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STATUTORY INSTRUMENTS


2001 No. 2511

FINANCIAL SERVICES AND MARKETS

The Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001

  Made 12th July 2001 
  Laid before Parliament 13th July 2001 
  Coming into force in accordance with regulation 1(1)


ARRANGEMENT OF REGULATIONS


PART I

General
1. Citation, commencement and interpretation.

PART II

Exercise of Passport Rights by EEA Firms
Contents of consent notice and regulator's notice
2. Establishment of a branch: contents of consent notice.
3. Provision of services: contents of regulator's notice.
Changes relating to EEA firms
4. Investment firms, credit institutions and financial institutions: changes to branch details.
5. Investment firms: changes to services.
6. Insurance firms: changes to branch details.
7. Insurance firms: changes to services.
Cancellation of qualification for authorisation
8. EEA firms ceasing to carry on regulated activities in the United Kingdom.
9. Financial institutions giving up right to authorisation.
Applications for approval under section 60 by EEA firms
10. Applications for approval under section 60 by EEA firms.

PART III

Exercise of Passport Rights by UK Firms
Changes relating to UK firms
11. UK investment firms, credit institutions and financial institutions: changes to branch details.
12. UK investment firms: changes to services.
13. UK insurance firms: changes to relevant EEA details of branches.
14. Relevant EEA details for the purposes of regulation 13.
15. UK insurance firms: changes to relevant UK details of branches.
16. UK insurance firms: changes to services.
17. Relevant details for the purposes of regulation 16.
18. Offences relating to failure to notify changes.
UK firms: scope of outward passport
19. UK firms: scope of outward passport.

PART IV

Transitional Provisions
20. Changes relating to EEA firms: procedures partly completed at commencement.
21. Changes relating to UK firms: procedures partly completed at commencement.

The Treasury, in exercise of the powers conferred on them by paragraphs 13(1)(b)(iii), 14(1)(b), 17(a), (b) and (c), 18 and 22 of Schedule 3 to, and sections 417(1)[
1] and 426 to 428 of, the Financial Services and Markets Act 2000[2], hereby make the following Regulations:



PART I

General

Citation, commencement and interpretation
     1.  - (1) These Regulations may be cited as the Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001, and come into force on the day on which section 19 of the Act comes into force.

    (2) In these Regulations - 



PART II

Exercise of Passport Rights by EEA Firms

Contents of consent notice and regulator's notice

Establishment of a branch: contents of consent notice
     2.  - (1) The following information is prescribed for the purposes of paragraph 13(1)(b)(iii) of Schedule 3 (and is therefore to be included in a consent notice given to the Authority by a firm's home state regulator pursuant to paragraph 13(1)(a) of Schedule 3).

    (2) In the case of an investment firm, the prescribed information is - 

    (3) In the case of a credit institution, the prescribed information is - 

    (4) In the case of a financial institution, the prescribed information is - 

    (5) In the case of an insurance firm, the prescribed information is - 

Provision of services: contents of regulator's notice
     3.  - (1) The following information is prescribed for the purposes of paragraph 14(1)(b) of Schedule 3 (and is therefore to be included in a regulator's notice given to the Authority by a firm's home state regulator pursuant to that paragraph).

    (2) In the case of an investment firm, the prescribed information is - 

    (3) In the case of an insurance firm, the prescribed information is - 

Investment firms, credit institutions and financial institutions: changes to branch details
    
4.  - (1) An investment firm, credit institution or financial institution which has established a branch in the United Kingdom in exercise of an EEA right must not make a change in the requisite details of the branch, unless the relevant requirements have been complied with.

    (2) Where the relevant requirements have been complied with, the firm's permission is to be treated as varied accordingly.

    (3) For the purposes of this regulation, the "relevant requirements" are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm's control) paragraph (5).

    (4) The requirements of this paragraph are that - 

    (5) The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to its home state regulator, stating the details of the change.

    (6) The Authority must, as soon as practicable after receiving a notice from an investment firm, credit institution or financial institution under this regulation, inform the firm of any consequential changes in the applicable provisions (within the meaning of paragraph 13 of Schedule 3).

Investment firms: changes to services
    
5.  - (1) An investment firm which is providing services in the United Kingdom in exercise of an EEA right must not make a change in any of the matters referred to in regulation 3(2)(b), unless the relevant requirements have been complied with.

