SUP 13A.3 Qualifications for authorisation under the Act

Section 31 of the Act (Authorised persons) states that an EEA firm is authorised for the purposes of the Act if it qualifies for authorisation under Schedule 3 to the Act (EEA Passport Rights). Under paragraph 12 of Part II of that Schedule, an EEA firm that is an EEA pure reinsurer, or an EEA firm that has received authorisation under article 18 of the auction regulation,7 5qualifies for authorisation without condition. Other than those two types of EEA firm, an7 EEA firm qualifies for authorisation5 if:

1. (1)

   it is seeking to establish a branch in the United Kingdom in exercise of an EEA right and satisfies the establishment conditions (see SUP 13A.4.1 G and SUP 13A.4.2 G); or

2. (2)

   it is seeking to provide cross border services into the United Kingdom in exercise of an EEA right and satisfies the service conditions (see SUP 13A.5.3 G).

3If an EEA MiFID investment firm seeks to use a tied agent established in the UK, the EEA MiFID investment firm will be treated as if it were seeking to establish a branch and must satisfy the establishment conditions (see SUP 13A.4.1 G).

5A pure reinsurer with its head office in an EEA State that has not fully implemented the Reinsurance Directive may nevertheless be accepted as satisfying the conditions to be an EEA pure reinsurer if the firm provides satisfactory evidence that the prudential requirements of the Reinsurance Directive have been implemented by that EEA State and that they apply to the firm. The firm may then be deemed to be authorised under the Reinsurance Directive in that EEA State.

1. (1)

   6Under paragraph 15A(1) of Part II of Schedule 3 to the Act, an EEA UCITS management company intending to exercise an EEA right to provide collective portfolio management services for a UCITS scheme must, before it undertakes that activity, obtain the FSA's approval to manage that UCITS scheme. Firms should use the application form set out in SUP 13A Annex 3 R (EEA UCITS management companies: application for approval to manage a UCITS scheme established in the United Kingdom) for this purpose.

2. (2)

   If the FSA refuses the application referred to in (1), it will give a notice to the firm and the firm's Home State regulator in accordance with paragraph 15A of Part II of Schedule 3 to the Act. Before refusing an application, the FSA will consult with the firm's Home State regulator.

3. (3)

   Under paragraph 15B(1) of Part II of Schedule 3 to the Act, if any representations are made to the FSA by a firm to which the notice referred to in (2) has been given, the FSA is required to decide whether to withdraw that notice. If the FSA decides not to withdraw that notice it must give the firm a decision notice.

4. (4)

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

1. (1)

   On qualifying for authorisation, subject to SUP 13A.3.1C G (1),6 an EEA firm (except for an EEA firm that has received authorisation under article 18 of the auction regulation)7 will have permission to carry on each permitted activity (see (3) below) which is a regulated activity.

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2. (2)

   6[deleted]

3. (3)

   The permitted activities of an EEA firm (except for an EEA firm that has received authorisation under article 18 of the auction regulation)7 are those activities identified in the consent notice, regulator's notice or notice of intention. Those permitted activities7 may include activities that are within the scope of a Single Market Directive but which are unregulated activities in the United Kingdom.

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4. (3A)

   7An EEA firm that received authorisation under article 18 of the auction regulation has permission to carry on bidding in emissions auctions.

5. (4)

   The permission will be treated as being on terms equivalent to those appearing in the consent notice, regulator's notice,7 notice of intention or (in respect of an EEA firm that has received authorisation under article 18 of the auction regulation) to those appearing in the authorisation granted to the EEA firm under article 18 of the auction regulation7. For example, it will reflect any limitations or requirements which are included in the firm's Home State authorisation.

An EEA firm which has qualified for authorisation is referred to in the Handbook as an incoming EEA firm.

Under section 31 of the Act, a Treaty firm is authorised for the purposes of the Act if it qualifies for authorisation under Schedule 4 (Treaty Rights), that is:

1. (1)

   the Treaty firm is seeking to carry on a regulated activity; and

2. (2)

   the conditions set out in paragraph 3(1) of Schedule 4 to the Act are satisfied.

