Related provisions for PERG 5.12.6
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If a service provider is overseas, the question of whether that person is carrying on a regulated activity in the United Kingdom will depend upon:(1) the type of regulated activity being carried on;(2) section 418 of the Act;(3) the residence and location of the borrower;(4) the application of the overseas persons exclusion in article 72(5A) to (5F) of the Regulated Activities Order; and(5) whether the service provider is carrying on an electronic commerce activity.The factors
Table Territorial issues relating to overseas insurance intermediaries carrying on insurance distribution activities5 in or into the United KingdomNeeds Part 4A permissionSchedule 3 EEA passport rights availableOverseas persons exclusion availableRegistered EEA-based intermediary with UK branch (registered office or head office in another EEA State)NoYesNoRegistered EEA-based intermediary with no UK branch providing cross-border servicesNoYesPotentially available [see Note]Third
Article 72 of the Regulated Activities Order (Overseas persons) provides a potential exclusion for persons with no permanent place of business in the United Kingdom from which regulated activities are conducted or offers to conduct regulated activities are made. Where these persons carry on insurance distribution activities5 in the United Kingdom, they may be able to take advantage of the exclusions in article 72 of the Regulated Activities Order. In general terms, these apply
The exclusions are available, for regulated activities other than those that relate to home finance transactions4 in the two broad cases set out below. For some of these regulated activities, the exclusions apply in each case. In others, they apply in only one.4(1) The first case is where the nature of the regulated activity requires the direct involvement of another person and that person is authorised or exempt (and acting within the scope of his exemption). For example, this
(1) 18The exclusion for overseas persons described in PERG 2.9.17G does not apply to an investment firm or credit institution set up in a third country that has been found equivalent under article 46 or 47 of MiFIR, as described in more detail in the rest of this paragraph.(2) Article 46 of MiFIR has a mechanism under which ESMA may register a third country investment firm or a third country credit institution without a branch in the EEA. Registration allows the third country
2As well as potentially breaching the requirements in this section, misleading statements by a firm may involve a breach of Principle 7 (Communications with clients) or section Part 7 (Offences relating to financial services) of the Financial Services Act 2012, as well as giving rise to private law actions for misrepresentation.
Article 28B (Real time communications: introductions) exempts a real time financial promotion that relates to one or more of the controlled activities about regulated mortgage contracts, as well as home reversion plans, home purchase plans,4regulated sale and rent back agreements3, certain consumer hire agreements and relevant credit agreements4. The exemption is subject to the following conditions being satisfied:224(1) the financial promotion must be made for the purpose of,
A contravention of a rule in SYSC 11 to 2SYSC 21,7SYSC 22.8.1R, SYSC 22.9.1R or SYSC 23 to9SYSC 288 does not give rise to a right of action by a private person under section 138D of the Act (and each of those rules is specified under section 138D(3) of the Act as a provision giving rise to no such right of action). 34437
A firm must not communicate or approve a financial promotion which relates to qualifying credit provided by an overseas person, unless:(1) the financial promotion of qualifying credit makes clear which firm has approved or communicated it and, where relevant, explains:(a) that the rules made under the Act for the protection of customers do not apply;(b) the extent and level to which the compensation scheme will be available or, if the scheme will not be available, a statement