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: 30/12/2004

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.

21/06/2001

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 Orderrespectively.

21/06/2001

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 AUTH 5 (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 a UCITS scheme by its operator in another EEA State under the UCITS Directive (see COLLG 2.1.8 G and CIS 2.3.4 G).

01/04/2004

SUP 13.1.4

SUP 13 Ann X [to be issued later] contains guidance on the Single Market Directives.

21/06/2001

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.

21/06/2001

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.

21/06/2001

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 Banking Consolidation Directive , 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.

21/06/2001

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.

21/06/2001

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, an insurer carrying on both direct insurance and reinsurance business is not covered by the Insurance Directives in respect of the reinsurance element. It may, however, have rights under the Treaty in respect of its reinsurance business. Such UK firms may wish to consult with the FSA on their particular circumstances (see SUP 13.12.2 G).

21/06/2001

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 13 Ann X [to be issued later].

21/06/2001

The conditions for establishing a branch

SUP 13.3.2

A UK firm cannot establish a branch in another EEA State for the first time under an EEA right unless the conditions in paragraphs 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 FSA, in accordance with the FSA rules (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 FSA (see SUP 13.5.1 R);

(2) the FSA has given notice (known as a consent notice) to the Host State regulator; and
(3)

(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 FSA 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:

(i) the Host State regulator has notified the UK firm (or, where the UK firm is passporting under the Insurance Directives, the FSA ) of the applicable provisions; or
(ii) two months have elapsed beginning with the date on which the FSA gave the consent notice.

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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.

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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 FSA by the firm

21/06/2001

SUP 13.3.2C

An exempt professional firm which is included in the record of unauthorised persons carrying on insurance mediation activity maintained by the FSA under article 93 of the Regulated Activities Order may establish a branch in another EEA State under the Insurance Mediation Directive (see PROF 7.2).

21/06/2001

SUP 13.3.3

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

21/06/2001

How long will the process take?

SUP 13.3.4

On receipt of a UK firm's notice of intention (prepared in accordance with SUP 13.3.2 G (1) and SUP 13.5.1 R) then:

(1) where the UK firm is passporting under the Insurance Mediation Directive:

(a) if the UK firm seeking to passport in an EEA State which wishes to be informed of the intention of persons establishing a branch in its territory (see SUP 13.3.2A G), the FSA has one month to notify the relevant Host State regulator;

(b) otherwise, the UK firm may establish a branch as soon as it satisfies the conditions referred to in SUP 13.3.2 G (1);

(2) in any other case, the FSA has three months to consider it and, if satisfied with the proposal, notify the relevant Host State regulator. 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.

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SUP 13.3.4A

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 FSA's website at www.fsa.gov.uk.

21/06/2001

Issue of a consent notice to the Host State regulator

SUP 13.3.5

(1) If a UK firm has given the FSA a notice of intention in the required form, then:

(a) if the UK firm's EEA right derives from the Banking Consolidation Directive, the Investment Services Directive, or the UCITS Directive, the FSA 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;
(b) if the UK firm's EEA right derives from the Insurance Directives, the FSA 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,

(c) if the UK firm's EEA right derives from the Insurance Mediation Directive and SUP 13.3.2 G (2) applies, the FSA 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 relation to the business the UK firm intends to conduct through the proposed branch;
(2) in assessing the matters in SUP 13.3.5 G (1)(b) the FSA may, in particular, seek further information from the firm or require a report from a skilled person (see SUP 5 (Skilled Persons)).
(3) If the FSA has required a financial recovery plan of a UK firm of the kind mentioned in paragraph 1 of article 38 of the Life Directive (2002/83/EC) or paragraph 1 of article 20a of the First Non-Life Directive, the FSA will not give a consent notice for so long as it considers that policyholders' are threatened within the meaning of paragraph 1.

13/02/2004

SUP 13.3.6

(1) If the FSA 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 (see SUP 13 Annex 1) or (if the firm is passporting under the Insurance Directives) the EEA relevant details (see SUP 13 Annex 2) provided by the UK firm in its notice of intention (see SUP 13.5 (Notices of intention)).

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SUP 13.3.7

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

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

(3) For details of the FSA's procedures for the giving of warning notices or decision noticesand references to the Tribunal see DEC 2 (Statutory notice procedure: Warning notice and decision notice procedure) and DEC 5 (References to the Tribunal, publication and service of notices).

