1This chapter applies to an EEA firm that wishes to exercise an entitlement to establish a branch in, or provide cross border services into, the United Kingdom under a Single Market Directive or the auction regulation7. (The Act refers to such an entitlement as an EEA right and its exercise is referred to in the Handbook as "passporting".) (See SUP App 3 (Guidance on passporting issues) for further guidance on passporting.)
The chapter does not, apart from in SUP 13A.6G (rules which an incoming EEA firm will be subject to), and SUP 13A Annex 1 and Annex 2, provide guidance in relation to an EEA firm that is a Solvency II firm or to Gibraltar firms treated as Solvency II firms. Solvency II firms and those Gibraltar firms should consult the relevant parts of the PRA Rulebook and the PRA website at: http://www.bankofengland.co.uk/pra/Pages/authorisations/passporting/notifying.aspx as the PRA is the appropriate UK regulator.14
This chapter also applies to:
a Treaty firm that wishes to exercise rights under the Treaty in respect of regulated activities, those rights6 not being 6 covered by passporting rights provided 6by the Single Market Directives,6 and qualifies6 for authorisation under Schedule 4 to the Act (Treaty Rights); and6
a UCITS qualifier, that is, an operator, trustee or depositary of a recognised collective investment scheme, constituted in another EEA State, and which qualifies for authorisation under Schedule 5 to the Act (Persons concerned in collective investment schemes).
The provisions implementing the Single Market Directives are within the coordinated field (see PERG 2.9.18G (1)). So, where an incoming ECA provider intends to provide electronic commerce activity that consists of activities that fall within one of the Single Market Directives, the passporting requirements on exercising an EEA right in this chapter will apply.
This chapter does not apply to:
an EEA firm that wishes to carry on in the United Kingdom activities which are outside the scope of its EEA right and the scope of a permission granted under Schedule 4 to the Act; in this case the EEA firm requires a "top-up permission" under Part 4A16 of the Act (see the appropriate UK regulator's website www.fca.org.uk/firms/authorisation/apply-authorisation for the FCA and www.bankofengland.co.uk/pra/Pages/authorisations/newfirm/default.aspx for the PRA16); or1631616
- (3) 5
a market operator that operates a regulated market or an MTF in an EEA State other than the UK and wishes to make appropriate arrangements so as to facilitate access to and use of its system by remote users or participants in the UK. See SUP App 3.6.25 G for guidance.16516
- (1) 22
- (b) 82
- (d) 4
is treated as having satisfied the establishment conditions or service conditions (as appropriate) under Schedule 3 to the Act. Regulations 4 to 7 of the EEA Passport Rights Regulations will apply to the establishment of the branch or the provision of cross border services.2
Credit institutions14, insurance intermediaries, 10 investment firms,11 management companies10,13 AIFMs11 and MCD credit intermediaries13 are 2allowed to passport their2 services into the United Kingdom if they comply2 with the relevant notification procedures. So, any references in this chapter to EEA State or EEA right include references to Gibraltar and the entitlement under the Gibraltar Order2 where appropriate.2210112222
This chapter also provides guidance on Schedule 3 to the Act for an incoming EEA firm that wishes to establish a branch in the United Kingdom instead of, or in addition to, providing cross border services into the United Kingdom or vice versa.
EEA firms should note that this chapter only addresses the procedures which the appropriate UK regulator16 will follow under the Act.So, an EEA firm should consider this guidance in conjunction with the requirements with which it will have to comply in its Home State.166
The guidance in this chapter represents the appropriate UK regulator's16 interpretation of the Single Market Directives, the auction regulation,7 the Act and the secondary legislation made under the Act. The guidance is not exhaustive and should not be seen as a substitute for a person consulting the legislation or taking legal advice.16