01/04/2013

SUP 13.3.3

Where the UK firm is passporting under the Insurance Directives and the Host State regulator has notified the PRA of the applicable provisions, then under paragraph 19(9) of Part III of Schedule 3 to the Act, the PRA is required to inform the firm of these provisions.

01/04/2013

SUP 13.3.3A

(1) SUP 13.3.3 G does not apply to UK pure reinsurers as they have automatic passport rights on the basis of their Home State authorisation under the Reinsurance Directive.

(2) Under section 3 of Part III of the General Protocol, Home State regulators have agreed to inform Host State regulators if a pure reinsurer for which the Home State is responsible carries on business through a branch in the Host State. Therefore SUP 13.5.1A R requires a UK firm passporting under the Reinsurance Directive to notify the PRA of certain information relating to the branch.

01/04/2013

Issue of a consent notice to the Host State regulator

SUP 13.3.5

(1) If the UK firm's EEA right derives from the CRD or MiFID, the appropriate UK regulator will give the Host State regulator a consent notice within three months unless it has reason to doubt the adequacy of a UK firm's resources or its administrative structure. The Host State regulator then has a further two months to notify the applicable provisions (if any) and prepare for the supervision, as appropriate, of the UK firm, or in the case of a MiFID investment firm, to inform the UK firm that a branch can be established.
(1A) If the UK firm's EEA right derives from the UCITS Directive, the FCA will give the Host State regulator a consent notice within two months unless it has reason to doubt the adequacy of the UK firm's resources or its administrative structure. The Host State regulator then has a further two months to prepare for the supervision of the UK firm.
(1B) Where the UK firm's EEA right derives from AIFMD, the FCA will give the Host State regulator a consent notice within two months of having received the notice of intention and immediately inform the UK firm pursuant to SUP 13.3.6 G (1) if the FCA is satisfied that the firm complies, and continues to comply with:

(a) the provisions implementing the AIFMD; and
(b) any directly applicable EU regulation made under that directive.

(a) If the UK firm's EEA right derives from the Insurance Directives, the PRA will give the Host State regulator a consent notice within three months unless it has reason to:

(i) doubt the adequacy of the UK firm's resources or its administrative structure; or
(ii) question the reputation, qualifications or experience of the directors or managers of the UK firm or its proposed authorised agent;

in relation to the business the UK firm intends to conduct through the proposed branch. The Host State regulator then has a further two months to notify the applicable provisions (if any) and prepare for the supervision, as appropriate, of the UK firm.
(b) In assessing the matters in (2)(a), the PRA may, in particular, seek further information from the firm or require a report from a skilled person (see SUP 5 (skilled persons)).
(c) If the PRA has required a financial recovery plan of a UK firm of the kind mentioned in paragraph 1 of article 38 of the Consolidated Life Directive or paragraph 1 of article 20a of the First Non-Life Directive, the PRA will not give a consent notice for so long as it considers that policyholders are threatened within the meaning of those provisions.
(d) If the UK firm's EEA right derives from the Insurance Mediation Directive and SUP 13.3.2 G (2) applies, the appropriate UK regulator will give the Host State regulator a consent notice within one month of the date on which it received the UK firm's notice of intention. In cases where SUP 13.3.2 G (2) does not apply (see SUP 13.3.2A G), the UK firm may establish a branch as soon as it satisfies the conditions referred to in SUP 13.3.2 G.

01/01/2014

SUP 13.3.5A

Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give a consent notice, except where paragraph 19(7A) of Part III of Schedule 3 to the Act applies. Where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give a consent notice in relation to a UK firm whose immediate group includes a PRA-authorised person.

01/04/2013

SUP 13.3.6

(1) If the appropriate UK regulator gives a consent notice, it will inform the UK firm in writing that it has done so.
(2) The consent notice will contain, among other matters, the requisite details or, if the firm is passporting under the Insurance Directives, the relevant EEA details (see SUP 13 Annex 1) provided by the UK firm in its notice of intention (see SUP 13.5 (Notices of intention)).
(3) Where a consent notice is given under the UCITS Directive, the FCA will at the same time:

(a) communicate to the Host State regulator details of the compensation scheme intended to protect investors; and
(b) enclose the information described at SUP 13.3.2 G (2A).

(4) Where a consent notice is given under the AIFMD it must include confirmation that the UK firm has been authorised by the FCA under AIFMD.

23/07/2013

SUP 13.3.7

(1) If the appropriate UK regulator proposes to refuse to give a consent notice, then paragraph 19(8) of Part III of Schedule 3 to the Act requires the appropriate UK regulator to give the UK firm a warning notice.

