Related provisions for INSPRU 1.5.4
21 - 40 of 460 items.
Guidance on what constitutes a branch is given in SUP App 36. Note that if a UK MiFID investment firm is seeking to use a tied agent established in another EEA State, the rules in SUP 13 will apply as if that firm were seeking to establish a branch in that EEA State unless the firm has already established a branch in that EEA State (paragraph 20A of Schedule 3 to the Act).846
A UK firm other than a UK pure reinsurer9cannot establish a branch in another EEA State for the first time under an EEA right unless the relevant13 conditions in paragraphs 19(2), (4) and (5)12 of Part III of Schedule 3 to the Act are satisfied. It is an offence for a UK firm which is not an authorised person to contravene this prohibition (paragraph 21 of Part III of Schedule 3 to the Act). These conditions are that:13121213(1) the UKfirm has given the appropriate UK regulator,20
4If the UK firm is passporting under the Insurance Mediation Directive and the EEA State in which the UK firm is seeking to establish a branch has not notified the European Commission of its wish to be informed of the intention of persons to establish a branch in its territory in accordance with article 6(2) of that directive, SUP 13.3.2 G (2) and SUP 13.3.2 G (3) do not apply. Accordingly, the UK firm may establish the branch to which its notice of intention8 relates as soon
(1) 8If the UK firm'sEEA right derives from the CRD12 or10MiFID8,10 the appropriate UK regulator20 will give the Host State regulator a consent notice within three months unless it has reason to doubt the adequacy of a UK firm's resources or its administrative structure.8 The Host State regulator then has a further two months to notify the applicable provisions (if any) and prepare for the supervision, as appropriate, of the UK firm, or in the case of a MiFID investment firm,
20Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give a consent notice, except where paragraph 19(7A) of Part III of Schedule 3 to the Act applies. Where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give a consent notice in relation to a UK firm whose immediate group includes a PRA-authorised person.
(1) If the appropriate UK regulator20 gives a consent notice, it will inform the UK firm in writing that it has done so.20(2) The consent notice will contain, among other matters, the requisite details or, 8if the firm is passporting under the Insurance Directives, the relevant EEA details8 (see SUP 13 Annex 18) provided by the UK firm in its notice of intention8 (see SUP 13.5 (Notices of intention)).8888(3) 10Where a consent notice is given under the UCITS Directive, the FCA20
(1) If the appropriate UK regulator20 proposes to refuse to give a consent notice, then paragraph 19(8) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to give the UK firm a warning notice.2020(2) If the appropriate UK regulator20 decides to refuse to give a consent notice, then paragraph 19(12) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to give the UK firm a decision notice within three months8 of the date on which
10A UK firm seeking to provide collective portfolio management services from a branch in another EEA State, is advised that it will need to refer to the rules of the competent authority of the UCITS Home State implementing article 20 of the UCITS Directive which will require it to submit to that competent authority information relating to its depositary agreement and certain delegation arrangements.
The purpose of REC 3.14 is to ensure that the FCA3is informed of planned changes to the services a UK recognised body intends to provide and of the normal hours of operation of those services. Unplanned suspensions of those services, unplanned changes in hours of operation and events causing a UK recognised body to be unable to provide those services should be notified to the FCA3under the rules in REC 3.15.33
Where a UK RIE proposes to admit to trading (or to cease to admit to trading) by means of its facilities:(1) a specified investment (other than a security or an option in relation to a security); or(2) a type of security or a type of option in relation to a security; it must give the FCA3notice of that event, and the information specified for the purposes of this rule in REC 3.14.6 R to the FCA3, at the same time as that proposal is first formally communicated to its members or
Where a UK recognised body proposes to provide (or to cease to provide) clearing facilitation services3 in respect of:3(1) a specified investment (other than a security or an option in relation to a security); or (2) a type of security or a type of option in relation to a security;it must give the FCA3notice of that event and the information specified for the purposes of this rule in REC 3.14.6 R, at the same time as that proposal is first formally communicated to its members
Securities falling within the same article in Part III of the Regulated Activities Order which may be given the same generic description (for example, shares admitted to the UKofficial list) will normally be regarded as being of the same type. Options in relation to the same type of security will normally be regarded as being options of the same type.
The following information is specified for the purposes of REC 3.14.2 R and REC 3.14.3 R:(1) a description of the specified investment to which the proposal relates; (2) where that specified investment is a derivative, the proposed terms of that derivative; and (3) in the case of a UK RIE which is admitting that specified investment to trading, the name of any RCH which will provide clearing services in respect of that specified investment under an agreement with that UK RIE.
