SUP 14.3 Changes to cross border services

Where an incoming EEA firm passporting under the MiFID4, UCITS Directive,6 Solvency II Directive8, MCD9 or AIFMD6 is exercising an EEA right and is providing cross border services into the United Kingdom, the EEA Passport Rights Regulations govern any changes to the details of those services. Where an incoming EEA firm has complied with the EEA Passport Rights Regulations, then the firm's permission under Schedule 3 to the Act is to be treated as varied.21

Where an incoming EEA firm passporting under the UCITS Directive4 is providing cross border services into the United Kingdom, it must not make a change in the details referred to in regulation 5(1A5) unless it has complied with the relevant requirements in regulation 5(3).21

The relevant requirements in regulation 5(3) are that:

1. (1)

   the incoming EEA firm has given a notice to the FCA12 (see SUP 14.4.1 G) and to its Home State regulator stating the details of the proposed change;

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2. (2)

   if the change arises from circumstances beyond the incoming EEA firm's control, that firm has, as soon as practicable, given to the appropriate UK regulator12 and to its Home State regulator the notice in (1).1

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Under regulation 5(4), the FCA12 is required, as soon as practicable after receiving the notice in SUP 14.3.3 G, to inform the incoming EEA firm of any consequential changes in the applicable provisions.

4Where an incoming EEA firm passporting under MiFID is providing cross border services into the United Kingdom, it must not:5

1. (1)

   make a change in the details referred to in regulation 5A(1)(a); or5

2. (2)

   use, for the first time, any tied agent to provide services in the United Kingdom; or5

3. (3)

   cease to use tied agents to provide services in the United Kingdom;5

unless it has complied with the relevant requirements in regulation 5A(3).5

5The relevant requirements in regulation 5A(3) are that:

1. (1)

   the incoming EEA firm has given notice to its Home State regulator stating the details of the proposed change; and

2. (2)

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

5Under regulation 5(4), the FCA12 is required, as soon as practicable after receiving the notice in SUP 14.3.4B G, to inform the incoming EEA firm of any consequential changes in the applicable provisions.

5SUP 14.3.4A G does not apply to a change occasioned by circumstances beyond the incoming EEA firm's control.

7Where an EEA AIFM is providing cross-border services to manage an AIF in the UK, it must not make a material change to:

1. (1)

   the particulars of the programme of operations to be carried out in the UK, including the description of the particular EEA activities; or

2. (2)

   the identity of the AIFs that the EEA AIFM intends to manage;

unless it has complied with the relevant requirement in regulation 7A(3).

7Where an EEA AIFM is providing cross-border services to market an AIF in the UK, it must not make a material change to:

1. (1)

   the documents and information referred to in Annex IV to AIFMD; or

2. (2)

   the statement that the EEA AIFM is authorised to manage AIFs with a particular management strategy;

unless it has complied with the relevant requirement in regulation 7A(3).

7The relevant requirement in regulation 7A(3) is that the Home State regulator has informed the FCA that it has approved the proposed change.

9As required by regulation 7B(1), where an incoming EEA firm is providing cross border services under the MCD in the UK, it must not make a material change to any of the matters referred to in regulation 2(8)(b) to (e) or regulation 3(6)(b) to (e), unless it has complied with the relevant requirements.

9The relevant requirements are set out in regulation 7B(4) or, where the change arises from circumstances beyond the incoming EEA firm's control, regulation 7B(5).

9Where the change arises from circumstances within the control of the incoming EEA firm, the relevant requirements in regulation 7B(4) are that:

1. (1)

   the incoming EEA firm has given a notice to the FCA and its Home State regulator stating the details of the proposed changes; and

2. (2)

   either:

   1. (a)

      the FCA has informed the incoming EEA firm that it may make the change; or

   2. (b)

      a period of one month has elapsed beginning with the day on which the incoming EEA firm gave the notice under (1).

9Where the change arises from circumstances beyond the incoming EEA firm's control, the incoming EEA firm is required by regulation 7B(5) to give a notice to the FCA and to its Home State regulator stating the details of the change as soon as reasonably practicable.