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You are viewing BFSAG 3 Market access rights for registered BFSA investment firms as of . BFSAG 3 Market access rights for registered BFSA investment firms was last updated on 01/01/2026.

BFSAG 3.1 Annex 5 of the BFSA

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  1. (1) Under Annex 5 of the BFSA, registered BFSA investment firms are entitled to provide certain investment services to certain categories of client in the UK on a cross-border basis from Switzerland, provided they meet the eligibility requirements in Annex 5. Those requirements include being included in the register maintained by the FCA for the purpose of the BFSA (the BFSA register).
  2. (2) Under Annex 5, each Party commits to deferring to certain regulatory and supervisory rules of the other Party for certain investment services.
  3. (3) For registered BFSA investment firms carrying on Annex 5 BFSA activities, this means that they are relieved from complying with ‘authorisation and prudential measures of the United Kingdom that apply solely to financial service suppliers’. Annex 5, Section VIII, paragraph A.1.b of the BFSA lists those measures. The above means that these firms:
    1. (a) are not required to apply for authorisation to carry on regulated activities to the extent that they are exercising rights under the BFSA; and
    2. (b) are not required to comply with the prudential rules covered by the agreement (for these purposes, ‘prudential rules’ is wider than rules relating to capital requirements).

BFSAG 3.2 Deference

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  1. (1) The areas to which deference applies are set out in Annex 5, Section VIII, paragraph A.1.b of the BFSA.
  2. (2) Certain measures are expressly excluded from the UK's deference commitment in Annex 5 and Swiss firms providing services in accordance with that Annex will need to comply with these. These are:
    1. (a) UK product intervention measures (Annex 5, Section VIII, paragraph A.1.b.ii.13 of the BFSA) set out in the Handbook in COBS 22.4, COBS 22.5 and COBS 22.6 (see BFSAG 3.5.1G); and   
    2. (b) obligations in relation to, or arising from, trading on a trading venue under the domestic law of the UK. The trading venue is not relieved of obligations under the domestic law of the UK to report transactions of the registered BFSA investment firms to the FCA (Annex 5, Section VIII, paragraph A.1.c of the BFSA). This limitation covers, in particular, rules imposed by the trading venue relating to a firm which is also a registered BFSA investment firm for the purpose of the BFSA.
  3. (3) Measures of general application are not subject to deference – for example, criminal law, market abuse and insider trading rules, anti-money laundering rules and sanctions law. 
  4. (4) Any provisions that do or may apply directly or indirectly to a registered BFSA investment firm as a result of it being an affiliate or controller of a UKauthorised person, or which do or may apply to the registered BFSA investment firm only on the basis that they do not apply solely to financial services suppliers, continue to apply.
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  1. (1) The deference provisions referred to above are implemented by:
    1. (a) article 72ZA of the Regulated Activities Order which, in summary, provides an exclusion in respect of certain regulated activities for registered BFSA investment firms where the firm is exercising rights under Annex 5 of the BFSA;
    2. (b) article 73ZB of the Financial Promotion Order which, in summary, provides an exemption for communications which are communicated by a registered BFSA investment firm where the firm is exercising rights under Annex 5 of the BFSA; and
    3. (c) GEN 2.4, which deals with the application of the Handbook to registered BFSA investment firms.
  2. (2) There is further guidance on articles 72ZA and 73ZB of the Regulated Activities Order in PERG 2.9.31G to PERG 2.9.33G and in PERG 8.14.40EG.

  3. (3) PERG 2.9.17CG deals with the application of the exclusion for overseas persons to registered BFSA investment firms.

     

BFSAG 3.3 Activities carried on by employees of a registered BFSA investment firm on a temporary basis

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  1. (1) Annex V, Section VIII, paragraph A.1.d of the BFSA provides that deference under that Annex shall extend, without the need for further authorisation, to activities relating to the cross-border supply of a BFSA registered service by a registered BFSA investment firm of Switzerland to an Annex 5 BFSA client carried out in the territory of the United Kingdom by its employees on a temporary basis, which is not such as to amount to a permanent establishment of the registered BFSA investment firm in the United Kingdom.
  2. (2) However, Annex V, Section VIII, paragraph A.1.d of the BFSA clarifies that deference does not extend to:
    1. (a) employees of a branch of the registered BFSA investment firm located in the United Kingdom and authorised under Part 4A of the Act; or
    2. (b) the supply of a BFSA registered service on a temporary basis in the territory of the United Kingdom by persons other than employees of a registered BFSA investment firm of Switzerland. For this purpose, an ‘employee’ includes any person acting in that capacity on behalf of the registered BFSA investment firm.
  3. (3) The deference provisions in Annex V have been implemented in part by article 72ZA of the Regulated Activities Order. Accordingly, the FCA considers that the exclusion in article 72ZA of the Regulated Activities Order extends to the circumstances described in (1).

BFSAG 3.4 Handbook provisions relevant to registered BFSA investment firms exercising rights under Annex 5 of the BFSA

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  1. (1) Registered BFSA investment firms exercising rights under the BFSA are not required to obtain a Part 4A permission. As a result, the FCA Handbook does not generally apply to registered BFSA investment firms insofar as they are exercising rights under Annex 5 of the BFSA.
  2. (2) Where a registered BFSA investment firm carries on some activities in the UK under a Part 4A permission and carries on other activities under the BFSA, deference will only apply to its Annex 5 BFSA activities.
  3. (3) GEN 2.4 (among other things) deals with the application of the Handbook where deference under the BFSA applies.

BFSAG 3.5 Product intervention rules relevant to Swiss firms exercising rights under Annex 5 of the BFSA

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  1. (1) The BFSA excludes certain areas from the scope of deference. Those areas include product intervention measures. Some Handbook rules dealing with product intervention measures apply to registered BFSA investment firms when exercising rights under the BFSA. Those are listed below:
    1. (a) COBS 22.4;
    2. (b) COBS 22.5; and
    3. (c) COBS 22.6.
  2. (2) Registered BFSA investment firms are reminded that they are still required to comply with measures of general application including, for example, criminal law, market abuse and insider trading rules, anti-money laundering rules and sanctions law.