Where:(1) a UK RIE proposes to amend the standard terms of any derivative admitted to trading by means of its facilities; or (2) a UK RIE3 proposes to amend the standard terms relating to any derivative in respect of which it provides clearing facilitation services;3333it must give the FCA3notice of that event, and written particulars of those proposed amendments, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class
Where a UK recognised body proposes to make (or to cease to make) arrangements for the safeguarding and administration of assets belonging to any other person (other than an undertaking in the same group), that recognised body must give the FCA3notice of that event, and the information specified for the purposes of this rule in REC 3.14.9 R, at the same time as that proposal is first formally communicated to its members or shareholders (or any group or class of them).3
The FCA3does not need to be notified of proposals to offer (or to withdraw offers of) safeguarding and administration services for individual assets of the same type. Specified investments (other than securities) falling within the same article in Part III of the Regulated Activities Order will normally be regarded as being of the same type. Securities falling within the same article in Part III of the Regulated Activities Order which may be given the same generic description
Where a UK recognised body proposes to change its normal hours of operation or (for RAPs) the timing, frequency or duration of its bidding windows,2 it must give the FCA3 notice of that proposal, and particulars of, and the reasons for, the actions proposed, at the same time as the proposal is first formally communicated to its members or shareholders, or any group or class of them.3
A UK firm, other than a UK pure reinsurer or an AIFM exercising an EEA right to market an AIF under AIFMD13,9 cannot start providing cross border services into another EEA State under an EEA right unless it satisfies the conditions in paragraphs 20(1) of Part III of Schedule 3 to the Act and, if it derives its EEA right from the Insurance Directives, AIFMD, MiFID or the UCITS Directive,13paragraph 20(4B) of Part III of Schedule 3 to the Act. It is an offence for a UK firm which
8A MiFID investment firm that wishes to obtain a passport for the activity of operating an MTF should follow the procedures described in this chapter. A UK market operator that operates a recognised investment exchange, a recognised auction platform (pursuant to the RAP regulations, the definition of regulated market in the Act is read for these purposes as including a recognised auction platform)11 or an MTF and wishes to provide cross border services into another EEA State should
14A UKfirm that is an AIFM may exercise an EEA right to market a UK AIF or EEA AIF managed by it under AIFMD when the following conditions are satisfied:(1) the UKfirm has given the FCA a notice of intentionSUP 13.5.2 R; and(2) the FCA has sent a copy of the notice of intention to the Host State regulator where the AIF will be marketed and has given the UKfirm written notice that it has done so.
8(1) If8 the UK firm'sEEA right derives from MiFID8, theCRD12 or the UCITS Directive, paragraph 20(3) of Part III of Schedule 3 to the Act requires the appropriate UK regulator20 to send a copy of the notice of intention8 to the Host State Regulator within one month8 of receipt.8A UK firm passporting under the CRD10 may start providing cross border services as soon as it satisfies the relevant conditions (see SUP 13.4.2 G).88812208881012(2) (a) If8 the UK firm'sEEA right derives
(1) 14If the UKfirm'sEEA right derives from AIFMD (other than the EEA right to market an AIF (referred to in (3)) and the condition in (2) is met, paragraph 20(3D) of Part III of Schedule 3 to the Act requires the FCA to:(a) send a copy of the notice of intention to the Host State regulator within one month of receipt; (b) include confirmation that the UKfirm has been authorised by the FCA under AIFMD; and(c) immediately inform the UKfirm that the notice of intention and confirmation
20Where the PRA is the appropriate UK regulator, it will consult the FCA before deciding whether to give a consent notice and where the FCA is the appropriate UK regulator, it will consult the PRA before deciding whether to give a consent notice in relation to a UK firm whose immediate group includes a PRA-authorised person.
10A UK firm seeking to provide collective portfolio management services in another EEA State under the freedom to provide cross border services, is advised that it will need to refer to the rules of the competent authority of the UCITS Home State implementing article 20 of the UCITS Directive which will require it to submit to that competent authority information relating to its depositary agreement and certain delegation arrangements.
(1) The purpose of REC 3.13 is to enable the FCA2to monitor any significant instances where UK recognised bodies outsource their functions to other persons (as permitted 1under Regulation 6 of the Recognition Requirements Regulations or, in relation to an RAP, under regulation 13 of the RAP regulations1. See REC 2.2 and REC 2A.2).121(2) The FCA2does not need to be notified of every instance of outsourcing by a UK recognised body, but only where an activity or activities which
Where a UK recognised body makes an offer or agrees to delegate any of its relevant functions to another person, it must immediately give the FCA2notice of that event, and:2(1) inform the FCA2of the reasons for that delegation or proposed delegation;2(2) inform the FCA2of the reasons why it is satisfied that it will continue to meet the recognition requirements or (for an RAP) RAPrecognition requirements1 following that delegation;2(3) where it makes such an offer by issuing a
The FCA will not grant an investment firm consolidation waiver unless:(1) the UK consolidation group or non-EEA sub-group meets the conditions for being a CAD Article 22 group;(2) the FCA is satisfied that each BIPRU firm in the UK consolidation group or non-EEA sub-group will be able to meet its capital requirements using the calculation of capital resources in GENPRU 2 Annex 6R (Capital resources table for a BIPRU 2firm with a waiver from consolidated supervision); and(3) the
If a firm has an investment firm consolidation waiver with respect to its UK consolidation group or non-EEA sub-group but that UK consolidation group or non-EEA sub-group ceases to meet the definition of a CAD Article 22 group the firm must comply with the rest of this chapter rather than this section notwithstanding the investment firm consolidation waiver.