13/02/2004

SUP 13.4

Providing cross border services into another EEA State

01/12/2004

Where is the service provided?

SUP 13.4.1

Guidance on where a cross border service is provided is given in SUP 13 Ann X [to be issued later].

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The conditions for providing cross border services into another EEA State

SUP 13.4.2

A UK firm 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, 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 FSA, in the way specified by FSA 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 FSA (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 FSA 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 FSA as described in SUP 13.4.5 G (paragraph 20 (3B)(c) of Schedule 3 to the Act).

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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 FSA by the firm.

21/06/2001

SUP 13.4.2B

An exempt professional firm which is included in the record of unauthorised persons carrying on insurance mediation activity maintained by the FSA under article 93 of the Regulated Activities Order may provide cross border services in another EEA State under the Insurance Mediation Directive (see PROF 7.2).

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How long will the process take?

SUP 13.4.3

On receipt of a UK firm's notice of intention (prepared in accordance with SUP 13.4.2 G (1) and SUP 13.5.2 R) then:

(1) if the EEA right is derived from the Investment Services Directive, the Banking Consolidation Directive, or the UCITS Directive, the FSA has one month to notify the relevant Host State regulator;

(2) however, a UK firm passporting under the Banking Consolidation Directive and the Investment Services Directive may start providing cross border services as soon as it satisfies the relevant conditions (see SUP 13.4.2 G);

(3) if the EEA right is derived from the Insurance Directives, the FSA has one month to consider it and, if satisfied with the proposal, notify the relevant Host State regulator;

(4) if the EEA right is derived from the Insurance Mediation Directive:

(a) where 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, the FSA has one month to notify the relevant Host State regulator;

(b) otherwise, the UK firm may start providing cross border services as soon as it satisfies the relevant conditions (see SUP 13.4.2 G).

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SUP 13.4.3A

21/06/2001

Issuing a consent notice or notifying the Host State regulator

SUP 13.4.4

If a UK firm has given the FSA a notice of intention in the required form, then:

(1) if the UK firm's EEA right derives from the Investment Services Directive, the Banking Consolidation Directive or the UCITS Directive, paragraph 20(3) of Part III of Schedule 3 to the Act requires the FSA to send a copy of the notice of intention to the Host State Regulator within one month of receipt; or
(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 FSA, 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. As such, the FSA will follow the decision making procedures set out in DEC 1 (Application, Purpose and Introduction). A UK firm that receives notice that the FSA 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. For procedures relating to references to the Tribunal see DEC 5 (References to the Tribunal, publication and service of notices); or

(2A) 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 FSA to send a copy of the notice of intention to the Host State regulator within one month of receipt.
(3) If the FSA has required of a UK firm a financial recovery plan of the kind mentioned in paragraph 1 of article 38 of the Life Directive (2002/83/EC) or paragraph 1 of article 20a of the First Non-Life Directive, the FSA will not give a consent notice for so long as it considers that policyholders' rights are threatened within the meaning of paragraph 1.

13/02/2004

SUP 13.4.5

When the FSA 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) and (4) of Schedule 3 to the Act).

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Applicable provisions for cross border services

SUP 13.4.6

(1) If the UK firm is passporting under the Investment Services Directive or UCITS Directive, then when the Host State regulator receives the notice of intention, it should inform the UK firm of any applicable provisions.

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

13/02/2004

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 wishing to establish a branch in a particular EEA State for the first time under an EEA right must include in its notice of intention given to the FSA:

(1)

(a) the information specified in SUP 13 Annex 1; and

(b) if the UK firm is passporting under the Insurance Directives, the information specified in SUP 13 Annex 2; or

(2) if the UK firm is passporting under the Insurance Mediation Directive, only a statement that it intends to carry on insurance mediation in the State by establishing a branch.

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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 must include, in its notice of intention given to the FSA:

(1) if the UK firm is passporting under the Investment Services Directive or the Insurance Directives, the information specified in SUP 13 Annex 3;
(2) if the UK firm is passporting under the Banking Consolidation Directive, the activities which it intends to carry on.
(3) if the UK firm is passporting under the Insurance Mediation Directive, only a statement that it intends to carry on insurance mediation in that State by provision of cross border services.

