FIA, FIA PTG and FIA EPTA wrote to the UK Financial Conduct Authority (FCA) on 11 September 2015 setting out their views on third country firms engaged in dealing exclusively on own account or providing services/performing investment activities outside the EU to clients outside the EU when accessing European markets through direct membership of DEA under MiFID II. The associations believe that authorisation and registration requirements set out in MiFID II and MIFIR do not apply to such firms for reasons set out in the letter:
- A third country firm is not an 'investment firm'
- The authorisation requirements under Article 5 MiFID II require authorisation to be granted by the “home Member State competent authority.”
- Two aspects of third-country firm provision of services in the Union are expressly addressed in MiFID II / MiFIR but neither would apply where the third-country firm is solely providing services or performing investment activities outside the EU to clients outside the EU or is engaged in dealing exclusively on own account.
- Prior to an equivalence decision taken by the Commission in respect of the effective equivalence of a third-country jurisdiction, Member States’ national regimes will apply to third-country firms, and so it will be for each Member State to determine authorisation requirements applicable to third country firms.
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