(1) A CAD Article 22 group means a UK consolidation group or non-EEA sub-group that meets the conditions in this rule.(2) There must be no bank, building society or2credit institution2 in the UK consolidation group or non-EEA sub-group and any investment firm in the UK consolidation group or non-EEA sub-group must not be subject to consolidated supervision under the EU CRR2.11(3) Each CAD investment firm in the UK consolidation group or non-EEA sub-group which is an EEA firm
GENPRU 2.2 (Capital resources) says that a BIPRU firm1 with an investment firm consolidation waiver should calculate its capital resources on a solo basis using GENPRU 2 Annex 6 (Capital resources table for a BIPRU firm with a waiver from consolidated supervision). GENPRU 2 Annex 6 requires a BIPRU firm1 to deduct contingent liabilities in favour of other members of the UK consolidation group or non-EEA sub-group. Therefore BIPRU 8.4.9R (5)(b) only imposes the requirement to deduct
If a firm has an investment firm consolidation waiver, it must ensure that any financial holding company in the UK consolidation group or the non-EEA sub-group that is the UKparent financial holding company in a Member State of a CAD investment firm in the UK consolidation group or non-EEA sub-group has capital resources, calculated under BIPRU 8.4.12 R, in excess of the sum of the following (or any higher amount specified in the investment firm consolidation waiver):(1) the sum
If a firm has an investment firm consolidation waiver, it must:(1) ensure that each CAD investment firm in the UK consolidation group or non-EEA sub-group which is a firm or an EEA firm has in place systems to monitor and control the sources of capital and funding of all the members in the UK consolidation group or non-EEA sub-group;(2) notify the FCA of any serious risk that could undermine the financial stability of the UK consolidation group or non-EEA sub-group, as soon as
Although an investment firm consolidation waiver switches off most of this chapter, a firm should still carry out the capital adequacy calculations in BIPRU 8.3 to BIPRU 8.8 as if those parts of this chapter still applied to the UK consolidation group or non-EEA sub-group and report these to the FCA. It should also still monitor large exposure risk on a consolidated basis.
A firm will not be a member of a non-EEA sub-group unless it is1 also a member of a UK consolidation group. So the first step is to identify each undertaking in the firm'sUK consolidation group that satisfies the following conditions:(1) it isa CAD investment firm,4financial institution or asset management company whose head office is outside the EEA (a third country investment services undertaking4);44(2) one of the following applies:(a) it is a subsidiary undertaking of a BIPRU
The firm should then identify each undertaking in the firm'sUK consolidation group that satisfies the following conditions:(1) it is a CAD investment firm,4financial institution or asset management company whose head office is outside the EEA (a third country investment services undertaking);4(2) one of the following applies:(a) it is a subsidiary undertaking of a financial holding company in that UK consolidation group; or(b) a financial holding company in that UK consolidation
Having identified potential non-EEA sub-groups for each third country investment services undertaking4 in its UK consolidation group the firm should then eliminate overlapping potential non-EEA sub-groups in the following way. If:4(1) one potential non-EEA sub-group is 1contained within a wider potential non-EEA sub-group; and(2) the third country investment services undertaking4 in the two potential non-EEA sub-groups are the same;4then the smaller potential non-EEA sub-group
If a UK consolidation group is headed by a parent financial holding company in a Member State the result of the elimination process may be that a firm'sUK consolidation group contains only one non-EEA sub-group and that the non-EEA sub-group is the same as the UK consolidation group. In theory that means that there are two sets of consolidation requirements, one in relation to the UK consolidation group and one in relation to the non-EEA sub-group. However as the UK consolidation
Even where the requirements for a non-EEA sub-group are absorbed into those for the UK consolidation group a firm should still make clear in its regulatory reporting that the consolidation figures relate to a UK consolidation group and a non-EEA sub-group and that they both contain the same members.
