1This chapter applies to an incoming EEA firm other than an EEA pure reinsurer7 which has established a branch in, or is providing cross border services into, the United Kingdom under one of the Single Market Directives or the auction regulation8 and, therefore, qualifies for authorisation under Schedule 3 to the Act.

8The guidance in SUP 14.2 and SUP 14.3 covers the EEA Passport Rights Regulations. It is not, however, relevant to an EEA firm exercising an EEA right under the auction regulation, except for SUP 14.2.14 R which applies a separate notification requirement. Additionally, where an EEA firm is carrying on MiFID business bidding, that firm is exercising an EEA right under MiFID and so this chapter applies to that activity because it is MiFID business.

SUP 14.6 (Cancelling qualification for authorisation), which sets out how to cancel qualification for authorisation under the Act, also applies to:

1. (1)

   an incoming Treaty firm that qualifies for authorisation under Schedule 4 to the Act; and

2. (2)

   a UCITS qualifier that is an authorised person under Schedule 5 to the Act; a UCITS qualifier should, however, refer to COLLG 3.1.11 G6 for full details of applicable rules and guidance.2

   6

1. (1)

   Under the Gibraltar Order4 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:

   1. (a)

      authorised in Gibraltar under the Insurance Directives; or

   2. (b)

      authorised in Gibraltar under the Banking Consolidation Directive;4

      4
   3. (c)

      authorised in Gibraltar under the Insurance Mediation Directive; or4

   4. (d)

      authorised in Gibraltar under the Investment Services Directive .4

2. (1A)

   4Similarly, an EEA firm which:

   1. (a)

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

   2. (b)

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

   is treated as having satisfied the establishment conditions or service conditions (as appropriate) under Schedule 3 to the Act.

3. (2)

   Gibraltar insurance companies, credit institutions, insurance intermediaries and investment firms4 are4 allowed to passport their4 services into the United Kingdom if they comply 4with the relevant notification procedures. So, any references in SUP 14 to EEA State or EEA right include references to Gibraltar and the entitlement under the Gibraltar Order where appropriate.4

   4444444

This chapter gives guidance on the Act and the EEA Passport Rights Regulations made under the Act, for an incoming EEA firm which has established a branch in, or is providing cross border services into, the United Kingdom and wishes to change the details of the branch or cross border services.

This chapter also explains how an incoming EEA firm, an incoming Treaty firm or a UCITS qualifier may cancel its qualification for authorisation under the Act.

This chapter does not, however, give guidance on the procedures for the establishment of a branch in, or the providing of cross border services into, the United Kingdom for the first time. So, an incoming EEA firm that wishes to change or supplement the nature of its operations in the United Kingdom from the providing of cross border services to the establishment of a branch (or vice versa) should refer to 3SUP 13A3 (Qualifying for authorisation under the Act).

In addition, the chapter does not give guidance on the procedures for making an application for top-up permission, to carry on regulated activities in the United Kingdom which are outside the scope of the Single Market Directives and for which the firm cannot exercise Treaty rights. Incoming EEA firms seeking a top-up permission should refer to 3SUP 13A3.

Where an incoming EEA firm is exercising an EEA right, other than under the Insurance Mediation Directive, and has established a branch in the United Kingdom, the EEA Passport Rights Regulations govern any changes to the details of that branch. Where an incoming EEA firm has complied with the relevant requirements in the EEA Passport Rights Regulations, then the firm'spermission given under Schedule 3 to the Act is to be treated as varied accordingly. All references to regulations in SUP 14 are to the EEA Passport Rights Regulations.42

1. (1)

   Where an incoming EEA firm passporting under the Banking Consolidation Directive or the UCITS Directive has established a branch in the United Kingdom, regulation 4 states that it must not make a change in the requisite details of the branch unless it has complied with the relevant requirements.

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2. (2)

   The relevant requirements are set out in regulation 4(4) or, where the change arises from circumstances beyond the incoming EEA firm's control, in regulation 4(5) (see SUP 14.2.8 G).32

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

1. (1)

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

2. (2)

   the FSA has received a notice stating those details; and

3. (3)

   either:

   1. (a)

      the FSA has informed the firm that it may make the change; or

   2. (b)

      the period of one month beginning with the date on which the incoming EEA firm gave the FSA the notice mentioned in (1) has elapsed.

