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.1

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 Order6respectively. 2

This chapter does not apply to:

1. (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 4SUP 13A4 (Qualifying for authorisation under the Act);

2. (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. (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. (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)8).3

   87

SUP App 3 5 contains guidance on the Single Market Directives.

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.

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.

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.

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.

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, for1 an insurer carrying on both direct insurance and reinsurance business, the authorisationof reinsurance business 1is not covered by the Insurance Directives . The firm1may, however, have rights under the Treaty in respect of its reinsurance1 business. Such UK firms may wish to consult with the FSA on their particular circumstances (see SUP 13.12.2 G).

Guidance on what constitutes a branch is given in SUP App 36. 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).8

A UK firm other than a UK pure reinsurer9cannot 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. (1)

   the UKfirm has given the FSA, in accordance with the FSArules (see SUP 13.5.1 R), notice of its intention to establish a branch (known as a notice of intention8) which:8

   88
   1. (a)

      identifies the activities which it seeks to carry on through the branch; and

   2. (b)

      includes such other information as may be specified by the FSA (see SUP 13.5.1 R);

2. (2)

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

   10
3. (2A)

   if the UK firm'sEEA right relates to providing collective portfolio management services, the FSA has provided to the Host State regulator:10

   1. (a)

      confirmation that the firm has been authorised as a management company under the provisions of the UCITS Directive;10

   2. (b)

      a description of the scope of the firm's authorisation; and 10

   3. (c)

      details of any restriction on the types of EEA UCITS scheme that the firm is authorised to manage; and10

4. (3)
   1. (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 notice8 as described in SUP 13.3.6 G (1) (see SUP 13.3.2A G);4

      8
   2. (b)

      in any other case:4

      1. (i)

         the Host State regulator has notified the UK firm (or, where the UK firm is passporting under theInsurance Directives, the FSA) of the applicable provisions or, in the case of a UK firm passporting under MiFID or the UCITS Directive,10 that the branch may be established8; or4

      2. (ii)

         two months have elapsed beginning with the date on which the FSA gave the consent notice.41

4If 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 intention8 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 FSA's website at www.fsa.gov.uk.8

4An 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 intention8 in SUP 13.3.2 G (1) should be given to the FSA by the firm on behalf of the appointed representative.5

4An 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).

8A 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.

9Once 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.

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.

1. (1)

   9SUP 13.3.3 G does not apply to UKpure reinsurers as they have automatic passport rights on the basis of their Home State authorisation under the Reinsurance Directive.

2. (2)

   9Under 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 FSA of certain information relating to the branch.

1. (1)

   8If the UK firm'sEEA right derives from the Banking Consolidation Directive or10MiFID8,10 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.8 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.8

   88
2. (1A)

   If the UK firm'sEEA right derives from the UCITS Directive, the FSA 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.10

3. (2) 8
   1. (a)

      If the UK firm'sEEA 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:8

      1. (i)

         doubt the adequacy of the UK firm's resources or its administrative structure; or8

      2. (ii)

         question the reputation, qualifications or experience of the directors or managers of the UK firm or its proposed authorised agent;8

      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.8

   2. (b)

      In assessing the matters in (2)(a), the FSA may, in particular, seek further information from the firm or require a report from a skilled person (see SUP 5 (skilled persons)).8

   3. (c)

      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 Consolidated Life Directive 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 those provisions.8

   4. (d)

      If the UK firm'sEEA 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'snotice 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.8

1. (1)

   If the FSA gives a consent notice, it will inform the UK firm in writing that it has done so.

2. (2)

   The consent notice will contain, among other matters, the requisite details or, 8if the firm is passporting under the Insurance Directives, the relevant EEA details8 (see SUP 13 Annex 18) provided by the UK firm in its notice of intention8 (see SUP 13.5 (Notices of intention)).

   8888
3. (3)

   10Where a consent notice is given under the UCITS Directive, the FSA will at the same time:

   1. (a)

      communicate to the Host State regulator details of the compensation scheme intended to protect investors; and

   2. (b)

      enclose the information described at SUP 13.3.2 G (2A).

1. (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. (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 months8 of the date on which it received the UK firm'snotice of intention8(two months8 in the case of a UK firm which is a UCITS management company). The UK firm may refer the matter to the Tribunal.