The examples in this section have so far assumed that the only EEA State involved is the United Kingdom. If a potential non-EEA sub-group that would otherwise be regulated by the appropriate regulator contains a potential non-EEA sub-group in another EEA State then the United Kingdom one is eliminated if the third country investment services undertaking4 in the UK potential non-EEA sub-group and the potential non-EEA sub-group in the other EEA State are the same. The intention
1Under section 300B(3) of the Act, the FCA4may also by rules under section 293: 4(1) 1make provision as to the form and contents of the notice required, and(2) 1require the UK recognised body to provide such information relating to the proposal as may be specified in the rules or as the FCA4may reasonably require.4
1The duty in section 300B(1) of the Act does not apply to any of the following:(1) any regulatory provision which is required under EU2 law or any enactment or rule of law in the United Kingdom; or2(2) (a) the specification of the standard terms of any derivative which a UK RIE proposes to admission to trading, or the amendment of the standard terms of any derivative already admitted to trading; or(b) the specification or any amendment of standard terms relating to the provision
1In determining whether a UK RIE3has provided sufficient supporting information, the FCA4may have regard to the extent to which the information includes:44(1) 1clearly expressed reasons for the proposed regulatory provision; and(2) 1an appropriately detailed assessment of the likely costs and benefits of the proposed regulatory provision.
(1) 13The management body of a CRR firm has overall responsibility for risk management. It must devote sufficient time to the consideration of risk issues.(2) The management body of a CRR firm must be actively involved in and ensure that adequate resources are allocated to the management of all material risks addressed in the rules implementing the CRD and in the EU CRR as well as in the valuation of assets, the use of external ratings and internal models related to those risks.
(1) 13A CRR firm that is significant must establish a risk committee composed of members of the management body who do not perform any executive function in the firm. Members of the risk committee must have appropriate knowledge, skills and expertise to fully understand and monitor the risk strategy and the risk appetite of the firm.(2) The risk committee must advise the management body on the institution’s overall current and future risk appetite and assist the management body
(1) 13A CRR firm must ensure that the management body in its supervisory function and, where a risk committee has been established, the risk committee have adequate access to information on the risk profile of the firm and, if necessary and appropriate, to the risk management function and to external expert advice.(2) The management body in its supervisory function and, where one has been established, the risk committee must determine the nature, the amount, the format, and the
(1) 13A CRR firm's risk management function (SYSC 7.1.6 R) must be independent from the operational functions and have sufficient authority, stature, resources and access to the management body.(2) The risk management function must ensure that all material risks are identified, measured and properly reported. It must be actively involved in elaborating the firm's risk strategy and in all material risk management decisions and it must be able to deliver a complete view of the whole
13The head of the risk management function must be an independent senior manager with distinct responsibility for the risk management function. Where the nature, scale and complexity of the activities of the CRR firm do not justify a specially appointed person, another senior person within the firm may fulfil that function, provided there is no conflict of interest. The head of the risk management function must not be removed without prior approval of the management body and must
(1) The effect of COLL 7.7.1 R, and in particular the narrow Glossary definition of domestic UCITS merger which is drafted in accordance with article 2.1(r) of the UCITS Directive, is that this section will not apply to a merger in the United Kingdom between two or more UCITS schemes unless one of them has been the subject of a UCITS marketing notification.(2) For arrangements to constitute a cross-border UCITS merger, at least two of the relevant UCITS must be:(a) established
A domestic UCITS merger between two or more UCITS schemes, or a cross-border UCITS merger between one or more UCITS schemes which is or are the merging UCITS and one or more EEA UCITS schemes, is permissible provided:(1) it is effected in accordance with the requirements of:(a) the UCITS Regulations 2011, which include the need for the FCA to have made a prior order approving the proposed merger (which may be made subject to (2)); and(b) this chapter; and (2) in the case of a
(1) The requirements and the process which must be followed to give effect to a proposal for a UCITS merger as specified by Chapter VI of the UCITS Directive (see articles 37 to 48) have been implemented in the United Kingdom by the provisions of Part 4 of the UCITS Regulations 2011. The main features of the regime as set out in those provisions include:(a) the different types of merger operation that will be recognised for a UCITS merger;(b) the need for the FCA to give prior
(1) The authorised fund manager of a UCITS scheme that is a merging UCITS or a receiving UCITS in a proposed UCITS merger must ensure that a document containing appropriate and accurate information on the merger is provided to the unitholders of that scheme so as to enable them to:(a) make an informed judgment about the impact of the proposal on their investment;(b) exercise their rights under regulation 12 (Right of redemption) of the UCITS Regulations 2011; and(c) where applicable,
(1) The information document that must be provided to unitholders under COLL 7.7.10 R (Information to be given to unitholders) by the authorised fund manager of a UCITS scheme must be written in a concise manner and in non-technical language.(2) In the case of a proposed cross-border UCITS merger, the authorised fund manager of the UCITS scheme, being either the merging UCITS or the receiving UCITS respectively, must explain in plain language any terms or procedures relating to
