1This appendix applies to all firms when carrying on a passported activity, except for a firm which is only carrying on a passported activity under the auction regulation.2

The purpose of this appendix is to give guidance:

1. (1)

   to UK firms on some of the issues that arise when carrying on passported activities1(see SUP App 3.5and SUP App 3.6);

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2. (2)

   to all firms on the relationship between regulated activities and activities passported under the Single Market Directives (see SUP App 3.9and SUP App 3.101).

   1

1. (1)

   The Treaty establishes4 in EU4 law the rights of freedom of establishment and freedom to provide services in the EU.41

   444
2. (2)

   The Treaty lays down central principles governing the legal framework for freedom of establishment and the free movement of services in the EU.4 There are, however, a number of areas where the legal position is not clear. This includes, for example, identifying whether a service is provided through an establishment, where the issues involved are complex. Therefore, this Appendix is intended to provide guidance but cannot be regarded as comprehensive. Ultimately, the construction of the Treaty and relevant Directive provisions is a matter for the European Court of Justice.1

   4

The Treaty provides the framework for the provision of banking, insurance business, investment business, UCITS management services and insurance mediation1, while the Single Market Directives clarify the rights and freedoms within that framework.

The agreement on the European Economic Area, signed at Oporto on 2 May 1992, extends certain EU4 legislation to those4EEA States that are4 not Member States4 of the EU.4

In 1997, the European Commission published an interpretative communication (Freedom to provide services and the interests of the general good in the Second Banking Directive (97/C 209/04)) (the text of this directive and the First Banking Directive is now consolidated in the Banking Consolidation Directive). The European Commission's objective in publishing this communication was to explain and clarify the EU4 rules. The European Commission deemed it desirable "to restate in a Communication the principles laid down by the Court of Justice and to set out its position regarding the application of these Principles to the specific problems raised by the Second Banking Directive".

In 2000, the European Commission published a further interpretative communication (Freedom to provide services and the general good in the insurance sector (2000/C43/03)). This allowed the European Commission to publicise its own interpretation of the rules on the freedom to provide services.

1. (1)

   The European Commission has not produced an interpretative communication on MiFID3. It is arguable, however, that the principles in the communication on the Second Banking Directive can be applied to investment services and activities3. This is because Chapter9 II of Title II of MiFID3 (containing provisions relating to operating conditions for investment firms3) also applies to the investment services and activities3 of firms operating under the Banking Consolidation Directive, which is repealed and replaced by the CRD.61

   3333
2. (2)

   The European Commission has not produced an interpretative communication on the IDD10, AIFMD, the MCD8 or 7 the UCITS Directive.1

   77

In giving its views, communications made by the European Commission have the status of guidance and are not binding on the national courts of EEA States. This is because it is the European Court of Justice that has ultimate responsibility for interpreting the Treaty and secondary legislation. Accordingly, the communications "do not prejudge the interpretation that the Court of Justice ...,4 which is responsible in the final instance for interpreting the Treaty and secondary legislation, might place on the matter at issue." (European Commission interpretative communication: Freedom to provide services and the general good in the insurance sector (C(99) 5046). However, the Courts may take account of European Commission communications when interpreting the Treaty and secondary legislation.

Firms should also note that European Commission communications do not necessarily represent the views taken by all EEA States.

The E-Commerce Directive covers services provided at a distance by means of electronic equipment for the processing (including digital compression) and storage of data. The services would normally be provided in return for remuneration and must be provided at the individual request of a recipient (see recital 17 of the E-Commerce Directive). The Directive implements the country of origin approach to regulation. This approach makes firms subject to the conduct of business requirements of the EEA State from which the service is provided. This is subject to certain derogations (see SUP App 3.3.11 G).

The E-Commerce Directive does not affect the responsibilities of Home State under the Single Market Directives. This includes the obligation of a Home State regulator to notify the Host State regulator of a firm's intention to establish a branch in, or provide cross border services into, the other EEA State.

There are, however, general derogations from the internal market provisions under article 3(3) of the E-Commerce Directive. The derogations include consumer contracts, the permissibility of unsolicited e-mail and certain insurance services (both life and non-life). Where these derogations apply, the EEA States in which the recipients of the service are based may continue to be able to impose their own requirements.