(2) If the appropriate UK regulator decides to refuse to give a consent notice, then paragraph 19(12) of Part III of Schedule 3 to the Act requires the appropriate UK regulator to give the UK firm a decision notice within three months of the date on which it received the UK firm's notice of intention (two months in the case of a UK firm which is a UCITS management company or an AIFM). The UK firm may refer the matter to the Tribunal.

(3) [deleted]

23/07/2013

SUP 13.4

Providing cross border services into another EEA State

01/12/2004

The conditions for providing cross border services into another EEA State

SUP 13.4.2

A UK firm, other than a UK pure reinsurer or an AIFM exercising an EEA right to market an AIF under AIFMD, cannot start providing cross border services into another EEA State under an EEA right unless it satisfies the conditions in paragraphs 20(1) of Part III of Schedule 3 to the Act and, if it derives its EEA right from the Insurance Directives, AIFMD, MiFID or the UCITS Directive, paragraph 20(4B) of Part III of Schedule 3 to the Act. It is an offence for a UK firm which is not an authorised person to breach this prohibition (paragraph 21 of Part III of Schedule 3 to the Act).The conditions are that:

(1) the UK firm has given the appropriate UK regulator, in the way specified by appropriate UK regulator's rules (see SUP 13.5.2 R), notice of its intention to provide cross border services (known as a notice of intention) which:

(a) identifies the activities which it seeks to carry on by way of provision of cross border services; and
(b) includes such other information as may be specified by the appropriate UK regulator (see SUP 13.5.2 R); and

(2) if the UK firm is passporting under the Insurance Directives, the firm has received written notice from the PRA as described in SUP 13.4.6 G; or
(3) if the UK firm is passporting under the Insurance Mediation Directive and the EEA State in which the UK firm is seeking to provide services has notified the European Commission of its wish to be informed of the intention of persons to provide cross border services in its territory in accordance with article 6(2) of that directive, one month has elapsed beginning with the date on which the UK firm received written notice from the appropriate UK regulator as described in SUP 13.4.5 G (paragraph 20 (3B)(c) of Schedule 3 to the Act); or
(4) if the UK firm is passporting under AIFMD, the firm has received written notice from the FCA as described in SUP 13.4.4-AG (1)(c).

23/07/2013

SUP 13.4.2A

An appointed representative appointed by a firm to carry on insurance mediation activity on its behalf may provide cross border services in another EEA State under the Insurance Mediation Directive. In this case, the notice of intention in SUP 13.4.2 G (1) should be given to the appropriate UK regulator by the firm on behalf of the appointed representative.

01/04/2013

SUP 13.4.2C

A tied agent appointed by a MiFID investment firm to carry on investment services and activities (and ancillary services where relevant) does not have its own passporting right to provide cross border services in another EEA State. However, a MiFID investment firm remains free to appoint a tied agent to do business in another EEA State and where it does so, the tied agent will benefit from its passport.

01/04/2013

SUP 13.4.2D

A MiFID investment firm that wishes to obtain a passport for the activity of operating an MTF should follow the procedures described in this chapter. A UK market operator that operates a recognised investment exchange, a recognised auction platform (pursuant to the RAP regulations, the definition of regulated market in the Act is read for these purposes as including a recognised auction platform) or an MTF and wishes to provide cross border services into another EEA State should follow the procedure described in REC 4.2B.

01/04/2013

SUP 13.4.2E

SUP 13.4.2 G does not apply to UK pure reinsurers as they have automatic passport rights on the basis of their Home State authorisation under the Reinsurance Directive. No notification is required from UK pure reinsurers in respect of the provision of cross border services.

01/04/2013

Issuing a consent notice or notifying the Host State regulator

SUP 13.4.4

(1) If the UK firm's EEA right derives from MiFID, the CRD or the UCITS Directive, paragraph 20(3) of Part III of Schedule 3 to the Act requires the appropriate UK regulator to send a copy of the notice of intention to the Host State Regulator within one month of receipt. A UK firm passporting under the CRD may start providing cross border services as soon as it satisfies the relevant conditions (see SUP 13.4.2 G).
(2)

(a) If the UK firm's EEA right derives from the Insurance Directives, paragraph 20(3A) of Part III of Schedule 3 to the Act requires the PRA, within one month of receiving the notice of intention, to:

(i) give notice in a specified form (known as a consent notice) to the Host State regulator; or
(ii) give written notice to the UK firm of its refusal to give a consent notice and the reasons for that refusal.

