Related provisions for PERG 5.16.1
21 - 40 of 88 items.
(1) Prior to the conclusion of a contract of insurance2 a firm must specify,2 on the basis of information obtained from2 the customer, the demands and the needs of that customer2.(2) The details must be modulated according to the complexity of the contract of insurance2 proposed and the type of customer.2(3) 2A statement of the demands and needs must be communicated to the customer prior to the conclusion of a contract of insurance.[Note: articles 20(1) and 20(2) of the IDD2]
A UK firm should be aware that the guidance is the FCA's5 interpretation of the Single Market Directives, the Act and the legislation made under the Act. The guidance is not exhaustive and is not a substitute for firms consulting the legislation or taking their own legal advice in the United Kingdom and in the relevant EEA States.5
6Paragraph 2B(1) of Schedule 6 to the Act implements article 7(1)(d) of the UCITS Directive, paragraphs 2B(1) to 2B(23) of Schedule 6 to the Act implement article 5(4) of MiFID, paragraph 2B(4) of Schedule 6 to the Act implements article 2(1)(10) of the IDD7 and paragraph 2B(7) of Schedule 6 to the Act implements article 8(1)(e) of AIFMD, although the Act extends the threshold condition set out in paragraph 2B of Schedule 6 of the Act to authorised persons that are not PRA-authorised
Neither the UCITS Directive6, MiFID,3 the IDD7, AIFMD6 nor the Act define what is meant by a firm's 'head office'. This is not necessarily the firm's place of incorporation or the place where its business is wholly or mainly carried on. Although the FCA5 will judge each application on a case-by-case basis, the key issue in identifying the head office of a firm is the location of its central management and control, that is, the location of: 16(1) the directors and other senior
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
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.1761311
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
Table 2B: Insurance Distribution14Directive2 Activities/Examples14 2 |
Part II RAO Activities |
Part III RAO Investments |
|
1. |
Proposing14 or carrying out other work preparatory to the conclusion of contracts of insurance or reinsurance14. |
Articles 25, 53(1)10 and 64 |
Articles 75, 89 (see Note 1) |
141A. |
Advising on contracts of insurance or reinsurance |
Articles 53(1) and 64 |
Articles 75, 89 |
2. |
Concluding contracts of insurance or reinsurance14 |
Articles 21, 25, 53(1)10 and 64 |
Articles 75, 89 |
3. |
Assisting in the administration and performance of contracts of insurance or reinsurance14, in particular in the event of a claim. |
Articles 39A, 64 |
Articles 75, 89 |
144 |
Provision of information concerning one or more insurance contracts in accordance with criteria selected by customers through a website or other media and the compilation of an insurance product ranking list, including price and product comparison, or a discount on the price of an insurance contract, when the customer is able to directly or indirectly conclude an insurance contract using a website or other media. |
Articles 21, 25, (where this involves the provision of advice) 53(1), and 64. |
Articles 75, 89 |
Note 1. Rights to or interests in life policies are specified investments under Article 89 of the Regulated Activities Order, but rights to or interests in general insurance contracts are not. |
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14Note 2. Row 4 in Table 2B includes text that appears in article 2.1(1) of the IDD. These activities are not considered to be separate, discrete activities under the IDD but rather are included by way of an example of what constitutes insurance distribution. They have been included in this table for completeness, together with an indication of the Part II RAO activities and Part III RAO investments that may be relevant. This is to indicate, including for firms considering undertaking passport activities under the IDD, how these examples may relate to regulated activities and specified investments. |
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A UK firm wishing to provide cross border services into a particular EEA State for the first time under an EEA right other than under the auction regulation7 must submit a notice in the form set out in:535(1) SUP 13 Annex 2 R5if the UK firm is passporting under 3MiFID;5 or5133(2) SUP 13 Annex 4 R5if the UK firm is passporting under the 8CRD; or585(3) SUP 13 Annex 5 R5if the UK firm is passporting under the IDD175(4) SUP 13 Annex 6 R, if the UK firm is a management company passporting
A notice of intention3 (other than one to establish a branch or provide services in another EEA state under the auction regulation)7 may include activities within the scope of the relevant Single Market Directive which are not regulated activities (paragraphs 19(3) and 20(2) of Part III of Schedule 3 to the Act), although in the case of a MiFID investment firm a notice of intention may only include ancillary services which are to be carried on with one or more investment services