1The Single Market Directives require credit institutions, insurance undertakings (other than reinsurance undertakings)5, MiFID investment firms3, AIFMs, 7UCITS management companies,8insurance intermediaries and MCD credit intermediaries8 to make a notification to the Home State before establishing a branch or providing cross border services.

SUP 13.5 (Notices of intention) sets out the notification requirements for a firm seeking to establish a branch or provide cross border services. As firms will note, the decision whether a passport notification needs to be made will be a matter of interpretation. The onus is on firms to comply with the requirements of the Act and, where relevant, the laws of other EEA States. So, in cases of doubt, firms should obtain their own legal advice on the specific issues involved.

1Blanket notification is the practice of the Home State regulator notifying all Host State regulators in respect of all activities regardless of any genuine intention to carry on the activity. This practice is discouraged by the FCA and PRA11. However, a firm may be carrying on activities in the United Kingdom or elsewhere in a way that necessarily gives rise to a real possibility of the provision of services in other EEA States. In such cases, the firm should consider with its advisers whether it should notify the relevant authorities and include that possibility in its business plan.

Article 563 (Services) of the Treaty grants to EEA3 nationals established in one EEA State the freedom to provide cross border services to other EEA States.

Under the Treaty, the freedom to provide services within the EC may be exercised in three broad ways:

1. (1)

   where the provider of a service moves temporarily to another EEA State in order to provide the service;

2. (2)

   where the service is provided without either the provider or the recipient moving (in this situation the provision, and receipt, of the service may take place by post, telephone or fax, through computer terminals or by other means of remote control);

3. (3)

   where the recipient of a service moves temporarily to another EEA State in order to receive (or, perhaps, commission the receipt of) the service within that State.

Under the Single Market Directives, however, EEA rights for the provision of services are concerned only with services provided in one of the ways referred to in SUP App 3.6.2 G (1) and (2) (How services may be provided).2

In the opinion of the European Commission (and in the wording of the Single Market Directives) "only activities carried on within the territory of another Member State should be the subject of prior notification" (Commission interpretative communication: Freedom to provide services and the interests of the general good in the Second Banking Directive (97/C 209/04)). In determining, for the purposes of notification, whether a service is to be provided 'within' another EEA State, it is necessary to determine the place of supply of the service.

An insurance undertaking that effects contracts of insurance covering risks or commitments situated in another EEA State should comply with the notification procedures for the provision of services within that EEA State. The location of risks and commitments is found by reference to the rules set out in paragraph 6 of schedule 12 to the Act, which derive from article 13(13) and (14) of the Solvency II Directive.4 It may be appropriate for insurers to take legal advice as to how these rules are interpreted and applied in other EEA States. The need to passport may arise because of only one of the risks covered by an insurance policy. This includes, for example, where a policy covers a number of property risks and one of those properties is in another EEA State.3

In respect of banking services, the European Commission believes that "...to determine where the activity was carried on, the place of provision of what may be termed the 'characteristic performance' of the service i.e. the essential supply for which payment is due, must be determined" (Commission interpretative communication: Freedom to provide services and the interests of the general good in the Second Banking Directive (97/C 209/04)). In the view of the FCA5, this requires consideration of where the service is carried out in practice.

The FCA is5 of the opinion that UK firms that are credit institutions and MiFID investment firms2 should apply the 'characteristic performance' test (as referred to in SUP App 3.6.7 G) when considering whether prior notification is required for services business. Firms should note that other EEA States may take a different view. Some EEA States may apply a solicitation test. This is a test as to whether it is the consumer or the provider that initiates the business relationship.2

In the case of a UK firm conducting portfolio management, for example, this would mean looking at where the investment decisions and management are actually carried on in order to determine where the service is undertaken. Similarly, a UK stockbroker that receives orders by telephone from a customer in France for execution on a UK exchange may be deemed to be dealing or receiving and transmitting orders within the territory of the United Kingdom. In such a case, whether the firm solicited the overseas investor would be irrelevant.

Where, however, a credit institution or MiFID investment firm:2

1. (1)

   intends to send a member of staff or a temporarily authorised intermediary to the territory of another EEA State on a temporary basis to provide financial services; or

2. (2)

   provides advice, of the type that requires notification under either MiFID or the Banking Consolidation Directive2, to customers in another EEA State;

   2

the firm should make a prior notification under the freedom to provide services.

