SCHEDULES
C3SCHEDULE 3EEA Passport Rights
Part III Exercise of Passport Rights by UK Firms
Establishment
I1C119
1
C22
The first is that the firm has given the F21appropriate UK regulator, in the specified way, notice of its intention to establish a branch (“a notice of intention”) which—
a
identifies the activities which it seeks to carry on through the branch; and
b
includes such other information as may be specified.
3
F3Subject to sub-paragraph (5B), the activities identified in a notice of intention may include activities which are not regulated activities.
F44
The second is that—
a
the F21appropriate UK regulator has given notice in specified terms (“a consent notice”) to the host state regulator; and
b
where the firm is a management company which wishes to pursue the activity of collective portfolio management referred to in Annex II to the UCITS directive, the F21appropriate UK regulator has provided to the host state regulator—
i
confirmation that the firm has been authorised as a management company pursuant to the provisions of the UCITS directive;
ii
a description of the scope of the management company's authorisation; and
iii
details of any restriction on the types of UCITS that the management company is authorised to manage.
F55
The third is—
a
b
in any other case, that either—
i
ii
two months have elapsed beginning with the date on which the F21appropriate UK regulator gave the consent notice.
F65ZA
This paragraph does not apply to F30a UK firm which falls within the second sub-paragraph of Article 2(1) of the Solvency 2 Directive.
F205ZB
This paragraph does not apply to a UK firm having an EEA right which is subject to the conditions of the emission allowance auctioning regulation, in respect of its exercise of that EEA right.
F75A
If—
a
the EEA right in question derives from the insurance mediation directive, and
b
the EEA State in which the firm intends to establish a branch has not notified the Commission, in accordance with Article 6(2) of that directive, of its wish to be informed of the intention of any UK firm to establish a branch in its territory,
the second and third conditions do not apply (and so the firm may establish the branch to which its notice of intention relates as soon as the first condition is satisfied).
F85B
If the firm is a UK investment firm, a notice of intention may not include ancillary services unless such services are to be provided in connection with the carrying on of one or more investment services and activities.
5C
In sub-paragraph (5B) “ancillary services” has the meaning given in Article 4.1.3 of the markets in financial instruments directive.
C26
If the firm’s EEA right derives from F9the F26capital requirements directive, F11F10. . . or, in the case of a credit institution authorised under the F26capital requirements directive, the markets in financial instruments directive and the first condition is satisfied, the F21appropriate UK regulator must give a consent notice to the host state regulator unless it has reason to doubt the adequacy of the firm’s resources or its administrative structure.
F126A
If the firm's EEA right derives from the UCITS directive and the first condition is satisfied, the F21appropriate UK regulator must give a consent notice and information about the compensation scheme to the host state regulator unless it has reason to doubt the adequacy of the firm's resources or its administrative structure, and must do so within two months beginning with the date on which it received the firm's notice of intention.
C27
If the firm’s EEA right derives from F31the Solvency 2 Directive and the first condition is satisfied, the F21appropriate UK regulator must give a consent notice unless it has reason—
a
to doubt the adequacy of the firm’s resources or its administrative structure, or
b
to question the reputation, qualifications or experience of the directors or managers of the firm or the person proposed as the branch’s authorised agent for the purposes of F33that directive,
in relation to the business to be conducted through the proposed branch.
F137A
If—
a
the firm’s EEA right derives from the insurance mediation directive,
b
the first condition is satisfied, and
c
the second condition applies,
the F21appropriate UK regulator must give a consent notice, and must do so within one month beginning with the date on which it received the firm’s notice of intention.
F147B
If the firm is a UK investment firm and the first condition is satisfied, the F21appropriate UK regulator must give a consent notice to the host state regulator within three months beginning with the date on which it received the firm's notice of intention unless the F21appropriate UK regulator has reason to doubt the adequacy of the firm's resources or its administrative structure.
F237BA
Sub-paragraph (7BB) applies where—
a
the firm’s EEA right derives from the alternative investment fund managers directive,
b
the first condition is satisfied, and
c
the appropriate UK regulator is satisfied that the firm complies, and will continue to comply, with—
i
the provisions implementing the alternative investment fund managers directive, and
ii
any directly applicable EU regulation made under that directive.
7BB
The appropriate UK regulator must—
a
within two months of receiving the firm’s notice of intention, give a consent notice to the host state regulator,
b
send with that notice confirmation that the firm has been authorised by it pursuant to F29Article 6.1 of the alternative investment fund managers directive, and
c
immediately notify the firm that it has given the consent notice to the host state regulator.
7BC
If the firm’s EEA right derives from the alternative investment fund managers directive, the third condition does not apply.
F367BD
If the firm’s EEA right derives from the mortgages directive and the first condition is satisfied, the appropriate UK regulator must give a consent notice to the host state regulator within one month beginning with the date on which it received the firm’s notice of intention.
F227C
Where the PRA is the appropriate UK regulator, it must consult the FCA before deciding whether to give a consent notice, except where sub-paragraph (7A) applies.
7D
Where the FCA is the appropriate UK regulator, it must 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.
8
If the F21appropriate UK regulator proposes to refuse to give a consent notice it must give the firm concerned a warning notice.
9
10
Rules may specify the procedure to be followed by the F21appropriate UK regulator in exercising its functions under this paragraph.
11
If the F21appropriate UK regulator gives a consent notice it must give written notice that it has done so to the firm concerned.
F3711A
If the firm’s EEA right derives from the mortgages directive, the appropriate UK regulator must give the written notice referred to in sub-paragraph (11) at the same time as it gives the consent notice to the host state regulator in accordance with sub-paragraph (7BD).
12
If the F21appropriate UK regulator decides to refuse to give a consent notice—
a
F28aa
the appropriate UK regulator must in the case of a credit institution notify EBA and the Commission; and
b
that person may refer the matter to the Tribunal.
F1612ZA
F1712A
In sub-paragraph (12), “the relevant period” means—
a
b
in any other case, three months beginning with that date.
13
In this paragraph, “applicable provisions” means the host state rules with which the firm will be required to comply when conducting business through the proposed branch in the EEA State concerned.
14
In sub-paragraph (13), “host state rules” means rules—
a
made in accordance with the relevant single market directive; and
b
which are the responsibility of the EEA State concerned (both as to implementation and as to supervision of compliance) in accordance with that directive.
15
“Specified” means specified in rules.
Sch. 3 extended (with modifications) (1.12.2001) by S.I. 2001/2636, arts. 1(2)(b), 25-27; S.I. 2001/3538, art. 2(1)
Sch. 3 extended (with modifications) (Gibraltar) (5.10.2001 for specified purposes, 1.12.2001 in so far as not already in force) by S.I. 2001/3084, arts. 1(1), 2-4 (as amended (16.6.2014) by The Alternative Investment Fund Managers Order 2014 (S.I. 2014/1292), arts. 1(2), 3 (which amending S.I. is itself amended by S.I. 2014/1313, arts. 1, 2(a)); and as amended (31.12.2020) by S.I. 2019/589, regs. 1(3), 5-9 (with reg. 12) (as amended by S.I. 2020/1274, regs. 1, 2)); S.I. 2001/3538, art. 2(1)
Sch. 3 modified (1.12.2001) by S.I. 2001/3592, arts. 1(2), 114(3)(b), 128(3)(b) (with art. 23(2))