SUP 13A.5 EEA firms providing cross border services into the United Kingdom

There is guidance for UK firms in SUP Appendix 3.6 on when a service is provided cross border. EEA firms may find this of interest although they should follow the guidance of their Home State regulators.

An EEA firm 3(other than7 an EEA firm that received authorisation under article 18 of the auction regulation)3 1should note that the requirement under the Single Market Directives to give a notice of intention to provide cross border services applies whether or not:

1. (1)

   it has established a branch in the United Kingdom; or

2. (2)

   those cross border services are regulated activities.

1. (1)

   Before an EEA firm (other than7 an EEA firm that has received authorisation under article 18 of the auction regulation)3 exercises an EEA right to provide cross border services into the United Kingdom, the Act requires it to satisfy the service conditions, as set out in paragraph 14 of Part II of Schedule 3 to the Act.

   1
2. (2)

   For the purposes of paragraph 14(1)(b) of Part II of Schedule 3 to the Act, the information to be contained in the regulator's notice has been prescribed under regulation 3 of the EEA Passport Rights Regulations and in the case of CRD, the information has been prescribed in the technical standards issued pursuant to and under Article 39 of the CRD.4

3. (3)

   An EEA UCITS management company may not exercise an EEA right to provide collective portfolio management services for a UCITS scheme on a cross border services basis until approved by the FCA9 to do so (see SUP 13A.3.1C G).2

   9
4. (4)

   3An EEA firm that has received authorisation under article 18 of the auction regulation is not subject to the service conditions in its exercise of an EEA right under the auction regulation to provide services in the United Kingdom. The notification procedure in SUP 13A.5.4 G does not apply to it and it does not need to notify the FCA9 prior to providing services into the United Kingdom because there are presently no applicable provisions that apply in these circumstances. Instead, its provision of these services is supervised by its Home State regulator.

   9

1. (1)

   Unless the EEA firm 3(other than7 an EEA firm that received authorisation under article 18 of the auction regulation)33 1is passporting under the IDD8, if the appropriate UK regulator9 receives a regulator's notice or, where no notice is required , is informed of the EEA firm's intention to provide cross border services into the United Kingdom, the appropriate UK regulator9 will, under paragraphs 14(2) and 14(3) of Part II of Schedule 3 to the Act, notify the EEA firm of the applicable provisions (if any) within two months of the day on which the appropriate UK regulator9 received the regulator's notice or was informed of the EEA firm's intention.

   94999
2. (1A)

   When the FCA receives a regulator’s notice from the EEA firm’s Home State regulator that the EEA firm intends to exercise its EEA right to provide cross border services under the IDD, it will, under paragraph 14(3AZA) of Part II to Schedule 3 to the Act:8

   1. (a)

      acknowledge receipt; and8

   2. (b)

      notify the EEA firm’s Home State regulator of the applicable provisions (if any).8

3. (2)

   Although the appropriate UK regulator9 is not required to notify the applicable provisions to an EEA Firm passporting under 8MIFID or AIFMD5 these provisions are set out in SUP 13A Annex 1 (Application of the Handbook to Incoming EEA Firms).

   95

6When the FCA receives a consent notice from the EEA firm's Home State regulator in respect of a firm within paragraph 5(i) of Part I of Schedule 3 to the Act, it will, under paragraph 14(3ZA), use the information received from the EEA firm's Home State regulator to enter the necessary information into the Financial Services Register.

9Where the PRA receives a notice, it will give a copy to the FCA without delay and where the FCA receives a notice, it will give a copy to the PRA without delay, where relevant.

An EEA firm (other than an EEA UCITS management company)2 that has satisfied the service conditions in paragraph 14 of Part II of Schedule 3 to the Act is entitled to start providing cross border services into the United Kingdom. In the case of an EEA UCITS management company, FCA9 approval must first be obtained, as explained in SUP 13A.5.3 G (see also SUP 13A.3.1C G).2 However, an EEA firm that wishes to start providing cross border services but has not yet received notification of the applicable provisions may wish to contact the authorisations team in the FCA or PRA, as appropriate9 (see SUP 13A.8.1G (2)).