(b) The issue or refusal of a consent notice under paragraph 20(3A) of Part III of Schedule 3 to the Act is the consequence of a regulatory decision, and this consent notice (unlike the consent notice for establishment of a branch) is not a statutory notice as set out in section 395 of the Act. A UK firm that receives notice that the PRA refuses to give a consent notice may refer the matter to the Tribunal under paragraph 20(4A) of Part III of Schedule 3 to the Act.
(c) If the PRA has required of a UK firm a financial recovery plan of the kind mentioned in paragraph 1 of article 38 of the Consolidated Life Directive or paragraph 1 of article 20a of the First Non-Life Directive, the PRA will not give a consent notice for so long as it considers that policyholders' rights are threatened within the meaning of those provisions.

(2A)

(a) If the UK firm's EEA right derives from the Insurance Mediation Directive, and the EEA State in which the UK firm is seeking to provide services has notified the European Commission of its wish to be informed of the intention of persons to provide cross border services in its territory in accordance with article 6(2) of that directive, paragraph 20(3B)(a) of Part III of Schedule 3 to the Act requires the appropriate UK regulator to send a copy of the notice of intention to the Host State regulator within one month of receipt. Otherwise, the UK firm may start providing cross border services as soon as it satisfies the relevant conditions (see SUP 13.4.2 G).
(b) The list of the EEA States that have notified the European Commission of their wish to be informed in accordance with article 6(2) of the Insurance Mediation Directive is published on the FCA's website at www.fca.org.uk.

(2B) Where a consent notice is given under the UCITS Directive, the FCA will at the same time:

(a) communicate to the Host State regulator details of the compensation scheme intended to protect investors; and
(b) provide to the Host State regulator:

(i) confirmation that the firm has been authorised as a management company under the provisions of the UCITS Directive;
(ii) a description of the scope of the firm's authorisation; and
(iii) details of any restriction on the types of EEA UCITS scheme that the firm is authorised to manage.

01/01/2014

SUP 13.4.4A

Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give a consent notice and where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give a consent notice in relation to a UK firm whose immediate group includes a PRA-authorised person.

01/04/2013

SUP 13.4.5

When the appropriate UK regulator sends a copy of a notice of intention , or if it gives a consent notice to the Host State regulator, it must inform the UK firm in writing that it has done so (paragraphs 20 (3B)(b), (3D)(a)(iii) and (4) and 20C(9) of Schedule 3 to the Act).

23/07/2013

Applicable provisions for cross border services

SUP 13.4.6

(1) [deleted]

(2) If the UK firm is passporting under the Insurance Directives, then the Host State regulator may notify the PRA if there are any applicable provisions. If so, the PRA will inform the UK firm of the applicable provisions.

(3) If a UK firm is not notified of the applicable provisions, it should, for its own protection, take all reasonable steps to determine the applicable provisions for itself.

01/04/2013

SUP 13.5

Notices of intention

01/12/2004

Specified contents: notice of intention to establish a branch

SUP 13.5.1

A UK firm, other than a UK pure reinsurer,or a CRD credit institution wishing to establish a branch in a particular EEA State for the first time under an EEA right other than under the auction regulation must submit a notice of intention in the form set out in SUP 13 Annex 1 R.

(1) [deleted]

(2) [deleted]

01/01/2014

SUP 13.5.1A

A UK pure reinsurer establishing a branch in a particular EEA state for the first time under the Reinsurance Directive mustsubmit a notice in the form set out in SUP 13 Annex 1 R. Whenever possible, this notification must be made as soon as the information specified in that form is known by the firm.

01/04/2013

SUP 13.5.1B

SUP 13.5.1 R does not apply to UK pure reinsurers or a UK firm exercising an EEA right under the auction regulation as they have automatic passport rights on the basis of their Home State authorisation under the Reinsurance Directive or the auction regulation. However, the information required by SUP 13.5.1A R and SUP 13.5.1AA R assists the FSA's supervision of a branch in another EEA state.

01/04/2013

Specified contents: notice of intention to provide cross border services

SUP 13.5.2

A UK firm wishing to provide cross border services into a particular EEA State for the first time under an EEA right other than under the auction regulation must submit a notice in the form set out in:

(1) SUP 13 Annex 2 R if the UK firm is passporting under MiFID; or
(1A) SUP 13 Annex 3 R if the UK firm is passporting under the Insurance Directives; or
(2) SUP 13 Annex 4 R if the UK firm is passporting under the CRD; or
(3) SUP 13 Annex 5 R if the UK firm is passporting under the Insurance Mediation Directive
(4) SUP 13 Annex 6 R, if the UK firm is a management company passporting under the UCITS Directive.
(5) SUP 13 Annex 8AR, if the UK firm is providing cross-border services under AIFMD to manage an AIF in another EEA State.
(6) SUP 13 Annex 8BR, if the UK firm is providing cross-border services under AIFMD to market an AIF in another EEA State.