Changes to the requisite details may lead to changes to the applicable provisions to which the incoming EEA firm is subject. The FSA will, as soon as practicable after receiving a notice in SUP 14.2.3 G or SUP 14.2.8 G, inform the incoming EEA firm of any consequential changes in the applicable provisions (regulation 4(6)).1

1. (1)

   Where an incoming EEA firm, passporting under the Insurance Directives has established a branch in the United Kingdom, regulation 6 states that it must not make a change to the information referred to in regulation 2(5)(a) to (c) unless it has complied with the relevant requirements.

   5
2. (2)

   The relevant requirements are set out in regulation 6(4) or, where the change arises from circumstances beyond the incoming EEA firm's control, regulation 6(5) (see SUP 14.2.8 G). 1

Where the change arises from circumstances within the control of the incoming EEA firm, the relevant requirements in regulation 6(4) are that:

1. (1)

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

2. (2)

   the FSA has received from the Home State regulator a notice stating that it has approved the proposed change;

3. (3)

   the period of at least one month beginning with the day on which the incoming EEA firm gave the FSA the notice in (1) has elapsed; and

4. (4)

   either:

   1. (a)

      a further period of one month has elapsed; or

   2. (b)

      the FSA has informed the Home State regulator of any consequential changes in the applicable provisions.

Under regulation 6(6) the FSA is required, as soon as practicable, to:

1. (1)

   acknowledge receipt of the documents sent under regulation 6(4) or 6(5); and

2. (2)

   in the case of a notice under regulation 6(5), inform the incoming EEA firm's Home State regulator of any consequential changes in the applicable provisions.

If the change arises from circumstances beyond the incoming EEA firm's control, the firm is required by regulation 4(5) (see SUP 14.2.2 G) or regulation 6(5) (see SUP 14.2.5 G (2)) to give a notice to the FSA (see SUP 14.4.1 G) and to its Home State regulator stating the details of the change as soon as reasonably practicable.

The FSA believes that for a change to arise from circumstances beyond the control of an incoming EEA firm, the circumstances should be outside the control of the firm as a whole and not just its UK branch. For example, the FSA considers that this provision would be unlikely to apply to circumstances in which lack of planning at the incoming EEA firm's head office resulted in a problem arising in a UKbranch which was outside its control. In practice, therefore, use of this provision is likely to be rare.

6Where an EEA MiFID investment firm has established a branch in the UK, regulation 4A states that it must not:7

1. (1)

   make a change in the requisite details of the branch; or7

2. (2)

   use, for the first time, any tied agent established in the United Kingdom; or7

3. (3)

   cease to use tied agents established in the United Kingdom;7

unless it has complied with the relevant requirements in regulation 4A(3).7

6The relevant requirements in regulation 4A(3) are that:

1. (1)

   the EEA MiFID investment 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 date on which the EEA MiFID investment firm gave the notice mentioned in (1) has elapsed.

6Changes to the requisite details may lead to changes to the applicable provisions to which the EEA MiFID investment firm is subject. The FSA will, as soon as practicable after receiving a notice in SUP 14.2.11 G inform the EEA MiFID investment firm of any consequential changes in the applicable provisions.

7 SUP 14.2.10 G does not apply to a change occasioned by circumstances beyond the incoming EEA firm's control.

Where an incoming EEA firm passporting under the MiFID4, UCITS Directive or Insurance Directives 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 relevant requirements in the EEA Passport Rights Regulations, then the firm'spermission given under Schedule 3 to the Act is to be treated as varied accordingly.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 FSA (see SUP 14.4.1 G) and to its Home State regulator stating the details of the proposed change;

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 FSA and to its Home State regulator the notice in (1).1

Under regulation 5(4), the FSA 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 FSA 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.

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

If an incoming EEA firm passporting under the Insurance Directives is providing cross border services into3 the United Kingdom, it must not make a change to the details referred to in regulation 7(1) unless it has complied with the relevant provisions.

The relevant provisions are those set out in regulation 7(4), namely that:

1. (1)

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

2. (2)

   the Home State regulator has passed on to the FSA the information contained in that notice.

If the change arises from circumstances beyond the incoming EEA firm's control, the incoming EEA firm is required to comply with the relevant provisions referred to in SUP 14.3.6 G as soon as reasonably practicable (whether before or after the change). See also SUP 14.2.9 G, as relevant to cross border services.

1. (1)

   Regulation 7 to 9 of the Financial Services and Markets Act 2000 (Services of Notices) Regulations 2001 (SI2001/1420) govern the manner in which notices may be submitted to the FSA under the EEA Passport Rights Regulations. In summary, they should be delivered or posted to the FSA's address (See (2) below) and will be treated as given when received by the FSA. They should not be sent by fax or electronic mail.

