Brexit: financial services Contents

Appendix 3: Passporting and third country access for financial services

Legislation

Type of EU firms/products

Passport right/mutual recognition

Third country regime for non EU equivalent

MiFID2/MiFIR

Investment firms

Cross-border provision of investment services

Yes but only for wholesale clients and counterparties*

Investment firms

Establishment of branches to provide investment services

No

Investment firms

Right to remote membership of market infrastructure

No

Trading venues

Right to provide terminals on Member State territory

Yes*

Trading venues

Permitted execution venue for shares and OTC derivatives subject to trading mandate

Yes*

Trading venues, CCPs

Non-discriminatory access to trading venues, CCPs, benchmarks

No

Data services providers

Single authorisation for EU

No

CRD

Banks

Cross-border provision of banking and investment services

No for banking services. See MiFID2/MiFIR for investment services

Banks

Establishment of branches to provide banking and investment services

No for banking services. See MiFID2/MiFIR for investment services

EMIR

CCPs

Single authorisation for EU

Yes

Trade repositories

Single registration for EU

Yes*

CCPs, trading venues

Rights for non-discriminatory access to each other

No but see MiFID2/MiFIR

CSDR

Central securities depositories

Cross-border provision of services and branches

Yes*

Prospectus Directive

Prospectuses

Prospectus approved in a Member State can be used across EU

No

UCITS Directive

UCITS funds

Distribution in other Member States

No

UCITS management companies

Cross-border provision of management and advisory services (and branches)

No

AIFMD

AIFMs

Can market EU AIFs across EU

No

AIFMs

When “switched on”, can market non-EU AIFs across EU

Yes*

AIFMs

Cross-border provision of management and advisory services (and branches)

No

CRA Regulation

Credit rating agencies

Single registration for EU

Yes but may require an EU affiliate to endorse

Benchmark Regulation

Benchmark administrators

Single authorisation/registration for EU

Yes*

CI(WUD)

Banks, some investment firms

Home state insolvency regime applies in other Member States

No

BRRD

Banks, some investment firms

Recognition of resolution action in other Member States

Yes*

SFD

Settlement systems

Protection from insolvency law in other Member States

No

Brussels Regulation

Judgments in a Member State

Enforceable in other Member States

No

*New regime, no examples of use of data

Source: AFME and Clifford Chance, The UK Referendum—Challenges for Europe’s Capital Markets (March 2016), p 8: http://www.afme.eu/globalassets/downloads/afme-reports/afme_referendum2016_final.pdf





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