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The Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001

Type Statutory-Instrument

Publication 2001-07-12

State In force

Department King's Printer of Acts of Parliament

Source legislation.gov.uk

Reform history JSON API PDF

Made: 12th July 2001

Laid before Parliament: 13th July 2001

Coming into force in accordance with regulation 1(1)

The Treasury, in exercise of the powers conferred on them by paragraphs 13(1)(b)(iii), 14(1)(b), 17(a), (b) and (c), 18 and 22 of Schedule 3 to, and sections 417(1)[^f00001] and 426 to 428 of, the Financial Services and Markets Act 2000[^f00002], hereby make the following Regulations:

PART I — General

Citation, commencement and interpretation

1

(1) These Regulations may be cited as the Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001, and come into force on the day on which section 19 of the Act comes into force.

(2) In these Regulations—

“the 2BCD Regulations” means the Banking Coordination (Second Council Directive) Regulations 1992[^f00003];

“the Act” means the Financial Services and Markets Act 2000;

“authorised agent” means, in relation to an EEA firm or UK firm, an agent or employee of the firm who has authority to bind the firm in its relations with third parties, and to represent the firm in its relations with the FCA, the PRA or the host state regulator (as the case may be) and with the courts in the United Kingdom or the EEA State concerned (as the case may be);

“claims representative”, in relation to a UK firm and an EEA State, means a person who has been designated as the firm’s representative in that EEA State, and has authority—to act on behalf of the firm and to represent, or to instruct others to represent, the firm in relation to any matters giving rise to claims made against policies issued by the firm, to the extent that they cover motor vehicles risks situated in the EEA State;to pay sums in settlement of such claims (but not to settle such claims); andto accept service on behalf of the firm of proceedings in respect of such claims;

“commencement” means the beginning of the day on which section 19 of the Act comes into force;

“contract of insurance”, “contract of general insurance” and “contract of long-term insurance” have the same meaning as in the Regulated Activities Order;

“credit institution” means an EEA firm falling within paragraph 5(b) of Schedule 3;

“EEA activities” means—in relation to an EEA firm, activities which the firm is seeking to carry on in the United Kingdom in exercise of an EEA right;in relation to a UK firm, activities which the firm is seeking to carry on in another EEA State in exercise of an EEA right;

“EEA mortgage intermediary” means a person falling within paragraph 5(i) of Schedule 3;

“financial institution” means an EEA firm falling within paragraph 5(c) of Schedule 3;

“the Friendly Societies Act” means the Friendly Societies Act 1992[^f00004];

“health insurance risks”, in relation to an EEA State, means risks of a kind mentioned in paragraph 2 of Schedule 1 to the Regulated Activities Order (sickness), where—contracts of insurance covering those risks serve as a partial or complete alternative to the health cover provided by the statutory social security system in that EEA State; andthe law of that EEA State requires such contracts to be operated on a technical basis similar to life assurance in accordance with all the conditions listed in Article 206(2) of the Solvency 2 Directive;

“the Insurance Companies Act” means the Insurance Companies Act 1982[^f00005];

“insurance firm” means an EEA firm falling within paragraph 5(d) of Schedule 3;

“insurance intermediary” means an EEA firm falling within paragraph 5(e) of Schedule 3;

“investment firm” means an EEA firm falling within paragraph 5(a) of Schedule 3;

“the ISD Regulations” means the Investment Services Regulations 1995[^f00006];

“management company” means an EEA firm falling within paragraph 5(f) of Schedule 3;

“national bureau”, in relation to an EEA State, means a professional organisation—which has been constituted in that EEA State in accordance with Recommendation No. 5 adopted on 25th January 1949 by the Road Transport Sub-committee of the Inland Transport Committee of the United Nations Economic Commission for Europe; andwhich groups together undertakings which in that EEA State are authorised to conduct the business of motor vehicle liability insurance;

“national guarantee fund”, in relation to an EEA State, means a body—which has been set up or authorised in that EEA State in accordance with Article 1(4) of Council Directive 84/5/EEC on the approximation of laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles[^f00007]; andwhich provides compensation for damage to property or personal injuries caused by unidentified vehicles or vehicles for which the insurance obligation provided for in Article 1(1) of that Directive has not been satisfied;

“the Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001[^f00008];

“relevant motor vehicle risks” means risks of damage arising out of or in connection with the use of motor vehicles on land, including third party risks (but excluding carrier’s liability);

“requisite details”, in relation to a branch, means—particulars of the programme of operations carried on, or to be carried on, from the branch, including a description of the particular EEA activities to be carried on, and of the structural organisation of the branch;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; andthe names of the managers of the business;

“Schedule 3” means Schedule 3 to the Act ;

“tied agent” has the meaning given in Article 4.1.29 of the markets in financial instruments directive;

“UK investment firm” means a UK firm—which is an investment firm (within the meaning of section 424A of the Act),whose EEA right derives from the markets in financial instruments directive.

PART II — Exercise of Passport Rights by EEA Firms

Contents of consent notice and regulator’s notice

Establishment of a branch: contents of consent notice

2

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

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

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

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

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

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

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

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

(b) the requisite details of the branch; and

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

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

(b) the requisite details of the branch;

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

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

(a) a statement that—

(i) the firm is a financial institution;

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

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

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

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

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

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

(b) the requisite details of the branch;

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

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

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

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

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

(d) in the case of a firm which intends to cover relevant motor vehicle risks, a declaration by the firm that it has become a member of the Motor Insurers' Bureau (being a company limited by guarantee and incorporated under the Companies Act 1929[^f00009] on the 14th June 1946); and

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

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

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

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

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

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

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

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

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

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

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

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

(b) the requisite details of the branch;

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

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

(9) In the case of an insurance intermediary, the prescribed information is—

(a) a statement that the firm is an insurance intermediary;

(b) the requisite details of the branch, including the name, address, and where applicable, the registration number of the firm;

(c) the category of intermediary and if applicable, the name of any insurance or reinsurance undertaking represented; and

(d) if applicable, the relevant classes of insurance.

Provision of services: contents of regulator’s notice

3

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

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

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

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

(2ZA) In the case of an investment firm exercising the right under Article 34.6 of the markets in financial instruments directive, the prescribed information is—

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

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

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

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

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

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

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

(b) the name and address of the firm;

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

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

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

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

(4) In the case of an insurance intermediary, the prescribed information is—

(a) a statement that the firm is an insurance intermediary;

(b) the firm’s name, address and where applicable, its registration number;

(d) the Member State or Member States in which the intermediary intends to operate; and

(e) particulars of the services to be carried on including, if applicable, the relevant classes of insurance.

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

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

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

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

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

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

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

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

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

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

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

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

Changes relating to EEA firms

Investment firms, credit institutions and financial institutions: changes to branch details

4

(1) A management company, credit institution or financial institution which has established a branch in the United Kingdom in exercise of an EEA right must not make a change in the requisite details of the branch, unless the relevant requirements have been complied with.

(2) Where the relevant requirements have been complied with, the firm’s permission is to be treated as varied accordingly.

(3) For the purposes of this regulation, the “relevant requirements” are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm’s control) paragraph (5).

(4) The requirements of this paragraph are that—

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

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

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