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

Type Statutory-Instrument
Publication 2019-03-15
State In force
Department King's Printer of Acts of Parliament
Source legislation.gov.uk
articles Not indexed
Reform history JSON API PDF

Made: 15th March 2019

Coming into force in accordance with regulation 1(2) and (3)

The Treasury, in exercise of the powers conferred by section 8(1) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018 , make the following Regulations.

A draft of these Regulations has been laid before, and approved by a resolution of, each House of Parliament in accordance with paragraph 1(1) of Schedule 7 to the European Union (Withdrawal) Act 2018.

PART 1 — Introductory

Citation and commencement

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PART 2 — Amendments of Financial Services and Markets Act 2000

Amendments of section 409 of Financial Services and Markets Act 2000

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(7) For the purposes of this section, Schedule 3 and section 264, and regulations made under that Schedule or that section, continue to apply on and after IP completion day as they had effect immediately before IP completion day , but subject to any modifications specified in an order under this section. (8) In relation to the exercise of Gibraltar-related market access rights and persons exercising those rights, the relevant legislation (as defined in subsections (11) and (12)) continues to apply on or after IP completion day as if it had not been repealed, revoked or amended by regulations under section 8 of the European Union (Withdrawal) Act 2018, but this is subject to— (a) subsection (9), and (b) any further modifications specified in an order under this section. (9) The relevant legislation is to be read as if references to a person's rights under any EU legislation were to the person's rights deriving from that legislation. (10) “Gibraltar-related market access rights” means (a) rights conferred by virtue of subsection (1)(a) or (d), or (b) the rights mentioned in subsection (1)(b). (11) “The relevant legislation” means— (a) in section 31 (authorised persons), subsection (1)(b); (b) section 34 (EEA firms) ; (c) section 36 (persons authorised as a result of paragraph 1(1) of Schedule 5) ; (d) section 37 (exercise of EEA rights by UK firms); (e) Part 13 (incoming firms: intervention by FCA or PRA) and regulations made under that Part; (f) sections 266 to 269 (which relate to schemes recognised under section 264) ; (g) in Schedule 5 (persons concerned in collective investment schemes), paragraphs 1(1) and (2) and 2(1); (h) the Financial Services and Markets Act 2000 (Compensation Scheme: Electing Participants) Regulations 2001 ; (i) Part 4 (mergers) of the Undertakings for Collective Investment in Transferable Securities Regulations 2011 ; (j) any other provision of primary or subordinate legislation which is repealed, revoked, amended or modified by the EEA Passport Rights (Amendment, etc., and Transitional Provisions) (EU Exit) Regulations 2018 ; (k) any other provision of primary or subordinate legislation which is repealed, revoked, amended or modified on IP completion day by regulations under section 8(1) of the European Union (Withdrawal) Act 2018 and which relates to— (i) authorisation by virtue of Part 2 of Schedule 3 or by virtue of paragraph 1(1) of Schedule 5, or persons authorised by virtue of those provisions, (ii) the exercise by UK firms of EEA rights (as defined in Schedule 3), or (iii) the recognition of collective investment schemes under section 264, or schemes so recognised. (12) “The relevant legislation” does not include rules made by the FCA or the PRA.

PART 3 — Amendments of Financial Services and Markets Act 2000 (Gibraltar) Order 2001

Introductory

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The Financial Services and Markets Act 2000 (Gibraltar) Order 2001 is amended as follows.

Interpretation

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“Gibraltar-based firm” means— (a) a firm which— (i) is an AIFM, as defined in Article 4(1)(b) of the alternative investment fund managers directive , reading the reference in Article 4(1)(a)(ii) of that directive to authorisation pursuant to the UCITS directive as a reference to authorisation under the law of Gibraltar which implemented the UCITS directive, and (ii) is authorised as such by the Gibraltar Financial Services Commission under the law of Gibraltar which implemented the alternative investment fund managers directive; or (b) a firm not falling within paragraph (a) which has its head office in Gibraltar.

(3) Expressions used in this Order that are defined for the purposes of the Act have the same meaning as in the Act.