   888
3. (3)

   For details of the FSA's procedures for the giving of warning notices or decision notices see DEPP 2 (Statutory notices and the allocation of decision making).7

   72

10A UK firm seeking to provide collective portfolio management services from a branch in another EEA State, is advised that it will need to refer to the rules of the competent authority of the UCITS Home State implementing article 20 of the UCITS Directive which will require it to submit to that competent authority information relating to its depositary agreement and certain delegation arrangements.

Guidance on where a cross border service is provided is given in SUP App 36.41

A UK firm, other than a UK pure reinsurer,9 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. (1)

   the UK firm has given the FSA, in the way specified by FSArules (see SUP 13.5.2 R), notice of its intention to provide cross border services (known as a notice of intention8) which:

   8
   1. (a)

      identifies the activities which it seeks to carry on by way of provision of cross border services; and

   2. (b)

      includes such other information as may be specified by the FSA (see SUP 13.5.2 R); and

2. (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; or4

3. (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).4

4An 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 intention8 in SUP 13.4.2 G (1) should be given to the FSA by the firm on behalf of the appointed representative5.

4An 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).

8A 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.

8A 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 or an MTF and wishes to provide cross border services into another EEA State should follow the procedure described in REC 4.2B.

9 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.

1. (1)

   If8 the UK firm'sEEA right derives from MiFID8, 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 intention8 to the Host State Regulator within one month8 of receipt.8A UK firm passporting under the Banking Consolidation Directive10 may start providing cross border services as soon as it satisfies the relevant conditions (see SUP 13.4.2 G).8

   8888810
2. (2)
   1. (a)

      If8 the UK firm'sEEA right derives from theInsurance Directives, paragraph 20(3A) of Part III of Schedule 3 to the Act requires the FSA, within one month8 of receiving the notice of intention8, to:

      888
      1. (i)

         give notice in a specified form (known as a consent notice) to the Host State regulator; or

      2. (ii)

         give written notice to the UK firm of its refusal to give a consent notice and the reasons for that refusal.

   2. (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 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.8

      7787
   3. (c)

      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 Consolidated Life Directive 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 those provisions.8

3. (2A) 8
   1. (a)

      If the UK firm'sEEA 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. Otherwise, the UK firm may start providing cross border services as soon as it satisfies the relevant conditions (see SUP 13.4.2 G).8

   2. (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 FSA's website at www.fsa.gov.uk.8

4. (2B)

   Where a consent notice is given under the UCITS Directive, the FSA will at the same time:10

   1. (a)

      communicate to the Host State regulator details of the compensation scheme intended to protect investors; and10

   2. (b)

      provide to the Host State regulator:10

      1. (i)

         confirmation that the firm has been authorised as a management company under the provisions of the UCITS Directive;10

      2. (ii)

         a description of the scope of the firm's authorisation; and

      3. (iii)

         details of any restriction on the types of EEA UCITS scheme that the firm is authorised to manage.

When the FSA sends a copy of a notice of intention8, 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).4

1. (1)

   [deleted]10

   8810
2. (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. (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.2

10A UK firm seeking to provide collective portfolio management services in another EEA State under the freedom to provide cross border services, is advised that it will need to refer to the rules of the competent authority of the UCITS Home State implementing article 20 of the UCITS Directive which will require it to submit to that competent authority information relating to its depositary agreement and certain delegation arrangements.

4 SUP 13.5.1 R 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.

4 SUP 13.5.2 R does not apply to UK pure reinsurers as they have automatic passport rights on the basis of their Home State authorisation under Reinsurance Directive.

1. (1)

   If the FSA's information technology systems fail and online submission is unavailable for 24 hours or more, the FSA 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.5

2. (2)

   Where SUP 13.5.3 R (3) applies to a firm, GEN 1.3.2 R (Emergency) does not apply.5

A notice of intention3 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)3. 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.1

1. (1)

   A UK firm passporting under the Banking Consolidation Directive,4 the Insurance Directives or the Reinsurance Directive4may 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. (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. (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.1

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 information3 for each EEA State should be clearly identifiable.

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)8, 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.5

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 details7.

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.

If a UK firm has exercised an EEA right, under 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).4

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

1. (1)

   the UK firm has given notice to the FSA and to the Host State regulator stating the details of the proposed change;

2. (2)

   the FSA has given the Host State regulator a notice informing it of the details of the change; and

3. (3)

   either the Host State regulator has informed the UK firm that it may make the change, or the period of one month7 beginning with the day on which the UK firm gave the Host State regulator the notice in (1) has elapsed.