    (2) Where the relevant requirements have been complied with, the firm's permission is to be treated as varied accordingly.

    (3) For the purposes of this regulation, the "relevant requirements" are that - 

    (4) The Authority must, as soon as practicable after receiving a notice from an investment firm under this regulation, inform the firm of any consequential changes in the applicable provisions (within the meaning of paragraph 14 of Schedule 3).

Insurance firms: changes to branch details
    
6.  - (1) An insurance firm which has established a branch in the United Kingdom in exercise of an EEA right must not make a change in any of the details referred to in regulation 2(5)(a) to (c) with respect to the branch, unless the relevant requirements have been complied with.

    (2) Where the relevant requirements have been complied with, the firm's permission is to be treated as varied accordingly.

    (3) For the purposes of this regulation, the relevant requirements are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm's control) paragraph (5).

    (4) The requirements of this paragraph are that - 

    (5) The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to its home state regulator, stating the details of the change.

    (6) The Authority must, as soon as practicable - 

Insurance firms: changes to services
    
7.  - (1) An insurance firm which is providing services in the United Kingdom in exercise of an EEA right must not make a change in any of the matters referred to in regulation 3(3)(b), (c) or (d), unless the relevant requirements have been complied with.

    (2) Where the relevant requirements have been complied with, the firm's permission is to be treated as varied accordingly.

    (3) For the purposes of this regulation, the "relevant requirements" are those of paragraph (4) or (if the change is occasioned by circumstances beyond the firm's control) paragraph (5).

    (4) The requirements of this paragraph are that - 

    (5) The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given to its home state regulator a notice stating the details of the change.

Cancellation of qualification for authorisation

EEA firms ceasing to carry on regulated activities in the United Kingdom
    
8. Where an EEA firm which is qualified for authorisation under Schedule 3 - 

the notice is to be treated as a request for cancellation of the firm's qualification for authorisation under Schedule 3 (and hence as a request under section 34(2) of the Act).

Financial institutions giving up right to authorisation
    
9.  - (1) The Authority may, on an application by a financial institution which is qualified for authorisation under Schedule 3, direct that the firm's qualification for authorisation under Schedule 3 is cancelled from such date as may be specified in the direction.

    (2) The Authority must not give such a direction unless - 

    (3) The date specified in such a direction - 

    (4) The Authority must, as soon as practicable, send a copy of the direction to the firm and to the firm's home state regulator.

    (5) A firm in respect of which such a direction has been given may (notwithstanding subsection (3) of section 40 of the Act) apply for permission under that section, to take effect not earlier than the date referred to in paragraph (1).

Applications for approval under section 60 by EEA firms

Applications for approval under section 60 by EEA firms
    
10. In section 60 of the Act (applications for approval for persons to perform controlled functions), "the authorised person concerned" includes an EEA firm with respect to which the Authority has received a consent notice under paragraph 13 of Schedule 3 or a regulator's notice under paragraph 14 of that Schedule, and which will be the authorised person concerned if it qualifies for authorisation under that Schedule.



PART III

Exercise of Passport Rights by UK Firms

Changes relating to UK firms

UK investment firms, credit institutions and financial institutions: changes to branch details
    
11.  - (1) A UK firm which has exercised an EEA right, deriving from the investment services directive or the banking consolidation directive, to establish a branch must not make a change in the requisite details of the branch unless the requirements of paragraph (2) or (if the change is occasioned by circumstances beyond the firm's control) paragraph (3) have been complied with.

    (2) The requirements of this paragraph are that - 

    (3) The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to the host state regulator, stating the details of the change.

    (4) the Authority must, within the period of one month beginning with the day on which it received the notice referred to in paragraph (2)(a), either consent to the change or refuse to consent to the change.

    (5) If the Authority consents to the change, it must - 

    (6) If the Authority refuses to consent to the change - 

    (7) The Authority may not refuse to consent to the change unless, having regard to the change and to the EEA activities which the firm is seeking to carry on, it doubts the adequacy of the administrative structure or the financial situation of the firm; and in reaching a determination as to the adequacy of the administrative structure, the Authority may have regard to the adequacy of management, systems and controls and the presence of relevant skills needed for the EEA activities to be carried on.