Exercise of deemed passport rights by Gibraltar-based firms

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(1A) A Gibraltar-based firm which— (a) is an investment firm, as defined in Article 4(1)(1) of the markets in financial instruments directive , and (b) is authorised under the law of Gibraltar which implemented Article 5 of that directive, is to be treated as having an entitlement, corresponding to the EEA right deriving from the markets in financial instruments directive that such a firm would have had before IP completion day, to establish a branch or provide services in the United Kingdom.

(2) A Gibraltar-based firm which— (a) is a credit institution as defined in Article 4(1)(1) of the capital requirements regulation , and (b) is authorised as such by the Gibraltar Financial Services Commission, is to be treated as having an entitlement, corresponding to the EEA right deriving from the capital requirements directive that such a firm would have had before IP completion day, to establish a branch or provide services in the United Kingdom. (2A) A Gibraltar-based firm which— (a) is a financial institution as defined in Article 4(1)(26) of the capital requirements regulation , and (b) is a subsidiary of the kind mentioned in the first subparagraph of Article 34(1) of the capital requirements directive which fulfils the conditions of that subparagraph, reading references in that subparagraph to a Member State as including the United Kingdom and Gibraltar, is to be treated as having an entitlement, corresponding to the EEA right deriving from the capital requirements directive that such a firm would have had before IP completion day, to establish a branch or provide services in the United Kingdom.

(3) A Gibraltar-based firm which— (a) is an undertaking pursuing the activity of direct insurance (within the meaning of Article 2 of the Solvency 2 Directive , reading references in that Article to a member State as including the United Kingdom and Gibraltar), and (b) is authorised by the Gibraltar Financial Services Commission to carry on one or more activities which would have required authorisation in accordance with Article 14 of the Solvency 2 Directive if the United Kingdom and Gibraltar were a member State, is to be treated as having an entitlement, corresponding to the EEA right deriving from the Solvency 2 Directive that such a firm would have had before IP completion day, to establish a branch or provide services in the United Kingdom.

(3A) A Gibraltar-based firm which— (a) is an insurance intermediary as defined in Article 2(1)(3) of the insurance distribution directive , an ancillary insurance intermediary as defined in Article 2(1)(4) of that directive or a reinsurance intermediary as defined in Article 2(1)(5) of that directive, and (b) is registered as such with the Gibraltar Financial Services Commission, is to be treated as having an entitlement, corresponding to the EEA right deriving from the insurance distribution directive that such a firm would have had before IP completion day, to establish a branch or provide services in the United Kingdom. (3B) A Gibraltar-based firm which— (a) is an undertaking pursuing the activity of reinsurance (within the meaning of Article 2 of the Solvency 2 Directive, reading references in that Article to a Member State as including the United Kingdom and Gibraltar), and (b) is authorised as such by the Gibraltar Financial Services Commission, is to be treated as having an entitlement, corresponding to the EEA right deriving from the Solvency 2 Directive that such a firm would have had before IP completion day, to establish a branch or provide services in the United Kingdom. (3C) A Gibraltar-based firm which— (a) is a management company, as defined in Article 2(1)(b) of the UCITS directive, and (b) is authorised as such by the Gibraltar Financial Services Commission under the law of Gibraltar which implemented the UCITS directive, is to be treated as having an entitlement, corresponding to the EEA right deriving from the UCITS directive that such a firm would have had before IP completion day, to establish a branch or provide services in the United Kingdom. (3D) A firm falling within paragraph (a) of the definition of “Gibraltar-based firm” in Article 1(2) is to be treated as having an entitlement, corresponding to the EEA right deriving from the alternative investment fund managers directive that such a firm would have had before IP completion day, to establish a branch or provide services in the United Kingdom. (3E) A Gibraltar-based firm which is a mortgage intermediary admitted by the Gibraltar Financial Services Commission— (a) to carry out all or part of the credit intermediation activities set out in Article 4(5) of the mortgages directive , or (b) to provide advisory services (as defined in Article 4(21) of that directive), is to be treated as having an entitlement, corresponding to the EEA right deriving from the mortgages directive that such a firm would have had before IP completion day, to establish a branch or provide services in the United Kingdom. (3F) For the purposes of paragraph (3E), points (5) and (21) of Article 4 of the mortgages directive are to be read as if— (a) for the purposes of the definition of “consumer” in point (1) of that Article, the reference in Article 3(a) of Directive 2008/48/EC to transactions covered by that directive were a reference to transactions of the kind that would immediately before IP completion day have been covered by that directive, and (b) for the purposes of the definition of “creditor” in point (2) of Article 4 of the mortgages directive and the definition of “credit agreement” in point (3) of that Article, references in Article 3 of the mortgages directive to a Member State included the United Kingdom and Gibraltar. (3G) In Schedule 3 and in the Passport Rights Regulations— (a) references to an EEA firm within paragraph 5(a) of that Schedule are to be treated as references to a Gibraltar-based firm within paragraph (1A); (b) references to an EEA firm within paragraph 5(b) of that Schedule are to be treated as references to a Gibraltar-based firm within paragraph (2); (c) references to an EEA firm within paragraph 5(c) of that Schedule are to be treated as references to a Gibraltar-based firm within paragraph (2A); (d) references to an EEA firm within paragraph 5(d) of that Schedule are to be treated as references to a Gibraltar-based firm within paragraph (3); (e) references to an EEA firm within paragraph 5(e) of that Schedule are to be treated as references to a Gibraltar-based firm within paragraph (3A); (f) references to an EEA firm within paragraph 5(da) of that Schedule are to be treated as references to a Gibraltar-based firm within paragraph (3B); (g) references to an EEA firm within paragraph 5(f) of that Schedule are to be treated as references to a Gibraltar-based firm within paragraph (3C); (h) references to an EEA firm within paragraph 5(h) of that Schedule or to an “EEA AIFM” are to be treated as references to a Gibraltar-based firm within paragraph (3D); (i) references to an EEA firm within paragraph 5(i) of that Schedule are to be treated as references to a Gibraltar-based firm within paragraph (3E).