(1) Where a UCITS scheme is the receiving UCITS in a cross-border UCITS merger, its authorised fund manager must ensure that an up-to-date version of the key investor information document of the receiving UCITS is made available to the management company of the merging UCITS for the purpose of providing it to investors in that UCITS.(2) Where the key investor information document of the receiving UCITS has been amended for the purpose of (1), the authorised fund manager of the
(1) In a domestic UCITS merger, the effective date of the merger will be the date specified by the FCA in its order authorising the proposed merger in accordance with regulation 9 of the UCITS Regulations 2011.(2) For a UCITS scheme which is the receiving UCITS in a cross-border UCITS merger, the effective date of the merger will be the date agreed by the FCA and the merging UCITS'Home State regulator.(3) For a UCITS scheme which is the receiving UCITS in a domestic UCITS merger
If transferable securities are admitted to trading in more than one EEA State including the United Kingdom and the United Kingdom is the Home State, regulated information must be disclosed:(1) in English; and(2) either in a language accepted by the competent authorities of each Host State or in a language customary in the sphere of international finance, at the choice of the issuer. [Note: article 20(2) of the TD]
(1) If transferable securities are admitted to trading in one or more EEA States excluding the United Kingdom and the United Kingdom is the Home State, regulated information must be disclosed either:(a) in a language accepted by the competent authorities of those Host States; or(b) in a language customary in the sphere of international finance,at the choice of the issuer.(2) Where the United Kingdom is the Home State, regulated information must be disclosed either in English or
If transferable securities whose denomination per unit amounts to at least 100,000 euros1 (or an equivalent amount) are admitted to trading in the United Kingdom or in one or more EEA States, regulated information must be disclosed to the public in either a language accepted by the competent authorities of the Home State and Host States or in a language customary in the sphere of international finance, at the choice of the issuer or of the person who, without the issuer's consent,
Schedule to the Recognition Requirements Regulations, Paragraph 9A
1(1) |
[A UK RIE] operating a multilateral trading facility must also operate a regulated market. |
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(2) |
[A UK RIE] operating a multilateral trading facility must comply with those requirements of- |
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(a) |
Chapter I of Title II of [MiFID], and |
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(b) |
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which are applicable to a market operator ... operating such a facility. |
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(3) |
The requirements of this paragraph do not apply for the purposes of section 292(3)(a) of the Act (requirements for overseas investment exchanges and overseas clearing houses). |
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1In determining whether a UK RIE operating a multilateral trading facility complies with those requirements of Chapter I of Title II of MiFID and the MiFID implementing Directive which are applicable to a market operator operating such a facility, the FCA2 will have regard to the compliance of the UK RIE with equivalent recognition requirements.2
Sections 178(1) and 191D(1)10 of the Act require a person (whether or not he is an authorised person) to notify the appropriate regulator17 in writing if he decides 10to acquire, increase or reduce10control or to cease to have control10 over a UK domestic firm . Failure to notify is an offence under section 191F10 of the Act (Offences under this Part).46101710101010
If a person decides10 to acquire control or increase control over a UK domestic firm in a way described in SUP 11.4.2 Ror acquire control in a way described in SUP 11.4.2AR (1)4, he must obtain the appropriate regulator's17 approval before doing so. Making an acquisition before the appropriate regulator17 has approved of it10is an offence under section 191F of the Act (Offences under this Part).10101710174610
6The appropriate regulator17 may treat as notice given in accordance with sections 178 and 191D17 of the Act a written notification from a firm which contains the following statements:171017(1) that the firm proposes to acquire and/or dispose of control, on one or more occasions, of any UK domestic firm whose shares or those of its ultimate parent undertaking are, at the time of the acquisition or disposal of control, listed, or which are traded or admitted to trading on a MTF
6Where the appropriate regulator17 approves changes in control proposed in a notice given under SUP 11.3.5B D:17(1) the controller remains subject to the requirement to notify the appropriate regulator17 when a change in control actually occurs; and17(2) the notification of change in control should be made no later than five business days after the end of each month and set out all changes in the controller's control position for each UK domestic firm for the month in question.At
A section 178 notice10 given to the appropriate regulator17 by a person who is acquiring control or increasing his control over a UK domestic firm, in a way described in SUP 11.4.2 R (1) to (4), or acquiring control in a way described in SUP 11.4.2A R, must contain the information and be accompanied by such documents as are required by the controllers form approved by the appropriate regulator17 for the relevant application. 4610171017
10A notice given to the appropriate regulator17 by a person who is reducing or ceasing to have control over a UK domestic firm, as set out in SUP 11.4.2Ror SUP 11.4.2A R must:17(1) be in writing; and(2) provide details of the extent of control (if any) which the controller will have following the change in control.