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SUP 13.5.3

(1) The notice of intention under SUP 13.5.1 R and SUP 13.5.2 R must be:

(a) given to a member of, or addressed for the attention of, the Authorisation and Approvals Department (Authorisation teams), if submitted with an application for Part IV permission, or the Passport Notifications Unit in any other circumstances; and

(b) delivered to the FSA by one of the methods in (2).

(2) The notice of intention may be delivered by:

(a) post to the address in (3); or

(b) leaving the application at the address in (3) and obtaining a time-stamped receipt; or

(c) hand delivery to a member of the Authorisation and Approvals Department (Authorisation teams) (if submitted with an application for Part IV permission) or to the Passport Notification Unit;

(d) electronic mail to the address in (4) if not submitted with an application for Part IV Permission and obtaining an electronic confirmation of receipt;

(e) fax to the Passport Notifications Unit on 020 7066 xxxx (if not submitted with an application for Part IV Permission ) provided that the FSA receives a copy by one of the methods (a) to (d) above within five business days after the date of the faxed notification.

(3) The address for notices of intention is: The Financial Services Authority, 25 The North Colonnade, Canary Wharf, London E14 5HS.

(4) Email: passport.notifications@fsa.gov.uk

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SUP 13.5.4

A standard form of notice of intention that a UK firm may wish to use is available from the Passport Notifications Unit (see SUP 13.12 (Sources of further information)).

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Unregulated activities

SUP 13.5.5

A notice of intention 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). 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.

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Translations

SUP 13.5.6

(1) A UK firm passporting under the Banking Consolidation Directive or the Insurance Directivesmay 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 Passport Notifications Unit.

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

(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.

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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 requisite details or relevant details for each EEA State should be clearly identifiable.

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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), 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.

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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 relevant details.

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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 FSA authorisations team.

21/06/2001

Firms passporting under the Investment Services Directive, the Banking Consolidation Directive and the UCITS Directive.

SUP 13.6.4

If a UK firm has exercised an EEA right, under the Investment Services Directive, the Banking Consolidation Directive 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).

13/02/2004

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 FSA and to the Host State regulator stating the details of the proposed change;

(2) the FSA 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.

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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 (see SUP 13 Annex 1), 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).

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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 FSA and to the Host State regulator stating the details of the proposed change;

(2) the FSA 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 FSA the notice in (1) has elapsed; and

(4) either:

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

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

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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 UK relevant details (see SUP 13 Annex 2) unless the UK firm has given a notice to the FSA stating the details of the proposed change at least one month before the change is effected.

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SUP 13.6.9

Where a UK firm with Part IV 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 (see SUP 13.5(Notices of intention) and not a change in requisite details notification.

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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 requisite details or relevant details. Therefore there are no requisite details or relevant details for changes to a branch established in another EEA State under the Insurance Mediation Directive.

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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 FSA 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 UK relevant details under regulation 15(1) if it has, as soon as practicable (whether before or after the change), given notice to the FSA stating the details of the change.

(2) The FSA 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.

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The process

SUP 13.6.11

When the FSA receives a notice from a UK firm(see SUP 13.6.5 G (1) and SUP 13.6.7 G (1)) 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.

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SUP 13.6.12

If the FSA 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.

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SUP 13.6.13

If a UK firm is passporting under the Investment Services Directive or Banking Consolidation Directive, then regulation 11(7) states that the FSA 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 FSA may have regard to the adequacy of management, systems and the presence of relevant skills needed for the EEA activities to be carried on.

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SUP 13.6.14

If a UK firm is passporting under the Insurance Directives, then regulation 13(7) states that the FSA may not refuse to consent to a change unless, having regard to the change, the FSA 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.

21/06/2001

SUP 13.6.15

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

(1) the FSA 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; for details of procedures for a reference to the Tribunal see DEC 5 (References to the Tribunal, publication and service of notices).

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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 Investment Services Directive or Insurance Directives 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) 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.

21/06/2001

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.

21/06/2001

Firms passporting under the Investment Services Directive and the UCITS Directive

SUP 13.7.3

If a UK firm is passporting under the Investment Services Directive or the UCITS Directive, regulation 12(1) states that the UK firm must not make a change in its programme of operations, or the activities to be carried on under its EEA right, unless the relevant requirements in regulation 12(2) have been complied with. These requirements are:

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

(2) if the change arises as a result of circumstances beyond the UK firm's control, the UK firm has as soon as practicable (whether before or after the change) given a notice to the FSA and to the Host State regulator, stating the details of the change.