(e) “the home state regulator” are to be treated as references to the Gibraltar Financial Services Commission; and (f) “an EEA firm” are to be treated as references to a Gibraltar-based firm referred to in paragraph (1A), (2), (2A), (3), (3A), (3B), (3C), (3D) or (3E).

(5A) Paragraph 13 of Schedule 3 is to be read as if— (a) in sub-paragraph (1)(b)(i), for “in accordance with” there were substituted “ in the manner set out in ”; (b) in sub-paragraph (4)— (i) in the definition of “the appropriate UK regulator” for “is” there were substituted “ was immediately before IP completion day”; (ii) in the definition of “host state rules”— (aa) in paragraph (a) for “in accordance with” there were substituted “ in implementation of ”, and (bb) in paragraph (b) for “are” there were substituted “ deal with matters that immediately before IP completion day were ”. (5B) In paragraph 14 of Schedule 3, sub-paragraph (4) is to be read as if— (a) in the definition of “the appropriate UK regulator” for “is” there were substituted “ was immediately before IP completion day”; (b) in the definition of “host state rules”— (i) in paragraph (a) for “in accordance with” there were substituted “ in implementation of ”; (ii) in paragraph (b) for “are” there were substituted “ deal with matters that immediately before IP completion day were ”. (5C) Paragraph 15(6) of Schedule 3 is to be read as if after “authorisation granted to the firm under” there were inserted “ the law of Gibraltar which implemented ”. (5D) Paragraph 15A of Schedule 3 is to be read as if— (a) in sub-paragraph (3)(c), for “required under Article 20(1)” there were substituted “ set out in Article 20(1)(a) and (b) ”; (b) in sub-paragraph (4), the words “and the Commission” were omitted; (c) in sub-paragraph (7)— (i) in the definition of “the appropriate UK regulator” for “is” there were substituted “ was immediately before IP completion day”; (ii) in the definition of “specified”, in paragraph (b), for “any directly applicable Community regulation or decision made under the UCITS directive” there were substituted “ any EU regulation or decision made under the UCITS directive which is retained direct EU legislation ”; (iii) in the definition of “UCITS home state rules” for “falling” substitute “ which immediately before IP completion day fell ”. (5E) Paragraph 15B(2)(b) of Schedule 3 is to be read as if the words “and the Commission” were omitted. (5F) Paragraph 15C(2) of Schedule 3 is to be read as if— (a) in paragraph (a), for “in accordance with” there were substituted “ in implementation of ”, and (b) in paragraph (b) for “are” there were substituted “ deal with matters that immediately before IP completion day were ”.

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