UK investment firms: changes to services
    
12.  - (1) A UK firm which is providing services in exercise of an EEA right, deriving from the investment services directive, must not make a change in the programme of operations, or the EEA activities, to be carried on in exercise of that right, unless the relevant requirements have been complied with.

    (2) For the purposes of this regulation, the "relevant requirements" are that - 

UK insurance firms: changes to relevant EEA details of branches
    
13.  - (1) A UK firm which has exercised an EEA right, deriving from any of the insurance directives, to establish a branch must not make a change in the relevant EEA details (as defined in regulation 14), unless the requirements of paragraph (2) or (if the change is occasioned by circumstances beyond the firm's control) paragraph (3) have been complied with.

    (2) The requirements of this paragraph are that - 

    (3) The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority and to the host state regulator, stating the details of the change.

    (4) The Authority must, within one month of receiving the notice referred to in paragraph (2)(a), either consent to the change or refuse to consent to the change.

    (5) If the Authority consents to the change, it must - 

    (6) If the Authority refuses to consent to the change - 

    (7) The Authority may not refuse to consent to the change unless, having regard to the change, the Authority has reason - 

in relation to the business conducted, or to be conducted, through the branch.

Relevant EEA details for the purposes of regulation 13
    
14.  - (1) For the purposes of regulation 13, the relevant EEA details, with respect to a branch, are - 

    (2) The details referred to in paragraph (l)(g)(ii) are - 

    (3) The details referred to in paragraph (1)(g)(iii) are - 

UK insurance firms: changes to relevant UK details of branches
    
15.  - (1) A UK firm which has exercised an EEA right, deriving from any of the insurance directives, to establish a branch must not make a change falling within paragraph (2) with respect to the branch, unless - 

    (2) A change falls within this paragraph if it is a change in any of the information which the UK firm was required to provide to the Authority by or under paragraph 19(2) of Schedule 3, other than a change in the relevant EEA details referred to in regulation 13.

UK insurance firms: changes to services
    
16.  - (1) A UK firm which is providing services in exercise of an EEA right, deriving from any of the insurance directives, must not make a change in the relevant details (as defined in regulation 17), unless the relevant requirements have been complied with.

    (2) For the purposes of this regulation, the "relevant requirements" are those of paragraph (3) or (if the change is occasioned by circumstances beyond the firm's control) paragraph (4).

    (3) The requirements of this paragraph are that - 

    (4) The requirements of this paragraph are that the firm has as soon as practicable (whether before or after the change) given a notice to the Authority stating the details of the change.

    (5) The Authority must, within one month of receiving a notice under paragraph (3)(a), either consent to the change or refuse to consent to the change.

    (6) If the Authority consents to the change, it must - 

    (7) If the Authority refuses to consent to the change - 

Relevant details for the purposes of regulation 16
    
17. The relevant details for the purposes of regulation 16 are - 

Offences relating to failure to notify changes
    
18.  - (1) If a UK firm which is not an authorised person contravenes the prohibition imposed by regulation 11(1), 12(1), 13(1), 15(1), or 16(1) it is guilty of an offence, punishable - 

    (2) In proceedings for an offence under paragraph (1), it is a defence for the firm to show that it took all reasonable precautions and exercised all due diligence to avoid committing the offence.

UK firms: scope of outward passport

UK firms: scope of outward passport
    
19. Where - 

the UK firm is to be treated, for the purposes of the exercise of its EEA right, as being authorised to carry on that activity.



PART IV

Transitional Provisions

Changes relating to EEA firms: procedures partly completed at commencement
    
20.  - (1) If before commencement - 

the notice is to be treated as given under regulation 4(4)(a), and the other requirements set out in regulation 4(4) treated as satisfied to the extent to which the corresponding requirements in paragraph 4(1) of that Schedule had been satisfied.

    (2) If before commencement - 

the notice is to be treated as given under regulation 4(4)(a), and the other requirements set out in regulation 4(4) treated as satisfied to the extent to which the corresponding requirements in paragraph 5(1) of that Schedule had been satisfied.

    (3) In a case falling within paragraph (1) or (2), regulation 4(6) applies unless the Authority had, before commencement, complied with the duty in regulation 8(3) of the 2BCD Regulations or regulation 8(4) of the ISD Regulations.