01/01/2014

Method of submission of notices

SUP 13.5.3

(1) A UK firm, other than a credit union, must submit any notice under SUP 13.5.1 R (1), SUP 13.5.1A R or SUP 13.5.2 R online at www.fca.org.uk using theONAsystem.

(a) [deleted]

(b) [deleted]

(2) [deleted]

(a) [deleted]

(b) [deleted]

(d) [deleted]

(e) [deleted]

(f) [deleted]

(3) Where a firm is obliged to submit a notice in accordance with (1), if the information technology systems fail and online submission is unavailable for 24 hours or more, until such time as facilities for online submission are restored, a firm must submit that notice in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).

(4) [deleted]

01/04/2013

SUP 13.5.3A

A credit union must submit any notice under SUP 13.5.1 R (1), SUP 13.5.1A R or SUP 13.5.2 R in the way set out in SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).

01/04/2013

SUP 13.5.4

(1) If the information technology systems fail and online submission is unavailable for 24 hours or more, the appropriate UK regulator will endeavour to publish a notice on its website confirming that online submission is unavailable and that the alternative methods of submission set out in SUP 13.5.3 R (3) and SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification) should be used.

(2) Where SUP 13.5.3 R (3) applies to a firm, GEN 1.3.2 R (Emergency) does not apply.

01/04/2013

Unregulated activities

SUP 13.5.5

A notice of intention (other than one to establish a branch or provide services in another EEA state under the auction regulation) may include activities within the scope of the relevant Single Market Directive which are not regulated activities (paragraphs 19(3) and 20(2) of Part III of Schedule 3 to the Act), although in the case of a MiFID investment firm a notice of intention may only include ancillary services which are to be carried on with one or more investment services and activities (paragraphs 19(5B) and 20(2A) of Part III of Schedule 3 to the Act). Regulation 19 of the EEA Passport Rights Regulations states that where a UK firm is able to carry on such an unregulated activity in the EEA State in question without contravening any law of the United Kingdom (or any part of the United Kingdom) the UK firm is treated, for the purposes of the exercise of its EEA right, as being authorised to carry on that activity.

01/04/2013

Translations

SUP 13.5.6

(1) A UK firm passporting under the CRD , the Insurance Directives or the Reinsurance Directivemay have to submit the requisite details or relevant details in the language of the Host State as well as in English . For a UK firm passporting under the Insurance Directives this translated document will not include the relevant UK details. Further information is available from the PRA authorisations team.

(2) A UK firm may wish to discuss with the PRA authorisations teamthe appropriate time for providing the translations in (1), given that further information or clarification of the details provided may be required by the PRA .

(3) A UK firm passporting under the Insurance Directives should keep the EEA and UK relevant details separate as, if the application is approved, only the former will be sent to the Host State regulator.

01/01/2014

Notifications to more than one EEA State

SUP 13.5.7

If a UK firm wishes to establish branches in, or provide cross border services into, more than one EEA State, a single notification may be provided but the relevant information for each EEA State should be clearly identifiable.

01/04/2013

SUP 13.6

Changes to branches

01/12/2004

SUP 13.6.1

Where a UK firm is exercising an EEA right, other than under the Insurance Mediation Directive (see SUP 13.6.9A G) or the Reinsurance Directive (see SUP 13.6.9B R) or the CRD, and has established a branch in another EEA State, any changes to the details of the branch are governed by the EEA Passport Rights Regulations. References to regulations in this section are to the EEA Passport Rights Regulations. A UK firm which is not an authorised person should note that, under regulation 18, contravention of the prohibition imposed by regulation 11(1), 13(1) or 15(1) is an offence. It is a defence, however, for the UK firm to show that it took all reasonable precautions and exercised due diligence to avoid committing the offence.

01/01/2014

SUP 13.6.2

UK firms should note that if a branch in another EEA State ceases to provide services, this may represent a change in requisite details or, if the firm is passporting under the Insurance Directives, the relevant EEA details or relevant UK details.

01/04/2013

SUP 13.6.3

UK firms should also note that changes to the details of branches may lead to changes to the applicable provisions to which the UK firm is subject. These changes should be communicated to the UK firm either by the Host State regulator, or, if the firm is passporting under Insurance Directives, via the PRA .

01/04/2013

Firms passporting under CRD and the UCITS Directive.

SUP 13.6.4

If a UK firm has exercised an EEA right, under the CRD or the UCITS Directive, and established a branch in another EEA State, regulation 11(1) states that the UK firm must not make a change in the requisite details of the branch (see SUP 13 Annex 1), unless it has satisfied the requirements of regulation 11(2), or, where the change arises from circumstances beyond the UK firm's control, regulation 11(3) (see SUP 13.6.10 G).