This chapter applies to a UK firm, that is, a person whose head office is in the United Kingdom and which is entitled to carry on an activity in another EEA State subject to the conditions of a Single Market Directive. Such an entitlement is referred to in the Act as an EEA right and its exercise is referred to in the Handbook as passporting.1
This chapter also applies to a UK firm which wishes to establish a branch in, or provide cross border services into, Gibraltar. The Financial Services and Markets Act 2000 (Gibraltar) Order 2001 provides that a UK firm is to be treated as having an entitlement corresponding to its EEA right, to establish a branch in, or provide cross border services into, Gibraltar under any of the Single Market Directives. So, references in this chapter to an EEA State or an EEA right include
This chapter does not apply to:(1) a firm established in an EEA State other than the United Kingdom; passporting by such a firm in or into the United Kingdom is a matter for its Home State regulator although guidance is given in 4SUP 13A4 (Qualifying for authorisation under the Act);(2) other overseas firms (that is, overseas firms established outside the EEA); such firms are not entitled to passport into another EEA State and, where relevant, may need to obtain authorisation
9Other than the notification requirements in SUP 13.5.1AA R and SUP 13.5.2-A R and the related guidance in SUP 13.5.1B G, SUP 13.5.2A G and SUP 13.5.7 G, this chapter does not apply to a UK firm in relation to its exercise of an EEA right under the auction regulation to provide services or establish a branch in another EEA state. This is because a UK firm is not subject to the requirements in Schedule 3 to the Act in respect of its exercise of that EEA right.
This chapter gives guidance on Schedule 3 to the Act for a UK firm which wishes to exercise its EEA right and establish a branch in, or provide cross border services into, another EEA State. That is, when a UK firm wishes to establish its first branch in, or provide cross border services for the first time into, a particular EEA State.
The chapter also explains how a UK firm which has already established a branch in, or is providing cross border services into, another EEA State, may change the details of its branch or of the cross border services it is providing: for example, where a UK firm wishes to establish additional branches in an EEA State in which it has already established a branch where this would result in a change to the details provided previously. Such changes are governed by the EEA Passport Rights
(1) The purposes of this section are to:(a) provide UK recognised bodies with guidance regarding the provisions of PIDA; and(b) Encourage UK recognised bodies to consider adopting and communicating to workers appropriate internal procedures for handling workers' concerns as part of an effective risk management system.(2) In this section "worker" includes, but is not limited to, an individual who has entered into a contract of employment.
In accordance with section 1 of PIDA:(1) a "protected disclosure" is a qualifying disclosure which meets the relevant requirements set out in part 4A of the Employment Rights Act 19963;3(2) a "qualifying disclosure" is a disclosure, made in the public interest3, of information which, in the reasonable belief of the worker making the disclosure, tends to show that one or more of the following (a "failure") has been, is being, or is likely to be, committed:3(a) a criminal offence;
(1) UK recognised bodies are encouraged to consider adopting appropriate internal procedures which will encourage their workers with concerns to blow the whistle internally about matters which are relevant to the functions of the FCA.22(2) In considering appropriate internal procedures, UK recognised bodiesmay find the guidance provided to firms in SYSC 18.2.2 G (2) and SYSC 18.2.2 G (3)1 helpful.1
(1) The operator of a recognised scheme under section 264 or section 272 of the Act must maintain facilities in the United Kingdom in order to satisfy the requirements of COLL 9.4.2 R to COLL 9.4.6 R. 4(2) In this section, a facility is a place of business that complies with COLL 9.4.6 R (Place of facilities).
(1) The operator of a recognised scheme must maintain facilities in the United Kingdom for any person, for inspection (free of charge) and for the obtaining (free of charge, in the case of the documents at (c), (d) and (e)3, and otherwise at no more than a reasonable charge) of copies in English of: 3(a) the instrument constituting the fund;44(b) any instrument amending the instrument constituting the fund;44(c) the latest prospectus (which must include the address where the facilities
(1) The operator must maintain facilities in the United Kingdom for any person where: (a) information in English can be obtained about prices of units in the scheme; and(b) a participant may redeem or arrange for redemption of units in the scheme and obtain payment. (2) An operator is treated as complying with paragraph (1) if it ensures participants may sell their units on an investment exchange at a price not significantly different from net asset value; and if so, must inform
(1) The operator must maintain facilities in the United Kingdom at which the unitholder of a bearer certificate may obtain free of charge: (a) payment of dividends; and(b) details or copies of any notices which have been given or sent to participants in the scheme. (2) The operator must state:(a) the nature of the right represented by the units in the scheme; and(b) whether persons other than unitholders can vote at meetings of unitholders and, if so, who those persons are.