   7

7If 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).

7The requirements of regulation 11A(2) are that:

1. (1)

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

2. (2)

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

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 details7, 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).3

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

1. (1)

   the UK firm has given notice to the FSA and to the Host State regulator stating the details of the proposed change;

2. (2)

   the FSA has given the Host State regulator a notice informing it of the details of the proposed change;

3. (3)

   the period of at least one month7 beginning on the day on which the UK firm gave the FSA the notice in (1) has elapsed; and

   7
4. (4)

   either:

   1. (a)

      a further period of one month7 has elapsed; or

      7
   2. (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.

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 details7 unless the UK firm has given a notice to the FSA stating the details of the proposed change at least one month7 before the change is effected.

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 intention7 and not a change to details notice7.

5A 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 7.

1. (1)

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

   1. (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;

   2. (b)

      may, if it is passporting under the Insurance Directives, make a change to its relevant UK details7 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.

      7
2. (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 firm7 as a whole and not just the branch7 in the EEA State. 1

   77
3. (3)

   Neither this guidance nor that set out at SUP 13.6.4 G or SUP 13.6.5 G is applicable to MiFID investment firms.7

When the FSA receives a notice from a UK firm other than a MiFID investment firm7(see SUP 13.6.5 G (1) and SUP 13.6.7 G (1)) or a pure reinsurer (see SUP 13.6.9B R) 8it is required by regulations 11(4) and 13(4) to either refuse, or consent to the change within a period of one month7 from the day on which it received the notice.

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

1. (1)

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

2. (2)

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

If a UK firm is passporting under the 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.

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. (1)

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

2. (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.

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

1. (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. (2)

   the UK firm may refer the matter to the Tribunal.

   62

7 UK firms may wish to use the standard form available from the Passport Notifications Unit (see SUP 13.12 (Sources of further information)) to give the notices to the FSA 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).

7When the FSA 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.

Where a UK firm is exercising an EEA right under the UCITS Directive, MiFID or the5Insurance 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), 12A(1)5 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.3

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.

If a UK firm is passporting under 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. (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. (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.2

UK firms may wish to use the standard form available from the Passport Notifications Unit (see SUP 13.12 (Sources of further information)) to give the notices to the FSA required by SUP 13.7.3 G (1) and SUP 13.7.3A G.5

5If 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. (1)

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

2. (2)

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

3. (3)

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

5The requirements of regulation 12A(2) are that:

1. (1)

   the UK firm has given notice to the FSA stating the details of the proposed change; and

2. (2)

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

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 also5SUP 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.

Regulation 16(3) provides that:

1. (1)

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

2. (2)

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

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.

5 UK firms may wish to use the standard form available from the Passport Notifications Unit(see SUP 13.12 (Sources of further information)) to give the notices to the FSA as described in SUP 13.7.3 G (1), SUP 13.7.3A G, SUP 13.7.3B G, 5SUP 13.7.5 G (1) and SUP 13.7.6 G.

When the FSA receives a notice from a UK firm (see 5SUP 13.7.5 G (1) and SUP 13.7.6 G5), it is required by regulations 16(5) toeither refuse or consent to the change within one month5 of receipt.

If the FSA consents to the change it will:

1. (1)

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

2. (2)

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

If the FSA 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.

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 intention5 and not a change to details notice5.3

A UK firm providing cross border services under the Banking Consolidation Directive or Insurance Mediation Directive is not required to supply a change to the details of cross border services notice5.3

6A 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.

4The 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. (1)

   A UK firm, other than a credit union, should submit it online at www.fsa.gov.uk using the FSA's ONAsystem.

2. (2)

   If the FSA's 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. (3)

   If the FSA's information technology systems fail and online submission is unavailable for 24 hours or more, the FSA 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. (4)

   A credit union 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).

UK firms passporting under the Banking Consolidation Directive or the Insurance Directives may be required to submit the change to details notice2 in the language of the Host State as well as in English.

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).

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.

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.

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 notices1.

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 1SUP 13.7 (Changes to cross border services).

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. (2)

   An applicant for Part IV permission which is submitting a notice of intention3 with its application for such permission should contact the Permissions2 department (020 7066 3954)2 in the first instance.1

   32322

To contact the Passport Notifications Unit:4

1. (1)

   telephone on 020 7066 1000; fax on 020 7066 97983; or

   3
2. (2)

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

3. (3)

   Email: passport.notifications@fsa.gov.uk