The Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001 © Crown Copyright 2001 Statutory Instruments printed from this website are printed under the superintendence and authority of the Controller of HMSO being the Queen's Printer of Acts of Parliament. The legislation contained on this web site is subject to Crown Copyright protection. It may be reproduced free of charge provided that it is reproduced accurately and that the source and copyright status of the material is made evident to users. It should be noted that the right to reproduce the text of Statutory Instruments does not extend to the Queen's Printer imprints which should be removed from any copies of the Statutory Instrument which are issued or made available to the public. This includes reproduction of the Statutory Instrument on the Internet and on intranet sites. The Royal Arms may be reproduced only where they are an integral part of the original document. The text of this Internet version of the Statutory Instrument which is published by the Queen's Printer of Acts of Parliament has been prepared to reflect the text as it was Made. A print version is also available and is published by The Stationery Office Limited as the The Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001, ISBN 0 11 029837 3. The print version may be purchased by clicking here. Braille copies of this Statutory Instrument can also be purchased at the same price as the print edition by contacting TSO Customer Services on 0870 600 5522 or e-mail:customer.services@tso.co.uk. Further information about the publication of legislation on this website can be found by referring to the Frequently Asked Questions. To ensure fast access over slow connections, large documents have been segmented into "chunks". Where you see a "continue" button at the bottom of the page of text, this indicates that there is another chunk of text available.
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: 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 -
(b) to pay sums in settlement of such claims (but not to settle such claims); and (c) to accept service on behalf of the firm of proceedings in respect of such claims;
(b) in relation to a UK firm, activities which the firm is seeking to carry on in another EEA State in exercise of an EEA right;
(b) the law of that EEA State requires such contracts to be operated on a technical basis similar to life assurance in accordance with all the conditions listed in the first sub-paragraph of Article 54(2) of the third non-life insurance directive;
(b) which groups together undertakings which in that EEA State are authorised to conduct the business of motor vehicle liability insurance;
(b) which provides compensation for damage to property or personal injuries caused by unidentified vehicles or vehicles for which the insurance obligation provided for in Article 1(1) of that Directive has not been satisfied;
(b) the address in the EEA State in which the branch is, or is to be, established from which information about the business may be obtained; and (c) the names of the managers of the business;
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 -
(b) the requisite details of the branch; and (c) details of any compensation scheme which is intended to protect the branch's investors.
(3) In the case of a credit institution, the prescribed information is -
(b) the requisite details of the branch; (c) the amount of the firm's own funds (as defined in Section 1 of Chapter 2 of Title V to the banking consolidation directive); and (d) the solvency ratio of the firm (calculated in accordance with the banking consolidation directive).
(4) In the case of a financial institution, the prescribed information is -
(ii) the firm is a subsidiary undertaking of a credit institution which is authorised in the EEA State in question and which holds at least 90 per cent of the voting rights in the firm (and for the purpose of this paragraph any two or more credit institutions which are authorised in that EEA State and hold voting rights in the firm are to be treated as a single credit institution, and as being "parent undertakings" of the firm); (iii) the firm carries on in that EEA State the EEA activities in question; (iv) the memorandum and articles of association, or other constituent instrument, of the firm permit it to carry on those activities; (v) the consolidated supervision of the firm's parent undertaking or, if more than one, any one of them effectively includes supervision of the firm; (vi) the firm's parent undertaking has guaranteed or, if more than one, they have jointly and severally guaranteed, the firm's obligations, with the consent of the home state regulator; (vii) the firm's business is being conducted in a prudent manner;
(b) the requisite details of the branch;
(5) In the case of an insurance firm, the prescribed information is -
(b) the name of the firm's authorised agent; (c) the address in the United Kingdom from which information about the business may be obtained, and a statement that this is the address for service on the firm's authorised agent; (d) in the case of a firm which intends to cover relevant motor vehicle risks, a declaration by the firm that it has become a member of the Motor Insurers' Bureau (being a company limited by guarantee and incorporated under the Companies Act 1929[9] on the 14th June 1946); and (e) a statement by the firm's home state regulator attesting that the firm has the minimum margin of solvency calculated in accordance with such of the following as are appropriate -
(ii) Articles 18, 19 and 20 of the first life insurance directive.
Provision of services: contents of regulator's notice
(b) particulars of the programme of operations to be carried on in the United Kingdom, including a description of the particular EEA activities to be carried on.