01/01/2014

SUP 13.6.5

Where the change arises from circumstances within the control of the UK firm, the requirements in regulation 11(2) are that:

(1) the UK firm has given notice to the appropriate UK regulator and to the Host State regulator stating the details of the proposed change;

(2) the appropriate UK regulator has given the Host State regulator a notice informing it of the details of the change; and

(3) either the Host State regulator has informed the UK firm that it may make the change, or the period of one month beginning with the day on which the UK firm gave the Host State regulator the notice in (1) has elapsed.

01/04/2013

Firms passporting under MiFID

SUP 13.6.5A

If a UK firm has exercised an EEA right to establish a branch under MiFID, it must not make a change in the requisite details of the branch (see SUP 13 Annex 1), use, for the first time, a tied agent established in the EEA State in which the branch is established, or cease to use a tied agent established in the EEA State in which the branch is established, unless it has satisfied the requirements of regulation 11A(2) (see SUP 13.6.5B G).

01/04/2013

SUP 13.6.5B

The requirements of regulation 11A(2) are that:

(1) the UK firm has given a notice to the appropriate UK regulator stating the details of the proposed change; and

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

01/04/2013

Firms passporting under the Insurance Directives

SUP 13.6.6

If a UK firm has exercised an EEA right under the Insurance Directives and established a branch in another EEA State, regulation 13(1) states that the UK firm must not make a change in the relevant EEA details , unless it has satisfied the requirements of regulation 13(2), or, where the change arises from circumstances beyond the UK firm's control, regulation 13(3) (see SUP 13.6.10 G).

01/04/2013

SUP 13.6.7

Where the change arises from circumstances within the control of the UK firm, the requirements in regulation 13(2) are that:

(1) the UK firm has given notice to the PRA and to the Host State regulator stating the details of the proposed change;

(2) the PRA has given the Host State regulator a notice informing it of the details of the proposed change;

(3) the period of at least one month beginning on the day on which the UK firm gave the PRA the notice in (1) has elapsed; and

(4) either:

(a) a further period of one month has elapsed; or

(b) the PRA has informed the UK firm of any consequential changes in the applicable provisions of which the PRA has been notified by the Host State regulator.

01/04/2013

SUP 13.6.8

If a UK firm has exercised an EEA right under the Insurance Directives and established a branch in another EEA State, regulation 15(1) states that the UK firm cannot make a change in any of the relevant UK details unless the UK firm has given a notice to the PRA stating the details of the proposed change at least one month before the change is effected.

01/04/2013

SUP 13.6.9

Where a UK firm with Part 4A permission to carry on both long-term and general insurance business, is passporting under the Insurance Directives and wishes to extend its general insurance business to include long term insurance business (or vice versa), it should complete a new notice of intention and not a change to details notice.

01/04/2013

Firms passporting under the Insurance Mediation Directive

SUP 13.6.9A

A UK firm exercising its EEA right under the Insurance Mediation Directive to establish a branch in another EEA State is not required to supply a change to the details of branches notice .

01/04/2013

Firms passporting under the Reinsurance Directive

SUP 13.6.9B

A UK firm exercising its EEA right under the Reinsurance Directive to establish a branch in another EEA State must notify the PRA of any changes in the information specified in SUP 13 Annex 1 R. Whenever possible, this notification must be made as soon as the change in information is known by the firm.

01/04/2013

Changes arising from circumstances beyond the control of a UK firm

SUP 13.6.10

(1) If the change arises from circumstances beyond the UK firm's control, the UK firm:

(a) is required by regulation 11(3) or regulation 13(3) to give a notice to the appropriate UK regulator and to the Host State regulator stating the details of the change as soon as reasonably practicable;
(b) may, if it is passporting under the Insurance Directives, make a change to its relevant UK details under regulation 15(1) if it has, as soon as practicable (whether before or after the change), given notice to the PRA stating the details of the change.

(2) The appropriate UK regulator believes that for a change to arise from circumstances beyond the control of a UK firm, the circumstances should be outside the control of the firm as a whole and not just the branch in the EEA State.
(3) This guidance is not applicable to MiFID investment firms or AIFMs.

23/07/2013

The process

SUP 13.6.11

When the appropriate UK regulator receives a notice from a UK firm other than a MiFID investment firm (see SUP 13.6.5 G (1) and SUP 13.6.7 G (1)) a pure reinsurer (see SUP 13.6.9B R) or an AIFM (see SUP 13.6.9C G) it is required by regulations 11(4) and 13(4) to either refuse, or consent to the change within a period of one month from the day on which it received the notice.