The key distinction in relation to temporary activities is whether a firm should make its notification under the freedom of establishment in a Host State, or whether it should notify under the freedom to provide services into a Host State. It would be inappropriate to discuss such a complex issue in guidance of this nature. It is recommended that, where a firm is unclear on the distinction, it should seek appropriate advice. In either case, where a firm is carrying on activities in another EEA State3 under a Single Market Directive, it should make a notification.

The FCA considers5 that, in order to comply with Principle 3:Management and control (see PRIN 2.1.1 R), a firm should have appropriate procedures to monitor the nature of the services provided to its customers. Where a UK firm has non-resident customers but has not notified the EEA State in which the customers are resident that it wishes to exercise its freedom to provide services, the FCA5 would expect the firm's systems to include appropriate controls. Such controls would include procedures to prevent the supply of services covered by the Single Market Directives in the EEA State in which the customers are resident if a notification has not been made and it is proposed to provide services otherwise than by remote communication. In respect of insurance business, the insurer's records should identify the location of the risk at the time the policy is taken out or last renewed. That will, in most cases, remain the location of the risk thereafter, even if, for example, the policyholder changes his habitual residence after that time.

1. (1)

   2The FCA is5 of the opinion that where a UK firm becomes a member of:

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   1. (a)

      a regulated market that has its registered office or, if it has no registered office, its head office, in another EEA State; or

   2. (b)

      an MTF or OTF5 operated by a MiFID investment firm or a market operator in another EEA State,

2the same principles as in the 'characteristic performance' test should apply. Under this test, the fact that a UK firm has a screen displaying the regulated market's or the MTF's or the OTF's5 prices in its UK5 office does not mean that it is dealing within the territory of the Home State of the regulated market or of the MTF or OTF5.

1. (2)

   2In such a case, the FCA5 would consider that:

   66
   1. (a)

      the market operator operating the regulated market or the MTF or the OTF5 is providing a cross-border service into the UK and so, provided it has given notice to its Home State regulator in accordance with articles 53(6) or 34(6) of5MiFID, it will be exempt from the general prohibition in respect of any regulated activity carried on as part of the business of the regulated market, of operating a multilateral trading facility or of operating an organised trading facility5 (see section 312A of the Act);

   2. (b)

      the MiFID investment firm operating the MTF or OTF5 is providing a cross-border service into the UK and so needs to comply with SUP 13A.2

Firms are reminded of their rights, under article 365 of MiFID2, to become members of, or have access to, the regulated markets in other Member States.3

Firms should note that, in circumstances where the FCA5 take the view that a notification would not be required, other EEA States may take a different view.

The following Tables 1, 2, 2ZA,12 2A and 2B1 provide an outline of the regulated activities and specified investments that may be of relevance to firms considering undertaking passported activities under the CRD6, 1MiFID3, AIFMD7, the UCITS Directive, the MCD9 and the IDD14. The tables may be of assistance to UK firms that are thinking of offering financial services in another EEA State and to EEA firms that may offer those services in the United Kingdom.

The tables provide a general indication of the investments and activities specified in the Regulated Activities Order that may correspond to categories provided for in the CRD6, 1MiFID3, AIFMD7, the UCITS Directive, the MCD9 or the IDD14. The tables do not provide definitive guidance as to whether a firm is carrying on an activity that is capable of being passported, nor do the tables take account of exceptions that remove the effect of articles. Whether a firm is carrying on a passported activity will depend on the particular circumstances of the firm. If a firm's activities give rise to potential passporting issues, it should obtain specialist advice on the relevant issues.

In considering the issues raised in the tables, firms should note that:

1. (1)

   article 64 of the Regulated Activities Order (Agreeing to carry on specific kinds of activity) may apply12 in respect of agreeing to undertake the specified activity (see PERG 2.7.21G)12; and

2. (2)

   article 89 of the Regulated Activities Order (Rights to or interests in investments) applies in respect of rights to and interests in the types of investments to which the category applies.

The guidance in Table 3 describes in broad outline the relationship between:

1. (1)

   the insurance-related regulated activities specified in the Regulated Activities Order; and

2. (2)

   the activities within the scope of the Solvency II Directive7

   7

The meaning of contract of insurance is set out in article 3(1) of the Regulated Activities Order (Interpretation). It does not include benefit-in-kind funeral plans, which are specified in article 60 of the Regulated Activities Order (plans covered by insurance or trust arrangements). Such funeral plans (to the extent that they are insurance) are also excluded from theSolvency II Directive.7 It covers some contracts which might not otherwise be viewed as insurance in the United Kingdom (for example, contracts of guarantee). These contracts are also governed by theSolvency II Directive.7 For the purpose of the Regulated Activities Order, a contract of insurance includes a contract of reinsurance as well as a contract of direct insurance.