(3) In the case of an insurance firm, the prescribed information is -
(b) the name and address of the firm; (c) the nature of the risks or commitments which the firm proposes to cover in the United Kingdom; (d) in the case of a firm which intends to cover relevant motor vehicle risks -
(ii) a declaration by the firm that it has become a member of the Motor Insurers' Bureau; and
(e) a statement by the firm's home state regulator attesting that the firm has the minimum margin of solvency calculated in accordance with such of the following as are appropriate -
(ii) Articles 18, 19 and 20 of the first life insurance directive.
Investment firms, credit institutions and financial institutions: changes to branch details
(b) the Authority has received from the home state regulator a notice stating those details; and (c) either the Authority has informed the firm that it may make the change, or the period of one month beginning with the day on which the firm gave the Authority the notice mentioned in sub-paragraph (a) has elapsed.
(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.
(b) if the change is occasioned by circumstances beyond the firm's control, it has as soon as practicable (whether before or after the change) given to the Authority and to its home state regulator a notice stating the details of the change.
(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).
(b) the Authority has received from the home state regulator a notice stating that it has approved the proposed change; (c) the period of one month beginning with the day on which the firm gave the Authority the notice mentioned in sub-paragraph (a) has elapsed; and (d) either -
(ii) the Authority has informed the home state regulator of any consequential changes in the applicable provisions (within the meaning of paragraph 13 of Schedule 3).
(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.
(b) in the case of a notice under paragraph (5), inform the firm's home state regulator of any consequential changes in the applicable provisions (within the meaning of paragraph 13 of Schedule 3).
Insurance firms: changes to services
(b) the home state regulator has passed to the Authority the information contained in that notice.
(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. 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 -
(b) gives notice of that fact to the Authority,
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).
(b) the Authority has agreed with the home state regulator that the direction should be given.
(3) The date specified in such a direction -
(b) subject to that, is to be such date as may be agreed between the Authority and the firm's home state regulator.
(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. 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. 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 -
(b) the Authority has given the host state regulator a notice under paragraph (5)(a); and (c) either the host state regulator has informed the firm that it may make the change, or the period of one month beginning with the day on which the firm gave the host state regulator the notice mentioned in sub-paragraph (a) has elapsed.
(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.
(b) inform the firm that if has given that notice, stating the date on which it did so.
(6) If the Authority refuses to consent to the change -
(b) the Authority must give notice to the firm of the refusal, stating the reasons for it, and giving an indication of the firm's right to refer the matter to the Tribunal, and the procedure on such a reference.
(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.
(b) if the change is occasioned by circumstances beyond the firm's control, it 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.
UK insurance firms: changes to relevant EEA details of branches
(b) the Authority has given the host state regulator a notice under paragraph (5)(a); (c) the period of one month beginning with the day on which the firm gave the Authority the notice mentioned in sub-paragraph (a) has elapsed; and (d) either -
(ii) the Authority has informed the firm of any consequential changes in the applicable provisions (within the meaning of paragraph 19 of Schedule 3) of which the Authority has been notified by the host state regulator.
(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.
(b) inform the firm that it has given that notice, stating the date on which it did so.
(6) If the Authority refuses to consent to the change -
(b) the Authority must give notice to the firm of the refusal, stating the reasons for it, and giving an indication of the firm's right to refer the matter to the Tribunal, and the procedure on such a reference.
(7) The Authority may not refuse to consent to the change unless, having regard to the change, the Authority has reason -
(b) to question the reputation, qualifications or experience of the directors or managers of the firm or the authorised agent,
in relation to the business conducted, or to be conducted, through the branch.