23/07/2013

SUP 13.6.12

If the appropriate UK regulator consents to the change, then under regulations 11(5) and 13(5) it will:

(1) give a notice to the Host State regulator informing it of the details of the change; and

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

01/04/2013

SUP 13.6.12A

Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give consent to a change (or proposed change) and where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give consent in relation to a UK firm whose immediate group includes a PRA-authorised person.

01/04/2013

SUP 13.6.13

If a UK firm is passporting under the CRD, then regulation 11(7) provides that the PRA may not refuse to consent to a change unless, having regard to the change and to the EEA activities the UK firm is seeking to carry on, it doubts the adequacy of the administrative structure or the financial situation of the UK firm. In reaching its determination, the PRA may have regard to the adequacy of management, systems and the presence of relevant skills needed for the EEA activities to be carried on.

01/01/2014

SUP 13.6.14

If a UK firm is passporting under the Insurance Directives, then regulation 13(7) provides that the PRA may not refuse to consent to a change unless, having regard to the change, the PRA has reason:

(1) to doubt the adequacy of the UK firm's administrative structure or financial situation; or

(2) 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.

01/04/2013

SUP 13.6.15

If the appropriate UK regulator refuses to consent to a change, then under regulations 11(6) and 13(6):

(1) the appropriate UK regulator will give notice of the refusal to the UK firm, stating its reasons and giving an indication of the UK firm's right to refer the matter to the Tribunal and the procedures on such a reference; and

(2) the UK firm may refer the matter to the Tribunal.

01/04/2013

SUP 13.6.16

Standard forms are available from the FCA and PRA authorisations teams (see SUP 13.12 (Sources of further information)) to give the notices to the appropriate UK regulator described in SUP 13.6.5 G (1), SUP 13.6.5B G, SUP 13.6.7 G (1), SUP 13.6.8 G and SUP 13.6.10 G (1).

01/04/2013

The process: MiFID investment firms

SUP 13.6.17

When the appropriate UK regulator receives a notice from a UK MiFID investment firm (see SUP 13.6.5BG (1)), it is required by regulation 11A(3) to inform the relevant Host State regulator of the proposed change as soon as reasonably practicable. The firm in question may make the change once the period of one month beginning with the day on which it gave notice has elapsed.

01/04/2013

SUP 13.7

Changes to cross border services

01/12/2004

SUP 13.7.1

Where a UK firm is exercising an EEA right under the UCITS Directive, MiFID, the Insurance Directives or AIFMD and is providing cross border services into another EEA State, any changes to the details of the services are governed by the EEA Passport Rights Regulations. References to regulations in this section are to the EEA Passport Rights Regulations. A UK firm which is not an authorised person should note that contravention of the prohibition imposed by regulation 12(1), 12A(1) or 16(1) is an offence. It is a defence, however, for the UK firm to show that it took all reasonable precautions and exercised due diligence to avoid committing the offence.

23/07/2013

SUP 13.7.2

UK firms should also note that changes to the details of cross border services may lead to changes to the applicable provisions to which the UK firm is subject.

01/04/2013

Firms passporting under MiFID

SUP 13.7.3A

If a UK firm is providing cross border services in a particular EEA State in exercise of an EEA right deriving from MiFID, the UK firm must comply with the requirements of regulation 12A(2) before it makes a change to its programme of operations, including:

(1) changing the activities to be carried on in exercise that EEA right;

(2) using, for the first time, any tied agent to provide services in the territory of that EEA State; or

(3) ceasing to use any tied agent to provide services in the territory of that EEA State.

01/04/2013

SUP 13.7.3B

The requirements of regulation 12A(2) are that:

(1) the UK firm has given notice to the appropriate UK regulator stating the details of the proposed change; and

(2) the period of one month beginning with the day on which the UK firm gave the notice mentioned in (1) has elapsed.

01/04/2013

Firms passporting under the Insurance Directives

SUP 13.7.4

If a UK firm has exercised an EEA right under the Insurance Directives and is providing cross border services into another EEA State, regulation 16(1) states that the UK firm must not make a change in the relevant details (as defined in regulation 17 - see also SUP 13 Annex 3) unless the relevant requirements in regulation 16(3) or, where the change arises from circumstances beyond the UK firm's control, regulation 16(4), have been complied with.

01/04/2013

SUP 13.7.5

Regulation 16(3) provides that:

(1) the UK firm has given a notice to the PRA stating the details of the proposed change; and

(2) the PRA has given the Host State regulator a notice informing it of the details of the proposed change.

