SUP 13A.1 Application and purpose

1. (1)

   1This chapter applies to an EEA firm that wishes to exercise an entitlement to establish a branch in, or provide cross border services into, the United Kingdom under a Single Market Directive or the auction regulation7. (The Act refers to such an entitlement as an EEA right and its exercise is referred to in the Handbook as "passporting".) (See SUP App 3 (Guidance on passporting issues) for further guidance on passporting.)

2. (2)

   This chapter also applies to:

   1. (a)

      a Treaty firm that wishes to exercise rights under the Treaty in respect of regulated activities, those rights6 not being 6 covered by passporting rights provided 6by the Single Market Directives,6 and qualifies6 for authorisation under Schedule 4 to the Act (Treaty Rights); and

      6
   2. (b)

      a UCITS qualifier, that is, an operator, trustee or depositary of a recognised collective investment scheme, constituted in another EEA State, and which qualifies for authorisation under Schedule 5 to the Act (Persons concerned in collective investment schemes).

3. (3)

   The provisions implementing the Single Market Directives are within the coordinated field (see PERG 2.9.18G (1)). So, where an incoming ECA provider intends to provide electronic commerce activity that consists of activities that fall within one of the Single Market Directives, the passporting requirements on exercising an EEA right in this chapter will apply.

This chapter does not apply to:

1. (1)

   an EEA firm that wishes to carry on in the United Kingdom activities which are outside the scope of its EEA right and the scope of a permission granted under Schedule 4 to the Act; in this case the EEA firm requires a "top-up permission" under Part 4A16 of the Act (see the appropriate UK regulator's website http://www.fca.org.uk/firms/about-authorisation/getting-authorised for the FCA and www.bankofengland.co.uk/pra/Pages/authorisations/newfirm/default.aspx for the PRA16); or

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2. (2)

   an EEA firm that carries on any insurance activity:

   1. (a)

      by the provision of services; and

   2. (b)

      pursuant to a community co-insurance operation in which the firm is participating otherwise than as leading insurer (see Article 11 of the Regulated Activities Order); or

3. (3)

   a Treaty firm that wishes to provide electronic commerce activities into the United Kingdom; or5

   5
4. (4)

   a market operator that operates a regulated market or an MTF in an EEA State other than the UK and wishes to make appropriate arrangements so as to facilitate access to and use of its system by remote users or participants in the UK. See SUP App 3.6.25 G for guidance.165

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1. (1)

   Under the Gibraltar Order2 made under section 409 of the Act, a Gibraltar firm is treated as an EEA firm under Schedule 3 to the Act if it is:

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   1. (a)

      authorised in Gibraltar under the Solvency II Directive;12 or

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   2. (aA)

      [deleted]12

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   3. (b)

      authorised in Gibraltar under the CRD8; or2

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   4. (c)

      authorised in Gibraltar under the Insurance Mediation Directive; or2

   5. (d)

      authorised in Gibraltar under the MiFID4;9 or11

      4
   6. (e)

      authorised in Gibraltar under the UCITS Directive9; or11

   7. (f)

      authorised in Gibraltar under AIFMD.11

   8. (g)

      authorised in Gibraltar under the MCD13

2. (1A)

   Similarly, an EEA firm which:2

   1. (a)

      has satisfied the Gibraltar establishment conditions and has established a branch in the UK; or2

   2. (b)

      has satisfied the Gibraltar service conditions and is providing cross border services into the UK;2

   is treated as having satisfied the establishment conditions or service conditions (as appropriate) under Schedule 3 to the Act. Regulations 4 to 7 of the EEA Passport Rights Regulations will apply to the establishment of the branch or the provision of cross border services.2

3. (2)

   Gibraltar insurance companies, credit institutions, insurance intermediaries, 10 investment firms,11 management companies10,13 AIFMs11 and MCD credit intermediaries13 are 2allowed to passport their2 services into the United Kingdom if they comply2 with the relevant notification procedures. So, any references in this chapter to EEA State or EEA right include references to Gibraltar and the entitlement under the Gibraltar Order2 where appropriate.

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4. (3)

   [deleted]

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1. (1)

   This chapter explains how an EEA firm and a Treaty firm can qualify for authorisation under Schedules 3 and 4 to the Act and how a UCITS qualifier is authorised under Schedule 5 to the Act.

2. (2)

   This chapter also provides guidance on Schedule 3 to the Act for an incoming EEA firm that wishes to establish a branch in the United Kingdom instead of, or in addition to, providing cross border services into the United Kingdom or vice versa.

1. (1)

   EEA firms should note that this chapter only addresses the procedures which the appropriate UK regulator16 will follow under the Act.So, an EEA firm should consider this guidance in conjunction with the requirements with which it will have to comply in its Home State.

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2. (2)

   The guidance in this chapter represents the appropriate UK regulator's16 interpretation of the Single Market Directives, the auction regulation,7 the Act and the secondary legislation made under the Act. The guidance is not exhaustive and should not be seen as a substitute for a person consulting the legislation or taking legal advice.

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