Status: Please note you should read all Brexit changes to the FCA Handbook and BTS alongside the main FCA transitional directions. Where these directions apply the 'standstill', firms have the choice between complying with the pre-IP completion day rules, or the post-IP completion day rules. To see a full list of Handbook modules affected, please see Annex B to the main FCA transitional directions.

GEN 2.3 General saving of the Handbook for Gibraltar

Continued application of the Handbook with respect to Gibraltar

GEN 2.3.1R
  1. (1)

    1The FCA Handbook shall, after IP completion day2, be construed, unless the contrary intention appears, as conferring rights and imposing obligations in relation to or in connection with Gibraltar corresponding to those that existed immediately before IP completion day2.

  2. (2)

    Accordingly, any provision of these rules which immediately before IP completion day2 applied in relation to or in connection with Gibraltar shall, with any necessary modifications to give effect to that corresponding right or obligation, continue to apply after IP completion day2; and any provision which did not so apply shall continue not to apply, unless provision indicating the contrary intention is made.

  3. (3)

    In GEN 2.3, a reference to “Gibraltar” includes, but is not limited to, rights or obligations conferred or imposed in relation to or in connection with Gibraltar-based firms, public institutions established, persons resident and body corporates incorporated in Gibraltar, and activities of firms in Gibraltar.

  4. (4)

    In GEN 2.3 “Gibraltar-based firm” has the same meaning as in the Gibraltar Order.

Extent of guidance applying in relation to or in connection with Gibraltar

GEN 2.3.2R
  1. (1)

    1Guidance which, immediately before IP completion day2, was guidance on or in connection with a rule to which, on and after IP completion day2, GEN 2.3.1R applies, shall, with any necessary modifications, continue to apply on and after IP completion day2 in relation to or in connection with Gibraltar to the same extent as the rule, unless provision indicating the contrary intention is made.

  2. (2)

    Guidance which, immediately before IP completion day2, was guidance on or in connection with an enactment other than a rule, shall continue to apply on and after IP completion day2 in relation to or in connection with Gibraltar to the same extent as the enactment continues to apply in relation to or in connection with Gibraltar.

Purpose of GEN 2.3.1R and GEN 2.3.2R

GEN 2.3.3G
  1. (1)

    1The purpose of GEN 2.3.1R and GEN 2.3.2R is to ensure that the rules and guidance that apply in relation to or in connection with Gibraltar before IP completion day2 continue to apply in the same way after IP completion day2, notwithstanding amendments made to the FCA Handbook as a result of the UK’s withdrawal from the EU.

  2. (2)

    Accordingly, any amendment to or deletion of a rule or guidance made to address a matter arising from the UK’s withdrawal from the EU is to be disregarded to the extent it changed the application of a rule or guidance in relation to or in connection with Gibraltar.

  3. (3)

    As such, any rule or guidance that applied before IP completion day2 in relation to or in connection with a Gibraltar-based firm, a person resident in Gibraltar, a body corporate incorporated in Gibraltar, or the activities of a firm in Gibraltar will so apply after IP completion day2 with any necessary modifications, taking into account any other amendments made on IP completion day2.

  4. (4)

    However, the approach in GEN 2.3.1R is a general one, and as such that approach does not apply where a rule or guidance states explicitly that a different provision applies in relation to or in connection with Gibraltar or where a different position is explicitly stated in relation to a rule or guidance.

  5. (5)

    In GEN 2.3.1R, the contrary intention should be construed in the light of regulations made under the EUWA. GEN 2.3.1R is not intended to apply where the application of a rule or guidance in the FCA Handbook in relation to or in connection with Gibraltar would be contrary to the intention of regulations made under the EUWA or would have a result that is incompatible or inconsistent with the legislative scheme with which the rule or guidance is connected.

  6. (6)

    The rules and guidance are saved subject to any necessary modification to give effect to a right or obligation that corresponds to the right or obligation that existed before IP completion day2. So, for example, where the removal of a reference to a matter in relation to Gibraltar could make it impracticable for a Gibraltar-based firm exercising market access rights by virtue of the Gibraltar Order to continue to comply with a rule, the rule should be construed as applying, to the extent necessary, as if it continued to refer to a matter in relation to Gibraltar.

  7. (7)

    An example of such a matter may be a rule which on and after IP completion day2(as a result of an amendment made under the EUWA) refers only to the membership of a UK professional body. Where this is the case, a Gibraltar-based firm may treat the rule as if it continues to refer to a Gibraltar-based professional body, if that is necessary to correspond with the obligation that had effect in relation to the Gibraltar-based firm before IP completion day2.

  8. (8)

    None of GEN 2.3.1R or GEN 2.3.2R prevents changes being made to rules and guidance that apply in relation to or in connection with Gibraltar after IP completion day2.

Further guidance on GEN 2.3.1R and GEN 2.3.2R as they apply in relation to Gibraltar-based firms exercising market access rights by virtue of the Gibraltar Order

GEN 2.3.4G
  1. (1)

    1Where GEN 2.3.1R and GEN 2.3.2R apply in relation to a Gibraltar-based firm exercising market access rights by virtue of the Gibraltar Order and which carries on regulated activities outside of the scope of its entitlement, such as by virtue of a Part 4A permission (i.e. it has a top-up permission), rules and guidance will continue to apply to such a firm in respect of those activities by virtue of that permission.

  2. (2)

    Where GEN 2.3.1R and GEN 2.3.2R apply in relation to a Gibraltar-based firm exercising market access rights by virtue of the Gibraltar Order, in determining which rules and guidance could apply to them in the UK, such firms may, as a starting point, find it helpful to refer to the table in SUP 13A Annex 1G (Rules that applied to incoming EEA firms) as it applied immediately before IP completion day2. However, the table will not apply in its entirety to each such firm, if, for example, a firm has a Part 4A permission for other activities.