01/04/2013

SUP 13.7.6

If the change arises from circumstances beyond the UK firm's control, the UK firm is required by regulation 16(4) to give a notice to the PRA stating the details of the change as soon as reasonably practicable (whether before or after the change). See also SUP 13.6.10 G(2), as relevant to cross border services.

01/04/2013

SUP 13.7.6A

For further details on giving the notices to the appropriate UK regulator, as described in SUP 13.7.3 G (1), SUP 13.7.3A G, SUP 13.7.3B G, SUP 13.7.5 G (1)and SUP 13.7.6 G, UK firms may wish to use the standard electronic form available from the FCA and PRA authorisation teams (see SUP 13.12 (Sources of further information)).

01/04/2013

SUP 13.7.7

When the appropriate UK regulator receives a notice from a UK firm (see SUP 13.7.5 G (1) and SUP 13.7.6 G), it is required by regulations 16(5) to (6)either to refuse or consent to the change within one month of receipt.

01/04/2013

SUP 13.7.7A

01/04/2013

SUP 13.7.8

If the appropriate UK regulator consents to the change it will:

(1) give a notice to the Host State regulator informing it of the details of the proposed change; and

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

01/04/2013

SUP 13.7.9

If the appropriate UK regulator refuses to consent to a change it is required by regulation 16(7) to give notice of the refusal to the UK firm, stating its reasons and giving an indication of the UK firm's right to refer the matter to the Tribunal and the procedures that apply to such a reference.

01/04/2013

SUP 13.7.10

Where a UK firm with Part 4A permission to carry on both long-term and general insurance business is passporting under the Insurance Directives and wishes to extend its general insurance business to include long term insurance business (or vice versa), it should complete a new notice of intention and not a change to details notice.

01/04/2013

Firms passporting under the CRD and Insurance Mediation Directive

SUP 13.7.11

A UK firm providing cross border services under the CRD or Insurance Mediation Directive is not required to supply a change to the details of cross border services notice.

01/01/2014

Firms passporting under the Reinsurance Directive

SUP 13.7.12

A UK firm providing cross border services under the Reinsurance Directive is not required to supply notification of, or a change to the details of, its cross border services.

01/04/2013

Liaison between regulators

SUP 13.7.13A

01/04/2013

SUP 13.8

Changes of details: provision of notices to the appropriate UK regulator

01/04/2013

SUP 13.8.1

(1) Where a firm is required to submit a notice of a change to a branchreferred to in SUP 13.6.5 G (1), SUP 13.6.5BG (1), SUP 13.6.7 G (1) , SUP 13.6.8 G, SUP 13.6.9B R SUP 13.6.10 G (1) and SUP 13.6.9C G or a notice of a change to cross border servicesreferred to in SUP 13.7.3 G (1) , SUP 13.7.3AG (1), SUP 13.7.5 G (1) SUP 13.7.6 G , SUP 13.7.13G and SUP 13.7.14 G it must complete and submit that notice in accordance with the procedures set out in SUP 13.5 for notifying the establishing of a branch or the provision of cross border services.

(a) [deleted]

(b) [deleted]

(2) [deleted]

(a) [deleted]

(b) [deleted]

(d) [deleted]

(e) [deleted]

(f) [deleted]

(3) [deleted]

(4) [deleted]

23/07/2013

SUP 13.8.1A

The effect of SUP 13.8.1 R (1) is that a firm should submit any form, notice or application under SUP 13.8.1 R (1) in the following ways:

(1) A UK firm, other than a credit union, should submit it online at www.fca.org.uk using theONAsystem.

(2) If the information technology systems fail and online submission is unavailable for 24 hours or more, until such time as facilities for online submission are restored, a firm should submit it in the way set out in SUP 13.5.3 R (3) and SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification). GEN 1.3.2 R (Emergency) does not apply in these circumstances.

(3) If the information technology systems fail and online submission is unavailable for 24 hours or more, the appropriate UK regulator will endeavour to publish a notice on its website confirming that online submission is unavailable and that the alternative methods of submission should be used.

(4) [deleted]

01/04/2013

SUP 13.8.1B

A credit union should submit any form, notice or application under SUP 13.8.1 R (1) in the way set out in SUP 13.5.3 R (3) and SUP 15.7.4 R to SUP 15.7.9 G (Form and method of notification).

01/04/2013

SUP 13.8.2

UK firms passporting under the CRD or the Insurance Directives may be required to submit the change to details notice in the language of the Host State as well as in English.

01/01/2014

SUP 13.10

Applicable provisions

01/12/2004

SUP 13.10.1

UK firms are reminded that conduct of business rules, and other rules made for the general good, may apply to business carried on in the Host State by a UK firm. These are known in the Act as the applicable provisions (paragraph 19(13) of Part III of Schedule 3 to the Act).

