Template:Nutshell MiFID 2 39: Difference between revisions

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Article {{mifid2prov|39}} '''{{mifid2prov|Establishment of a branch}}'''
Article {{mifid2prov|39}} '''{{mifid2prov|Establishment of a branch}}'''


1.   A {{mifid2prov|Member State}} may require that a {{mifid2prov|third-country firm}} intending to provide {{mifid2prov|investment service}}s to {{mifid2prov|client}}s<ref>Strictly, [[retail client|retail clients]] or [[professional client|professional clients]]. Therefore [[ECP|ECPs]] are out of scope?</ref> in its territory establish a {{mifid2prov|branch}} in that {{mifid2prov|Member State}}.
1. A {{mifid2prov|Member State}} may require that a {{mifid2prov|third-country firm}} intending to provide {{mifid2prov|investment service}}s to {{mifid2prov|client}}s<ref>Strictly, [[retail client|retail clients]] or [[professional client|professional clients]]. Therefore [[ECP|ECPs]] are out of scope?</ref> in its territory establishes a {{mifid2prov|branch}} in that {{mifid2prov|Member State}}.


2.   In such a case, the {{mifid2prov|branch}} must have the necessary regulatory authorisation in that {{mifid2prov|Member State}} on the following conditions:
2. If so, the {{mifid2prov|branch}} must have the necessary regulatory authorisation in the relevant {{mifid2prov|Member State}} including:


:(a) The {{mifid2prov|third-country firm}} is appropriately regulated for the services in question in its own jurisdiction, and its local regulator has [[AML]] rules consistent with [[FATF]] recommendations<ref>The original sentence is a horror-show — this is a best guess at summarising it</ref>;
:(a) '''Sufficient local recognition esp. re [[AML]]''': The {{mifid2prov|third-country firm}} is appropriately regulated for the services in question in its own jurisdiction, and its local regulator has [[anti-money laundering]] rules consistent with [[FATF]] recommendations<ref>The original sentence is a horror-show — this is a best guess at summarising it</ref>;


:(b) the {{mifid2prov|third-country firm}}’s home regulator co-operates and shares information with competent authorities in the relevant {{mifid2prov|Member State}};
:(b) '''Information sharing between regulators''': The {{mifid2prov|third-country firm}}’s home regulator co-operates and shares information with competent authorities in the relevant {{mifid2prov|Member State}};


:(c) sufficient initial [[capital]] is at free disposal of the {{mifid2prov|branch}};
:(c) '''Sufficient capitalisation''': Sufficient initial [[capital]] is at free disposal of the {{mifid2prov|branch}};


:(d) there is a responsible manager of the {{mifid2prov|branch}} who complies with the requirement of Article {{mifid2prov|9}}(1);
:(d) '''Responsible individuals''': there is at least one responsible manager of the {{mifid2prov|branch}} and all who are responsible complies with the requirement of Article {{mifid2prov|9}}(1);


(e) :the {{mifid2prov|third-country firm}}’s home jurisdiction shares necessary tax information with the relevant {{mifid2prov|Member State}} in compliance with Article 26 of the OECD Model Tax Convention on Income and on Capital ;
:(e) '''Tax sharing''': The {{mifid2prov|third-country firm}}’s home jurisdiction shares necessary tax information with the relevant {{mifid2prov|Member State}} in compliance with Article 26 of the OECD Model Tax Convention on Income and on Capital ;


:(f) the {{mifid2prov|third-country firm}} belongs to an investor-compensation scheme recognised under the Investor Compensation Schemes Directive ({{eudirective|97|9|EC}}).
:(f) '''Investor compensation schemes''': The {{mifid2prov|third-country firm}} belongs to an investor-compensation scheme recognised under the Investor Compensation Schemes Directive ({{eudirective|97|9|EC}}).


3.   The {{mifid2prov|third-country firm}} applies to the competent authority in the relevant {{mifid2prov|Member State}}.
3. The {{mifid2prov|third-country firm}} applies to the competent authority in the relevant {{mifid2prov|Member State}}.

Latest revision as of 13:45, 14 December 2018

Article 39 Establishment of a branch

1. A Member State may require that a third-country firm intending to provide investment services to clients[1] in its territory establishes a branch in that Member State.

2. If so, the branch must have the necessary regulatory authorisation in the relevant Member State including:

(a) Sufficient local recognition esp. re AML: The third-country firm is appropriately regulated for the services in question in its own jurisdiction, and its local regulator has anti-money laundering rules consistent with FATF recommendations[2];
(b) Information sharing between regulators: The third-country firm’s home regulator co-operates and shares information with competent authorities in the relevant Member State;
(c) Sufficient capitalisation: Sufficient initial capital is at free disposal of the branch;
(d) Responsible individuals: there is at least one responsible manager of the branch and all who are responsible complies with the requirement of Article 9(1);
(e) Tax sharing: The third-country firm’s home jurisdiction shares necessary tax information with the relevant Member State in compliance with Article 26 of the OECD Model Tax Convention on Income and on Capital ;
(f) Investor compensation schemes: The third-country firm belongs to an investor-compensation scheme recognised under the Investor Compensation Schemes Directive (97/9/EC (EUR Lex)).

3. The third-country firm applies to the competent authority in the relevant Member State.

  1. ↑ Strictly, retail clients or professional clients. Therefore ECPs are out of scope?
  2. ↑ The original sentence is a horror-show — this is a best guess at summarising it
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