3Relevant Community obligations which the FCA may need to consider include those under the Capital Requirements Directive, the Solvency II Directive1, the Investment Services Directive/Markets in Financial Instruments Directive, the Insurance Distribution Directive (IDD)4 ,2 and the Market Abuse Regulation2. Each of these legislative acts2 imposes general obligations on the relevant EEAcompetent authority to cooperate and collaborate closely in discharging their functions under
3The FCA views this cooperation and collaboration as essential to effective regulation of the international market in financial services. It will therefore exercise its own-initiative powers wherever: (1) an EEACompetent authority requests it to do so; and (2) it is satisfied that the use of the power is appropriate (having regard to the considerations set out at paragraphs 8.2.1 to 8.2.6) to enforce effectively the regulatory requirements imposed under the Single Market Directives
(1) CASS 5.1 to CASS
5.6 apply, subject to (2), (3) and CASS 5.1.3 R to CASS 5.1.6 R, to a firm that receives
or holds money in the course
of or in connection with its insurance distribution activity8.(2) CASS 5.1 to CASS
5.6 do not, subject to (3), apply:(a) to
a firm to the extent that it
acts in accordance with the client
money chapter; or64(b) [deleted]8(c) to
an insurance undertaking in
respect of its permitted activities;
or(d) to
a managing agent when acting
as such; or(e)
(1) Principle 10 (Clients' assets) requires a firm to arrange adequate protection for clients' assets when the firm is
responsible for them. An essential part of that protection is the proper accounting
and handling of client money.
The rules in CASS 5.1 to CASS
5.6 also give effect to the requirement in article 10.68 of the IDD8 that all necessary measures should
be taken to protect clients against
the inability of an insurance intermediary to
transfer premiums to an insurance
The purpose of this appendix is to give guidance:(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);111(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).11
If an incoming EEA firm, which is4 an IDD insurance intermediary5, an MCD mortgage credit intermediary3 or a4MiFID investment firm1, is a participant firm, the FSCS must give the firm such discount (if any) as is appropriate on the share of any levy it would otherwise be required to pay, taking account of the nature of the levy and the extent of the compensation coverage provided by the firm's Home State scheme.221
A person will only be an EEA firm or a Treaty firm if it has its head office in an EEA State other than the United Kingdom. EEA firms and Treaty firms are entitled to exercise both the right of establishment and the freedom to provide services under the Treaty. The difference, however, is that an EEA firm has a right to passport under a Single Market Directive or the auction regulation2, whereas a Treaty firm carries on activities for which the right to carry on those activities
The application of certain of the exclusions considered in PERG 2.8 (Exclusions applicable to certain regulated activities) and PERG 2.9 (Regulated activities: exclusions applicable to certain circumstances) is modified in relation to persons who are subject to MiFID2, the IDD8 and the MCD.6 The reasons for this and the consequences of it are explained in PERG 2.5.4 G for MiFID, PERG 5 (Guidance on insurance distribution activities) for the IDD,8 and PERG 4.10A for the MCD.6for
The IDD is, in part,8 implemented through various amendments to the Regulated Activities Order. These include article 4(4A) (Specified activities: general) which precludes a person who, for remuneration, takes up or pursues insurance distribution or reinsurance distribution,8 in relation to a risk or commitment situated in an EEA State from making use of certain exclusions. In other cases, some of the exclusions provided in relation to particular regulated activities are unavailable
(1) Where a UK firm is exercising an EEA right, other than under 16the CRD, and has established a branch in another EEA State, any changes to the details of the branch are governed by the EEA Passport Rights Regulations.15(2) References to regulations in this section are to the EEA Passport Rights Regulations.15(3) (a) A UK firm which is not an authorised person should note that, under regulation 18, contravention of the prohibition imposed by regulation 11(1), 13(1) or 15(1)
(1) If a UK firm has exercised an EEA right under the IDD and established a branch in another EEA State, the UK firm must not make any material change to the relevant details of the branch (see SUP 13 Annex 1R), unless it has satisfied the requirements in regulation 17(C)(2).16(2) The requirements in regulation 17(C)(2) are that:16(a) the UK firm has given a notice to the appropriate UK regulator stating the details of the proposed change; and16(b) the period of one month, beginning
1The insurance client money chapter2 does not apply to an authorised professional firm with respect to its non-mainstream regulated activities, which are insurance distribution activities8, if:2(1) the firm's designated professional body has made rules which implement article 10.68 of the IDD8;33(2) those rules have been approved by the FCA under section 332(5) of the Act; and(3) the firm is subject to the rules in the form in which they were approved.