Article 1 of the Solvency II Directive provides that the Directive “lays down rules concerning... the taking up and pursuit, within the Community, of the self-employed activities of direct insurance and reinsurance". Article7 10 of the Regulated Activities Order (Effecting and carrying out contracts of insurance) also covers reinsurance.

Articles 3 to 12 of the Solvency II Directive7 set out certain exclusions by reference to:

1. (1)

   types of insurance;

2. (2)

   types of insurer;

3. (3)

   particular conditions under which insurance activities are carried out.

4. (4)

   annual income; and

5. (5)

   particular identified institutions.

Some of the exclusions referred to in the Solvency II Directive7 mirror exclusions in the Regulated Activities Order. So, the exclusion for breakdown insurance in article 6 of the Solvency II Directive7 is matched by a slightly narrower exclusion in article 12 of the Regulated Activities Order (Breakdown insurance). The separate treatment of benefit-in-kind funeral plans under the Regulated Activities Order (see SUP App 3.10.4 G) is matched by their exclusion on a slightly wider basis in article 10 of the Solvency II Directive.7 Other requirements from the Solvency II Directive7 are also excluded from regulation by the Exemption Order.

Most of the exclusions under the Directives, however, are not excluded from being regulated activities. For example, the activities of "non-directive friendly societies"7 are regulated under the Act, on a "lighter basis" than the activities of other insurers.

Under the Act and the Regulated Activities Order, the activities of effecting and carrying out contracts of insurance are treated as being carried on in the United Kingdom on the basis of legal tests under which the location of the risk is only one factor. If the risk is located in the United Kingdom, then (other relevant factors being taken into account) the activity will, in the vast majority of cases, also be viewed as carried on in the United Kingdom. There are exceptions, however, and overseas insurers may insure risks in the United Kingdom without carrying on business here and so without requiring to be regulated (although the financial promotion regime may apply). By contrast, under the Solvency II Directive,7 the responsibility, as between EEA States, for regulating the conduct of passported insurance services is determined by reference to the location of the risk or commitment, as defined in article 13(13) and (14) of the Solvency II Directive.7

So, the effect of App 3.12.1 is that an insurer may be carrying on insurance business in the United Kingdom which is to be treated as a regulated activity under article 10 to the Regulated Activities Order (Effecting and carrying out contracts of insurance) in circumstances where the risks covered are treated as located in another EEA State. In that event, the insurer is required by Schedule 3 to the Act to passport into the State concerned and may be subject to conduct of business requirements in that State (see SUP 13.10 (Applicable provisions)).

An insurer authorised in another EEA State who is insuring UK risks and so passports on a services basis under the Solvency II Directive7 into the United Kingdom may not be carrying on a regulated activity in the United Kingdom. But, if it passports into the United Kingdom, it will qualify for authorisation under paragraph 12 of Schedule 3 to the Act (Firms qualifying for authorisation). Where this is the case, the insurer will be subject to conduct of business requirements in the United Kingdom (see 3SUP 13A.63 (Which rules will an incoming EEA firm be subject to?)).

Although the Solvency II Directive is7 concerned with the regulated activities of effecting and carrying out contracts of insurance, an incoming EEA firm passported under the Solvency II Directive7 will be entitled to carry on certain other regulated activities without the need for top-up permission. This is where the regulated activities are carried on for the purposes of or in connection with the incoming EEA Firm's insurance business1. These regulated activities may include:

1. (1)

   dealing in investments as principal;

2. (2)

   dealing in investments as agent;

3. (3)

   arranging (bringing about) deals in investments;

4. (4)

   making arrangements with a view to transactions in investments;

5. (5)

   managing investments;

6. (6)

   safeguarding and administering investments;

7. (7)

   advising on investments;

8. (8)

   agreeing to carry on a regulated activity of the above kind.

The financial promotion regime under section 21 of the Act (Restrictions on financial promotion) may also apply to EEA insurance undertakings regardless of whether they carry on a regulated activity in the United Kingdom or passport into the United Kingdom.