1The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No. 2) Order 2003 (SI 2003/1476) implements in part the provisions of the Insurance Mediation Directive2and amends the Regulated Activities Order.

Article 93 of the amended Regulated Activities Order requires the FSA to maintain an up-to-date record of every unauthorised person, whether an appointed representative or an exempt professional firm that carries on, or is proposing to carry on, insurance mediation activity and to whom the general prohibition does not apply in relation to the carrying on of such an activity. In relation to exempt professional firms the general prohibition does not apply by virtue of section 327 of the Act.

The FSA is not to include an exempt professional firm in the register relating to unauthorised persons if:

1. (1)

   under a direction given by the FSA under section 328(1) of the Act, section 327(1) of the Act does not apply in relation to the carrying on by it of insurance mediation activity; or

2. (2)

   the FSA has made an order under section 329(2) of the Act disapplying section 327(1) of the Act in relation to the carrying on by the exempt professional firm of insurance mediation activity.

Article 94 of the Regulated Activities Order obliges a designated professional body to provide the FSA with the information it needs to maintain the record referred to in PROF 7.1.2 G of every unauthorised person that carries on, or proposes to carry on, insurance mediation activity and keep it up to date. This information needs to include the details referred to in PROF 7.1.7 G. This is the responsibility of the designated professional body and not each exempt professional firm.

1. (1)

   The attention of exempt professional firms is drawn to the significance of The Financial Services and Markets Act 2000 (Professions) (Non-Exempt) Activities Order 2001 (SI 2001/1227), as amended by The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) (No.2) Order 2003 (SI 2003/1476). The effect of these amendments is that exempt professional firms may not carry on certain regulated activities which relate to a contract of insurance in reliance on the Part XX exemption unless the exempt professional firm 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.

2. (2)

   Each exempt professional firm carrying on, or proposing to carry on, insurance mediation activity should ensure that at all material times the name of the firm and the requisite details are included in the record maintained by the FSA. Any such exempt professional firm carrying on, or proposing to carry on, insurance mediation activity whose name does not appear in the record maintained by the FSA is likely to be breaching the general prohibition which is a criminal offence under section 23 of the Act.

In order to comply with its obligations to maintain a record of unauthorised persons that carry on, or are proposing to carry on, insurance mediation activity, the FSA has established an appropriate record which forms part of the record maintained by the FSA under section 347 of the Act. The record maintained by the FSA under section 347 of the Act is known as the FSA Register. The FSA Register therefore contains a record of each authorised and unauthorised person that carries on, or proposes to carry on, insurance mediation activity.

The information to be included on the record in relation to exempt professional firms will, as required by the Insurance Mediation Directive2, include details of:

1. (1)

   the name and address of each exempt professional firm that carries on, or is proposing to carry on, insurance mediation activity;

2. (2)

   where the exempt professional firm is not an individual, the names of the individuals within the management of the exempt professional firm who are responsible for the insurance mediation activity; and

3. (3)

   each EEA State in which the exempt professional firm under an EEA right derived from the Insurance Mediation Directive2:

   2
   1. (a)

      has established a branch; or

   2. (b)

      is providing cross border services.

The FSA Register can be accessed through the FSA website under the link www.fsa.gov.uk/register.www.fsa.gov.uk/register/.

All persons that are on the register maintained by the FSA in accordance with article 3 of the Insurance Mediation Directive1, and so permitted to conduct insurance mediation activity, are entitled to exercise the EEA right conferred upon them by article 6 of the Insurance Mediation Directive1 to establish a branch or provide services relating to insurance mediation activity in another EEA State. Both authorised professional firms and exempt professional firms that are so registered by the FSA get the benefit of these passporting rights.

Any authorised professional firm or exempt professional firm that is contemplating the exercise of rights under article 6 of the Insurance Mediation Directive1 to establish a branch or provide services relating to insurance mediation activity in another EEA State is referred to SUP 13 (Exercise of passport rights by UK firms) for further details as to the applicable process. Note that both authorised professional firms and exempt professional firms are UK firms for the purposes of the Handbook, including SUP 13.

A UK firm proposing to establish a branch in another EEA State for the first time under an EEA right derived from the Insurance Mediation Directive1 must first satisfy the conditions in paragraphs 19(2),(4) and (5) of Part III of Schedule 3 to the Act (EEA Passport Rights). These include the requirement that the firm must at the outset give the FSA a notice in the required form of its intention to establish the branch. SUP 13.3.2 G to SUP 13.3.5 G detail the procedure to be followed once such a notice of intention2 has been received by the FSA. SUP 13.5.1 R (Specified contents: notice of intention to establish a branch) and SUP 13.6.9A G (Firms passporting under the Insurance Mediation Directive1) will also be relevant.

A UK firm proposing to provide cross border services into another EEA State for the first time under an EEA right derived from the Insurance Mediation Directive1 must first satisfy the conditions in paragraph 20(1) of Part III of Schedule 3 to the Act (EEA Passport Rights). The UK firm must at the outset give the FSA a notice in the required form of its intention to provide the cross border services into another EEA State. In this instance, the relevant procedure to be followed is outlined in SUP 13.4.2 G to SUP 13.4.5 G. SUP 13.5.2 R (Specified contents: notice of intention to provide cross border services) and SUP 13.7.11 G will also be relevant.