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SUP 13.3 Establishing a branch in another EEA State

What constitutes a branch

SUP 13.3.1GRP

Guidance on what constitutes a branch is given in SUP App 36.

46

The conditions for establishing a branch

SUP 13.3.2GRP

A UK firm cannot establish a branch in another EEA State for the first time under an EEA right unless the conditions in paragraphs 19(2), (4) and (5) of Part III of Schedule 3 to the Act are satisfied. It is an offence for a UK firm which is not an authorised person to contravene this prohibition (paragraph 21 of Part III of Schedule 3 to the Act). These conditions are that:

  1. (1)

    the UK firm has given the FSA, in accordance with the FSA rules (see SUP 13.5.1 R), notice of its intention to establish a branch (known as a notice of intention) which;

    1. (a)

      identifies the activities which it seeks to carry on through the branch; and

    2. (b)

      includes such other information as may be specified by the FSA (see SUP 13.5.1 R);

  2. (2)

    the FSA has given notice (known as a consent notice) to the Host State regulator; and

  3. (3)
    1. (a)

      if the UK firm's EEA right derives from the Insurance Mediation Directive one month has elapsed beginning on the date on which the UK firm received notice that the FSA had given a consent notice as described in SUP 13.3.6 G (1) (see SUP 13.3.2A G);4

    2. (b)

      in any other case:4

      1. (i)

        the Host State regulator has notified the UK firm (or, where the UK firm is passporting under theInsurance Directives, the FSA) of the applicable provisions; or4

      2. (ii)

        two months have elapsed beginning with the date on which the FSA gave the consent notice.41

SUP 13.3.2AGRP

4If the UK firm is passporting under the Insurance Mediation Directive and the EEA State in which the UK firm is seeking to establish a branch has not notified the European Commission of its wish to be informed of the intention of persons to establish a branch in its territory in accordance with article 6(2) of that directive, SUP 13.3.2 G (2) and SUP 13.3.2 G (3) do not apply. Accordingly, the UK firm may establish the branch to which its notice of intention relates as soon as the conditions referred to in SUP 13.3.2 G (1) are satisfied.

SUP 13.3.2BGRP

4An appointed representative appointed by a firm to carry on insurance mediation activity on its behalf may establish a branch in another EEA State under the Insurance Mediation Directive. In this case, the notice of intention in SUP 13.3.2 G (1) should be given to the FSA by the firm on behalf of the appointed representative.5

SUP 13.3.2CGRP

4An exempt professional firm which is included in the record of unauthorised persons carrying on insurance mediation activity maintained by the FSA under article 93 of the Regulated Activities Order may establish a branch in another EEA State under the Insurance Mediation Directive (see PROF 7.2).

SUP 13.3.3G

Where the UK firm is passporting under the Insurance Directives and the Host State regulator has notified the FSA of the applicable provisions, then under paragraph 19(9) of Part III of Schedule 3 to the Act, the FSA is required to inform the firm of these provisions.

How long will the process take?

SUP 13.3.4G

On receipt of a UK firm's notice of intention (prepared in accordance with SUP 13.3.2 G (1) and SUP 13.5.1 R) then:4

  1. (1)

    where the UK firm is passporting under the Insurance Mediation Directive:4

    1. (a)

      if the UK firm seeking to passport in an EEA State which wishes to be informed of the intention of persons establishing a branch in its territory (see SUP 13.3.2A G), the FSA has one month to notify the relevant Host State regulator;4

    2. (b)

      otherwise, the UK firm may establish a branch as soon as it satisfies the conditions referred to in SUP 13.3.2 G (1);4

  2. (2)

    in any other case, the FSA has three months to consider it and, if satisfied with the proposal, notify the relevant Host State regulator. The Host State regulator then has a further two months to notify the applicable provisions (if any) and prepare for the supervision, as appropriate, of the UK firm.4

SUP 13.3.4AG

4The list of the EEA States that have notified the European Commission of their wish to be informed in accordance with article 6(2) of the Insurance Mediation Directive is published on the FSA's website at www.fsa.gov.uk.

Issue of a consent notice to the Host State regulator

SUP 13.3.5GRP
  1. (1)

    If a UK firm has given the FSA a notice of intention in the required form, then:

    1. (a)

      if the UK firm's EEA right derives from the Banking Consolidation Directive, the Investment Services Directive, or the UCITS Directive, the FSA will give the Host State Regulator a Consent Notice within three months unless it has reason to doubt the adequacy of a UK firm's resources or its administrative structure;

    2. (b)

      if the UK firm's EEA right derives from the Insurance Directives, the FSA will give the Host State regulator a consent notice within three months unless it has reason to:

      1. (i)

        doubt the adequacy of the UK firm's resources or its administrative structure; or

      2. (ii)

        question the reputation, qualifications or experience of the directors or managers of the UK firm or its proposed authorised agent,

    3. (c)

      if the UK firm's EEA right derives from the Insurance Mediation Directive and SUP 13.3.2 G (2) applies, the FSA will give the Host State regulator a consent notice within one month of the date on which it received the UK firm's notice of intention.4

    in relation to the business the UK firm intends to conduct through the proposed branch;

  2. (2)

    in assessing the matters in SUP 13.3.5 G (1)(b) the FSA may, in particular, seek further information from the firm or require a report from a skilled person (see SUP 5 (Skilled Persons)).

  3. (3)

    If the FSA has required a financial recovery plan of a UK firm of the kind mentioned in paragraph 1 of article 38 of the Life Directive (2002/83/EC) or paragraph 1 of article 20a of the First Non-Life Directive, the FSA will not give a consent notice for so long as it considers that policyholders' are threatened within the meaning of paragraph 1.32

SUP 13.3.6GRP
  1. (1)

    If the FSA gives a consent notice, it will inform the UK firm in writing that it has done so.

  2. (2)

    The consent notice will contain, among other matters, the requisite details (see SUP 13 Annex 1) or (if the firm is passporting under the Insurance Directives) the EEA relevant details (see SUP 13 Annex 2) provided by the UK firm in its notice of intention (see SUP 13.5 (Notices of intention)).

SUP 13.3.7GRP
  1. (1)

    If the FSA proposes to refuse to give a consent notice, then paragraph 19(8) of Part III of Schedule 3 to the Act requires the FSA to give the UK firm a warning notice.

  2. (2)

    If the FSA decides to refuse to give a consent notice, then paragraph 19(12) of Part III of Schedule 3 to the Act requires the FSA to give the UK firm a decision notice within three months of the date on which it received the UK firm's notice of intention(two months in the case of a UK firm which is a UCITS management company). The UK firm may refer the matter to the Tribunal.

  3. (3)

    For details of the FSA's procedures for the giving of warning notices or decision notices and references to the Tribunal see DEC 2 (Statutory notice procedure: Warning notice and decision notice procedure) and DEC 5 (References to the Tribunal, publication and service of notices).2