On qualifying for authorisation a Treaty firm will have permission to carry on each permitted activity which is a regulated activity. This permission will be treated on the same terms as those which apply to the Treaty firm's Home State authorisation. For example, it will reflect any limitations or requirements which are included in the firm's Home State authorisation.

The effect of paragraph 5(1) and 5(2) of Schedule 4 to the Act is that a Treaty firm which qualifies for authorisation under that Schedule must, at least seven days before it carries on any of the regulated activities covered by its permission, give the FSA written notice of its intention to do so. Failure to do so is a criminal offence under paragraph 6(1) of that Schedule.

The written notice required by paragraph 5(2) of Schedule 4 to the Act should be accompanied by confirmation of the Treaty firm's authorisation from the Home State regulator, as referred to in paragraph 3(2) of Schedule 4 to the Act.

1. (1)

   For further information, a Treaty firm may contact the Authorisation Department:

   1. (a)

      telephone on +4420 7066 3954; or

   2. (b)

      write to: Authorisation Department, The Financial Services Authority, 25 The North Colonnade, Canary Wharf, London, E14 5HS; or

   3. (c)

      email corporate.authorisation@fsa.gov.uk.

1. (1)

   The guidance in PERG 2 is relevant to Treaty firms to help them determine if they require authorisation under the Act.

2. (2)

   A Treaty firm which qualifies for authorisation is referred to in the Handbook as an incoming Treaty firm.

1. (1)

   An EEA firm that is carrying on both direct insurance and reinsurance5 business will be entitled to passport under Schedule 3 to the Act in relation to the direct insurance business. It will also have a Treaty right under Schedule 4 to the Act in relation to the reinsurance business if the firm has received Home State authorisation for the regulated activity of effecting and/or carrying out the relevant class of insurance business that includes reinsurance business for that class and the relevant provisions of the law of the Home State satisfy the conditions laid down by the Insurance Directives relating to the carrying on of that activity (see SUP App 3.10.13 G). 5

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2. (1A)

   5An insurance company with its head office in an EEA State other than the United Kingdom that is carrying on pure reinsurance business in that State, and which has received authorisation (or is deemed to be authorised) under the Reinsurance Directive from its Home State (an EEA pure reinsurer), has an automatic EEA right to passport into the United Kingdom by establishing a branch in the United Kingdom or by the provision of cross border services. Under the General Protocol, Home State regulators have agreed to inform Host State regulators if a pure reinsurer carries on business through a branch in the Host State.

3. (2)

   An insurance company with its head office in an EEA State other than the United Kingdom that is carrying on pure reinsurance 5business in that State, and which wishes to carry on such business in the United Kingdom and is authorised by its Home State but not yet under the Reinsurance Directive,5 is advised to discuss its particular requirements with the Authorisation Department. It may be entitled to exercise a Treaty right provided it satisfies the conditions in paragraph 3(1) of Schedule 4 to the Act (see SUP 13A.3.4 G). Otherwise, it will have to seek a Part IV permission (see the FSA website "How do I get authorised": http://www.fsa.gov.uk/Pages/Doing/how/index.shtml2).

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Under Schedule 5 to the Act (Persons concerned in collective investment schemes), a person who for the time being is an operator, trustee or depositary of a scheme which is a recognised scheme under section 264 of the Act is an authorised person. Such a person is referred to in the Handbook as a UCITS qualifier.

A UCITS qualifier has permission under paragraph 2 of Schedule 5 to the Act, to carry on, as far as is appropriate to the capacity in which it acts in relation to the scheme:

1. (1)

   the regulated activity of establishing, operating or winding up a collective investment scheme; and

2. (2)

   any activity in connection with, or for the purposes of, the scheme.

A UCITS qualifier should refer to COLLG or to the following sections of COLL for requirements for recognised schemes4:

1. (1)

   COLL 9.2.1 G for guidance on notifications;

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2. (2)

   COLL 9.2.1 G for guidance on information and documentation requirements; and

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3. (3)

   COLL 9.4 which includes rules 4on what facilities need to be maintained.

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