(b) the name of the UK firm's authorised agent and, in the case of a member of Lloyd's, confirmation that the authorised agent has power to accept service of proceedings on behalf of Lloyd's; (c) the classes or parts of classes of business carried on, or to be carried on, and the nature of the risks or commitments covered, or to be covered, in the EEA State concerned; (d) details of the structural organisation of the branch; (e) the guiding principles as to reinsurance of business carried on, or to be carried on, in the EEA State concerned, including the firm's maximum retention per risk or event after all reinsurance ceded; (f) estimates of -
(ii) the resources available to cover those costs; and (iii) if contracts of a kind falling within paragraph 18 of Schedule 1 to the Regulated Activities Order (assistance) are, or are to be, effected or carried out, the resources available for providing assistance;
(g) for each of the first three years following the establishment of the branch -
(ii) if the firm carries on, or intends to carry on, business comprising the effecting or carrying out of contracts of long-term insurance, the details mentioned in paragraph (2) as respects the business carried on, or to be carried on, in the EEA State concerned; and (iii) if the firm carries on, or intends to carry on, business comprising the effecting or carrying out of contracts of general insurance, the details mentioned in paragraph (3) as respects the business carried on, or to be carried on, in the EEA State concerned;
(h) if the insurer covers, or intends to cover, relevant motor vehicle risks, details of the firm's membership of the national bureau and the national guarantee fund in the EEA State concerned; and
(2) The details referred to in paragraph (l)(g)(ii) are -
(ii) the total premium income, both gross and net of reinsurance ceded; and (iii) the total sums assured or the total amounts payable each year by way of annuity;
(b) detailed estimates, on both optimistic and pessimistic bases, of income and expenditure in respect of direct business, reinsurance acceptances and reinsurance cessions; and
(3) The details referred to in paragraph (1)(g)(iii) are -
(b) estimates relating to premiums or contributions (both gross and net of all reinsurance ceded) and to claims (after all reinsurance recoveries); and (c) estimates relating to the financial resources to cover underwriting liabilities.
UK insurance firms: changes to relevant UK details of branches
(b) if the change is occasioned by circumstances beyond the firm's control, 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.
(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.
(b) the Authority has given the host state regulator a notice under paragraph (6)(a).
(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.
(b) inform the firm that it has given that notice, stating the date on which it did so.
(7) If the Authority refuses to consent to the change -
(b) the Authority must give notice to the firm of the refusal, stating the reasons for it, and giving an indication of the firm's right to refer the matter to the Tribunal, and the procedure on such a reference.
Relevant details for the purposes of regulation 16
(b) the nature of the risks or commitments covered, or to be covered, in the EEA State concerned; (c) if the firm covers, or intends to cover, relevant motor vehicle risks -
(ii) details of the firm's membership of the national bureau and the national guarantee fund in the EEA State concerned; and
(d) if the insurer covers, or intends to cover, health insurance risks, the technical bases used, or to be used, for calculating premiums in respect of such risks.
Offences relating to failure to notify changes
(b) on conviction on indictment, by a fine.
(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 19. Where -
(b) that activity is one which the UK firm in question is able to carry on in the EEA State in question without contravening any provision of the law of the United Kingdom (or any part of the United Kingdom),
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. Changes relating to EEA firms: procedures partly completed at commencement 20. - (1) If before commencement -
(b) not all the other requirements set out in paragraph 4(1) of that Schedule were satisfied,
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.
(b) not all the other requirements set out in paragraph 5(1) of that Schedule were satisfied,
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.
(b) not all the other requirements set out in paragraph 2(2) of that Schedule were satisfied,
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.
(b) the requirement in paragraph 9(2)(b) of that Schedule was not satisfied,
the notice is to be treated as given under regulation 7(4)(a).
(b) any notice given under paragraph 5(1)(b) of Schedule 6 to the 2BCD Regulations or paragraph 6(1)(b) of Schedule 6 to the ISD Regulations is to be treated as given under regulation 11(2)(b),
unless paragraph (2) applies.
(b) in response to the notice a notice of refusal was given to the firm under paragraph 6(5)(b) of Schedule 6 to the 2BCD Regulations or paragraph 7(5)(b) of Schedule 6 to the ISD Regulations, and the refusal was not at commencement capable of being reversed on an appeal, reference to a tribunal or a review as mentioned in paragraph 7(5) of Schedule 6 to the ISD Regulations.
(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) -
(b) the other requirements set out in regulation 13(2) are to be treated as satisfied to the extent to which the corresponding requirements in paragraph 2(2) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act had been satisfied,
unless paragraph (4) applies.
(b) in response to the notice a notice of refusal was given to the firm under paragraph 2(5)(b) of that Schedule.
(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) -
(b) if a notice was sent under paragraph 6(2)(b) of Schedule 2G to the Insurance Companies Act or of Schedule 13B to the Friendly Societies Act, that notice is to be treated as given under regulation 16(3)(b),
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. (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 [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 [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
|
|
| ||
| We welcome your comments on this site | © Crown copyright 2001 | Prepared 14 August 2001 |