(1) The address of the facilities maintained by the operator in accordance with this section and the details of the facilities so maintained must be stated in the prospectus of the scheme.(2) The address of the facilities referred to in (1) must be the address of the operator's principal place of business in the United Kingdom, or, if there is no such address,such other address in the United Kingdom where the operator can be contacted.44(3) [deleted]44
Recognition Requirements Regulations, Regulation 6
2(1) In considering whether a [UK recognised body] or applicant satisfiesrecognition requirements applying to it under these [Recognition Requirements Regulations], the [FCA]3 may take into account all relevant circumstances including the constitution of the person concerned and its regulatory provisions within the meaning of section 300E3 of the Act. 33 |
(2) Without prejudice to the generality of paragraph (1), a [UK recognised body] or applicant may satisfyrecognition requirements applying to it under these [Recognition Requirements Regulations] by making arrangements for functions to be performed on its behalf by any otherperson. |
(3) Where a [UK recognised body] or applicant makes arrangements of the kind mentioned in paragraph (2), the arrangements do not affect the responsibility imposed by the Act on the [UK recognised body] or applicant to satisfy recognition requirements applying to it under these [Recognition Requirements Regulations ], but it is in addition a recognition requirement applying to the [UK recognised body] or applicant that the person who performs (or is to perform) the functions is a fit and proper person who is able and willing to perform them. |
The FCA3 will usually expect :3(1) the constitution, regulatory provisions and practices of the UK recognised body or applicant;(2) the nature (including complexity, diversity and risk) and scale of the UK recognised body's or applicant's business; (3) the size and nature of the market which is supported by the UK recognised body's or applicant's facilities; (4) the nature and status of the types of investor who use the UK recognised body's or applicant's facilities or have an
It is the UK recognised body's responsibility to demonstrate to the FCA3 that a person who performs a function on behalf of the UK recognised body is fit and proper and able and willing to perform that function. The recognition requirement referred to in Regulation 6(3) applies to the UK recognised body and not to any person who performs any function on its behalf. In this context, for a person to be "fit and proper" does not necessarily imply that he is an authorised person,
If a person who performs a function on behalf of a UK recognised body is himself carrying on a regulated activity in the United Kingdom , he will, unless he is a person to whom the general prohibition does not apply, need to be either an authorised person or an exempt person . The person to whom a function is delegated is not covered by the UK recognised body's exemption.
In determining whether the UK recognised body meets the recognition requirement in Regulation 6(3), the FCA3 may have regard to whether that body has ensured that the person who performs that function on its behalf:3(1) has sufficient resources to be able to perform the function (after allowing for any other activities);(2) has adequate systems and controls to manage that function and to report on its performance to the UK recognised body;(3) is managed by persons of sufficient
In determining whether a UK recognised body continues to satisfy the recognition requirements where it has made arrangements for any function to be performed on its behalf by any person , the FCA3 may have regard, in addition to any of the matters described in the appropriate section of this chapter, to the arrangements made to exercise control over the performance of the function, including:3(1) the contracts (and other relevant documents) between the UK recognised body and the
A firm must include only the following types of undertaking in a UK consolidation group or non-EEA sub-group for the purposes of this chapter:(1) a BIPRU firm;(2) [deleted]44(3) a financial institution;(4) an asset management company;(5) a financial holding company;3(6) a mixed financial holding company; and33(7) an ancillary services undertaking.3
Although an undertaking falling outside BIPRU 8.5.1 R will not be included in a UK consolidation group or non-EEA sub-group it may be relevant in deciding whether one undertaking in the banking sector or the investment services sector is a subsidiary undertaking of another with the result that they should be included in the same UK consolidation group or non-EEA sub-group.
In carrying out the calculations for the purposes of this chapter a firm must only include the relevant proportion of an undertaking that is a member of the UK consolidation group or non-EEA sub-group:(1) by virtue of a consolidation Article 12(1) relationship;(2) by virtue of an Article 134 relationship; or(3) because the group holds a participation in it.
In BIPRU 8.5.5 R, the relevant proportion is either:(1) (in the case of a participation) the proportion of shares issued by the undertaking held by the UK consolidation group or the non-EEA sub-group; or(2) (in the case of a consolidation Article 12(1) relationship or an Article 134 relationship), such proportion (if any) as stated in the Part 4A permission of the firm.