2. (2)

   The address for notices is: The Passport Notifications Unit, The Financial Services Authority, 25 The North Colonnade, Canary Wharf, London, E14 5HS1

Where an incoming EEA firm has been granted top-up permission by the FSA and wishes to vary that permission, the Act requires it to apply to the FSA for a variation of the top-up permission. 1

Guidance on the procedures for applying for a variation of a permission granted under Part IV of the Act, including a top-up permission, is given in SUP 6 (Applications to vary and cancel Part IVPermission).1

Section 34 of the Act states that an incoming EEA firm no longer qualifies for authorisation under Schedule 3 to the Act if it ceases to be an incoming EEA firm as a result of:

1. (1)

   having its EEA authorisation withdrawn by its Home State regulator; or

2. (2)

   ceasing to have an EEA right in circumstances in which EEA authorisation is not required; this is relevant to a financial institution that is a subsidiary of a credit institution (of the kind mentioned in Article 19of the Banking Consolidation Directive) which fulfils the conditions in articles 18 and 19of that Directive.

In addition, under section 34(2) an incoming EEA firm may ask the FSA to give a direction cancelling its authorisation under Schedule 3 to the Act.

Regulation 8 states that where an incoming EEA firm which qualifies for authorisation under Schedule 3:

1. (1)

   has ceased, or is to cease, to carry on regulated activities in the United Kingdom; and

2. (2)

   gives notice of that fact to the FSA;

the notice is treated under regulation 8 as a request for cancellation of the incoming EEA firm's qualification for authorisation under Schedule 3 to the Act and so as a request under section 34(2) of the Act.

4 The sole purpose of the notification in SUP 14.6.3A R is to inform the FSA that it may discontinue its supervision of the UK branch of the incoming EEA firm's compliance with the applicable provisions. The applicable provisions that apply to that branch are set out in SUP 13A Annex 1 (Application of the Handbook to Incoming EEA Firms).

Where a financial institution (that is, a subsidiary of a credit institution) is passporting under the Banking Consolidation Directive (see SUP 14.6.1 G (2)), regulation 9(1) states that the incoming EEA firm may request the FSA to direct that its qualification for authorisation under Schedule 3 to the Act is cancelled from such date as may be specified in the direction.

The FSA may not, however, give a direction referred to in SUP 14.6.4 G unless:

1. (1)

   the incoming EEA firm has given notice to its Home State regulator; and

2. (2)

   the FSA has agreed with the Home State regulator that the direction should be given.

Regulation 9(3) requires that the date specified by the FSA in a direction referred to in SUP 14.6.4 G:

1. (1)

   must not be earlier than the date requested in the application; but

2. (2)

   subject to (1), is as agreed between the FSA and the incoming EEA firm's Home State regulator.

The FSA is required to send, as soon as practicable, a copy of the direction to the incoming EEA firm and to its Home State regulator (regulation 9(4)).

Where the FSA gives a direction referred to in SUP 14.6.4 G, the incoming EEA firm may apply for Part IV permission (see the FSA website "How do I get authorised":http://www.fsa.gov.uk/Pages/Doing/how/index.shtml2) to take effect not earlier than the date that its qualification for authorisation is cancelled (as specified in the direction).

Section 35 of the Act states that an incoming Treaty firm no longer qualifies for authorisation under Schedule 4 to the Act if its Home State authorisation is withdrawn.

In addition, under section 35(2) an incoming Treaty firm may ask the FSA to give a direction cancelling its authorisation under Schedule 4 to the Act.

Section 36 of the Act states that a UCITS qualifier may ask the FSA to give a direction cancelling its authorisation under paragraph 1(1) of Schedule 5 to the Act. UCITS qualifiers should also refer to COLLG 3.1.11 G (Revocation of recognition of overseas schemes (section 279)3).1

Where an incoming EEA firm, an incoming Treaty firm or a UCITS qualifier wishes to cancel its top-up permission, either with or without cancellation of its qualification for authorisation under Schedule 3, 4, or 5 to the Act, it should make an application following the procedures set out in SUP 6 (Applications to vary and cancel Part IVPermission).

For further guidance on passporting procedures, an incoming EEA firm should contact the FSA's Passport Notifications Unit or their usual supervisory contact at the FSA. Incoming Treaty firms and UCITS qualifiers should speak to their usual supervisory contact at the FSA in the first instance