13/02/2004

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 (see 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.

21/06/2001

SUP 13.7.5

Regulation 16(3) provides that:

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

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

21/06/2001

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 FSA 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.

21/06/2001

SUP 13.7.7

When the FSA receives a notice from a UK firm (see SUP 13.7.3 G (1) and SUP 13.7.5 G), it is required by regulations 16(5) toeither refuse or consent to the change within one month of receipt.

21/06/2001

SUP 13.7.8

If the FSA 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.

21/06/2001

SUP 13.7.9

If the FSA refuses to consent to a change it will follow the decision making procedures set out in DEC 1 (Application, Purpose and Introduction). The FSAis 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. For details of procedures relating to references to the Tribunal see DEC 5 (References to the Tribunal, publication and service of notices).

21/06/2001

SUP 13.7.10

Where a UK firm with Part IV 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 (see SUP 13.5 (Notices of intention)) and not a change in requisite details notification.

21/06/2001

Firms passporting under the Banking Consolidation Directive and Insurance Mediation Directive

SUP 13.7.11

A UK firm providing cross border services under the Banking Consolidation Directive or Insurance Mediation Directive is not required to supply requisite details or relevant details. Therefore, there are no requisite details or relevant details for changes to cross-border services provided under the Banking Consolidation Directive or Insurance Mediation Directive.

21/06/2001

SUP 13.8

Changes of details: provision of notices to the FSA

01/12/2004

SUP 13.8.1

(1) A notice of a change to a branchunder SUP 13.6.5 G (1), SUP 13.6.7 G (1) and SUP 13.6.10 G (1) and a notice of a change to cross border servicesunder SUP 13.7.3 G (1) or SUP 13.7.5 G (1) must be:

(a) given to a member of, or addressed for the attention of, the Passport Notifications Unit; and

(b) delivered to the FSA by one of the methods in (2).

(2) The notice of intention may be delivered by:

(a) post to the address in (3); or

(b) leaving the application at the address in (3) and obtaining a time-stamped receipt; or

(c) hand delivery to a member of the Corporate Authorisation department (if submitted with an application for Part IV permission) or the Passport Notifications Unit;

(d) electronic mail to the address in (4) if not submitted with an application for Part IV permissionand obtaining an electronic confirmation of receipt;

(e) fax to the Passport Notifications Unit on 020 7066 xxxx (if not submitted with an application for Part IV permissionprovided that the FSA receives a copy by one of the methods (a) to (d) above within five business days after the date of the faxed notification.

(3) The address for notices of intention is: The Financial Services Authority, 25 The North Colonnade, Canary Wharf, London E14 5HS.

(4) Email: passport.notifications@fsa.gov.uk

21/06/2001

SUP 13.8.2

UK firms passporting under the Banking Consolidation Directive or the Insurance Directives may be required to submit the changes to the requisite details or relevant details in the language of the Host State as well as in English. See SUP 13.5.6 G.

21/06/2001

SUP 13.9

How does the Handbook apply to branches and cross border services?

01/12/2004

SUP 13.9.1

Annex [X] [to be issued later] summarises how the FSA Handbook applies to branches of a UK firm established in other EEA States or to cross border services provided by a UK firm into another EEA State.

21/06/2001

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).

21/06/2001

SUP 13.10.2

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

21/06/2001

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.

21/06/2001

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 requisite details or relevant details relating to those services or activities (if applicable).

(2) The record in (1) must be kept for three years 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.

21/06/2001

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 notices of changes of requisite details or relevant details.

21/06/2001

SUP 13.11.3

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

21/06/2001

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 FSA to discuss their proposals. However, a UK firm which is seeking guidance on procedural or notification issues relating to passporting should contact the Passport Notifications Unit.

(2) An applicant for Part IV permission which is submitting a notice of intention with its application for such permission (see AUTH 3.20 (Specific obligations: applicants seeking to establish a branch in, or provide services, into another EEA State)) should contact the Corporate Authorisation department in the first instance (see AUTH 1.9 (Next Steps)).