    (4) If before commencement - 

the notice is to be treated as given under regulation 6(4)(a), and the other requirements set out in regulation 6(4) treated as satisfied to the extent to which the corresponding requirements in paragraph 2(2) of that Schedule had been satisfied.

    (5) In a case falling within paragraph (4), regulation 6(6) applies except to the extent that the duty in paragraph 2(4) of Schedule 2F to the Insurance Companies Act had been complied with before commencement.

    (6) If before commencement - 

the notice is to be treated as given under regulation 7(4)(a).

Changes relating to UK firms: procedures partly completed at commencement
     21.  - (1) If before commencement a UK firm gave notice under paragraph 5(1)(a) of Schedule 6 to the 2BCD Regulations or paragraph 6(1)(a) of Schedule 6 to the ISD Regulations (changes to details of branch) - 

unless paragraph (2) applies.

    (2) This paragraph applies if, before commencement, either - 

    (3) If before commencement a UK firm gave notice under paragraph 2(2)(a) of Schedule 2G to the Insurance Companies Act[11] or Schedule 13B to the Friendly Societies Act[12] (changes to details of branch) - 

unless paragraph (4) applies.

    (4) This paragraph applies if, before commencement, either - 

    (5) If before commencement a UK firm gave notice under paragraph 6(2)(a) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act (changes relating to the provision of services) - 

unless, before commencement, the firm had been notified under paragraph 6(5)(a) or (b) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act of the decision taken in response to the notice.


Nick Ainger

Tony McNulty
Two of the Lords Commissioners of Her Majesty's Treasury

12th July 2001



EXPLANATORY NOTE

(This note is not part of the Regulations)


These Regulations make provision about the exercise of "passport" rights in accordance with Schedule 3 to the Financial Services and Markets Act 2000 ("the Act"). Those are rights under the EC single market directives relating to financial services for an undertaking authorised in one EEA State to establish a branch or provide services in another EEA State.

Part I makes provision for citation, commencement and interpretation.

Part II prescribes the information which must be provided in connection with the establishment of a branch, or the provision of services, by an EEA firm in the UK in exercise of its passport rights. It also makes provision about the procedure to be followed, and the information to be provided, in the event of changes affecting an EEA firm's activities in the UK. It provides for the cancellation of EEA firms' qualification for authorisation under the Act in certain circumstances.

Part III makes provision about the procedure to be followed, and the information to be provided, when there are changes affecting a UK firm which has exercised its passport rights to establish a branch, or provide services, in another EEA State. Part III also makes provision about the scope of a UK firm's outward passport in relation to activities which are not regulated activities under the Act: regulation 19 provides that, for the purposes of its passport rights, a UK firm is treated as being authorised to carry on such activities provided UK law does not prevent it from carrying them on in the EEA State in question.

Part IV makes transitional provision relating to cases where the procedures applying to changes in activities carried on pursuant to passport rights had been partly completed at commencement.


Notes:

[1] See definition of "prescribed".back

[2] 2000 c. 8. Schedule 3 was amended by SI 2000/2952, regulation 8, and by SI 2001/1376.back

[3] SI 1992/3218, amended by the Bank of England Act 1998 (c. 11), Sch. 5 and Sch. 9, and by SIs 1993/1819, 1993/3225, 1995/1217, 1995/1442, 1995/1537, 1996/1669, 1997/816, 1999/2094, 2000/2952 and 2001/1149.back

[4] 1992 c. 40.back

[5] 1982 c. 50.back

[6] S.I. 1995/3275, amended by the Bank of England 1998 (c. 11), s. 25, Sch. 5 and Sch. 9, S.I. 1996/1669 and S.I. 2000/1696.back

[7] OJ No. L008, 11.1.1984, p.17. The text is subject to a corrigendum in OJ L043, 15.2.1984, p.27, and the directive was amended by Council Directive 90/232/EEC (OJ L129, 19.5.1990, p.33).back

[8] S.I. 2001/544.back

[9] 1929 c. 23. Repealed by the Companies Act 1948 (c. 38).back

[10] Schedule 2F was inserted by S.I. 1994/1696.back

[11] Schedule 2G was inserted by S.I. 1994/1696 and amended by S.I. 1997/2781.back

[12] Schedule 13B was inserted by S.I. 1994/1984 and amended by S.I. 1997/2849.back



ISBN 0 11 029837 3


 © Crown copyright 2001

Prepared 14 August 2001


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