01/04/2013

SUP 13.10.2

UK firms passporting under the CRD should note that, under the Directive, the Host State is responsible, together with the PRA , for monitoring the liquidity of a branch established by a UK firm in another EEA State.

01/01/2014

SUP 13.10.3

These Host State provisions often have requirements about the soliciting of business, for example, advertising and cold-calling rules. A UK firm should ensure it is familiar with, and acts in compliance with, the relevant requirements of its Host State regulator.

01/04/2013

SUP 13.11

Record keeping

01/12/2004

SUP 13.11.1

(1) A UK firm which is exercising an EEA right must make and retain a record of:

(a) the services or activities it carries on from a branch in, or provides cross-border into, another EEA State under that EEA right; and

(b) the details relating to those services or activities (as set out in SUP 13.6 and SUP 13.7).

(2) The record in (1) must be kept for five years (for firms passporting under MiFID) or three years (for other firms)from the earlier of the date on which:

(a) it was superseded by a more up-to-date record; or

(b) the UK firm ceased to have a branch in, or carry on cross border services into, any EEA State under an EEA right.

01/04/2013

SUP 13.11.2

The record in SUP 13.11.1 R need not relate to the level of business carried on. A UK firm may comply with SUP 13.11.1 R by, for example, keeping copies of all notices of intention and change to details notices.

01/04/2013

SUP 13.11.3

A UK firm should monitor the business carried on under an EEA right to ensure that any changes to details are notified as required by SUP 13.6 (Changes to branches) and SUP 13.7 (Changes to cross border services).

01/04/2013

SUP 13.12

Sources of further information

01/12/2004

SUP 13.12.1

(1) Given the complexity of issues raised by passporting, UK firms are advised to consult legislation and also to obtain legal advice at earliest opportunity. Firms are encouraged to contact their usual supervisory contact at the appropriate UK regulator to discuss their proposals. However, a UK firm which is seeking guidance on procedural or notification issues relating to passporting should contact the FCA and PRA authorisations teams, as and where appropriate.

(2) An applicant for Part 4A permission which is submitting a notice of intention with its application for such permission should contact the FCA and PRA authorisations teams, as and where appropriate.

01/04/2013

SUP 13.12.2

To contact the FCA and/or PRA authorisations teams, please see the details provided on that regulator's website.

01/04/2013

SUP 13 Annex 1

Passporting: Notification of intention to establish a branch in another EEA state

04/10/2010

This annex consists of only one or more forms. Forms can be completed online now by visiting: http://www.bankofengland.co.uk/pra/Pages/authorisations/passporting/notifying.aspx
The forms are also to be found through the following address:
Passporting: Notification of intention to establish a branch in another EEA state - SUP 13 Annex 1

01/01/2014

SUP 13 Annex 2

Passporting: Markets in Financial Instruments Directive

04/10/2010

This annex consists of only one or more forms. Forms can be completed online now by visiting: http://www.fsa.gov.uk/Pages/doing/index.shtml.

The forms are also to be found through the following address:

Passporting: Markets in Financial Instruments Directive - SUP 13 Annex 2

01/04/2013

SUP 13 Annex 3

Passporting: Consolidated Life Directive and Third Non-Life Directive

04/10/2010

This annex consists of only one or more forms. Forms can be completed online now by visiting: http://www.fsa.gov.uk/Pages/doing/index.shtml

The forms are also to be found through the following address:

Passporting: Consolidated Life Directive and Third Non-Life Directive - SUP 13 Annex 3

01/04/2013

SUP 13 Annex 4

Passporting: Capital Requirements Directive

01/01/2014

http://www.bankofengland.co.uk/pra/Pages/authorisations/passporting/notifying.aspx

The forms are also to be found through the following address:
Passporting: Capital Requirements Directive SUP 13 Annex 4

01/01/2014

SUP 13 Annex 5

Passporting: Insurance Mediation Directive

04/10/2010

This annex consists of only one or more forms. Forms can be completed online now by http://www.fsa.gov.uk/Pages/doing/index.shtml

The forms are also to be found through the following address:

Passporting: Insurance Mediation Directive - SUP 13 Annex 5

01/04/2013

SUP 13 Annex 7

Passporting: Emissions Trading. Notice of intention from a UK firm to exercise the right of establishment in another EEA Member State

27/07/2012

This annex consists of only one or more forms. Forms can be completed online now by visiting http://www.fca.org.uk/firms/systems-reporting/ona
The forms are also to be found through the following address:

Passporting: Emissions Trading. Notice of intention from a UK firm to exercise the right of establishment in another EEA Member State - SUP 13 Annex 7

01/04/2013