A firm may, having first notified the appropriate regulator in writing in accordance with SUP 15.7 (Form and method of notification), exclude a BIPRU firm,4asset management company, financial institution or ancillary services undertaking that is a subsidiary undertaking in, or an undertaking in which a participation is held by, the UK consolidation group or non-EEA sub-group if the balance sheet total of that undertaking is less than the smaller of the following two amounts:4(1)
Article 73(1) of the Banking Consolidation Directive allows the appropriate regulator to decide to exclude a BIPRU firm,4financial institution, asset management company or ancillary services undertaking that is a subsidiary undertaking in, or an undertaking in which a participation is held by, the UK consolidation group or non-EEA sub-group for the purposes of this chapter in the following circumstances:4(1) where the head office of the undertaking concerned is situated in a country
1Where, in relation to a UK RIE a proposal has been made to appoint or elect a person as a key individual, that UK RIE must at least 30 days before the date of the appointment or election give notice of that event, and give the information specified for the purposes of this rule in REC 3.4.4A R to the FCA.3 [Note: Article 37(1), paragraph 1, second sentence of MiFID]3
(1) Key individuals include the persons who, under the operational or managerial arrangements of the UK recognised body, are appointed to manage the departments responsible for carrying out its relevant functions, whether or not they are members of its governing body. A person appointed to carry out specific tasks, such as to conduct a particular investigation into a specific set of facts, would not usually be a key individual.(2) A key individual need not be an employee of a
1The following information is specified for the purposes of REC 3.4.2A R:(1) that person's name;(2) his date of birth;(3) where applicable, a description of the responsibilities which he will have in the post to which he is to be appointed or elected, including for a UK RIE which operates an RAP where the person has responsibilities both in the UK RIE and RAP, a description of the responsibilities he has in respect of each body.3[Note: Article 37(1), paragraph 1, second sentence
Where the governing body of a UK recognised body delegates any of its functions (which relate to that UK recognised body'srelevant functions) to a standing committee, or appoints a standing committee to manage or oversee the carrying out of any of that UK recognised body'srelevant functions, that UK recognised body must immediately notify the FCA3 of that event and give the FCA3 the following information:33(1) the names of the members of that standing committee; and(2) the terms
Where:(1) there is any change in the composition or the terms of reference of any standing committee referred to in REC 3.4.5 R; or(2) any such committee is dissolved; the UK recognised body must immediately notify the FCA3 of that event and give particulars of any change referred to in (1) to the FCA.333
If an offer is
made, or admission to trading is
sought, in more than one EEA State including
the United Kingdom and the United Kingdom is the Home
State, the prospectus must
be drawn up in English and must also be made available either in a language
accepted by the competent authorities of each Host
State or in a language customary in the sphere of international
finance, at the choice of the issuer, offeror or person requesting
admission (as the case may be). [Note: article
19.3
(1) If an offer is
made, or admission to trading is
sought, in one or more EEA States excluding
the United Kingdom and the United Kingdom is the Home
State, the prospectus must
be drawn up in a language accepted by the competent authorities of those EEA States or in a language customary in
the sphere of international finance, at the choice of the issuer, offeror or person requesting
admission (as the case may be). [ Note: article
19.2 PD ](2) For the purpose of the scrutiny
by
If admission
to trading of non-equity transferable
securities whose denomination per unit amounts to at least 100,0003 euros (or an equivalent amount)
is sought in the United Kingdom or
in one or more other EEA States,
the prospectus must be drawn
up in either a language accepted by the competent authorities of the Home State and Host
States or in a language customary in the sphere of international
finance, at the choice of the issuer, offeror or person requesting
admission (as
If:(1) an offer is
made in the United Kingdom;(2) a prospectus relating
to the transferable securities has
been approved by the competent authority of another EEA
State and the prospectus contains
a summary; and(3) the prospectus is drawn up in a language other than English
that is customary in the sphere of international finance;222the offeror must
ensure that the summary is
translated into English. [ Note: article
19.2 PD ]
A UK UCITS management company that operates an EEA UCITS scheme must in relation to that activity comply with the rules which relate to:(1) the organisation of the management company, including delegation arrangements;(2) risk-management procedures;(3) prudential rules and supervision;(4) operating conditions; and(5) reporting requirements.[Note: article 19(1) of the UCITS Directive]
A UK UCITS management company that operates an EEA UCITS scheme must decide and be responsible for adopting and implementing all the arrangements and organisational decisions that are necessary to ensure compliance with rules drawn up by the EEA State in which that scheme is established, in implementation of its obligations under articles 19(3) and 19(4) of the UCITS Directive.[Note: article 19(6) of the UCITS Directive]
(1) Each EEA State, including the United Kingdom, is required to implement article 14 of the UCITS Directive by drawing up rules of conduct which management companies authorised in that State must observe at all times, except as explained in (3).(2) UK UCITS management companies operating an EEA UCITS scheme under the freedom to provide cross border services (otherwise than by establishing a branch in that State) are advised that, as provided for elsewhere in the Handbook, they
(1) A UK UCITS management company which applies to operate an EEA UCITS scheme in another EEA State is advised that it must comply with the requirements of the Host State regulator regarding provision to them of the following documents:(a) the written agreement it has entered into with the depositary of the EEA UCITS scheme, as referred to in articles 23 and 33 of the UCITS Directive; and(b) information on delegation arrangements (if any), regarding functions of investment management