21/06/2001

SUP 13.12.2

To contact the Passport Notifications Unit, from which a standard form of notice of intention can be obtained:

(1) telephone on 020 7066 1000; fax on 020 7066 xxxx; or

(2) write to: The Passport Notifications Unit, The Financial Services Authority, 25 The North Colonnade, Canary Wharf, London E14 5HS; or

(3) Email: passport.notifications@fsa.gov.uk

21/06/2001

SUP 13 Annex 1

Requisite details: branches R

01/12/2004

Type of firm

Requisite details (see notes 1 & 2)

Credit Institution or Investment firm

(a)

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

(b)

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

(c)

the names of the managers of the branch.

UCITS management company

The information required under 1 above, plus: the EEA State within the territory of which the UCITS management company plans to establish a branch;

Insurance undertaking

(1) (a)

the address of the branch;

(b)

the name of the UK firm's authorised agent (see note 3) and, in the case of a member of Lloyd's, confirmation that the authorised agent has power to accept service of proceedings on behalf ofLloyd'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 Stateconcerned;

(h)

if the firm covers, or intends to cover, relevant motor vehicle risks, details of the firm 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 (1)(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;

(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 (1)(g)(iii) are:

(a)

estimates relating to the expenses of management (other than the costs of installation), and in particular those relating to current general 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 intended to cover underwriting liabilities .

Notes

Note 1: The requisite details or relevant details specified in this annex are those in the EEA Passport Rights Regulations; that is, those in regulation 1 for credit institutions and investment firms and those in regulation 14 for insurance undertakings.
Note 2: In this table, the references to classes of insurance have the meaning given to them in Schedule 1 to the Regulated Activities Order.
Note 3: For the purposes of this table, 'authorised agent' means an agent or employee of the insurance undertaking who has authority (a) to bind the insurance undertaking in its relations with third parties, and (b) to represent the insurance undertaking in its relations with overseas regulators and courts in the EEA States of the branch.

13/02/2004

SUP 13 Annex 2

Relevant UK details: branches of insurance undertakings R

01/12/2004

Relevant UK details

(1)

the names of the UK firm's managers and main agents in the EEA State concerned;

(2)

particulars of any association which exists or is proposed to exist between:

(a)

the directors and controllers of the UK firm;

(b)

any person who will act as insurance broker, agent, loss adjuster or reinsurer for the UK firm in the EEA State concerned;

(3)

the names of the principal reinsurers of business to be carried on in the EEA State concerned;

(4)

the sources of business in the EEA State concerned (for, example, insurance brokers, agents, own employees or direct selling) with the approximate percentage expected from each of these sources;

(5)

copies or drafts of:

(a)

any separate reinsurance treaties covering business to be written in the EEA State concerned;

(b)

any standard agreements which the UK firm will enter into with brokers or agents in the EEA State concerned;

(c)

any agreements which the insurance undertaking will enter into with persons (other than employees of the UK firm) who will manage the business to be carried on in the EEA State concerned;

(6)

in the case of a UK firm which intends to carry on long-term business:

(a)

the technical bases which the actuary appointed in accordance with SUP 4.3.1 R proposes to use for each class of business to be carried on in the EEA State, including the bases needed for calculating premium rates and mathematical reserves;

(b)

a statement by the actuary so appointed whether he considers that the premium rates which will be used in the EEA State concerned are suitable;

(c)

a statement by that actuary whether he agrees with the information provided under relevant EEA details (1)(e) and (2)(b) and (c);

(d)

the technical bases used to calculate the statements and estimates referred to in relevant EEA details (2); and

(7)

in the case of a UK firm which intends to carry on general business, copies or drafts of any agreements which the UK firm will have with main agents in the EEA State concerned.

01/11/2004

SUP 13 Annex 3

Requisite and relevant details: Cross Border Services

01/12/2004

Type of firm

Requisite / relevant details

Requisite Details

Investment firm

(a)

d etails of the programme of operations, stating in particular the service or services the UK firm intends to provide.

UCITS management company

(a)

The information required under 1 above , plus :
the EEA State within the territory of which the UCITS management company plans to establish a branch;

Relevant details (regulation 17)

Insurance Undertaking

(a)

t he 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 (note 1):

(i)

the name and address of the claims representative (note 2); 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, the technical bases used, or to be used, for calculating premiums in respect of such risks ;

13/02/2004